Endangered and Threatened Species; Threatened Status for the Arctic, Okhotsk, and Baltic Subspecies of the Ringed Seal and Endangered Status for the Ladoga Subspecies of the Ringed Seal

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 224

[Docket No. 101126590-2478-03]

RIN 0648-XZ59

Endangered and Threatened Species; Threatened Status for the Arctic, Okhotsk, and Baltic Subspecies of the Ringed Seal and Endangered Status for the Ladoga Subspecies of the Ringed Seal

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We, NMFS, issue a final determination to list the Arctic (

Phoca hispida hispida

), Okhotsk (

Phoca hispida ochotensis

), and Baltic (

Phoca hispida botnica

) subspecies of the ringed seal (

Phoca hispida

) as threatened and the Ladoga (

Phoca hispida ladogensis

) subspecies of the ringed seal as endangered under the Endangered Species Act (ESA). We will propose to designate critical habitat for the Arctic ringed seal in a future rulemaking. To assist us in this effort, we solicit information that may be relevant to the designation of critical habitat for Arctic ringed seals. In light of public comments and upon further review, we are withdrawing the proposed ESA section 4(d) protective regulations for threatened subspecies of the ringed seal because we have determined that such regulations are not necessary or advisable for the conservation of the Arctic, Okhotsk, or Baltic subspecies of the ringed seal at this time. Given their current population sizes, the long-term nature of the primary threat to these subspecies (habitat alteration stemming from climate change), and the existing protections under the Marine Mammal Protection Act, it is unlikely that the proposed protective regulations would provide appreciable conservation benefits.

DATES:

This final rule is effective on February 26, 2013. Replies to the request for information regarding designation of critical habitat for Arctic ringed seals must be received by February 26, 2013.

ADDRESSES:

You may submit comments and information related to the identification of critical habitat for the Arctic ringed seal to Jon Kurland, Assistant Regional Administrator for Protected Resources, Alaska Region, NMFS, Attn: Ellen Sebastian. You may submit this information, identified by FDMS Docket Number NOAA-NMFS-2010-0258, by any one of the following methods:

•

Electronic Submissions:

Submit all electronic public comments via the Federal eRulemaking Portal

http://www.regulations.gov

. To submit information via the e-Rulemaking Portal, first click the “submit a comment” icon, then enter NOAA-NMFS-2010-0258 in the keyword search. Locate the document you wish to comment on from the resulting list and click on the “Submit a Comment” icon on the right of that line.

•

Mail:

Submit written comments to P.O. Box 21668, Juneau, AK 99802.

•

Fax:

(907) 586-7557.

• Hand delivery to the Federal Building: 709 West 9th Street, Room 420A, Juneau, AK.

Comments must be submitted by one of the above methods to ensure that the comments are received, documented, and considered by NMFS. 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.

All comments received are a part of the public record and will generally be posted for public viewing on

www.regulations.gov

without change. All personal identifying information (

e.g.,

name, address, etc.) submitted voluntarily by the sender may be publicly accessible. Do not submit confidential business information, or otherwise sensitive or protected information.

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 or Excel, WordPerfect, or Adobe PDF file formats only.

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 March 28, 2008, we initiated status reviews of ringed, bearded (

Erignathus barbatus

), and spotted seals (

Phoca largha

) under the ESA (73 FR 16617). On May 28, 2008, we received a petition from the Center for Biological Diversity to list these three species of seals as threatened or endangered under the ESA, primarily due to concerns about threats to their habitat from climate warming and loss of sea ice. The petitioner also requested that critical habitat be designated for these species concurrently with listing under the ESA. In response to the petition, we published a 90-day finding that the petition presented substantial scientific or commercial information indicating that the petitioned action may be warranted (73 FR 51615; September 4, 2008). Accordingly, we prepared status reviews of ringed, bearded, and spotted seals and solicited information pertaining to them.

On September 8, 2009, the Center for Biological Diversity filed a lawsuit in the U.S. District Court for the District of Columbia alleging that we failed to make the requisite 12-month finding on its petition to list the three seal species. Subsequently, the Court entered a consent decree under which we agreed to finalize the status review of the ringed seal (and the bearded seal) and submit a 12-month finding to the Office of the Federal Register by December 3, 2010. Following completion of a status review report and 12-month finding for spotted seals in October 2009 (74 FR 53683; October 20, 2009; see also 75 FR 65239; October 22, 2010), we established Biological Review Teams (BRTs) to prepare status review reports for ringed and bearded seals.

The status review report for the ringed seal (Kelly

et al.,

2010a) is a compilation of the best scientific and commercial data available concerning the status of the species, including identification and assessment of the past, present, and future threats to the species. The BRT that prepared this report was composed of eight marine mammal biologists, a fishery biologist, a marine chemist, and a climate scientist from NMFS's Alaska and Northeast Fisheries Science Centers, NOAA's Pacific Marine Environmental Lab, and the U.S. Fish and Wildlife Service (FWS). The status review report underwent independent peer review by five scientists with expertise in ringed seal biology, Arctic sea ice, climate change, and ocean acidification.

The BRT reviewed the best scientific and commercial data available on the ringed seal's taxonomy and concluded that there are five currently recognized subspecies of the ringed seal: Arctic ringed seal; Baltic ringed seal; Okhotsk ringed seal; Ladoga ringed seal; and Saimaa ringed seal (which previously was listed as endangered under the ESA; 58 FR 26920; May 6, 1993).

On December 10, 2010, we published in the

Federal Register

a 12-month finding and proposed to list the Arctic, Okhotsk, Baltic, and Ladoga subspecies

of the ringed seal as threatened (75 FR 77476). We also concluded in that finding that the Saimaa subspecies of the ringed seal remains in danger of extinction, consistent with its current listing as endangered under the ESA. We published a 12-month finding for bearded seals as a separate notification concurrently with this finding (75 FR 77496; December 10, 2010), and proposed to list two population segments of bearded seals as threatened.

On December 13, 2011, we published in the

Federal Register

a document announcing a 6-month extension of the deadline for a final listing determination to address substantial disagreement relating to the sufficiency or accuracy of the model projections and analysis of future sea ice, and in particular snow cover, for Arctic ringed seals (76 FR 77466). At that time we also announced that to address the disagreement and better inform our final determination, we would conduct a special independent peer review of the sections of the status review report over which there was substantial disagreement. We subsequently conducted this special peer review and made available for comment the resulting peer review report (NMFS, 2012) that consolidated the comments received (77 FR 20773; April 6, 2012).

ESA Statutory, Regulatory, and Policy Provisions

Two key tasks are associated with conducting an ESA status review. The first is to identify the taxonomic group under consideration; and the second is to conduct an extinction risk assessment to determine whether the petitioned species is threatened or endangered.

To be considered for listing under the ESA, a group of organisms must constitute a “species,” which section 3(16) of the ESA defines to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” The term “distinct population segment” (DPS) is not commonly used in scientific discourse, so FWS and NMFS developed the “Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act” to provide a consistent interpretation of this term for the purposes of listing, delisting, and reclassifying vertebrates under the ESA (61 FR 4722; February 7, 1996). The five subspecies of the ringed seal qualify as “species” under the ESA. In the

Summary of Comments and Responses

below, we discuss the application of the DPS policy to the ringed seal subspecies.

The ESA defines the term “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range.” The term “threatened species” is defined as “any species which is likely to become endangered within the foreseeable future throughout all or a significant portion of its range.” The foreseeability of a species' future status is case specific and depends upon both the foreseeability of threats to the species and foreseeability of the species' response to those threats. When a species is exposed to a variety of threats, each threat may be foreseeable over a different time frame. For example, threats stemming from well-established, observed trends in a global physical process may be foreseeable on a much longer time horizon than a threat stemming from a potential, though unpredictable, episodic process such as an outbreak of disease that may never have been observed to occur in the species.

The principal threat to ringed seals is habitat alteration stemming from climate change. In the 2008 status review for the ribbon seal (Boveng

et al.,

2008; see also 73 FR 79822, December 30, 2008), NMFS scientists used the same climate projections used in our risk assessment for ringed seals (which is summarized in the preamble to this final rule), and analyzed threats associated with climate change through 2050. One reason for that approach was the difficulty of incorporating the increased divergence and uncertainty in climate scenarios beyond that time. Other reasons included the lack of data for threats other than those related to climate change beyond 2050, and the fact that uncertainty embedded in the assessment of the ribbon seal's response to threats increased as the analysis extended farther into the future.

