[Federal Register Volume 79, Number 236 (Tuesday, December 9, 2014)]
[Proposed Rules]
[Pages 73010-73025]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-28808]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 120912447-4999-02]
RIN 0648-BC56


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

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; withdrawal and reproposal.

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SUMMARY: On December 3, 2014, we, NMFS, published in the Federal 
Register a proposal to designate critical habitat for the Arctic 
subspecies (Phoca hispida hispida) of the ringed seal (Phoca hispida) 
under the Endangered Species Act (ESA). Due to a clerical error, that 
document contained numerous errors. To avoid confusion, we are 
withdrawing that proposed rule and reproposing the correct document 
through this action. Specifically, we propose to designate one specific 
area of marine habitat in the northern Bering, Chukchi, and Beaufort 
seas. We are soliciting comments from the public on all aspects of the 
proposal, including

[[Page 73011]]

our identification and consideration of the economic, national 
security, and other relevant impacts of the proposed designation.

DATES: As of December 9, 2014, the proposed rule published December 3, 
2014 (79 FR 17174), is withdrawn. Comments on this proposed rule must 
be received by March 9, 2015. Four public hearings on the proposed rule 
will be held in Alaska (Anchorage, Barrow, Kotzebue, and Nome). The 
dates and times of these hearings will be provided in a subsequent 
Federal Register notice.

ADDRESSES: You may submit comments on this document, identified by FDMS 
Docket Number NOAA-NMFS-2013-0114, by any one of the following methods:
    <bullet> Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0114, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
    <bullet> Mail: Address written comments to Jon Kurland, Assistant 
Regional Administrator for Protected Resources, Alaska Region NMFS, 
Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, AK 
99802-1668.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on http://www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous). Attachments to electronic comments will be accepted in 
Microsoft Word, Excel, or Adobe PDF file formats only.
    Electronic copies of the proposed rule, list of references and 
supporting documents, and the draft economic report (i.e., Regulatory 
Impact Review (RIR)/4(b)(2) Preparatory Assessment/Initial Regulatory 
Flexibility Act (IRFA) report) prepared for this action are available 
from http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0114 or 
from the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov.

FOR FURTHER INFORMATION CONTACT: Tamara Olson, NMFS Alaska Region, 
(907) 271-5006; Jon Kurland, NMFS Alaska Region, (907) 586-7638; or 
Marta Nammack, NMFS Office of Protected Resources, (301) 427-8469.

SUPPLEMENTARY INFORMATION:

Background

    On December 28, 2012, we published a final rule to list the Arctic 
ringed seal as threatened under the ESA (77 FR 76706). Section 
4(b)(6)(C) of the ESA requires the Secretary of Commerce (Secretary) to 
designate critical habitat concurrently with making a determination to 
list a species as threatened or endangered unless it is not 
determinable at that time, in which case the Secretary may extend the 
deadline for this designation by 1 year. At the time of listing, we 
announced our intention to designate critical habitat for the Arctic 
ringed seal in separate rulemaking, as sufficient information was not 
available to: (1) Identify and describe the physical and biological 
features essential to the conservation of the Arctic ringed seal; and 
(2) assess the economic consequences of designating critical habitat 
for the Arctic ringed seal. At that time, we also solicited comments 
related to identification of critical habitat during a 60-day comment 
period. We received nine comment submissions in response to this 
solicitation. Subsequently we researched, reviewed, and compiled the 
best available scientific and commercial data available, including the 
public comments received to date, to develop a critical habitat 
proposal for the Arctic ringed seal. We used these data to identify the 
physical and biological features essential to the conservation of the 
Arctic ringed seal, specific areas that we are proposing as critical 
habitat for the Arctic ringed seal, and the impacts associated with the 
proposed designation.
    This proposed rule would designate critical habitat for the Arctic 
ringed seal pursuant to section 4(b)(2) of the ESA. Critical habitat is 
defined by section 3 of the ESA as: ``(i) The specific areas within the 
geographical area occupied by the species, at the time it is listed . . 
., on which are found those physical or biological features (I) 
essential to the conservation of the species and (II) which may require 
special management considerations or protection; and (ii) specific 
areas outside the geographical area occupied by the species at the time 
it is listed . . . upon a determination by the Secretary that such 
areas are essential for the conservation of the species.'' Section 3 of 
the ESA (16 U.S.C. 1532(3)) also defines the terms ``conserve,'' 
``conserving,'' and ``conservation'' to mean: ``To use, and the use of, 
all methods and procedures that are necessary to bring any endangered 
species or threatened species to the point at which the measures 
provided pursuant to this chapter are no longer necessary.'' Critical 
habitat cannot be designated in areas outside U.S. jurisdiction (50 CFR 
424.12(h)).
    Section 4(b)(2) of the ESA and our implementing regulations require 
that, before designating critical habitat, we consider the economic, 
national security, and other relevant impacts of the designation. The 
Secretary has discretion to exclude any particular area from the 
critical habitat if she determines that the benefits of exclusion 
outweigh the benefits of designation. The Secretary, however, may not 
exclude a particular area if the failure to designate that area as 
critical habitat would result in the extinction of the species.
    Once critical habitat is designated, section 7(a)(2) of the ESA 
requires Federal agencies to ensure they do not fund, authorize, or 
carry out any actions that will destroy or adversely modify that 
habitat. This requirement is additional to the section 7 requirement 
that Federal agencies ensure their actions do not jeopardize the 
continued existence of listed species.
    This proposed rule describes information on Arctic ringed seal 
biology, distribution, and habitat use, the methods used to develop the 
proposed designation, and our proposal to designate critical habitat 
for the Arctic ringed seal.

Arctic Ringed Seal Biology and Habitat Use

    The following discussion of the natural history and ecology of 
Arctic ringed seals as it relates to habitat use is based on the best 
scientific and commercial data available, including information in the 
status review report for the ringed seal (Kelly et al., 2010a). In this 
proposed rule, we focus on those aspects directly relevant to the 
designation of critical habitat for the Arctic ringed seal. For more 
detailed information on the biology and habitat use of ringed seals, 
refer to the status review report and the proposed and final listing 
rules (75 FR 77476, December 10, 2010; 77 FR 76706, December 28, 2012).
    The Arctic ringed seal is the smallest of the northern seals, with 
typical adult body size of 1.5 m in length and 70 kg in weight. Arctic 
ringed seal females generally reach sexual maturity at 3 to 6 years of 
age, and males at 5 to 7 years of age, but with geographic and

[[Page 73012]]

temporal variability depending on animal condition and population 
structure. The average life span of Arctic ringed seals is about 15 to 
28 years.

Seasonal Distribution and Habitat Use

    Arctic ringed seals are circumpolar and are found throughout ice-
covered waters of the Arctic Basin and southward into adjacent seas, 
including the Bering and Labrador seas. In the United States, ringed 
seals occur in the Beaufort, Chukchi, and Bering seas off Alaska's 
coast, as far south as Bristol Bay in years of extensive ice coverage 
(King, 1964; Frost and Lowry, 1981; Frost, 1985; Kelly, 1988; Rice, 
1998).
    Ringed seals are adapted to remaining in heavily ice-covered areas 
throughout the fall, winter, and spring by using the stout claws on 
their foreflippers to maintain breathing holes in the ice. Arctic 
ringed seals do not normally come ashore, but instead use sea ice as a 
substrate for resting, whelping (birthing), nursing, and molting 
(shedding and regrowing hair and outer skin layers). The seasonality of 
ice cover strongly influences Arctic ringed seal movements, foraging, 
reproductive behavior, and vulnerability to predation. Kelly et al. 
(2010b) referred to three time periods important to Arctic ringed seal 
seasonal movements and habitat use: the winter through early spring 
``subnivean period'' when the seals rest primarily in subnivean lairs 
(snow caves on top of the ice); the late spring to early summer 
``basking period'' between abandonment of the lairs and melting of the 
seasonal sea ice when the seals undergo their annual molt; and the 
open-water ``foraging period'' when feeding occurs most intensively 
during late summer through fall.
    Subnivean Period: With the advance of winter, many Arctic ringed 
seals that summer in the Beaufort and Chukchi seas are thought to move 
generally west and south with the advancing ice, while others remain in 
the Beaufort Sea (Frost, 1985). Adult movements during the subnivean 
period have been reported as typically limited, especially where ice 
cover is extensive, likely due to maintenance of breathing holes and 
social behavior during the breeding season (Kelly and Quakenbush, 1990; 
Kelly et al., 2010b; Crawford et al., 2012). In contrast, subadult 
Arctic ringed seals have been observed to travel relatively long 
distances in winter to near the ice edge in the Bering Sea (Crawford et 
al., 2012).
    At freeze up in the fall, ringed seals surface to breathe in the 
remaining open water of cracks and leads. As these openings in the ice 
freeze over, the seals push through the ice to breathe until it is too 
thick (Lukin and Potelov, 1978). They then open breathing holes by 
abrading the ice with the claws on their foreflippers (Bailey and 
Hendee, 1926; Smith and Stirling, 1975). As the ice thickens, the seals 
continue to maintain the breathing holes by scratching at the walls. As 
snow accumulates and buries the breathing hole, the seals breathe 
through the snow layer. Ringed seals excavate lairs in the snow above 
breathing holes where snow depth is sufficient (Chapskii, 1940; 
McLaren, 1958; Smith and Stirling, 1975). These subnivean lairs are 
occupied for resting, whelping, and nursing young in areas of annual 
landfast (shorefast) ice (McLaren, 1958; Burns, 1970) and stable pack 
ice (Finley et al., 1983; Wiig et al., 1999; Bengtson et al., 2005) 
that has undergone a low to moderate amount of deformation and where 
pressure ridges or ice hummocks have caused snow to form drifts of 
sufficient depth (Smith and Stirling, 1975; Lydersen and Gjertz, 1986; 
Kelly, 1988; Furgal et al., 1996; Lydersen, 1998).
    Females give birth to a single pup in their lairs during mid-March 
through April (Kelly et al., 2010a) and the pups are nursed in the 
lairs for an average of 39 days (Hammill et al., 1991). Females 
continue to forage throughout lactation while making frequent visits to 
birth lairs (Hammill, 1987; Kelly and Wartzok, 1996; Simpkins et al., 
2001). The pups develop foraging skills prior to weaning (Lydersen and 
Hammill, 1993), and are normally weaned before break-up of spring ice.
    Lairs provide protection from cold and predators throughout the 
winter months, but they are especially important for protecting newborn 
ringed seals. Lairs conceal ringed seals from predators, an advantage 
especially important to the small pups that start life with minimal 
tolerance for immersion in cold water (Smith et al., 1991). Polar bears 
prey heavily on ringed seals. Other predators include Arctic foxes, 
common ravens, and glaucous gulls. Pups in lairs with thin snow cover 
are more vulnerable to polar bear predation than pups in lairs with 
thick snow cover (Hammill and Smith, 1989; Ferguson et al., 2005). For 
example, Hammill and Smith (1991) noted that polar bear predation on 
ringed seal pups increased 4-fold in a year when average snow depths in 
their study area decreased from 23 to 10 cm. When ringed seal pups are 
forced out of subnivean lairs prematurely because of low snow 
accumulation and/or early melts, gulls and ravens can also successfully 
prey on them (Kumlien, 1879; Gjertz and Lydersen, 1983; Lydersen and 
Gjertz, 1987; Lydersen et al., 1987; Lydersen and Smith, 1989; Lydersen 
and Ryg, 1990; Lydersen, 1998). Stirling and Smith (2004) surmised that 
most pups that survived exposure to cold after their subnivean lairs 
collapsed during unseasonal rains were eventually killed by polar 
bears, Arctic foxes, or gulls.
    Subnivean lairs also provide refuge from air temperatures too low 
for survival of ringed seal pups. When forced to flee into the water to 
avoid predators, the ringed seal pups that survive depend on the 
subnivean lairs to subsequently warm themselves. When snow cover is 
insufficient, pups can freeze in their lairs, as documented when roofs 
of lairs in the White Sea were only 5 to 10 cm thick (Lukin and 
Potelov, 1978). Stirling and Smith (2004) also documented exposure of 
ringed seals to hypothermia following the collapse of subnivean lairs 
during unseasonal rains near southeastern Baffin Island.
    During winter and spring, Arctic ringed seals are found throughout 
the Chukchi and Beaufort seas; and in the Bering Sea, surveys indicate 
that ringed seals use nearly the entire ice field over the Bering Sea 
shelf. During an exceptionally high ice year (1976), Braham et al. 
(1984) found ringed seals present in the southeastern Bering Sea north 
of the Pribilof Islands to outer Bristol Bay, primarily north of the 
ice front. But they noted that most of these seals were likely immature 
or nonbreeding animals. Frost (1985) indicated that ringed seals 
``occur as far south as Nunivak Island and Bristol Bay, depending on 
ice conditions in a particular year, but generally are not abundant 
south of Norton Sound except in nearshore areas.'' However, recent 
surveys conducted in the Bering Sea during spring have documented 
ringed seals in both nearshore and offshore habitat including south of 
Norton Sound, AK (National Marine Mammal Laboratory, 2012, unpublished 
data). Crawford et al. (2012) reported that the adult ringed seals 
tagged in Kotzebue Sound, AK, remained in the Chukchi Sea and the 
northern Bering Sea north of St. Lawrence Island during winter and 
spring. However, movement data for ringed seals tagged near Barrow, AK, 
indicated that some adults over-wintered farther south toward the shelf 
break in the Bering Sea (North Slope Borough, 2012, unpublished data). 
Finally, harvest of ringed seal pups by hunters in Quinhagak, Alaska 
(Coffing et al., 1998) suggests that some ringed seals may whelp south 
of Nunivak Island.
    Basking Period: Numbers of ringed seals hauled out on the surface 
of the ice

[[Page 73013]]

typically begin to increase during spring as the temperatures warm and 
the snow covering the seals' lairs melts. Although the snow cover can 
melt rapidly, the ice remains largely intact and serves as a substrate 
for annual molting, during which time seals spend many hours basking in 
the sun (Smith, 1973; Smith and Hammill, 1981; Finley, 1979; Kelly and 
Quakenbush, 1990; Kelly et al., 2010b). Adults generally molt from mid-
May to mid-July (McLaren, 1958), although there is regional variation. 
Kelly and Quakenbush (1990) reported that in the Beaufort and Chukchi 
seas, most seals begin basking in late May or early June. Usually the 
largest numbers of basking seals are observed in June (McLaren, 1958; 
Smith, 1973; Finley, 1979; Smith et al., 1979; Smith and Hammill, 1981; 
Moulton et al., 2002).
    The relatively long periods of time that ringed seals spend out of 
the water during the molt (Smith, 1973; Smith and Hammill, 1981; Kelly 
et al., 2010b) have been ascribed to the need to maintain elevated skin 
temperatures during new hair growth (Feltz and Fay, 1966; Kelly and 
Quakenbush, 1990). Higher skin temperatures are facilitated by basking 
on the ice and this may accelerate shedding and regrowth of hair and 
skin (Feltz and Fay, 1966). Feeding is reduced and the seal's 
metabolism declines during the molt (Ashwell-Erickson et al., 1986). As 
seals complete this phase of the annual pelage cycle and the seasonal 
sea ice melts during the summer, ringed seals spend increasing amounts 
of time in the water feeding (Kelly et al., 2010b).
    Open-Water Foraging Period: Most Arctic ringed seals that winter in 
the Bering and Chukchi seas are thought to migrate northward in spring 
with the receding ice edge and spend summer in the pack ice of the 
northern Chukchi and Beaufort seas (Burns, 1970; Frost, 1985). Arctic 
ringed seals are also dispersed in ice-free areas of the Bering, 
Chukchi, and Beaufort seas during the open-water period. Overall, the 
record from satellite tracking indicates that Arctic ringed seals 
breeding in landfast ice practice one of two strategies during the 
open-water foraging period (Freitas et al., 2008). Some seals forage 
within 100 km of their landfast ice breeding habitat, while others make 
extensive movements of hundreds or thousands of kilometers to forage in 
highly productive areas and along the pack ice edge. Movements during 
the open-water foraging period by Arctic ringed seals that breed in the 
pack ice are unknown. High- quality, abundant food is important to the 
annual energy budgets of ringed seals. Ringed seals typically lose a 
significant proportion of their blubber mass during the spring to early 
summer and then replenish their blubber reserves by increasing feeding 
during late summer, fall, and winter.

Diet

    Arctic ringed seals eat a wide variety of prey spanning several 
trophic levels; however, most prey is small and preferred fishes tend 
to be schooling species that form dense aggregations. Ringed seals 
rarely prey upon more than 10 to 15 species in any specific 
geographical location, and not more than 2 to 4 of those species are 
considered important prey. Despite regional and seasonal variations in 
the diets of Arctic ringed seals, fishes of the cod family tend to 
dominate their diet in many areas from late autumn through early 
spring. Arctic cod (Boreogadus saida) is often reported to be among the 
most important prey species, especially during the ice-covered periods 
of the year. Crustaceans appear to become more important in many areas 
during the open water season, and are often found to dominate the diets 
of young ringed seals.

Critical Habitat Identification

    In the following sections, we describe the relevant definitions and 
requirements in the ESA, and our implementing regulations, and the key 
information and criteria used to prepare this proposed critical habitat 
designation. In accordance with section 4(b)(2) of the ESA and our 
implementing regulations at 50 CFR part 424, this proposed critical 
habitat designation is based on the best scientific data available. Our 
primary sources of information are the NMFS status review report for 
the ringed seal (Kelly et al., 2010a) and the proposed and final rules 
to list four subspecies of the ringed seals, including the Arctic 
ringed seal (75 FR 77476, December 10, 2010; 77 FR 76706, December 28, 
2012). Additional information sources include articles in peer-reviewed 
journals, other scientific reports, and relevant Geographic Information 
System (GIS) data (such as shoreline, maritime limits and boundaries, 
and sea ice extent) for area calculations and mapping.
    We followed a five-step process to identify specific areas that may 
qualify as critical habitat for the Arctic ringed seal: (1) Determine 
the geographical area occupied by the species; (2) identify physical or 
biological habitat features essential to the conservation of the 
species; (3) delineate specific areas within the geographical area 
occupied by the species on which are found the physical or biological 
features; (4) determine whether the features in a specific area may 
require special management considerations or protection; and (5) 
determine whether any unoccupied areas are essential for conservation. 
Our evaluation and conclusions are described in detail in the following 
sections.

Geographical Area Occupied by the Species

    The range of the Arctic ringed seal was identified in the final ESA 
listing rule (77 FR 76706; December 28, 2012) as the Arctic Ocean and 
adjacent seas, except west of 157[deg] E. long. (the Kamchatka 
Peninsula), where the Okhotsk subspecies of the ringed seal occurs, or 
in the Baltic Sea where the Baltic subspecies of the ringed seal is 
found. As noted above, we cannot designate areas outside U.S. 
jurisdiction as critical habitat. Thus, the geographical area under 
consideration for this designation is limited to areas under the 
jurisdiction of the United States that Arctic ringed seals actually 
occupied at the time of listing. This area extends to the outer 
boundary of the U.S. Exclusive Economic Zone (EEZ) in the Chukchi and 
Beaufort seas, and south into the Bering Sea, as far south as Bristol 
Bay in years with extensive ice coverage (Kelly et al., 2010a). We 
consider the shoreward extent of this area to be the ``coast line'' of 
Alaska as that term has been defined in the Submerged Lands Act (``the 
line of ordinary low water along that portion of the coast which is in 
direct contact with the open sea and the line marking the seaward limit 
of inland waters''), 43 U.S.C. 1301(c).

Physical or Biological Features Essential to the Conservation of the 
Species

    Implementing regulations at 50 CFR 424.12(b) state that in 
determining what areas are critical habitat, the Secretary ``shall 
consider those physical and biological features that are essential to 
the conservation of a given species and that may require special 
management considerations or protection.'' These features may include: 
``(1) Space for individual and population growth, and for normal 
behavior; (2) Food, water, air, light, minerals, or other nutritional 
or physiological requirements; (3) Cover or shelter; (4) Sites for 
breeding, reproduction, rearing of offspring, germination, or seed 
dispersal; and generally: (5) Habitats that are protected from 
disturbance or are representative of the historic geographical and 
ecological distributions of a species.'' The regulations further state 
the Secretary shall ``focus on the principal biological or physical 
constituent elements within the defined area that are essential to the