Since completing the analysis for ribbon seals, with its climate impact analysis, NMFS scientists have revised their analytical approach to the foreseeability of threats due to climate change and responses to those threats, adopting a more threat-specific approach based on the best scientific and commercial data available for each respective threat. For example, because the climate projections in the Intergovernmental Panel on Climate Change's (IPCC's)

Fourth Assessment Report

(AR4; IPCC, 2007) extend through the end of the century (and we note the IPCC's

Fifth Assessment Report

(AR5), due in 2014, will extend even farther into the future), for our analysis of ringed seals we used the same models to assess impacts from climate change through 2100. We continue to recognize that the farther into the future the analysis extends, the greater the inherent uncertainty, and we incorporated that limitation into our assessment of the threats and the species' response. For other threats, where the best scientific and commercial data do not extend as far into the future, such as for occurrences and projections of disease or parasitic outbreaks, we limited our analysis to the extent of such data. This threat-specific approach creates a more robust analysis of the best scientific and commercial data available. It is also consistent with the memorandum issued by the Department of Interior, Office of the Solicitor, regarding the meaning of the term “foreseeable future” (Opinion M-37021; January 16, 2009).

NMFS and FWS recently published a draft policy to clarify the interpretation of the phrase “significant portion of the range” in the ESA definitions of “threatened” and “endangered” (76 FR 76987; December 9, 2011). The draft policy consists of the following four components:

1. If a species is found to be endangered or threatened in only a significant portion of its range, the entire species is listed as endangered or threatened, respectively, and the ESA's protections apply across the species' entire range.

2. A portion of the range of a species is “significant” if its contribution to the viability of the species is so important that, without that portion, the species would be in danger of extinction.

3. The range of a species is considered to be the general geographical area within which that species can be found at the time FWS or NMFS makes any particular status determination. This range includes those areas throughout all or part of the species' life cycle, even if they are not used regularly (

e.g.,

seasonal habitats). Lost historical range is relevant to the analysis of the status of the species, but cannot constitute a significant portion of a species' range.

4. If the species is not endangered or threatened throughout all of its range, but it is endangered or threatened within a significant portion of its range, and the population in that significant portion is a valid DPS, we will list the DPS rather than the entire taxonomic species or subspecies.

The Services are currently reviewing public comment received on the draft policy. While the Services' intent ultimately is to establish a legally binding interpretation of the term “significant portion of the range,” the draft policy does not have legal effect until such time as it may be adopted as final policy. However, the discussion

and conclusions set forth in the draft policy are consistent with NMFS's past practice as well as our understanding of the statutory framework and language. We have therefore considered the draft policy as non-binding guidance in evaluating whether to list the Arctic, Okhotsk, Ladoga, and/or Baltic subspecies of the ringed seal under the ESA.

Species Information

A thorough review of the taxonomy, life history, and ecology of the ringed seal is presented in the status review report (Kelly

et al.,

2010a; available at

http://alaskafisheries.noaa.gov/

). This information, along with an analysis of species delineation and DPSs, was summarized in the preamble to the proposed rule (75 FR 77476; December 10, 2010) and will not be repeated here.

Summary of Factors Affecting the Ringed Seal

Section 4(a)(1) of the ESA and the listing regulations (50 CFR part 424) set forth procedures for listing species. We must determine, through the regulatory process, if a species is endangered or threatened because of any one or a combination of the following factors: (1) The present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; or (5) other natural or human-made factors affecting its continued existence. The preamble to the proposed rule discussed each of these factors for each subspecies of the ringed seal (75 FR 77476; December 10, 2010). That discussion will not be repeated in its entirety here, but we provide a summary for each of the factors below. Section 4.2 of the status review report provides a more detailed discussion of the factors affecting the five subspecies of the ringed seal (see

ADDRESSES

). The data on ringed seal abundance and trends of most populations are unavailable or imprecise, especially in the Arctic and Okhotsk subspecies, and there is little basis for quantitatively linking projected environmental conditions or other factors to ringed seal survival or reproduction. Our risk assessment therefore primarily evaluated important habitat features and was based upon the best available scientific and commercial data and the expert opinion of the BRT members.

A. Present or Threatened Destruction, Modification, or Curtailment of the Species' Habitat or Range

The main concern about the conservation status of ringed seals stems from the likelihood that their sea ice habitat has been modified by the warming climate and, more so, that the scientific consensus projections are for continued and perhaps accelerated warming in the foreseeable future. A second concern, related by the common driver of carbon dioxide (CO

2

) emissions, is the modification of habitat by ocean acidification, which may alter prey populations and other important aspects of the marine ecosystem. A reliable assessment of the future conservation status of each of the subspecies of the ringed seal therefore requires a focus on the observed and projected changes in sea ice, snow cover, ocean temperature, ocean pH (acidity), and associated changes in ringed seal prey species.

The threats associated with impacts of the warming climate on the habitat of ringed seals (analyzed in the preamble to the proposed rule and in the status review report), to the extent that they may pose risks to these seals, are expected to manifest throughout the current breeding and molting range (for snow and ice related threats) or throughout the entire range (for ocean warming and acidification) of each of the subspecies.

While our inferences about future regional ice and snow conditions are based upon the best available scientific and commercial data, we recognize that there are uncertainties associated with predictions based on hemispheric projections or indirect means. We also note that judging the timing of the onset of potential impacts to ringed seals is complicated by the coarse resolution of the IPCC models. Nevertheless, NMFS determined that the models reflect reasonable assumptions regarding habitat alterations to be faced by ringed seals in the foreseeable future.

Regional Sea Ice and Snow Cover Predictions by Subspecies

Arctic ringed seal:

In the East Siberian, Chukchi, Beaufort, Kara-Laptev, and Greenland Seas, as well as in Baffin Bay and the Canadian Arctic Archipelago, little or no decline in ice extent is expected in April and May during the remainder of this century. In most of these areas, a moderate decline in sea ice is predicted during June within this century; while substantial declines in sea ice are projected in July and November after mid-century. The central Arctic (defined as regions north of 80° N. latitude) also shows declines in sea ice cover that are most apparent in July and November after 2050. For Hudson Bay, under a warmer climate scenario (for the years 2041-2070) Joly

et al.

(2010) projected a reduction in the sea ice season of 7-9 weeks, with substantial reductions in sea ice cover most apparent in July and during the first months of winter.

In the Bering Sea, April and May ice cover is projected to decline throughout this century, with substantial inter-annual variability forecasted in the eastern Bering Sea. The projection for May indicates that there will commonly be years with little or no ice in the western Bering Sea beyond mid-century. Very little ice has remained in the eastern Bering Sea in June since the mid-1970s. Sea ice cover in the Barents Sea in April and May is also projected to decline throughout this century, and in the months of June and July, ice is expected to disappear rapidly in the coming decades.

Based on model projections, April snow depths over much of the range of the Arctic ringed seal averaged 25-35 cm in the first decade of this century, consistent with on-ice measurements by Russian scientists (Weeks, 2010). By mid-century, a substantial decrease in areas with April snow depths of 25-35 cm is projected (much of it reduced to 20-25 cm). The deepest snow (25-30 cm) is forecasted to be found just north of Greenland, in the Canadian Arctic Archipelago, and in an area tapering north from there into the central Arctic Basin. Southerly regions, such as the Bering Sea and Barents Sea, are forecasted to have snow depths of 5 cm or less by mid-century. By the end of the century, April snow depths of 20-25 cm are forecasted only for a portion of the central Arctic, most of the Canadian Arctic Archipelago, and a few small isolated areas in a few other regions. Areas with 25-30 cm of snow are projected to be limited to a few small isolated pockets in the Canadian Arctic by 2090-2099.

Okhotsk ringed seal:

None of the IPCC models performed satisfactorily at projecting sea ice for the Sea of Okhotsk, so projected surface air temperatures were examined relative to current climate conditions as a proxy to predict sea ice extent and duration. Sea ice extent is strongly controlled by temperature; this is especially true for smaller bodies of water relative to the grid size of available models. Also, the physical processes by which increased greenhouse gases (GHGs) lead to warming are better understood and more easily modeled than the other processes that influence sea ice

formation and persistence. Therefore, whether the whole geographic region around the Sea of Okhotsk is above or below the freezing point of sea water should be a reasonable indicator of the presence or absence of sea ice.

Based on that analysis, ice is expected to persist in the Sea of Okhotsk in March during the remainder of this century, although ice may be limited to the northern region in most years after mid-century. Conditions for sea ice in April are likely to be limited to the far northern reaches of the Sea of Okhotsk or non-existent by 2100. Little to no sea ice is expected in May by mid-century. Average snow depth projections for April show depths of 15-20 cm only in the northern portions of the Sea of Okhotsk in the past 10 years and nowhere in that sea by mid-century. By the end of the century average snow depths are projected to be 10 cm or less even in the northern Sea of Okhotsk.

Baltic and Ladoga ringed seals:

For the Baltic Sea, we considered the analysis of regional climate models by Jylhä

et al.