[[Page 73014]]

conservation of the species. Known primary constituent elements shall 
be listed with the critical habitat description. Primary constituent 
elements may include the following: roost sites, nesting grounds, 
spawning sites, feeding sites, seasonal wetland or dryland, water 
quality or quantity, host species or plant pollinator, geological 
formation, vegetation type, tide, and specific soil types.'' For the 
purposes of this proposed rule, the essential features identified are 
the same as primary constituent elements. Based on the best scientific 
information available on the physical and biological features and 
habitat characteristics required to sustain its life history functions, 
we have determined that the following features are essential to the 
conservation of the Arctic ringed seal in the United States.
    1. Sea ice habitat suitable for the formation and maintenance of 
subnivean birth lairs used for sheltering pups during whelping and 
nursing, which is defined as seasonal landfast (shorefast) ice, except 
for any bottom-fast ice extending seaward from the coast line in waters 
less than 2 m deep, or dense, stable pack ice, that has undergone 
deformation and contains snowdrifts at least 54 cm deep.
    Sea ice habitat suitable for the formation and maintenance of 
subnivean birth lairs used for sheltering pups during whelping and 
nursing is essential to conservation of the Arctic ringed seal because 
as discussed above, without the protection of lairs, ringed seal pups 
are more vulnerable to freezing and predation.
    Snowdrifts of sufficient depth for birth lair formation and 
maintenance typically occur in deformed ice where drifting has taken 
place along pressure ridges or ice hummocks (Smith and Stirling, 1975; 
Lydersen and Gjertz, 1986; Kelly, 1988; Furgal et al., 1996; Lydersen, 
1998). For purposes of assessing potential impacts of projected changes 
in April Northern Hemisphere snow conditions on ringed seals, Kelly et 
al. (2010a) considered 20 cm to be the minimum average snow depth 
required on areas of flat ice to form drifts of sufficient depth to 
support birth lair formation. Further, Kelly et al. (2010a, p. 109) 
discussed that ringed seals require snow drift depths of 50 to 65 cm or 
more to support birth lair formation. To identify a snow drift depth 
criterion for sea ice habitat that we consider essential for Arctic 
ringed seal birth lair formation and maintenance, we derived a specific 
depth threshold as follows. At least seven studies have reported 
minimum snowdrift depth measurements at Arctic ringed seal birth lairs 
(typically measured near the center of the lairs or over the breathing 
holes) off the coasts of Alaska (Kelly et al., 1986; Frost and Burns, 
1989), the Canadian Arctic Archipelago (Smith and Stirling, 1975; 
Kelly, 1988; Furgal et al., 1996), Svalbard (Lydersen and Gjertz, 
1986), and in the White Sea (Lukin and Potelov, 1978). The average 
minimum snowdrift depth at birth lairs was 54 cm across all of the 
studies combined, and 64 cm in the Alaska studies only. The average 
from studies in Alaska is based on data from fewer years over a shorter 
time span than from all studies combined (3 years during 1982-1984 
versus 11 years during 1971-1993, respectively); consequently, the 
Alaska-specific average is more likely to be biased if an anomalous 
weather pattern occurred during its more limited timeframe. For this 
reason, we conclude that the average minimum snowdrift depth based on 
all studies combined (54 cm) provides the best estimate of the minimum 
snowdrift depth that is essential for birth lairs.
    Arctic ringed seals appear to favor landfast ice as whelping 
habitat. However, landfast ice extending seaward from shore generally 
freezes to the sea bottom in very shallow water (less than about 1.5 to 
2 m deep) during the course of winter (commonly referred to as 
``bottom-fast'' ice; Newbury, 1983; Hill et al., 1991), rendering it 
unsuitable for ringed seal birth lairs. Ringed seal whelping has also 
been observed on both nearshore and offshore drifting pack ice. As 
Reeves (1998) noted, nearly all research on Arctic ringed seal 
reproduction has been conducted in landfast ice, and the potential 
importance of stable but drifting pack ice has not been adequately 
investigated. Studies in the Barents Sea (Wiig et al., 1999) and Baffin 
Bay (Finley et al., 1983) have documented pup production in pack ice, 
and Smith and Stirling (1975), citing unpublished data from the 
``Western Arctic'' (presumably the Canadian Beaufort Sea), indicated 
that ``the offshore areas of shifting but relatively stable ice are an 
important part of the breeding habitat.'' Lentfer (1972) reported ``a 
significant amount of ringed seal denning and pupping on moving heavy 
pack ice north of Barrow.'' Arctic ringed seal vocalizations detected 
throughout the winter and spring in long-term autonomous acoustic 
recordings collected along the shelf break north-northwest of Barrow 
also suggest that some ringed seals overwinter and breed in offshore 
pack ice (Jones et al., in press). We therefore conclude that the best 
scientific information available indicates that sea ice habitat 
essential for construction and maintenance of birth lairs includes 
areas of both shorefast ice, except for any bottom-fast ice extending 
seaward from the coast line in waters less than 2 m deep, and dense, 
stable pack ice that has undergone deformation and contains snowdrifts 
of sufficient depths, i.e., 54 cm.
    2. Sea ice habitat suitable as a platform for basking and molting, 
which is defined as sea ice of 15 percent or more concentration, except 
for any bottom-fast ice extending seaward from the coast line in waters 
less than 2 m deep.
    Sea ice habitat suitable as a platform for basking and molting is 
essential to conservation of the Arctic ringed seal because molting is 
a biologically-important, energy-intensive process that could incur 
increased energetic costs if it were to occur in water, or increased 
risk of predation if it were to occur on land. Moreover, we are unaware 
of any studies establishing whether Arctic ringed seals can molt 
successfully in water, or reports of healthy Arctic ringed seals 
basking on land (they are known to come ashore when sick). If Arctic 
ringed seals were unable to successfully complete their annual molt, 
they would be at increased risk from parasites and disease.
    During their annual molt, Arctic ringed seals transition from lair 
use to basking on the surface of the ice for long periods of time near 
breathing holes, lairs, or cracks in the ice. As discussed above, 
landfast ice extending seaward from shore generally freezes to the sea 
bottom in very shallow water during the course of winter and remains so 
into spring (Newbury, 1983; Hill et al., 1991), overlapping with a 
portion of the molting period. There is also some evidence that ringed 
seal densities are lower in very shallow waters, at least in the 
Beaufort Sea during late May to early June (Moulton et al., 2002; Frost 
et al., 2004). We therefore conclude that ice essential for basking and 
molting is unlikely to include bottom-fast ice extending from the coast 
line in waters less than 2 m deep.
    There are limited data available on ice concentrations (percentage 
of ocean surface covered by sea ice) favored by Arctic ringed seals 
during the basking period, in particular for the time period following 
ice breakup. Although a number of studies have reported an apparent 
preference for consolidated stable ice (i.e., landfast ice and 
consolidated pack ice), at least during the initial weeks of the 
basking period, some of these studies have also reported observations 
of Arctic ringed seals

[[Page 73015]]

hauled out at low densities in unconsolidated ice (e.g., Stirling et 
al., 1982; Kingsley et al., 1985; Lunn et al., 1997; Chambellant et 
al., 2012). Arctic ringed seals in the Chukchi Sea have also been 
observed basking in high densities on the last remnants of the seasonal 
sea ice during late June to early July, near the end of the molting 
period (Shawn Dahle, NMFS, personal communication, 2013). Crawford et 
al. (2012) reported that the average ice concentrations (<plus-minus> 
standard error [SE]; standard error is a measure of variability in the 
data) used by ringed seals in the Chukchi and Bering seas during the 
basking period in June was 20 percent (SE = 7.8 percent) for subadults 
and 38 percent (SE = 21.4 percent) for adults. Based on the best 
available information, we conclude that sea ice essential for basking 
and molting is sea ice of at least 15 percent concentration.
    3. Primary prey resources to support Arctic ringed seals, which are 
defined to be Arctic cod, saffron cod, shrimps, and amphipods.
    Primary prey resources are essential to conserving the Arctic 
ringed seal, because Arctic ringed seals likely rely on these prey 
resources the most to meet their annual energy budgets. Arctic ringed 
seals feed on a wide variety of vertebrate and invertebrate prey 
species, but certain prey species appear to occupy a prominent role in 
their diets in waters along the Alaskan coast. Quakenbush et al. (2011, 
Table 3) reported that prey items found in at least 25 percent of 
ringed seal stomachs collected within the 1961 to 1984 and 1998 to 2009 
time periods in the Bering and Chukchi seas included Arctic cod, 
saffron cod (Eleginus gracilis), shrimps (from the families 
Hippolytidae, Pandalidae, and Crangonidae), and amphipods (primarily 
from the families Gammaridae and Hyperiidae). In the Barrow vicinity, 
Dehn et al. (2007, Table 2) reported that prey items found in at least 
25 percent of the stomachs of ringed seals collected between 1996 and 
2001 included euphausiids (Thysanoessa spp.), cods (primarily Arctic 
and saffron cod), mysids (Mysis and Neomysis spp.), amphipods, and 
Pandalid shrimps. Finally, Lowry et al. (1980) found that prey items 
that were consumed in the greatest quantities (i.e., >=25 percent of 
the total food volume in any of the five seasonal samples) by ringed 
seals in the Bering and Chukchi seas included Arctic cod, saffron cod, 
shrimp, and amphipods (Chukchi Sea only), and in the central Beaufort 
Sea included Arctic cod as well as Gammarid and Hyperiid amphipods. 
Arctic cod, saffron cod, shrimps, and amphipods were identified as 
prominent prey species for the studies conducted in both the Bering Sea 
and the Chukchi Sea. As noted above, Arctic cod and amphipods were also 
identified as the most important prey species by volume for ringed 
seals sampled in the Beaufort Sea. Therefore, based on these studies, 
we conclude that Arctic cod, saffron cod, shrimps, and amphipods are 
the primary prey resources of Arctic ringed seals in U.S. waters. As 
discussed above, Arctic ringed seals feed on a variety of prey items 
and regional and seasonal differences in diet have been reported; 
therefore, we conclude that areas in which the primary prey essential 
feature occurs will contain one or more of these particular prey 
resources.

Specific Areas Containing Physical or Biological Features Essential to 
the Species

    After determining the geographical area occupied by the Arctic 
ringed seal at the time of listing, and identifying the physical and 
biological features essential to its conservation, we then considered 
which specific area(s) may be eligible for designation as critical 
habitat. For a specific area to be eligible for designation, it must 
contain at least one physical or biological feature essential to the 
conservation of the species that may require special management 
considerations or protection. When several habitats, each satisfying 
the requirements for designation as critical habitat, are located in 
proximity to one another, a single inclusive area may be designated as 
critical habitat (50 CFR 424.12(d)).
    In identifying these specific areas, we first focused on those 
physical or biological features that support the critical Arctic ringed 
seal life history functions of whelping and nursing, when birth lairs 
are constructed and maintained, and molting (i.e., specific areas that 
contain the sea ice essential features). As discussed above, Arctic 
ringed seals are highly associated with sea ice, and are thought to 
migrate seasonally to maintain access to the ice. Arctic ringed seal 
whelping, nursing, and molting occur in the Bering, Chukchi, and 
Beaufort seas. To delineate specific areas that contain one or both of 
the sea ice essential features we considered where the sea ice 
essential features occur in all three seas.
    The dynamic nature of sea ice and the spatial and temporal 
variations in sea ice cover and on-ice snow cover constrain our ability 
to map with precision the specific geographic locations where the ice-
associated essential features occur. The specific geographic locations 
of where essential sea ice habitat occurs vary from year to year, or 
even day to day, depending on many factors, including time of year, 
local weather, and oceanographic conditions. In addition, the duration 
that any given location has sea ice habitat essential for birth lairs 
or for molting can vary annually depending on the rate of ice melt and 
other factors. Temporal overlap of Arctic ringed seal molting with 
whelping and nursing, combined with the dynamic nature of sea ice, also 
makes it impracticable to separately identify specific areas where each 
of these essential sea ice features occur. Since the ESA requires the 
designation of critical habitat where one or more such features occur, 
the inability to separately identify areas where each essential ice 
feature occurs is inconsequential. Arctic ringed seals can range 
widely, which, combined with the dynamic variations in sea ice and snow 
cover, results in individuals distributing broadly and utilizing 
different sea ice habitat within a range of suitable conditions. We 
integrated these physical and biological factors into our 
identification of specific areas based on the seasonal distribution and 
movements of Arctic ringed seals and satellite-derived estimates of the 
position of the ice edge over time. Although this approach allowed us 
to identify specific areas that contain one or both of the essential 
sea ice features, the available data supported delineation of specific 
areas only at a coarse scale. Consequently, we delineated a single 
specific area that contains the sea ice features essential to the 
conservation of Arctic ringed seals, as described below. We note that 
because the primary prey essential feature occurs in very shallow 
nearshore waters, we based the shoreward boundary of the single 
specific proposed critical habitat area principally on presence of the 
primary prey essential feature, as discussed below.
    We first identified the southern boundary of the specific area 
essential to conservation of the Arctic ringed seal. The information 
discussed above regarding the distribution of Arctic ringed seals in 
the Bering Sea (see Seasonal Distribution and Habitat Use) suggests 
that sea ice essential for Arctic ringed seal birth lairs (and 
potentially for molting) extends to some point south of St. Matthew 
Island and Nunivak Island. A precise southern boundary for this habitat 
is unavailable because existing information is limited on the spatial 
distribution of Arctic ringed seals in the Bering Sea during spring and 
where they may whelp. In addition, although minimum on-ice snowdrift

[[Page 73016]]

depths are essential for ringed seal birth lairs, we are not aware of 
any available data on this particular component of sea ice cover in the 
Bering Sea that could assist in identifying the southern boundary of 
essential Arctic ringed seal birth lair habitat. We therefore turned to 
Sea Ice Index data maintained by the National Snow and Ice Data Center 
(NSIDC) for information on the estimated median position of the sea ice 
edge in the Bering Sea during April (Fetterer et al., 2002, updated 
2009; accessed December 2012), which is the peak month for Arctic 
ringed seal whelping activity (peak molting for adults occurs later in 
the spring). This estimated median ice edge is derived from a time 
series of satellite records for the 1979 to 2000 reference period. We 
note that the NSIDC has lengthened this reference period to include 
more recent data through 2010. However, several of those more recent 
years had above-average ice extent in the Bering Sea; and use of these 
data would have resulted in the inclusion of areas that are unlikely to 
contain the essential sea ice features on a consistent basis in more 
than a few scattered portions of those areas.
    The April median ice edge position is located approximately 135 km 
(73 nmi) southwest of St. Matthew Island and 110 km (59 nmi) south of 
Nunivak Island, which is relatively consistent with the information 
discussed above regarding the spring distribution of Arctic ringed 
seals in the Bering Sea. We therefore conclude that this estimate of 
the position of the April median ice edge provides a reasonable 
estimate of the southern extent of where the sea ice essential features 
occur. To simplify this southern boundary for purposes of delineation 
on maps, we modified this median ice edge contour as follows: (1) Line 
vertices between the intersection point of the median ice extent at the 
outer extent of the U.S. EEZ at 60[deg]31[min] N. lat., 179[deg]13[min] 
W. long., and the point at 58[deg]22[min] N. lat., 170[deg]27[min] W. 
long., were removed to form the segment of the southern boundary that 
extends from the outer extent of the U.S. EEZ southeast approximately 
553 km; (2) line vertices between 58[deg]22[min] N. lat., 
170[deg]27[min] W. long., and 59[deg] N. lat., 164[deg] W. long., were 
removed to form a second segment of the southern boundary that extends 
east approximately 370 km; and (3) finally, these two contour line 
segments were connected to the mainland coast southeast of Cape Avinof 
by 164[deg] W. long. This editing produced a simplified southern 
boundary that retains the general shape of the original contour line, 
while including 99 percent of the area encompassed by the more detailed 
original line.
    We note that some Arctic ringed seals may whelp south/southeast of 
the southern boundary described above, as evidenced by harvest records 
of ringed seal pups (Coffing et al., 1998). However, variability in the 
annual extent and timing of sea ice in this southernmost portion of the 
Arctic ringed seal's range in U.S. waters renders the area south of the 
boundary described above unlikely to contain the essential sea ice 
features on a consistent basis in more than a few scattered areas.
    We then identified the northern boundary of the specific area 
essential to conservation of the Arctic ringed seal. As discussed 
above, the available data suggest that although Arctic ringed seals 
appear to favor landfast ice, they are widely distributed offshore in 
the northern Chukchi Sea and Beaufort seas and Arctic Ocean. Molting 
ringed seals use suitable sea ice as a haul-out platform, and many 
seals are thought to migrate north with the receding ice. As discussed 
above, the specific geographic locations where the sea ice essential 
features occur vary within and between years. Given the inherent 
variability in the spatial distribution of sea ice and the widespread 
distribution of Arctic ringed seals, including in offshore pack ice, we 
defined the northern and eastern boundaries of the one specific area 
identified as the outer extent of the U.S. EEZ. We note that Canada 
contests the limits of the U.S. EEZ in the eastern Beaufort Sea, 
asserting that the line delimiting the two countries' EEZs should 
follow the 141st meridian out to a distance of 200 nmi (as opposed to 
an equidistant line that extends seaward perpendicular to the coast at 
the U.S.-Canada land border).
    Essential fish habitat (EFH) has been described and identified for 
certain life stages of Arctic cod and saffron cod (North Pacific 
Fishery Management Council, 2009), which are two of the primary ringed 
seal prey species identified as essential to its conservation. EFH for 
late juvenile and adult Arctic cod includes shallow nearshore areas of 
the continental shelf in the Chukchi and Beaufort seas, and EFH for 
late juvenile and adult saffron cod also includes a substantial portion 
of the shallow nearshore shelf habitat, primarily in the Chukchi Sea. 
Fish sampling in very shallow nearshore waters has documented presence 
of one or both of these species at study sites in the Beaufort and 
Chukchi seas (Craig et al., 1982; Raymond et al., 1984; Jarvela and 
Thorsteinson, 1999; Johnson et al., 2010; Thedinga et al., 2013), and 
presence of saffron cod has also been reported in shallow nearshore 
waters of Norton Sound (Barton, 1978). We therefore identified the 
shoreward extent of the specific area as the coast line of Alaska as 
defined above (see Geographical Area Occupied by the Species).
    Occurrence of the primary prey essential feature is also of 
particular note with respect to the northern boundary of this specific 
area. Following molting, some Arctic ringed seals may remain in 
nearshore waters along the coast to feed, while others travel 
extensively and feed farther offshore (Frost, 1985; Gjertz et al., 
2000; Freitas et al., 2008; Kelly et al., 2010b). Harwood et al. (2012) 
reported that in late summer, several tagged ringed seals that migrated 
from the Canadian Beaufort Sea to the Beaufort and Chukchi seas off 
Alaska tended to remain over the continental shelf, almost always 
remaining within 100 km of shore. However, recent telemetry data 
documenting Arctic ringed seal movements during the open-water season 
showed several seals made multiple trips between continental shelf 
waters and the southern pack ice edge (Herreman et al., 2012), which 
was well into the Arctic Basin and beyond the outer extent of the U.S. 
EEZ in some cases. Dive recorders indicated that foraging-type 
movements occurred over both the continental shelf and deep waters of 
the Arctic Basin, suggesting that both areas may be important during 
the open-water foraging period. Thus, the northern boundary of the 
specific area identified above accounts not only for habitat containing 
one or both of the sea ice features essential to conservation, but very 
likely also includes the distributions of the primary prey resources 
used by foraging Arctic ringed seals in U.S. waters. Data available to 
determine the northern boundary of the specific area are particularly 
limited. We specifically seek additional data and comments from the 
public on this aspect of the proposed critical habitat delineation (see 
Public Comments Solicited).

Special Management Considerations or Protection

    An occupied area may be designated as critical habitat only if it 
contains physical or biological features that ``may require special 
management considerations or protection'' (50 CFR 424.12(b)). It is 
important to note that the phrase ``may require special management 
considerations or protection'' refers to the physical or biological 
features, rather than the area proposed as critical habitat. We 
interpret this to mean that a feature may

[[Page 73017]]

presently or in the future require special management considerations or 
protection. Joint NMFS and USFWS regulations at 50 CFR 424.02(j) define 
``special management considerations or protection'' to mean ``any 
methods or procedures useful in protecting physical and biological 
features of the environment for the conservation of listed species.''
    The status review report (Kelly et al., 2010a) and the proposed and 
final rules listing the subspecies as threatened (75 FR 77476, December 
10, 2010; 77 FR 76706, December 28, 2012) comprehensively review the 
threats affecting the Arctic ringed seal. Based upon that review, we 
identified several categories of human activities and associated 
threats that may affect each of the features identified as essential to 
conservation of Arctic ringed seals. These activities include: 
greenhouse gas (GHG) emissions; oil and gas exploration, development, 
and production; shipping and transportation; and commercial fishing. 
Below, we evaluate whether each essential feature may require special 
management considerations or protection due to the potential effects of 
these activities on the essential features. We note that our evaluation 
does not consider an exhaustive list of potential effects on the 
essential features, but rather considers the primary potential effects 
that we are aware of at this time.
    GHG Emissions: The principal threat to the persistence of the 
Arctic ringed seal is the ongoing and anticipated loss of sea ice and 
on-ice snow cover stemming from climate change. Climate change related 
threats to the Arctic ringed seal's habitat are discussed in detail in 
the ringed seal status review report (Kelly et al., 2010a), as well as 
in the proposed and final rules listing the Arctic ringed seal as 
threatened. Activities that release carbon dioxide and other heat-
trapping GHGs into the atmosphere, most notably those that involve 
fossil fuel combustion, are a major contributing factor to climate 
change and loss of sea ice (IPCC, 2013). Such activities may adversely 
affect the essential features of Arctic ringed seal habitat by 
diminishing sea ice suitable for birth lairs and molting, and by 
causing changes in the distribution and/or species composition of prey 
resources. The best scientific data currently available do not allow us 
to identify a causal linkage between any particular single source of 
GHG emissions and identifiable effects on the physical and biological 
features essential to Arctic ringed seals. Regardless, given that the 
quality and quantity of these essential habitat features, in particular 
sea ice, may be diminished by the effects of climate change, we 
conclude that special management considerations or protection may be 
necessary, either now or in the future, even if the exact focus and 
nature of that management is presently undeterminable.
    Oil and Gas Activity: Extensive oil and gas reserves, coupled with 
rising global demand, make it very likely that oil and gas activity 
will increase throughout the Arctic in the future. Oil and gas 
exploration, development, and production activities in the U.S. Arctic 
may include: seismic surveys; exploratory, delineation, and production 
drilling operations; construction of artificial islands, causeways, ice 
roads, shore-based facilities, and pipelines; and vessel and aircraft 
operations. These activities have the potential to affect Arctic ringed 
seals and their habitat, primarily through noise, physical disturbance, 
and pollution, particularly in the event of an oil spill, and 
especially a large oil spill. We note that in this section references 
to ``large'' or ``major'' spills are intended to connote spills of 
relatively great size, consistent with common usage of the terms.
    The Arctic ringed seal's range overlaps with, and is adjacent to, a 
number of active and planned oil and gas operations. To date, most oil 
and gas activities conducted off the Alaska coast have occurred in the 
Beaufort Sea, primarily near Prudhoe Bay. No oil fields have been 
developed or brought into production in the Chukchi Sea; however, the 
one recent lease sale in the Chukchi Sea (Lease Sale 193) and 
exploration drilling programs moving forward in this region signal 
growing interest in oil and gas development there.
    Large oil spills are generally considered to be the greatest threat 
of oil and gas activities in the Arctic marine environment (Arctic 
Monitoring and Assessment Program (AMAP), 2007). In contrast to spills 
on land, large spills at sea are difficult to contain and may spread 
over hundreds or thousands of kilometers. Responding to a sizeable 
spill in the Arctic environment would be particularly challenging. 
Reaching a spill site and responding effectively would be especially 
difficult, if not impossible, in winter when weather can be severe and 
daylight extremely limited. Oil spills under ice or in ice-covered 
waters are the most challenging to deal with, due to, among other 
factors, limitations on the effectiveness of current containment and 
recovery technologies when sea ice is present. The extreme depth and 
the pressure that oil was under during the 2010 oil blowout at the 
Deepwater Horizon well in the Gulf of Mexico may not exist in the 
shallow continental shelf waters of the Beaufort and Chukchi seas. 
Nevertheless, the difficulties experienced in stopping and containing 
that blowout, where environmental conditions, available infrastructure, 
and response preparedness are comparatively good, point toward even 
greater challenges should a large spill occur in a much more 
environmentally severe and geographically remote U.S. Arctic location.
    Although planning, management, and use of best practices can help 
reduce risks and impacts, the history of oil and gas activities 
indicates that accidents cannot be eliminated (AMAP, 2007). Data on 
large spills (e.g., operational discharges, spills from pipelines, 
blowouts) in Arctic waters are limited because oil exploration and 
production there has been limited. The Bureau of Ocean Energy 
Management (BOEM, 2011) estimated the chance of one or more oil spills 
greater than or equal to 1,000 barrels occurring if development were to 
take place in the Beaufort Sea or Chukchi Sea Planning Areas as 26 
percent for the Beaufort Sea over the estimated 20 years of production 
and development, and 40 percent for the Chukchi Sea over the estimated 
25 years of production and development.
    The introduction of sounds and physical disturbance associated with 
oil and gas exploration and development could also affect Arctic ringed 
seals and their habitat. Such activities may include physical presence 
of vessels, icebreaking activity, aircraft activity, seismic surveys, 
site clearance and shallow hazards surveys, and drilling and production 
activities. Icebreaking vessels, which may be used for in-ice seismic 
surveys or to manage ice near exploratory drilling ships, have the 
potential to affect Arctic ringed seals and their habitat through both 
acoustic effects and physical alteration of the sea ice (Richardson et 
al., 1995). Seismic surveys are a particularly intense source of noise, 
and thus warrant specific consideration. Arctic ringed seals, like 
other phocids or ``true'' seals, have good low-frequency hearing, and 
so it is expected that they will be susceptible to masking of 
biologically significant signals by low frequency sounds, such as those 
from seismic surveys (Gordon et al., 2003). Reported seal responses to 
seismic surveys have been variable and often contradictory, although 
they suggest that pinnipeds frequently do not avoid the area within a 
few hundred meters of operating airgun arrays (Brueggeman et al., 1991; 
Harris et al.;