(2008). They used seven regional climate models and found good agreement with observations for the 1902-2000 comparison period. For the forecast period 2071-2100, one model predicted a change to mostly mild conditions, while the remaining models predicted unprecedentedly mild conditions. They noted that their estimates for a warming climate were in agreement with other studies that found unprecedentedly mild ice extent conditions in the majority of years after about 2030. The model we used to project snow depths (CCSM3) did not provide adequate resolution for the Baltic Sea. The climate models analyzed by Jylhä

et al.

(2008), however, forecasted decreases of 45-60 days in duration of snow cover by the end of the century in the northern Baltic Sea region. The shortened seasonal snow cover would result primarily from earlier spring melts, but also from delayed onset of snow cover. Depth of snow is forecasted to decrease 50-70 percent in the region over the same period. The depth of snow also will be decreased by mid-winter thaws and rain events. Simulations of the snow cover indicated that an increasing proportion of the snow pack will consist of icy or wet snow.

For example, ice cover has diminished about 12 percent over the past 50 years in Lake Ladoga. Although we are not aware of any ice forecasts specific to Lake Ladoga, the simulations of future climate reported by Jylhä

et al.

(2008) suggest warming winters with reduced ice and snow cover. Snow cover in Finland and the Scandinavian Peninsula is projected to decrease 10-30 percent before mid-century and 50-90 percent by 2100 (Saelthun

et al.,

1998,

cited in

Kuusisto, 2005).

Effects of Changes in Ice and Snow Cover on Ringed Seals

Ringed seals are vulnerable to habitat loss from changes in the extent or concentration of sea ice because they depend on this habitat for pupping, nursing, molting, and resting. The ringed seal's broad distribution, ability to undertake long movements, diverse diet, and association with widely varying ice conditions suggest resilience in the face of environmental variability. However, the ringed seal's long generation time and ability to produce only a single pup each year will challenge its ability to adapt to environmental changes such as the diminishing ice and snow cover projected in a matter of decades. Ringed seals apparently thrived during glacial maxima and survived warm interglacial periods. How they survived the latter periods or in what numbers is not known. Declines in sea ice cover in recent decades are more extensive and rapid than any other known decline for at least the last few thousand years (Polyak

et al.,

2010).

Ringed seals create birth lairs in areas of accumulated snow on stable ice including the shorefast ice over continental shelves along Arctic coasts, bays, and inter‐island channels. While some authors suggest that shorefast ice (ice attached to the shore) is the preferred pupping habitat of ringed seals due to its stability throughout the pupping and nursing period, others have documented ringed seal pupping on drifting pack ice both nearshore and offshore. Both of these habitats can be affected by earlier warming and break‐up in the spring, which shortens the length of time pups have to grow and mature in a protected setting. Harwood

et al.

(2000) reported that an early spring break‐up negatively impacted the growth, condition, and apparent survival of unweaned ringed seal pups. Early break-up was believed to have interrupted lactation in adult females, which in turn, negatively affected the condition and growth of pups.

Unusually heavy ice has also been implicated in shifting distribution, high winter mortality, and reduced productivity of ringed seals. It has been suggested that reduced ice thickness associated with warming in some areas could lead to increased biological productivity that might benefit ringed seals, at least in the short-term. However, any transitory and localized benefits of reduced ice thickness are expected to be outweighed by the negative effects of increased thermoregulatory costs and vulnerability of seal pups to predation associated with earlier ice break-up and reduced snow cover.

Ringed seals, especially the newborn, depend on snow cover for protection from cold temperatures and predators. Occupation of subnivean lairs is especially critical when pups are nursed in late March-June. Ferguson

et al.

(2005) attributed low ringed seal recruitment in western Hudson Bay to decreased snow depth in April and May. Reduced snowfall results in less snow drift accumulation next to pressure ridges, and pups in lairs with thin snow cover are more vulnerable to predation than pups in lairs with thick snow cover (Hammill and Smith, 1989; Ferguson

et al.,

2005). When snow cover is insufficient, pups can also freeze in their lairs as documented in 1974 when roofs of lairs in the White Sea were only 5-10 cm thick (Lukin and Potelov, 1978). Similarly, pup mortality from freezing and polar bear (

Ursus maritimus

) predation increased when unusually warm spring temperatures caused early melting near Baffin Island in the late 1970s (Smith and Hammill, 1980; Stirling and Smith, 2004). Prematurely exposed pups also are vulnerable to predation by wolves (

Canis lupus

) and foxes (

Alopex lagopus

and

Vulpes vulpes)

—as documented during an early snow melt in the White Sea in 1977 (Lukin, 1980)—and by gulls (Laridae) and ravens (

Corvus corax

) as documented in the Barents Sea (Gjertz and Lydersen, 1983; Lydersen and Gjertz, 1987; Lydersen

et al.,

1987; Lydersen and Smith, 1989; Lydersen and Ryg, 1990; Lydersen, 1998). When lack of snow cover has forced birthing to occur in the open, some studies have reported that nearly 100 percent of pups died from predation (Kumlien, 1879; Lydersen

et al.,

1987; Lydersen and Smith, 1989; Smith

et al.,

1991; Smith and Lydersen, 1991). The high fidelity to birthing sites exhibited by ringed seals also makes them more susceptible to localized degradation of snow cover (Kelly

et al.,

2010b).

Increased rain‐on‐snow events during the late winter also negatively affect ringed seal recruitment by damaging or eliminating snow‐covered birth lairs, increasing exposure and the risk of hypothermia, and facilitating predation by polar bears and other predators. Stirling and Smith (2004) documented the collapse of subnivean lairs during unseasonal rains near southeastern Baffin Island and the subsequent exposure of ringed seals to hypothermia.

They surmised that most of the pups that survived exposure to cold were eventually killed by polar bears, Arctic foxes, or possibly gulls. Stirling and Smith (2004) postulated that, should early season rain become regular and widespread in the future, mortality of ringed seal pups will increase, especially in more southerly parts of their range.

Potential Impacts of Projected Ice and Snow Cover Changes on Ringed Seals

As discussed above, ringed seals divide their time between foraging in the water, and reproducing and molting out of the water, where they are especially vulnerable to predation. Females must nurse their pups for 1-2 months, and the small pups are vulnerable to cold temperatures and avian and mammalian predators on the ice, especially during the nursing period. Thus, a specific habitat requirement for ringed seals is adequate snow for the occupation of subnivean lairs, especially in spring when pups are born and nursed.

Northern Hemisphere snow cover has declined in recent decades and spring melt times have become earlier (ACIA, 2005). In most areas of the Arctic Ocean, snow melt advanced 1-6 weeks from 1979-2007. Throughout most of the ringed seal's range, snow melt occurred within a couple of weeks of weaning. Thus, in the past three decades, snow melts in many areas have been pre‐dating weaning. Shifts in the timing of reproduction by other pinnipeds in response to changes in food availability have been documented. However, the ability of ringed seals to adapt to earlier snow melts by advancing the timing of reproduction will be limited by snow depths. As discussed above, over most of the Arctic Ocean, snow cover reaches its maximal depth in May, but most of that accumulation takes place in autumn. It is therefore unlikely that snow depths for birth lair formation would be improved earlier in the spring. In addition, the pace at which snow melts are advancing is rapid relative to the generation time of ringed seals, further challenging the potential for an adaptive response.

Snow drifts to 45 cm or more are needed for excavation and maintenance of simple lairs, and birth lairs require depths of 50 to 65 cm or more (Smith and Stirling, 1975; Lydersen and Gjertz, 1986; Kelly, 1988; Furgal

et al.,

1996; Lydersen, 1998; Lukin

et al.,

2006). Such drifts typically only occur where average snow depths are at least 20-30 cm (on flat ice) and where drifting has taken place along pressure ridges or ice hummocks (Hammill and Smith, 1991; Lydersen and Ryg, 1991; Smith and Lydersen, 1991; Ferguson

et al.,

2005). We therefore considered areas forecasted to have less than 20 cm average snow depth in April to be inadequate for the formation of ringed seal birth lairs.

Arctic ringed seal:

The depth and duration of snow cover is projected to decrease throughout the range of Arctic ringed seals within this century. Whether ringed seals will continue to move north with retreating ice over the deeper, less productive Arctic Basin waters and whether forage species that they prey on will also move north is uncertain and speculative (see additional discussion below). Initially, it is possible that impacts will be somewhat ameliorated if the subspecies' range retracts northward with its sea ice habitats. By 2100, however, April snow cover is forecasted to become inadequate for the formation and occupation of ringed seal birth lairs over much of the subspecies' range. Thus, even if the range of the Arctic ringed seal contracts northward, by 2100 April snow cover suitable for birth lairs is expected to be limited to a portion of the central Arctic, most of the Canadian Arctic Archipelago, and a few other small isolated areas. The projected decreases in ice and, especially, snow cover are expected to lead to increased pup mortality from premature weaning, hypothermia, and predation.