[[Page 73018]]

2001, Miller and Davis, 2002). Construction, drilling, and development 
activities on a manmade artificial island were reported to have had at 
most minor, short-term, and localized effects on ringed seals 
(Blackwell et al., 2004; Richardson and Williams, 2004; Moulton et al., 
2005); and during a single season of a nearshore exploratory drilling 
operation, Harwood et al. (2007) found no detectable effects on ringed 
seals.
    In summary, a major oil spill could render areas containing the 
identified essential features unsuitable for use by Arctic ringed 
seals. In such an event, sea ice habitat suitable for whelping, 
nursing, or molting could be oiled. The primary Arctic ringed seal prey 
species could also become contaminated, experience mortality, or be 
otherwise adversely affected by spilled oil. In addition, disturbance 
effects (both physical disturbance and acoustic effects) could alter 
the quality of the essential features of Artic ringed seal critical 
habitat, or render habitat unsuitable. We conclude that the essential 
features of the habitat of the Arctic ringed seal may require special 
management considerations or protection in the future to minimize the 
risks posed to these features by oil and gas exploration, development, 
and production.
    Shipping and Transportation: The reduction in Arctic sea ice that 
has occurred in recent years has renewed interest in using the Arctic 
Ocean as a potential waterway for coastal, regional, and trans-Arctic 
marine operations (Brigham and Ellis, 2004). Climate models predict 
that the warming trend in the Arctic will accelerate, causing the ice 
to begin melting earlier in the spring and resume freezing later in the 
fall, resulting in an expansion of potential shipping routes and a 
lengthening of the potential navigation season (Arctic Climate Impact 
Assessment (ACIA), 2004; Khon et al., 2010). At present, the two main 
navigation routes crossing the Arctic are the Northwest Passage (NWP) 
and the Northern Sea Route (NSR). Based on an analysis of sea ice model 
projections, Smith and Stephenson (2013) concluded that, by mid-
century, changing sea ice conditions will enable expanded September 
navigability for common open-water ships along these two navigation 
routes. By 2100, the navigation season for the NSR is projected to 
increase from the current period of 20 to 30 days per year to 90 to 100 
days per year (ACIA, 2004).
    The fact that nearly all shipping activity in the Arctic (with the 
exception of icebreaking) purposefully avoids areas of ice, and 
primarily occurs during the ice-free or low-ice seasons, helps to 
mitigate the risks of shipping to Arctic ringed seal habitat. However, 
as noted above, icebreakers pose greater risks to ringed seals and 
their habitat since they are capable of operating year-round in all but 
the heaviest ice conditions and are often used to escort other types of 
vessels (e.g., tankers and bulk carriers) through ice-covered areas. 
Furthermore, new classes of ships are being designed that serve the 
dual roles of both tanker/carrier and icebreaker (Arctic Council, 
2009). Therefore, if icebreaking activities increase in the Arctic in 
the future, as expected, the likelihood of negative impacts (e.g., oil 
spills, pollution, noise, disturbance, and habitat alteration) 
occurring in ice-covered areas where Arctic ringed seals reside will 
likely also increase.
    Increases in international shipping are producing ever-greater 
levels of underwater noise capable of long-range transmission 
(Southall, 2005; G[ouml]tz et al., 2009). All vessels produce sound 
during operation, which when propagated at certain frequencies and 
intensities can alter the normal behavior of marine mammals, mask their 
underwater communications and other uses of sound, cause them to avoid 
noisy areas, and, in extreme cases, damage their auditory systems and 
cause death (Marine Mammal Commission, 2007; Arctic Council, 2009; 
G[ouml]tz et al., 2009).
    In addition to the potential introduction of sound from increased 
vessel traffic and the physical presence and movements of these 
vessels, the maritime shipping industry transports various types of 
petroleum products, both as fuel and cargo, within the proposed 
critical habitat. If increased shipping involves the tanker transport 
of crude oil or oil products, there would be an increased risk of 
spills (ACIA, 2005; U.S. Arctic Research Commission, 2012). Similar to 
oil and gas activities, the most significant threat posed by shipping 
activities is considered the accidental or illegal discharge of oil or 
other toxic substance carried by ships (Arctic Council, 2009).
    We conclude that the essential features of the habitat of the 
Arctic ringed seal may require special management considerations or 
protection in the future to minimize the risks posed to these features 
by potential shipping and transportation activities, because: (1) Both 
the physical disturbance and noise associated with these activities 
could displace seals from favored habitat that contains the essential 
features, thus altering the quantity and/or quality of these features; 
and (2) in the event of an oil spill, sea ice essential for birth lairs 
and for molting could become oiled, and the quantity and/or quality of 
the primary prey resources could be adversely affected.
    Commercial Fisheries: The proposed critical habitat area overlaps 
with waters of the Federal Arctic Management Area and the Bering Sea 
and Aleutian Islands Management Area. No commercial fishing is 
permitted within the Arctic Management Area due to insufficient data to 
support the sustainable management of a commercial fishery there. 
However, as additional information becomes available, commercial 
fishing may be allowed in this management area. Two of the primary 
Arctic ringed seal prey species identified as essential to 
conservation--Arctic cod and saffron cod--have been identified as 
likely initial target species for commercial fishing in Federal Arctic 
waters in the future (North Pacific Fishery Management Council, 2009).
    In the northern portion of the Bering Sea and Aleutian Islands 
Management Area, limited commercial fisheries overlap with the 
southernmost portion of the proposed critical habitat. Portions of the 
proposed critical habitat also overlap with certain state commercial 
fisheries management areas. Commercial catches from waters in the 
proposed critical habitat area primarily include: Pacific halibut 
(Hippoglossus stenolepis), several other flatfish species, Pacific cod 
(Gadus macrocephalus), several crab species, walleye pollock (Theragra 
chalcogramma), and several salmon species.
    Commercial fisheries may affect the primary prey resources 
identified as essential to the conservation of the Arctic ringed seal, 
through removal of prey biomass and potentially through modification of 
benthic habitat by bottom-trawl gear. Given the potential changes in 
commercial fishing that may occur with the expected increasing length 
of the open-water season and range expansion of some economically 
valuable species responding to climate change, we conclude that the 
primary prey resources essential feature may require special management 
considerations or protection in the future to address potential adverse 
effects of commercial fishing on this feature.

Unoccupied Areas

    Section 3(5)(A)(ii) of the ESA further defines critical habitat to 
include specific areas outside the geographical area occupied by the 
species if the Secretary determines them to be essential for the 
conservation of the species. Our regulations at 50 CFR

[[Page 73019]]

424.12(e) emphasize that the Secretary ``shall designate as critical 
habitat areas outside the geographical area presently occupied by a 
species only when a designation limited to its present range would be 
inadequate to ensure the conservation of the species.'' We have not 
identified any specific areas outside the geographical area occupied by 
the Arctic ringed seal that are essential for its conservation; 
consequently, we are not proposing to designate any specific areas 
outside its current range.

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

    ESA section 4(a)(3)(B)(i) states: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 670a of this title [section 101 of the 
Sikes Act], if the Secretary determines in writing that such plan 
provides a benefit to the species for which critical habitat is 
proposed for designation.'' We contacted the Department of Defense 
(DOD) and requested information on any facilities or managed areas that 
are subject to an Integrated Natural Resources Management Plan (INRMP) 
and are located within areas that could potentially be proposed as 
critical habitat for the Arctic ringed seal. In response, DOD provided 
a map of facilities subject to an INRMP. No DOD lands overlap with the 
area proposed as critical habitat. Therefore, we conclude that there 
are no properties owned, controlled, or designated for use by DOD that 
are subject to ESA section 4(a)(3)(B)(i) for this proposed critical 
habitat.