Okhotsk ringed seal:

Based on temperature proxies (which were used because the climate models did not meet the performance criteria for projecting sea ice), ice is expected to persist in the Sea of Okhotsk through the onset of pupping in March through the end of this century. Ice suitable for pupping and nursing likely will be limited to the northernmost portions of the sea, as ice is likely to be limited to that region in April by the end of the century. The snow cover projections suggest that snow depths may already be inadequate for lairs in the Sea of Okhotsk, and most Okhotsk ringed seals apparently now give birth on pack ice in the lee of ice hummocks. However, it appears unlikely that this behavior could mitigate the threats posed by the expected decreases in sea ice. The Sea of Okhotsk is bounded to the north by land, which will limit the ability of Okhotsk ringed seals to respond to deteriorating sea ice and snow conditions by shifting their range northward. Some Okhotsk ringed seals have been reported on terrestrial resting sites during the ice-free season, but these sites provide inferior pupping and nursing habitat. Within the foreseeable future, the projected decreases in sea ice habitat suitable for pupping, nursing, and molting in the Sea of Okhotsk are expected to lead to reduced abundance and productivity.

Baltic and Ladoga ringed seals:

The considerable reductions in ice extent forecasted by mid-century, coupled with deteriorating snow conditions, are expected to substantially alter the habitats of Baltic ringed seals. Climate forecasts for northern Europe also suggest reduced ice and snow cover for Lake Ladoga within this century. These habitat changes are expected to lead to decreased survival of pups (due to hypothermia, predation, and premature weaning) and considerable declines in the abundance of these subspecies in the foreseeable future. Although Baltic and Ladoga ringed seals have been reported using terrestrial resting sites when ice is absent, these sites provide inferior pupping and nursing habitat. As sea ice and snow conditions deteriorate, Baltic ringed seals will be limited in their ability to respond by shifting their range northward because the Baltic Sea is bounded to the north by land; and the landlocked seal population in Lake Ladoga will be unable to shift its range.

Impacts on Ringed Seals Related to Changes in Ocean Conditions

Ocean acidification is an ongoing process whereby chemical reactions occur that reduce both seawater pH and the concentration of carbonate ions when CO

2

is absorbed by seawater. Results from global ocean CO

2

surveys over the past two decades have shown that ocean acidification is a predictable consequence of rising atmospheric CO

2

levels. The process of ocean acidification has long been recognized, but the ecological implications of such chemical changes have only recently begun to be appreciated. The waters of the Arctic and adjacent seas are among the most vulnerable to ocean acidification. Seawater chemistry measurements in the Baltic Sea suggest that this sea is equally vulnerable to acidification as the Arctic. We are not aware of specific acidification studies in Lake Ladoga. Fresh water systems, however, are much less buffered than ocean waters and are likely to experience even larger changes in acidification levels than marine systems. The most likely impact of ocean acidification on ringed seals will be at lower tropic levels on which the species' prey depends. Cascading effects are likely both in the marine and freshwater environments. Our limited understanding of planktonic and benthic calcifiers in the Arctic (

e.g.,

even their baseline geographical

distributions) means that future changes will be difficult to detect and evaluate.

Warming water temperatures and decreasing ice likely will result in a contraction in the range of Arctic cod, a primary prey of ringed seals. The same changes will lead to colonization of the Arctic Ocean by more southerly species, including potential prey, predators, and competitors. The outcome of new competitive interactions cannot be specified, but as sea-ice specialists, ringed seals may be at a disadvantage in competition with generalists in an ice-diminished Arctic. Prey biomass may be reduced as a consequence of increased freshwater input and loss of sea ice habitat for amphipods and copepods. On the other hand, overall pelagic productivity may increase.

Summary of Factor A Analysis

Climate models consistently project overall diminishing sea ice and snow cover at least through the current century, with regional variation in the timing and severity of those losses. Increasing atmospheric concentrations of greenhouse gases, including CO

2

, will drive climate warming and increase acidification of the ringed seal's ocean and lake habitats. The impact of ocean warming and acidification on ringed seals is expected to be primarily through changes in community composition. The precise extent and timing of these changes is uncertain, yet the overall trend is clear: Ringed seals will face an increasing degree of habitat modification through the foreseeable future.

Diminishing ice and snow cover are the greatest challenges to persistence of all of the ringed seal subspecies. While winter precipitation is forecasted to increase in a warming Arctic, the duration of ice cover is projected to be substantially reduced, and the net effect will be lower snow accumulation on the ice. Within the century, snow cover adequate for the formation and occupation of birth lairs is forecasted to occur in only parts of the Canadian Arctic Archipelago, a portion of the central Arctic, and a few small isolated areas in other regions. Without the protection of lairs, ringed seals, especially newborns, are vulnerable to freezing and predation. We conclude that the ongoing and projected changes in sea ice habitat pose significant threats to the persistence of each of the five subspecies of the ringed seal and are likely to curtail the range of the species substantially within the foreseeable future.

B. Overutilization for Commercial, Subsistence, Recreational, Scientific, or Educational Purposes

Ringed seals have been hunted by humans for millennia and remain a fundamental subsistence resource for many northern coastal communities today. Ringed seals were also harvested commercially in large numbers during the 20th century, which led to the depletion of their stocks in many parts of their range. Commercial harvests in the Sea of Okhotsk and predator-control harvests in the Baltic Sea and Lake Ladoga caused population declines in the past, but have since been restricted. Although subsistence harvest of the Arctic subspecies is currently substantial in some regions, harvest levels presently seem sustainable. Climate change is likely to alter patterns of subsistence harvest of marine mammals by changing their local densities or distributions in relation to hunting communities. Predictions of the impacts of climate change on subsistence hunting pressure are constrained by the complexity of interacting variables and imprecision of climate and sea ice models at small scales. Accurate information on both harvest levels and species' abundance and trends will be needed in order to assess the future impacts of hunting as well as to respond appropriately to potential climate-induced changes in populations. Recreational, scientific, and educational uses of ringed seals are minimal and are not expected to increase significantly in the foreseeable future. We conclude that there is no evidence that overutilization of ringed seals is occurring at present.

C. Diseases, Parasites, and Predation

Ringed seals have co-evolved with numerous parasites and diseases, and those relationships are presumed to be stable. Evidence of distemper virus, for example, has been reported in Arctic ringed seals, but there is no evidence of population-level impacts to ringed seal abundance or productivity. After the proposed listing rule was published, the occurrence of an elevated number of sick or dead ringed seals in the Arctic and Bering Strait regions of Alaska beginning in July 2011 led to the declaration of an unusual mortality event (UME) by NMFS under the Marine Mammal Protection Act (MMPA) on December 20, 2011. The underlying cause of this UME is unknown and remains under focused expert investigation. Abiotic and biotic changes to ringed seal habitat potentially could lead to exposure to new pathogens or new levels of virulence, but we continue to consider the potential threats to ringed seals from disease as low.

Ringed seals are most commonly preyed upon by Arctic foxes and polar bears, and less commonly by other terrestrial carnivores, sharks, and killer whales (

Orcinus orca

). When ringed seal pups are forced out of subnivean lairs prematurely because of low snow accumulation and/or early melts, gulls and ravens also successfully prey on them. Avian predation is facilitated not only by lack of sufficient snow cover but also by conditions favoring influxes of birds. Lydersen and Smith (1989) pointed out that the small size of newborn ringed seals, coupled with their prolonged nursing period, make them vulnerable to predation by birds and likely set a southern limit to their distribution.

Ringed seals and bearded seals are the primary prey of polar bears. Polar bear predation on ringed seals is most successful in moving offshore ice, often along floe edges and rarely in ice-free waters. Polar bears also successfully hunt ringed seals on stable shorefast ice by catching animals when they surface to breathe and when they occupy lairs. Hammill and Smith (1991) further 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. They concluded that while a high proportion of pups born each year are lost to predation, “without the protection provided by the subnivean lair, pup mortality would be much higher.”

The distribution of Arctic foxes broadly overlaps with that of Arctic ringed seals. Arctic foxes prey on newborn seals by tunneling into the birth lairs. The range of the red fox overlaps with that of the Okhotsk, Baltic, and Ladoga subspecies, and on rare occasion red foxes also prey on newborn ringed seals in lairs.

High rates of predation on ringed seal pups have been associated with anomalous weather events that caused subnivean lairs to collapse or melt before pups were weaned. Thus, declining snow depths and duration of snow cover during the period when ringed seal pups are born and nursed can be expected to lead to increased predation on ringed seal pups. We conclude that the threat posed to ringed seals by predation is currently moderate, but predation risk is expected to increase as snow and sea ice conditions change with a warming climate.

D. Inadequacy of Existing Regulatory Mechanisms

As noted above in the discussion of Factor A, a primary concern about the conservation status of the ringed seal stems from the likelihood that its sea ice habitat has been modified by the warming climate and, more so, that the scientific consensus projections are for continued and perhaps accelerated warming in the foreseeable future combined with modification of habitat by ocean acidification. Current mechanisms do not effectively regulate GHG emissions, which are contributing to global climate change and associated modifications to ringed seal habitat. The projections we used to assess risks from GHG emissions were based on the assumption that no new regulation will take place (the underlying IPCC emissions scenarios were all “non-mitigated” scenarios). Therefore, the inadequacy of mechanisms to regulate GHG emissions is already included in our risk assessment, and contributes to the risks posed to ringed seals by these emissions.

Based on questionnaire and interview data obtained from fishermen at Lake Ladoga, Verevkin

et al.

(2006, 2010) concluded that annual bycatch mortality of Ladoga ringed seals has been substantial in recent years and that mitigation measures are needed. Thus inadequacy of existing mechanisms to regulate bycatch of Ladoga ringed seals is contributing to the severity of the threat posed by fisheries interactions with that subspecies, and compounds the effects of threats induced by climate change discussed above.

E. Other Natural or Manmade Factors Affecting the Species' Continued Existence

Pollution and Contaminants

Contaminants research on ringed seals is extensive and has been conducted in most parts of the species' range (with the exception of the Sea of Okhotsk), particularly throughout the Arctic environment where ringed seals are an important diet item in coastal human communities. Pollutants such as organochlorine (OC) compounds and heavy metals have been found in all of the subspecies of ringed seal (with the exception of the Okhotsk ringed seal). The variety, sources, and transport mechanisms of contaminants vary across ringed seal ecosystems. Statistical analysis of OC compounds in marine mammals has shown that, for most OCs, the European Arctic is more contaminated than the Canadian and U.S. Arctic.

Reduced productivity in the Baltic ringed seal in recent decades resulted from impaired fertility that was associated with pollutants. High levels of DDT (dichloro-diphenyl-trichloroethane) and PCBs (polychlorinated biphenyls) were found in Baltic (Bothnian Bay) ringed seals in the 1960s and 1970s, and PCB levels were correlated with reproductive failure. More recently, PFOSs (perfluorooctane sulfonate; a perfluorinated contaminant or PFC) were reported as 15 times greater in Baltic ringed seals than in Arctic ringed seals.

Present and future impacts of contaminants on ringed seal populations warrant further study. Climate change has the potential to increase the transport of pollutants from lower latitudes to the Arctic, highlighting the importance of continued monitoring of ringed seal contaminant levels. The BRT considered the potential threat posed to ringed seals from contaminants as of low to moderate significance, with the least threat identified for Arctic ringed seals and the greatest for Baltic ringed seals.

Oil and Gas Activities

Extensive oil and gas reserves coupled with rising global demand make it very likely that oil and gas development activity will increase throughout the U.S. Arctic and internationally in the future. Climate change is expected to enhance marine access to offshore oil and gas reserves by reducing sea ice extent, thickness, and seasonal duration, thereby improving ship access to these resources around the margins of the Arctic Basin. Oil and gas exploration, development, and production activities include, but are not limited to: 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 ringed seals primarily through noise, physical disturbance, and pollution, particularly in the event of a large oil spill or blowout.

Within the range of the Arctic ringed seal, offshore oil and gas exploration and production activities are currently underway in the United States, Canada, Greenland, Norway, and Russia. In the United States, oil and gas activities have been conducted off the coast of Alaska since the 1970s, with most of the activity occurring in the Beaufort Sea. Although five exploratory wells have previously been drilled in the Chukchi Sea, no oil fields have been developed or brought into production. Shell plans to drill up to three wells during 2012 at several locations in the northeast Chukchi Sea. Shell also plans to drill offshore in the Beaufort Sea in 2012 near Camden Bay. No offshore oil or gas fields are currently in development or production in the Bering Sea.

About 80 percent of the oil and 99 percent of the gas produced in the Arctic comes from Russia (AMAP, 2007). With over 75 percent of known Arctic oil, over 90 percent of known Arctic gas, and vast estimates of undiscovered oil and gas reserves, Russia will likely continue to be the dominant producer of Arctic oil and gas in the future (AMAP, 2007). Oil and gas developments in the Kara and Barents Seas began in 1992, and large-scale production activities were initiated during 1998-2000. Oil and gas production activities are expected to grow in the western Siberian provinces and Kara and Barents Seas in the future. Recently there has also been renewed interest in the Russian Chukchi Sea, as new evidence emerges to support the notion that the region may contain world-class oil and gas reserves. In the Sea of Okhotsk, oil and natural gas operations are active off the northeastern coast of Sakhalin Island, and future developments are planned in the western Kamchatka and Magadan regions.

A major project underway in the Baltic Sea is the Nord Stream 1,200-km gas line, which will be the longest subsea natural gas pipeline in the world. Concerns have been expressed about the potential disturbance of World War II landmines and chemical toxins in the sediment during construction. There are also concerns about potential leaks and spills from the pipeline and impacts on the Baltic Sea marine environment once the pipeline is operational. Circulation of waters in the Baltic Sea is limited and any contaminants may not be flushed efficiently.

Large oil spills or blowouts are considered to be the greatest threat of oil and gas exploration activities in the marine environment. 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 spill in the Arctic environment would be particularly challenging. The U.S. Arctic has very little infrastructure to support oil spill response, with few roads and no major port facilities. 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 would be the most

challenging because industry and government have little experience containing or effectively recovering spilled oil in such conditions. The difficulties experienced in stopping and containing the blowout at the Deepwater Horizon well in the Gulf of Mexico, where environmental conditions and response preparedness are comparatively good (but waters are much deeper than the Arctic continental shelf), point toward even greater challenges of attempting a similar feat in a much more environmentally severe and geographically remote 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. Tanker spills, pipeline leaks, and oil blowouts are likely to occur in the future, even under the most stringent regulatory and safety systems. In the Sea of Okhotsk, an accident at an oil production complex resulted in a large (3.5-ton) spill in 1999, and in winter 2009, an unknown quantity of oil associated with a tanker fouled 3 km of coastline and hundreds of birds in Aniva Bay (Sakhalin Island). In the Arctic, a blowout at an offshore platform in the Ekofisk oil field in the North Sea in 1977 released more than 200,000 barrels of oil.

Researchers have suggested that pups of ice-associated seals may be particularly vulnerable to fouling of their dense lanugo coats. Adults, juveniles, and weaned young of the year rely on blubber for insulation, so effects of oiling on their thermoregulation are expected to be minimal. A variety of other acute effects of oil exposure have been shown to reduce seals' health and possibly survival. Direct ingestion of oil, ingestion of contaminated prey, or inhalation of hydrocarbon vapors can cause serious health effects including death.

The BRT considered the threat posed to ringed seals by disturbance, injury, or mortality from oil spills, and/or other discharges, as of low to moderate significance, with the greatest threat identified for Okhotsk and Baltic ringed seals.

Commercial Fisheries Interactions and Bycatch

Commercial fisheries may affect ringed seals through direct interactions (

i.e.,

incidental take or bycatch) and indirectly through competition for prey resources and other impacts on prey populations. NMFS has access to estimates of Arctic ringed seal bycatch only for commercial fisheries that operate in Alaska waters. Based on data from 2002-2006, there has been an annual average of 0.46 Arctic ringed seal mortalities incidental to commercial fishing operations. NAMMCO (2002) stated that in the North Atlantic region Arctic ringed seals are seldom caught in fishing gear because their distribution does not coincide with intensive fisheries in most areas. We could find no information regarding ringed seal bycatch levels in the Sea of Okhotsk; however, given the intensive levels of commercial fishing that occur in this sea, bycatch of ringed seals likely occurs there. The BRT considered the threat posed to Okhotsk ringed seals from physical disturbance associated with the combined factors of oil and gas development, shipping, and commercial fisheries moderately significant.

Drowning in fishing gear has been reported as one of the most significant mortality factors for seals in the Baltic Sea, especially for young seals. There are no reliable estimates of seal bycatch in this sea, and existing estimates are known to be low in many areas, making risk assessment difficult. Based on monitoring of 5 percent of the commercial fishing effort in the Swedish coastal fisheries, bycatch of Baltic ringed seals was estimated at 50 seals in 2004. In Finland, it was estimated that about 70 Baltic ringed seals were caught by fishing gear annually during the period 1997-1999. There are no estimates of seal bycatch from Lithuanian, Estonian, or Russian waters of the Baltic. It has been suggested that decreases in the use of the most harmful types of nets (

i.e.,

gillnets and unprotected trap nets), along with the development of seal-proof fishing gear, may have resulted in a decline in Baltic ringed seal bycatch (Ministry of Agriculture and Forestry, 2007).

It has been estimated that 200-400 Ladoga ringed seals died annually in fishing gear during the late 1980s and early 1990s. Fishing patterns reportedly changed since then, and in the late 1990s fishing was not regarded to be a threat to Ladoga ringed seal populations, although it was suggested that it could become so should market conditions improve (Sipilä and Hyvärinen, 1998). Based on interviews with fishermen in Lake Ladoga, Verevkin

et al.