Application of ESA Section 4(b)(2)

    Before including areas in a critical habitat designation, section 
4(b)(2) of the ESA and our implementing regulations require the 
Secretary to take into consideration the economic, national security, 
and other relevant impacts of the designation. Impacts may be 
quantitatively or qualitatively described, and considered at a scale 
that the Secretary determines to be appropriate (50 CFR 424.19(b)). 
Additionally, the Secretary has discretion to exclude any particular 
area from the critical habitat upon a determination that the benefits 
of such exclusion outweigh the benefits of designation. The Secretary, 
however, cannot exclude any particular area if, based on the best 
scientific and commercial data available, the Secretary determines that 
the failure to designate that area as critical habitat will result in 
the extinction of the species concerned. Because the authority to 
exclude any area from the critical habitat designation is 
discretionary, exclusion is not required for any particular area. For 
the reasons set forth below, we do not propose to exercise our 
discretion to exclude any areas from the proposed critical habitat 
designation.
    The primary impacts of a critical habitat designation arise from 
the ESA section 7(a)(2) requirement that Federal agencies ensure their 
actions are not likely to result in the destruction or adverse 
modification of critical habitat (i.e., adverse modification standard). 
Determining these impacts is complicated by the fact that section 
7(a)(2) contains the overlapping requirement that Federal agencies 
ensure their actions are not likely to jeopardize the species' 
continued existence (i.e., the jeopardy standard). One incremental 
impact of critical habitat designation is the extent to which Federal 
agencies modify their proposed actions to ensure they are not likely to 
adversely modify the critical habitat, beyond any modifications they 
would make because of listing and the jeopardy standard. Additional 
impacts of critical habitat designation include any state and/or local 
protection that may be triggered as a direct result of designation (we 
did not identify any such impacts), and benefits that may arise from 
education of the public to the importance of an area for species 
conservation.
    A draft economic report, prepared by an environmental consulting 
firm (in cooperation with NMFS) with expertise in natural resource 
economics, describes the impact analyses for this proposed rule in 
detail (Cardno Entrix, 2014). In determining the impacts of 
designation, we focused on the incremental change in Federal agency 
actions as a result of critical habitat designation and the adverse 
modification standard (see Arizona Cattle Growers v. Salazar, 606 F. 3d 
1160 (9th Cir. 2010)) (holding that the FWS permissibly attributed the 
economic impacts of protecting the northern spotted owl as part of the 
baseline and was not required to factor those impacts into the economic 
analysis of the effects of the critical habitat designation). We 
analyzed the impacts of this proposed designation based on a comparison 
of conditions with and without the designation of critical habitat for 
the Arctic ringed seal. The ``without critical habitat'' scenario 
represents the baseline for the analysis. It includes process 
requirements and habitat protections already extended to the Arctic 
ringed seal under its ESA listing and under other Federal, state, and 
local regulations. The ``with critical habitat'' scenario describes the 
incremental impacts associated specifically with the designation of 
critical habitat for the Arctic ringed seal. This analysis assesses the 
incremental costs and benefits that may arise due to the proposed 
critical habitat designation, with economic costs estimated within a 
10-year post-designation timeframe. The 10-year timeframe was chosen 
because it is lengthy enough to reflect the planning horizon for 
reasonably predicting future human activities, yet it is short enough 
to allow reasonable projections of changes in use patterns in an area, 
as well as of exogenous factors (e.g., world supply and demand for 
petroleum, U.S. inflation rate trends) that may be influential. We 
recognize that economic costs of the designation are likely to extend 
beyond the 10-year timeframe of the analysis, though we have no 
information indicating that such costs in subsequent years would be 
different from those projected for the first 10-year period. Although 
not quantified or analyzed in detail due to the high level of 
uncertainty regarding longer-term effects, the draft economic report 
includes a discussion of the potential types of costs and benefits that 
may accrue beyond the 10-year time window of the analysis.

Benefits of Designation

    As noted above, the protection afforded under the ESA section 7 
requirement for Federal agencies to ensure their actions are not likely 
to destroy or adversely modify designated critical habitat is in 
addition to ESA requirements to protect listed species. Specifically, 
ESA section 7(a)(1) requires all Federal agencies to use their 
authorities in furtherance of the purposes of the ESA by carrying out 
programs for the conservation of endangered and threatened species, and 
section 7(a)(2) requires Federal agencies to ensure their actions are 
not likely to jeopardize the continued existence of listed species. 
Another benefit of critical habitat designation is that it provides 
specific notice of the features essential to the conservation of the 
Arctic ringed seal and where they occur. This information will focus 
future consultations on the key habitat attributes and avoid 
unnecessary attention on other, non-essential habitat features. By 
identifying the specific areas where the features essential to 
conservation of the Arctic ringed seal occur, there may also be 
enhanced awareness by Federal agencies and the general public of 
activities that might

[[Page 73020]]

affect those essential features. Moreover, identification of features 
essential to the conservation of the species may improve discussions 
with action agencies regarding relevant habitat considerations of 
proposed projects.
    In addition, the critical habitat designation may result in 
indirect benefits, as discussed in detail in the draft economic report 
(Cardno Entrix, 2014), including education benefits and enhanced public 
awareness, which may help focus and contribute to conservation efforts 
for the Arctic ringed seal and its habitat. For example, by identifying 
features essential to conservation of the Arctic ringed seal and where 
those features are found, complementary protections may be developed 
under state or local regulations or voluntary conservation plans. These 
other forms of benefits may be economic in nature (whether market or 
non-market, consumptive, non-consumptive, or passive), educational, 
cultural, or sociological, or they may be expressed through beneficial 
changes in the ecological functioning of the species' habitat, which 
itself yields ancillary welfare benefits (e.g., improved quality of 
life) to the region's human population. For example, because the 
critical habitat designation is expected to result in enhanced 
conservation of the Arctic ringed seal over time, residents of the 
region who value these seals, such as subsistence users, are expected 
to experience indirect benefits. As another example, the geographic 
area of the proposed critical habitat overlaps substantially with the 
range of the polar bear in the United States, and the Arctic ringed 
seal is the primary prey species of the polar bear, so the designation 
may also provide indirect conservation benefits to the polar bear. 
Indirect conservation benefits may also extend to other co-occurring 
species, such as the Pacific walrus and other seal species.
    It is not presently feasible to monetize, or even quantify, each 
component part of the benefits accruing from the designation of 
critical habitat for the Arctic ringed seal. Therefore, we augmented 
the quantitative measurements that are summarized here and discussed in 
detail in the economic report with qualitative and descriptive 
assessments, as provided for under 50 CFR 424.19(b) and in guidance 
from the Office of Management and Budget (OMB) (OMB Circular A-4, 
September 17, 2003). Although we cannot monetize or quantify all of the 
incremental benefits of the proposed critical habitat designation, we 
believe that they are not inconsequential.

Economic Impacts of Designation

    Direct economic costs of the critical habitat designation accrue 
primarily through implementation of section 7 of the ESA in 
consultations with Federal agencies to ensure their proposed actions 
are not likely to destroy or adversely modify critical habitat. Those 
economic impacts may include both administrative costs and project 
modifications. At this time, on the basis of how protections are 
currently being implemented for Arctic ringed seals under the MMPA and 
as a threatened species under the ESA, we do not anticipate that 
additional requests for project modifications will result specifically 
from a designation of critical habitat. As a result, the direct 
incremental costs of the proposed critical habitat designation are 
expected to be limited to the additional administrative costs of 
considering Arctic ringed seal critical habitat in future ESA section 7 
consultations.
    Because the Arctic ringed seal is newly listed and we lack a 
lengthy consultation history for this species, we needed to make 
assumptions about the types of future Federal activities that might 
require section 7 consultations under the ESA. To identify the types of 
Federal activities that may affect critical habitat for the Arctic 
ringed seal, and therefore would be subject to the ESA section 7 
adverse modification standard, we examined recent incidental take 
authorizations issued by NMFS under the MMPA and the limited number of 
ESA section 7 consultations that have addressed Arctic ringed seals. To 
derive estimates of the maximum number of future oil and gas related 
consultations, we extrapolated from the maximum exploration activity 
level described in the supplemental draft environmental impact 
statement on the effects of oil and gas activities in the Arctic Ocean 
(NMFS, 2013). We request Federal agencies to provide us with 
information on future consultations, if our assumptions omitted any 
future actions likely to affect the proposed critical habitat.
    We identified several categories of activities with a Federal nexus 
that may affect critical habitat for the Arctic ringed seal within the 
time frame of the analysis (10 years post-designation) and, therefore, 
would be subject to the ESA section 7 adverse modification standard. 
These include oil and gas related activities, dredge mining, navigation 
dredging, commercial fishing, oil spill prevention and response, and 
certain military activities. All of the projected future Federal 
actions that may trigger consultation due to the potential to affect 
critical habitat also have the potential to affect individual ringed 
seals. In other words, none of the activities we identified would 
trigger consultation solely on the basis of the proposed critical 
habitat designation. Federal action agencies with jurisdiction over 
projected future actions that may affect the proposed critical habitat 
area include the U.S. Army Corps of Engineers, BOEM, Bureau of Land 
Management, DOD, Environmental Protection Agency, U.S. Coast Guard, and 
NMFS. We would expect the majority of projected consultations due to 
potential effects on critical habitat to involve NMFS and BOEM 
authorizations and permitting of oil and gas related activities.
    As detailed in the draft economic report (Cardno Entrix, 2014), the 
total incremental costs associated with this proposed critical habitat 
designation within the 10-year post-designation timeframe, in 
discounted present value terms, were estimated at $1.33 million 
(discounted at 7 percent) to $1.86 million (discounted at 3 percent). 
Ninety-five percent of the incremental costs attributed to the critical 
habitat designation are expected to accrue from consultations 
associated with oil and gas related activities in the Chukchi and 
Beaufort seas. We note that absent historical experience on 
consultation frequency involving the proposed critical habitat, in 
deriving these cost estimates, we assumed that a maximum projected 
level of oil and gas activity will occur annually (10 formal 
consultations each and every year; and several other formal and 
informal consultations over the 10-year post-designation timeframe). 
However, it is unlikely that this peak level of activity would occur 
every year. Indeed, in 2011, 2012, and 2013, there were one, five, and 
three formal consultations, respectively, completed relating to oil and 
gas activities in the Beaufort and Chukchi seas. While not quantifiable 
at this time, the draft economic report (Cardno Entrix, 2014) discusses 
that the oil and gas industry may also incur indirect costs associated 
with the critical habitat designation if future third-party litigation 
over specific consultations is successful and creates delays or other 
sources of regulatory uncertainty.
    In summary, we have preliminarily concluded, subject to further 
consideration based on public comment, that the potential economic 
impacts of the proposed critical habitat designation would be modest 
both in absolute terms and relative to the level of economic activity 
expected to occur in the affected area in the foreseeable future. As a

[[Page 73021]]

result, and in light of the benefits of critical habitat designation 
discussed above and in the draft economic report, we are not proposing 
to exclude any areas pursuant to section 4(b)(2) of the ESA based on 
economic impacts.