(2006) reported that at least 483 Ladoga ringed seals were killed in fishing gear in 2003, even though official records only recorded 60 cases of bycatch. Further, Verevkin

et al.

(2010) reported questionnaire responses by fishermen that indicated annual bycatch of Ladoga ringed seals caught in fishing nets has been substantial in recent years.

For indirect interactions, we note that commercial fisheries target a number of known ringed seal prey species such as walleye pollock (

Theragra chalcogramma

), Pacific cod, herring (

Clupea

sp.), and capelin. These fisheries may affect ringed seals indirectly through reductions in prey biomass and through other fishing mediated changes in ringed seal prey species.

Shipping

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. 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 lengthening the potential navigation season.

The most significant risk posed by shipping activities in the Arctic is the accidental or illegal discharge of oil or other toxic substances carried by ships, due to their immediate and potentially long-term effects on individual animals, populations, food webs, and the environment. Shipping activities can also affect ringed seals directly through noise and physical disturbance (

e.g.,

icebreaking vessels), as well as indirectly through ship emissions and the possibility of introducing exotic species that may affect ringed seal food webs.

Current and future shipping activities in the Arctic pose varying levels of threats to ringed seals depending on the type and intensity of the shipping activity and its degree of spatial and temporal overlap with ringed seal habitats. These factors are inherently difficult to predict, making threat assessment highly uncertain. However, given what is currently known about ringed seal populations and shipping activity in the Arctic, some general assessments can be made. Arctic ringed seal densities are variable and depend on many factors; however, they are often reported to be widely distributed in relatively low densities and rarely congregate in large numbers. This may help mitigate the risks of more localized shipping threats (

e.g.,

oil spills or physical disturbance), since the impacts from such events would be less likely to affect large numbers of seals. 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 also helps to

mitigate the risks associated with shipping to ringed seals, since they are closely associated with ice at nearly all times of the year. Icebreakers pose special risks to ringed seals because 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. 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 ringed seals occur will likely also increase.

Though few details are available regarding shipping levels in the Sea of Okhotsk, resource development over the last decade stands out as a likely significant contributor. Relatively high levels of shipping are needed to support present oil and gas operations. In addition, large-scale commercial fishing occurs in many parts of the sea. Winter shipping activities in the southern Sea of Okhotsk are expected to increase considerably as oil and gas production pushes the development and use of new classes of icebreaking ships, thereby increasing the potential for shipping accidents and oil spills in the ice-covered regions of this sea.

The Baltic Sea is one of the most heavily trafficked shipping areas in the world, with more than 2,000 large ships (including about 200 oil tankers) sailing on its waters on an average day. Additionally, ferry lines, fishing boats, and cruise ships frequent the Baltic Sea. Both the number and size of ships (especially oil tankers) have grown in recent years, and the amount of oil transported in the Baltic (especially from the Gulf of Finland) has increased significantly since 2000. The risk of oil exposure for seals living in the Baltic Sea is considered to be greatest in the Gulf of Finland, where oil shipping routes pass through ringed seal pupping areas as well as close to rocks and islets where seals sometimes haul out. Icebreaking during the winter is considered to be the most significant marine traffic factor for seals in the Baltic Sea, especially in the Bothnian Bay.

Lake Ladoga is connected to the Baltic Sea and other bodies of water via a network of rivers and canals that are used as waterways to transport people, resources, and cargo throughout the Baltic region. However, reviews of the biology and conservation of Ladoga ringed seals have not identified shipping-related activities (other than accidental bycatch in fishing gear) as being important risks to the conservation status of this subspecies.

The threats posed from shipping activity in the Sea of Okhotsk, Baltic Sea, and Lake Ladoga and are largely the same as they are for the Arctic. Two obvious but important distinctions between these regions and the Arctic are that these bodies of water are geographically smaller and more confined than many areas where the Arctic subspecies lives, and they contain much smaller populations of ringed seals. Therefore, shipping and ringed seals are more likely to overlap spatially in these regions, and a single accident (

e.g.,

a large oil spill) could potentially impact these smaller populations severely. However, the lack of specific information on threats and impacts (now and in the future) makes threat assessment in these regions uncertain. More information is needed to adequately assess the risks of shipping to ringed seals. The BRT considered the threat posed to Okhotsk, Baltic, and Ladoga ringed seals from physical disturbance associated with the combined factors of oil and gas development, shipping, and commercial fisheries moderately significant, while also noting that drowning of seals in fishing nets and disturbance from human activities are specific conservation concerns for Ladoga ringed seals.

Summary of Factor E

We find that the threats posed by pollutants, oil and gas activities, fisheries, and shipping do not individually or collectively place the Arctic or Okhotsk subspecies of ringed seals at risk of becoming endangered in the foreseeable future. We recognize, however, that the significance of these threats would likely increase for populations diminished by the effects of climate change or other threats.

Reduced productivity in the Baltic Sea ringed seal in recent decades resulted from impaired fertility that was associated with pollutants. We do not have any information to conclude that there are currently population-level effects on Baltic ringed seals from contaminant exposure. We find that the threats posed by pollutants, petroleum development, commercial fisheries, and increased ship traffic do not individually or collectively pose a significant risk to the persistence of the Baltic ringed seals. We recognize, however, that the significance of these threats would likely increase for populations diminished by the effects of climate change or other threats. We also note that, particularly given the elevated contaminant load in the Baltic Sea, continued efforts are necessary to ensure that population-level effects from contaminant exposure do not recur in Baltic ringed seals in the future.

Drowning of seals in fishing gear and disturbance by human activities are conservation concerns for ringed seals in Lake Ladoga and could exacerbate the effects of climate change on this seal population. Drowning in fishing gear is also one of the most significant sources of mortality for ringed seals in the Baltic Sea. Although we currently do not have any data to conclude that these threats are having population-level effects on Baltic ringed seals, reported bycatch mortality in Lake Ladoga appears to pose a significant threat to that subspecies, particularly when combined with the effects of climate change on ringed seal habitat.

Analysis of Demographic Risks

Threats to a species' long-term persistence are manifested demographically as risks to its abundance, productivity, spatial structure and connectivity, and genetic and ecological diversity. These demographic risks provide the most direct indices or proxies of extinction risk. A species at very low levels of abundance and with few populations will be less tolerant to environmental variation, catastrophic events, genetic processes, demographic stochasticity, ecological interactions, and other processes. A rate of productivity that is unstable or declining over a long period of time can indicate poor resiliency to future environmental change. A species that is not widely distributed across a variety of well-connected habitats is at increased risk of extinction due to environmental perturbations, including catastrophic events. A species that has lost locally-adapted genetic and ecological diversity may lack the raw resources necessary to exploit a wide array of environments and endure short- and long-term environmental changes.

The key factors limiting the viability of all five ringed seal subspecies are the forecasted reductions in ice extent and, in particular, depths and duration of snow cover on ice. Early snow melts already are evident in much of the species' range. Increasingly late ice formation in autumn is forecasted, contributing to expectations of substantial decreases in snow accumulation. The ringed seal's specific requirement for habitats with adequate spring snow cover is manifested in the pups' low tolerance for exposure to wet, cold conditions and their vulnerability to predation. Premature failure of the snow cover has caused high mortality due to freezing and predation. Climate

warming will result in increasingly early snow melts, exposing vulnerable ringed seal pups to predators and hypothermia.

The BRT considered the current risks to the persistence of Arctic, Okhotsk, Baltic, and Ladoga ringed seals as low to moderate, with the Ladoga ringed seal receiving the highest scores. Within the foreseeable future, the BRT judged the risks to Arctic ringed seal persistence to be moderate (diversity and abundance) to high (productivity and spatial structure). As noted above, the impacts to Arctic ringed seals may be somewhat ameliorated initially if the subspecies' range retracts northward with sea ice habitats, but by the end of the century snow depths are projected to be insufficient for lair formation and maintenance throughout much of the subspecies' range, including the potentially retracted northward one. The BRT also judged the risks to persistence of the Okhotsk and Baltic ringed seal in the foreseeable future to be moderate (diversity) to high (abundance, productivity, and spatial structure). Okhotsk and Baltic ringed seals will have limited opportunity to shift their range northward because the sea ice will retract toward land.

Risks to Ladoga ringed seal persistence within the foreseeable future were judged by the BRT to be moderate (diversity), or high to very high (abundance, productivity, and spatial structure). As noted above, Ladoga ringed seals are a landlocked population that will be unable to shift their range in response to the pronounced degradation of ice and snow habitats forecasted to occur.

Conservation Efforts

When considering the listing of a species, section 4(b)(1)(A) of the ESA requires NMFS to consider efforts by any State, foreign nation, or political subdivision of a State or foreign nation to protect the species. Such efforts would include measures by Native American tribes and organizations, local governments, and private organizations. Also, Federal, tribal, state, and foreign recovery actions (16 U.S.C. 1533(f)), and Federal consultation requirements (16 U.S.C. 1536) constitute conservation measures. In addition to identifying these efforts, under the ESA and our Policy on the Evaluation of Conservation Efforts (68 FR 15100; March 28, 2003), we must evaluate the certainty of implementing the conservation efforts and the certainty that the conservation efforts will be effective on the basis of whether the effort or plan establishes specific conservation objectives, identifies the necessary steps to reduce threats or factors for decline, includes quantifiable performance measures for monitoring compliance and effectiveness, incorporates the principles of adaptive management, and is likely to improve the species' viability at the time of the listing determination.

International Conservation Efforts Specifically to Protect Ringed Seals

Baltic ringed seals:

(1) Some protected areas in Sweden, Finland, the Russian Federation, and Estonia include Baltic ringed seal habitat; (2) the Baltic ringed seal is included in the Red Book of the Russian Federation as “Category 2” (decreasing abundance), is classified as “Endangered” in the Red Data Book of Estonia, and is listed as “Near Threatened” on the Finnish and Swedish Red Lists; and (3) Helsinki Commission (HELCOM) recommendation 27-28/2 (2006) on conservation of seals in the Baltic Sea established a seal expert group to address and coordinate seal conservation and management across the Baltic Sea region. This expert group has made progress toward completing a set of related tasks identified in the HELCOM recommendation, including coordinating development of national management plans and developing monitoring programs. The national red lists and red data books noted above highlight the conservation status of listed species and can inform conservation planning and prioritization.

Ladoga ringed seals:

(1) In May 2009, Ladoga Skerries National Park, which will encompass northern and northwest Lake Ladoga, was added to the Russian Federation's list of protected areas to be established; and (2) the Ladoga ringed seal is included in the Red Data Books of the Russian Federation, the Leningrad Region, and Karelia.

International Agreements

The International Union for the Conservation of Nature and Natural Resources (IUCN) Red List identifies and documents those species believed by its reviewers to be most in need of conservation attention if global extinction rates are to be reduced, and is widely recognized as the most comprehensive, apolitical global approach for evaluating the conservation status of plant and animal species. In order to produce Red Lists of threatened species worldwide, the IUCN Species Survival Commission draws on a network of scientists and partner organizations, which uses a standardized assessment process to determine species' risks of extinction. However, it should be noted that the IUCN Red List assessment criteria differ from the listing criteria provided by the ESA. The ringed seal is currently classified as a species of “Least Concern” on the IUCN Red List. The Red List assessment notes that, given the risks posed to the ringed seal by climate change, the conservation status of all ringed seal subspecies should be reassessed within a decade. The European Red List compiles assessments of the conservation status of European species according to IUCN red listing guidelines. The assessment for the ringed seal currently classifies the Ladoga ringed seal as “Vulnerable.” The Baltic ringed seal is classified as a species of “Least Concern” on the European Red List, with the caveats that population numbers remain low and that there are significant conservation concerns in some part of the Baltic Sea. Similar to inclusion in national red lists and red data books, these listings highlight the conservation status of listed species and can inform conservation planning and prioritization.

The Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention) is a regional treaty on conservation. Current parties to the Bern Convention within the range of the ringed seal include Norway, Sweden, Finland, Estonia, and Latvia. The agreement calls for signatories to provide special protection for fauna species listed in Appendix II (species to be strictly protected) and Appendix III to the convention (species for which any exploitation is to be regulated). The Ladoga ringed seal is listed under Appendix II, and other ringed seals fall under Appendix III. Hunting of Ladoga ringed seals has been prohibited since 1980, and hunting of Baltic ringed seals has also been suspended (although Finland permitted the harvest of small numbers of ringed seals in the Bothnian Bay beginning in 2010).

The provisions of the Council of the European Union's Directive 92/43/EEC on the Conservation of Natural Habitats of Wild Fauna and Flora (Habitats Directive) are intended to promote the conservation of biodiversity in European Union (EU) member countries. EU members meet the habitat conservation requirements of the directive by designating qualified sites for inclusion in a special conservation areas network known as Natura 2000. Current members of the EU within the range of the ringed seal include Sweden, Finland, and Estonia. Annex II to the Habitats Directive lists species whose conservation is to be specifically considered in designating special

conservation areas, Annex IV identifies species determined to be in need of strict protection, and Annex V identifies species whose exploitation may require specific management measures to maintain favorable conservation status. The Baltic ringed seal is listed in Annex II and V, and the Arctic ringed seal is listed in Annex V. Some designated Natura 2000 sites include Baltic ringed seal habitat.

In 2005 the International Maritime Organization (IMO) designated the Baltic Sea Area outside of Russian territorial waters as a Particularly Sensitive Sea Area (PSSA), which provides a framework under IMO's International Convention for the Prevention of Pollution from Ships (MARPOL 73/78) for developing internationally agreed upon measures to reduce risks posed from maritime shipping activities. To date, a maritime traffic separation scheme is the sole protective measure associated with the Baltic PSSA. Expansion of Russian oil terminals is contributing to a marked increase in oil transport in the Baltic Sea; however, the Russian Federation has declined to support the Baltic Sea PSSA designation.

HELCOM's main goal since the Helsinki convention first entered force in 1980 has been to address Baltic Sea pollution caused by hazardous substances and to restore and safeguard the ecology of the Baltic. HELCOM acts as a coordinating body among the nine countries with coasts along the Baltic Sea. Activities of HELCOM have led to significant reductions in a number of monitored hazardous substances in the Baltic Sea. However, pollution caused by hazardous substances continues to pose risks.

The Agreement on Cooperation in Research, Conservation, and Management of Marine Mammals in the North Atlantic (North Atlantic Marine Mammal Commission [NAMMCO]) was established in 1992 by a regional agreement among the governments of Greenland, Iceland, Norway, and the Faroe Islands to cooperatively conserve and manage marine mammals in the North Atlantic. NAMMCO has provided a forum for the exchange of information and coordination among member countries on ringed seal research and management.

Domestic U.S. Conservation Efforts

NMFS is not aware of any formalized conservation efforts for ringed seals that have yet to be implemented, or which have recently been implemented but have yet to show their effectiveness in removing threats to the species. Therefore, we do not need to evaluate any domestic conservation efforts under our Policy on Evaluating Conservation Efforts (68 FR 15100; March 28, 2003).

NMFS has established a co-management agreement with the Ice Seal Committee (ISC) to conserve and provide co-management of subsistence use of ice seals by Alaska Natives. The ISC is an Alaska Native Organization dedicated to conserving seal populations, habitat, and hunting in order to help preserve native cultures and traditions. The ISC co-manages ice seals with NMFS by monitoring subsistence harvest and cooperating on needed research and education programs pertaining to ice seals. NMFS's National Marine Mammal Laboratory is engaged in an active research program for ringed seals. The new information from this research will be used to enhance our understanding of the risk factors affecting ringed seals, thereby improving our ability to develop effective management measures for the species.

Listing Determinations

We have reviewed the status of the ringed seal, fully considering the best scientific and commercial data available, including the status review report. We have reviewed threats to these subspecies of the ringed seal, as well as other relevant factors, and considered conservation efforts and special designations for ringed seals by states and foreign nations. In consideration of all of the threats and potential threats to ringed seals identified above, the assessment of the risks posed by those threats, the possible cumulative impacts, and the uncertainty associated with all of these, we draw the following conclusions:

Arctic subspecies:

(1) There are no specific estimates of population size available for the Arctic subspecies, but most experts postulate that the population numbers in the millions. (2) The depth and duration of snow cover are forecasted to decrease substantially throughout the range of the Arctic ringed seal. Within this century, snow cover is forecasted to be inadequate for the formation and occupation of birth lairs over most of the subspecies' range. (3) Because ringed seals stay with the ice as it annually advances and retreats, the southern edge of the ringed seal's range may initially shift northward. Whether ringed seals will continue to move north with retreating ice over the deeper, less productive Arctic Basin waters and whether the species that they prey on will also move north is uncertain. (4) The Arctic ringed seal's pupping and nursing seasons are adapted to the phenology of ice and snow. The projected decreases in sea ice, snow cover, and thermal capacity of birthing lairs will likely lead to decreased pup survival. Thus, within the foreseeable future it is likely that the number of Arctic ringed seals will decline substantially, and they will no longer persist in substantial portions of their range. We have determined that the Arctic subspecies of the ringed seal is not in danger of extinction throughout all of its range, but is likely to become so within the foreseeable future. Therefore, we are listing it as threatened.