National Security Impacts of Designation

    Section 4(b)(2) of the ESA also requires consideration of national 
security impacts. We contacted the DOD regarding any potential impacts 
of the proposed critical habitat designation to military operations. In 
a letter dated June 3, 2013, the DOD Regional Environmental Coordinator 
indicated that no impacts on national security are currently foreseen 
from the proposed critical habitat designation. As a result, we have 
not identified any direct impacts from the critical habitat designation 
on activities associated with national security. We have preliminarily 
concluded, subject to further consideration based on public comment or 
additional information from DOD, that we will not exercise our 
discretionary authority to exclude any areas based on national security 
impacts.

Other Relevant Impacts of Designation

    Finally, under ESA section 4(b)(2) we consider any other relevant 
impacts of critical habitat designation to inform our decision as to 
whether to exclude any areas. For example, we may consider potential 
adverse effects on existing management plans or conservations plans 
that benefit listed species, and we may consider potential adverse 
effects on tribal lands or trust resources. In preparing this proposed 
designation, we have not identified any such management or conservation 
plans, tribal lands or resources, or anything else that would be 
adversely affected by the proposed critical habitat designation. 
Accordingly, we have preliminarily concluded, subject to further 
consideration based on public comment, that we will not exercise our 
discretionary authority to exclude any areas based on other relevant 
impacts.

Critical Habitat Designation

    We propose to designate as critical habitat one specific area of 
marine habitat in Alaska and offshore Federal waters of the northern 
Bering, Chukchi, and Beaufort seas within the geographical area 
presently occupied by the Arctic ringed seal. This critical habitat 
area contains physical or biological features essential to the 
conservation of Arctic ringed seals that may require special management 
considerations or protection. We have not identified any unoccupied 
areas that are essential to conservation of the Arctic ringed seal and 
we are not proposing any such areas for designation as critical 
habitat. We are not proposing to exclude any areas based on economic 
impacts, impacts to national security, or other relevant impacts of the 
proposed designation. In accordance with our regulations regarding 
critical habitat designation (50 CFR 424.12(c)), the map we are 
including in the proposed regulation, as clarified by the accompanying 
regulatory text, would constitute the official boundary of the proposed 
designation.
Effects of Critical Habitat Designation
    Section 7(a)(2) of the ESA requires Federal agencies, including 
NMFS, to ensure that any action authorized, funded, or carried out by 
the agency does not jeopardize the continued existence of any 
threatened or endangered species or destroy or adversely modify 
designated critical habitat. Federal agencies must consult with us on 
any action that may affect listed species or critical habitat. During 
the consultation, we evaluate the agency action to determine whether 
the action may adversely affect listed species or critical habitat. The 
potential effects of a proposed action may depend on, among other 
factors, the specific timing and location of the action relative to 
seasonal presence of essential features or seasonal use of critical 
habitat by listed species for essential life history functions. While 
the requirement to consult on an action that may affect critical 
habitat applies regardless of the season, NMFS addresses spatial-
temporal considerations when evaluating the potential impacts of a 
proposed action during ESA section 7 consultation. If we conclude that 
the agency action would likely result in the destruction or adverse 
modification of critical habitat, we would suggest reasonable and 
prudent alternatives to the action that avoid that result.
    Regulations at 50 CFR 402.16 require Federal agencies that have 
retained discretionary involvement or control over an action, or where 
such discretionary involvement or control is authorized by law, to 
reinitiate consultation on previously reviewed actions in instances 
where: (1) Critical habitat is subsequently designated; or (2) new 
information or changes to the action may result in effects to critical 
habitat not previously considered (among other reasons for 
reinitiation). Consequently, following designation of critical habitat 
for Arctic ringed seals, some Federal agencies may request reinitiation 
of consultation or conference with us on actions for which consultation 
has been completed, if those actions may affect designated critical 
habitat.
    This rule is subject to periodic review pursuant to NMFS's 
obligations under applicable executive orders. Executive Order 13610 
directs agencies to invite public suggestions about regulations in need 
of retrospective review and about appropriate modifications to such 
regulations. Further, Executive Order 13563 directs agencies to 
periodically review its existing significant regulations to determine 
whether any such regulations should be modified, streamlined, expanded, 
or repealed so as to make the agency's regulatory program more 
effective or less burdensome in achieving the regulatory objectives. 
While the ESA does not require periodic review of critical habitat 
regulations, it is compatible with retrospective review. Section 
4(c)(2) of the ESA directs the Secretary to review the listing 
classification of threatened and endangered species, based on the best 
available scientific information concerning the species' status, at 
least once every 5 years. The ESA also provides that NMFS may, from 
time-to-time, revise critical habitat as new data become available to 
the Secretary (section 4(a)(3)(A)(ii)). Collectively these processes 
inform NOAA's annual plan for regulatory review.
Activities That May Be Affected by Critical Habitat Designation
    Section 4(b)(8) of the ESA requires that we briefly describe and 
evaluate, in any proposed or final regulation to designate critical 
habitat, those activities that may destroy or adversely modify such 
habitat, or that may be affected by such designation. A wide variety of 
activities may affect the proposed critical habitat for Arctic ringed 
seals and, if carried out, funded, or authorized by a Federal agency, 
would require ESA section 7 consultation. Such activities or actions 
include: In-water and coastal construction; activities that generate 
water pollution; dredging; commercial fisheries; oil and gas 
exploration, development, and production; oil spill prevention and 
response; and certain DOD activities. An evaluation of the economic 
effects of ESA section 7 consultations regarding the proposed critical 
habitat is provided in the draft economic report (Cardno Entrix, 2014) 
and summarized above.
Public Comments Solicited
    To ensure the final action resulting from this proposal will be as 
accurate

[[Page 73022]]

and effective as possible, we solicit comments and information from the 
public, other concerned government agencies, Alaska Native tribes and 
organizations, the scientific community, industry, and any other 
interested parties concerning this proposed rule. We particularly seek 
comments and information concerning: (1) Habitat use of Arctic ringed 
seals; (2) the identification, location, and quality of physical or 
biological features essential to the conservation of Arctic ringed 
seal, including delineation of the northern boundary of where one or 
more of these features occur; (3) the potential impacts of designating 
the proposed critical habitat, including the types of Federal 
activities that may trigger ESA section 7 consultation; (4) current or 
planned activities in the area proposed for designation and their 
possible impacts on the proposed critical habitat; (5) the potential 
effects of the designation on Alaska Native cultural practices and 
villages; (6) any foreseeable economic, national security, Tribal, or 
other relevant impacts resulting from the proposed designation; and (7) 
whether any particular areas that we are proposing for critical habitat 
designation should be considered for exclusion under section 4(b)(2) of 
the ESA and why. For these described impacts or benefits, we request 
that the following specific information (if relevant) be provided to 
inform our ESA section 4(b)(2) analysis: (1) A map and description of 
the affected area; (2) a description of the activities that may be 
affected within the area; (3) a description of past, ongoing, or future 
conservation measures conducted within the area that may protect Arctic 
ringed seal habitat; and (4) a point of contact. You may submit your 
comments and information concerning this proposed rule by any one of 
several methods (see ADDRESSES). Copies of the proposed rule and 
supporting documentation, including the draft economic report (Cardno 
Entrix, 2014), are available on the NMFS Alaska Region Web site at 
http://alaskafisheries.noaa.gov, from the Federal eRulemaking Web site 
at http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0114, or 
upon request (see ADDRESSES). We will consider all comments and 
information received during the comment period for this proposed rule 
in preparing the final rule. Accordingly, the final decision may differ 
from this proposed rule.

Information Quality Act and Peer Review

    On December 16, 2004, the OMB issued a Final Information Quality 
Bulletin for Peer Review (Bulletin) establishing minimum peer review 
standards, a transparent process for public disclosure of peer review 
planning, and opportunities for public participation. The OMB Bulletin, 
implemented under the Information Quality Act (Public Law 106-554), is 
intended to enhance the quality and credibility of scientific 
information disseminated by the Federal government, and applies to 
influential and highly influential scientific information disseminated 
on or after June 16, 2005. To satisfy our requirements under the OMB 
Bulletin, we are obtaining independent peer review of this proposed 
rule and the draft economic report (Cardno Entrix, 2014), and will 
address all comments received in developing the final rule and the 
final version of the economic report.

Classification

Regulatory Planning and Review (E.O. 12866)

    The economic costs and benefits of the proposed critical habitat 
designation are described in our draft economic report (i.e., RIR/
4(b)(2) Preparatory Analysis/IRFA; Cardno Entrix, 2014). OMB has 
determined that this rule is ``significant,'' but not ``economically 
significant,'' under E.O. 12866(3)(f).

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency publishes a notice of rulemaking 
for any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effects of the rule on small entities (i.e., small businesses, small 
not-for-profit organizations, and small government jurisdictions). We 
have prepared an initial regulatory flexibility act analysis (IRFA), 
which is included as part of the draft economic report (Cardno Entrix, 
2014). The IRFA estimates the potential number of small businesses that 
may be directly regulated by this proposed rule, and the impact 
(incremental costs) per small entity for a given activity type. 
Specifically, based on an examination of the North American Industry 
Classification System (NAICS), this analysis classifies the economic 
activities potentially directly regulated by the proposed action into 
industry sectors and provides an estimate of their number in each 
sector, based on the applicable NAICS codes. A summary of the IRFA 
follows.
    A description of the action (i.e., proposed designation of critical 
habitat), why it is being considered, and its legal basis are included 
in the preamble of this proposed rule. This proposed action does not 
impose new recordkeeping or reporting requirements on small entities. 
The analysis did not reveal any Federal rules that duplicate, overlap, 
or conflict with the proposed action. Existing Federal laws and 
regulations overlap with the proposed rule only to the extent that they 
provide protection to natural resources within the area proposed as 
critical habitat generally. However, no existing regulations 
specifically prohibit destruction or adverse modification of critical 
habitat for the Arctic ringed seal.
    The regulatory mechanism through which critical habitat protections 
are enforced is section 7 of the ESA, which directly regulates only 
those activities carried out, funded, or permitted by a Federal agency. 
By definition, Federal agencies are not considered small entities, 
although the activities they fund or permit may be proposed or carried 
out by small entities. In some cases small entities may participate as 
third parties during ESA section 7 consultations (the primary parties 
being the Federal action agency and NMFS) and thus they may be 
indirectly affected by the proposed critical habitat designation.
    As detailed in the draft economic report (Cardno Entrix, 2014), the 
oil and gas exploration, development, and production industries 
participate in activities that are likely to require consideration of 
critical habitat in ESA section 7 consultations. The Small Business 
Administration size standards used to define small businesses in these 
cases are: (1) An average of no more than 500 employees (crude 
petroleum and natural gas extraction industry); or (2) average annual 
receipts of no more than $35.5 million (support activities for oil and 
has operations industry). No independent not-for-profit enterprises 
were identified that are likely to be affected by the proposed critical 
habitat designation. None of the parties identified in the oil and gas 
category appear to qualify as small businesses. Two government 
jurisdictions with ports appear to qualify as small government 
jurisdictions (serving populations of less than 50,000). Within the 10-
year analytical timeframe, one of these two ports is expected to incur 
up to $4,000 (discounted at 3 percent) in

[[Page 73023]]

total incremental consultation costs for authorization of navigation 
dredging activities, while the other is not expected to incur any costs 
associated with ESA section 7 consultations. This cost represents less 
than 0.1 percent of average annual receipts for this port.
    We encourage small businesses, small governmental jurisdictions, 
and other small entities that may be affected indirectly by this rule 
to provide comment on the estimated number of small entities likely to 
participate as third parties during ESA section 7 consultations and the 
potential economic impacts of the proposed critical habitat 
designation, such as anticipated costs of consultation and potential 
project modifications, to improve the RFA analysis.
    As required by the RFA (as amended by the SBREFA), we considered 
various alternatives to the proposed critical habitat designation for 
the Arctic ringed seal. We considered and rejected the alternative of 
not designating critical habitat for the Arctic ringed seal, because 
such an alternative does not meet the legal requirements of the ESA. We 
considered an alternative under which we would exercise discretion 
pursuant to section 4(b)(2) of the ESA to exclude certain areas, but we 
are not proposing to do so: The 4(b)(2) analysis identifies that there 
will be economic impacts from this designation, but we do not believe 
the benefits of excluding any particular area outweigh the benefits of 
inclusion. NMFS is seeking comments on the 4(b)(2) analysis, and all 
comments and information received will be considered in developing our 
final determination to designate critical habitat for the Arctic ringed 
seal.

Energy Supply, Distribution, or Use (E.O. 13211)

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking any action that promulgates or is 
expected to lead to the promulgation of a final rule or regulations 
that: (1) Is a significant regulatory action under E.O. 12866, and (2) 
is likely to have a significant adverse effect on the supply, 
distribution, or use of energy. We have considered the potential 
impacts of this action on the supply, distribution, or use of energy 
(see Cardno Entrix, 2014). The proposed critical habitat designation 
overlaps with five BOEM planning areas for Outer Continental Shelf oil 
and gas leasing; however, the Beaufort and Chukchi Sea planning areas 
are the only areas with existing or planned leases.
    Currently, the majority of oil and gas production occurs on land 
adjacent to the Beaufort Sea and the proposed critical habitat area. 
Any proposed offshore oil and gas projects likely would have to undergo 
ESA section 7 consultations to ensure that the actions are not likely 
to destroy or adversely modify designated critical habitat. However, as 
discussed in the draft economic report (Cardno Entrix, 2014), such 
consultations will not result in any new and significant effects on 
energy supply, distribution, or use. ESA section 7 consultations have 
occurred for numerous oil and gas projects within the area of the 
proposed critical habitat (e.g., relative to possible effects on 
endangered bowhead whales, a species without designated critical 
habitat) without adversely affecting energy supply, distribution, or 
use, and we would expect the same relative to critical habitat for 
Arctic ringed seals. We have, therefore, determined that the energy 
effects of this proposed rule are unlikely to exceed the impact 
thresholds identified in E.O. 13211, and that this proposed rulemaking 
is not a significant energy action.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    1. This proposed rule will not produce a Federal mandate. In 
general, a Federal mandate is a provision in legislation or regulation 
that would impose an enforceable duty upon state, local, tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the state, local, or tribal 
governments ``lack authority'' to adjust accordingly.
    ``Federal private sector mandate'' includes a regulation that 
``would impose an enforceable duty upon the private sector, except (i) 
a condition of Federal assistance; or (ii) a duty arising from 
participation in a voluntary Federal program.'' The designation of 
critical habitat does not impose a legally binding duty on non-Federal 
government entities or private parties. Under the ESA, the only 
regulatory effect is that Federal agencies must ensure that their 
actions do not destroy or adversely modify critical habitat under 
section 7. While non-Federal entities who receive Federal funding, 
assistance, permits, or otherwise require approval or authorization 
from a Federal agency for an action may be indirectly impacted by the 
designation of critical habitat, the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the Federal action agency. Furthermore, to the extent that non-
Federal entities are indirectly impacted, because they receive a 
Federal permit or Federal assistance or participate in a voluntary 
Federal aid program, the Unfunded Mandates Reform Act would not apply, 
nor would critical habitat shift the costs of the large entitlement 
programs listed above to State governments.
    2. This rule will not significantly or uniquely affect small 
governments, because it 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 
proposed critical habitat designation falls within marine waters under 
Federal or State of Alaska jurisdiction. The State of Alaska does not 
fit the definition of a ``small governmental jurisdiction'' and thus a 
Small Government Agency Plan is not required. Waters adjacent to 
Native-owned lands are owned and managed by the State of Alaska.

Takings (E.O. 12630)

    Under E.O. 12630, Federal agencies must consider the effects of 
their actions on constitutionally protected private property rights and 
avoid unnecessary takings of property. A taking of property includes 
actions that result in physical invasion or occupancy of private 
property, and regulations imposed on private property that 
substantially affect its value or use. In accordance with E.O. 12630, 
this proposed rule does not have significant takings implications. A 
takings implication assessment is not required. The designation of 
critical habitat affects only Federal agency actions. Private lands do 
not exist within the proposed critical habitat and would not be 
affected by this action.

Federalism (E.O. 13132)

    In accordance with E.O. 13132 (Federalism), we determined that this 
proposed rule does not have significant

[[Page 73024]]

Federalism effects and that a Federalism assessment is not required.

Paperwork Reduction Act of 1995

    This proposed rule does not contain new or revised information 
collections that require approval by OMB under the Paperwork Reduction 
Act (44 U.S.C. 3501 et seq.). This proposed rule will not impose 
recordkeeping or reporting requirements on state or local governments, 
individuals, businesses, or organizations.

National Environmental Policy Act (NEPA)

    Environmental analysis under NEPA for ESA critical habitat 
designations is not required. See Douglas County v. Babbitt, 48 F.3d 
1495 (9th Cir. 1995), cert. denied, 116 S. Ct. 698 (1996).

Government-to-Government Relationship With Tribes

    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and co-management agreements, which 
differentiate tribal governments from the other entities that deal 
with, or are affected by, the Federal Government. This relationship has 
given rise to a special Federal trust responsibility involving the 
legal responsibilities and obligations of the United States toward 
Indian tribes and the application of fiduciary standards of due care 
with respect to Indian lands, tribal trust resources, and the exercise 
of tribal rights. Executive Order 13175 on Consultation and 
Coordination With Indian Tribal Governments outlines the 
responsibilities of the Federal Government in matters affecting tribal 
interests. Section 161 of Public Law 108-199 (188 Stat. 452), as 
amended by section 518 of Public Law 108-447 (118 Stat. 3267), directs 
all Federal agencies to consult with Alaska Native corporations on the 
same basis as Indian tribes under E.O. 13175.
    As the entire proposed critical habitat area is located seaward of 
the coast line of Alaska, no tribal-owned lands overlap with the 
proposed designation. However, this proposed designation overlaps with 
areas used by Alaska Natives for subsistence, cultural, and other 
purposes. We coordinate with Alaska Native hunters regarding management 
issues related to ice seals through the Ice Seal Committee (ISC), a co-
management organization under section 119 of the Marine Mammal 
Protection Act. NMFS discussed the designation of critical habitat for 
Arctic ringed seals with the ISC and provided updates regarding the 
timeline for publication of this proposed rule. We also contacted 
potentially affected tribes by mail and offered them the opportunity to 
consult on the designation of critical habitat for the Arctic ringed 
seal and discuss any concerns they may have. We received no requests 
for consultation in response to this mailing. If we receive any such 
requests in response to this proposed rule, we will respond to each 
request prior to issuing a final rule.

References Cited

    A complete list of all references cited in this rulemaking can be 
found on the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov/ and is available upon request from the NMFS 
office in Juneau, Alaska (see ADDRESSES).

List of Subjects in 50 CFR Part 226

    Endangered and threatened species.

    Dated: December 4, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, we propose to amend 50 CFR 
part 226 as follows:

PART 226--DESIGNATED CRITICAL HABITAT

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

     Authority: 16 U.S.C. 1533.

0
2. Add Sec.  226.226 to read as follows:


Sec.  226.226  Critical habitat for the Arctic Subspecies (Phoca 
hispida hispida) of the Ringed Seal (Phoca hispida).

    Critical habitat is designated for the Arctic subspecies of the 
ringed seal as depicted in the map below and described in paragraph (a) 
of this section. Textual information is included for the purposes of 
clarifying or refining the location and boundaries of the critical 
habitat area.
    (a) Critical habitat boundaries. Critical habitat includes all the 
contiguous marine waters from the ``coast line'' of Alaska as that term 
has been defined in the Submerged Lands Act (``the line of ordinary low 
water along that portion of the coast which is in direct contact with 
the open sea and the line marking the seaward limit of inland 
waters''), 43 U.S.C. 1301(c), to an offshore limit within the U.S. 
Exclusive Economic Zone (EEZ). The boundary extends offshore from the 
northern limit of the United States-Canada land border (from the 
ordinary low water line of the Beaufort Sea at 141[deg] W. long.) and 
follows the outer extent of the U.S. EEZ boundary north and slightly 
northeastward; thence westerly and southwesterly; thence southerly and 
southwesterly to 60[deg]31' N. lat., 179[deg]13' W. long. From there it 
runs southeasterly to 58[deg]22' N. lat., 170[deg]27' W. long.; thence 
easterly to 59[deg] N. lat., 164[deg] W. long. The boundary then 
follows 164[deg] W. long. due north to the coast line of Alaska 
southeast of Cape Avinof. Critical habitat does not include permanent 
manmade structures such as boat ramps, docks, or pilings that were in 
existence on or before the effective date of this rule.
    (b) Essential features. The essential features for the conservation 
of the Arctic ringed seal are:
    (1) Sea ice habitat suitable for the formation and maintenance of 
subnivean birth lairs used for sheltering pups during whelping and 
nursing, which is defined as seasonal landfast (shorefast) ice, except 
for any bottom-fast ice extending seaward from the coast line in waters 
less than 2 m deep, or dense, stable pack ice, that has undergone 
deformation and contains snowdrifts at least 54 cm deep.
    (2) Sea ice habitat suitable as a platform for basking and molting, 
which is defined as sea ice of 15 percent or more concentration, except 
for any bottom-fast ice extending seaward from the coast line in waters 
less than 2 m deep.
    (3) Primary prey resources to support Arctic ringed seals, which 
are defined to be Arctic cod, saffron cod, shrimps, and amphipods.
    (c) Critical habitat map. The proposed critical habitat boundary 
was mapped using an Alaska Albers Equal Area Conic projection 
referenced to the North American Datum of 1983 (NAD83). The map, as 
clarified by the accompanying regulatory text, establishes the 
boundaries of the critical habitat designation. The map, along with the 
coordinates or plot points on which the map is based, is available to 
the public on http://www.regulations.gov at Docket No. NOAA-NMFS-2013-
0114, on the NMFS Alaska region Web site at http://alaskafisheries.noaa.gov, and at the NMFS office in Juneau, Alaska. The 
map of critical habitat for the Arctic ringed seal follows:

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