Okhotsk subspecies:

(1) The best available scientific data suggest a conservative estimate of 676,000 ringed seals in the Sea of Okhotsk, apparently reduced from historical numbers. It has been estimated that the ringed seal population in the Sea of Okhotsk numbered more than one million in 1955. (2) Before the end of the current century, ice suitable for pupping and nursing is forecasted to be limited to the northernmost regions of the Sea of Okhotsk, and projections suggest that snow cover may already be inadequate for birth lairs. The Sea of Okhotsk is bounded to the north by land, which will limit the ability of Okhotsk ringed seals to respond to deteriorating sea ice and snow conditions by shifting their range northward. (3) Although some Okhotsk ringed seals have been reported resting on island shores during the ice-free season, we are not aware of any occurrence of ringed seals whelping or nursing young on land. (4) The Okhotsk ringed seal's pupping and nursing seasons are adapted to the phenology of ice and snow. Decreases in sea ice habitat suitable for pupping, nursing, and molting will likely lead to declines in abundance and productivity of the Okhotsk subspecies. We have determined that the Okhotsk subspecies of the ringed seal is not in danger of extinction throughout its range, but is likely to become so within the foreseeable future. Therefore, we are listing it as threatened.

Baltic subspecies:

(1) Current estimates of 10,000 Baltic ringed seals suggest that the population has been significantly reduced from historical numbers. It has been estimated that about 180,000 ringed seals inhabited the Baltic Sea in 1900 and that by the 1940s this population had been reduced to about 25,000. (2) Reduced productivity in the Baltic subspecies in recent decades resulted from impaired fertility associated with pollutants. (3) Dramatic reductions in sea ice extent are projected by mid-century and beyond in the Baltic Sea, coupled with declining depth and insulating properties of snow

cover on Baltic Sea ice. The Baltic Sea is bounded to the north by land, which will limit the ability of Baltic ringed seals to respond to deteriorating sea ice and snow conditions by shifting their range northward. (4) Although Baltic ringed seals have been reported resting on island shores or offshore reefs during the ice-free season, we are not aware of any occurrence of ringed seals whelping or nursing young on land. (5) The Baltic ringed seal's pupping and nursing seasons are adapted to the phenology of ice and snow. The projected substantial reductions in sea ice extent and deteriorating snow conditions are expected to lead to decreased survival of pups and a substantial decline in the abundance of the Baltic subspecies. We have determined that the Baltic subspecies of the ringed seal is not in danger of extinction throughout all its range, but is likely to become so within the foreseeable future. Therefore, we are listing it as threatened.

Ladoga subspecies:

(1) The population size of the ringed seal in Lake Ladoga is currently estimated at 3,000 to 5,000 seals, a decrease from estimates of 20,000 seals reported for the 1930s, and estimates of 5,000 to 10,000 seals in the 1960s. (2) Reduced ice and snow cover are expected in Lake Ladoga within this century based on regional projections. As ice and snow conditions deteriorate, the landlocked population of Ladoga ringed seals will be unable to respond by shifting its range. (3) Although Ladoga ringed seals have been reported resting on rocks and island shores during the ice-free season, we are not aware of any occurrence of ringed seals whelping or nursing young on land. (4) The Ladoga ringed seal's pupping and nursing seasons are adapted to the phenology of ice and snow. Reductions in ice and snow are expected to lead to decreased survival of pups and a substantial decline in the abundance of this subspecies. (5) Ongoing mortality incidental to fishing activities is also a significant conservation concern. Based on the substantial threats currently affecting Ladoga ringed seals at a significant level across the range of this subspecies, the high likelihood that the severity of the impacts of deteriorating snow and ice conditions will increase for this subspecies in the foreseeable future, and the fact that the subspecies is landlocked and will be unable to respond to habitat loss by dispersing to new habitat, we have determined that the Ladoga ringed seal is in danger of extinction throughout all of its range. Therefore, we are listing it as endangered.

Significant Portion of the Range Evaluation

Under the ESA and our implementing regulations, a species warrants listing if it is endangered or threatened throughout all or a significant portion of its range. In our analysis for this final rule, we initially evaluated the status of and threats to the Arctic, Okhotsk, and Baltic subspecies throughout their entire ranges. We found that the consequences of habitat change associated with a warming climate can be expected to manifest throughout the current breeding and molting ranges of ringed seals, and that the ongoing and projected changes in sea ice habitat pose significant threats to the persistence of these subspecies. The magnitude of the threats posed to the persistence of ringed seals, including from changes in sea ice habitat, are likely to vary to some degree across the range of the species depending on a number of factors, including where affected populations occur. In light of the potential differences in the magnitude of the threats to specific areas or populations, we evaluated whether the Arctic, Okhotsk, or Baltic subspecies might be in danger of extinction in any significant portions of their ranges. In accordance with our draft policy on “significant portion of its range,” our first step in this evaluation was to review the entire supporting record for this final determination to “identify any portions of the range[s] of the [subspecies] that warrant further consideration” (76 FR 77002; December 9, 2011). We evaluated whether substantial information indicated “that (i) the portions may be significant [within the meaning of the draft policy] and (ii) the species [occupying those portions] may be in danger of extinction or likely to become so within the foreseeable future” (76 FR 77002; December 9, 2011). Under the draft policy, both considerations must apply to warrant listing a species as endangered throughout its range based upon threats within a portion of the range. In other words, if either consideration does not apply, we would not list a species as endangered based solely upon its status within a significant portion of its range. For the Arctic and Okhotsk subspecies, we found it more efficient to address the status question first, whereas for the Baltic subspecies, we found it more efficient to address the significance question first.

The consequences of the potential threats to the Arctic and Okhotsk subspecies, including from changes in sea ice habitat, have been addressed in other sections of the preamble to this final rule. Based on our review of the record, we did not find substantial information indicating that any of the threats to the Arctic and Okhotsk subspecies, including those associated with the changes in sea ice habitat, are so severe or so concentrated as to indicate that either subspecies currently qualifies as endangered within some portion of its range. As described in our

Listing Determinations,

the threats are such that we concluded that Arctic and Okhotsk ringed seals are likely to become endangered within the foreseeable future. As a result, we find that the best available data show that there are no portions of their ranges in which the threats are so concentrated or acute as to place those portions of the ranges of either subspecies in danger of extinction. Because we find that the Arctic and Okhotsk subspecies are not endangered in any portions of their ranges, we need not address the question of whether any portions may be significant.

About 75 percent of the Baltic population is found in the Gulf of Bothnia (Bothnian Bay) in the northern Baltic Sea, while considerably smaller portions of the population are found in the Gulf of Riga and Gulf of Finland (15 percent and 5 percent of Baltic ringed seals, respectively; Ministry of Agriculture and Forestry, 2007). Palo

et al.

(2001) noted that the Baltic Sea subspecies has recently been fragmented into these three breeding segments, but that genetic evidence of the separation is not yet evident. Recent population increases in the Baltic subspecies have been attributed entirely to the Gulf of Bothnia portion of the population, while little growth rate or possible declines have been suggested for ringed seals in the Gulf of Finland and Gulf of Riga (Harkonnen

et al.,

2008; Karlsson

et al.,

2008). We conclude that the best information available does not suggest that declines in or loss of the Gulf of Finland and/or Gulf of Riga portion(s) would result in a substantial decline in the rest of the subspecies. We find that: (1) there is substantial information indicating that the Gulf of Bothnia may be a significant portion of the Baltic ringed seal's range; and (2) the Gulf of Finland and Gulf of Riga are not so significant that the decline or loss of these portions of the range would leave the remainder of the subspecies in danger of extinction, and thus they do not constitute significant portions of the Baltic ringed seal's range.

The consequences of the potential threats to the Baltic subspecies, including from climate change, have been addressed in other sections of the

preamble to this final rule. As described in our

Listing Determinations,

the threats are such that we concluded that Baltic ringed seals are likely to become endangered within the foreseeable future. We do not have any information that would lead to a different conclusion for ringed seals in the Gulf of Bothnia. Therefore, we find that the Gulf of Bothnia portion of the Baltic subspecies' range is not in danger of extinction, but is likely to become so within the foreseeable future.

Prohibitions and Protective Measures

Section 9 of the ESA prohibits the take of endangered species. The term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or engage in any such conduct (16 U.S.C. 1532(19)). In the case of threatened species, ESA section 4(d) authorizes NMFS to issue regulations it considers necessary and advisable for the conservation of the species. Such regulations may include any or all of the section 9 prohibitions. These regulations apply to all individuals, organizations, and agencies subject to U.S. jurisdiction. On December 10, 2010, we proposed protective regulations pursuant to section 4(d) to include all of the prohibitions in section 9(a)(1) (75 FR 77476) based on a preliminary finding that such measures were necessary and advisable for the conservation of the threatened subspecies of the ringed seal.

In light of public comments and upon further review, we are withdrawing the proposed ESA section 4(d) protective regulations for ringed seals. We received comments arguing against adoption of the 4(d) rule and we have not received any information, and are not aware of any, indicating that the addition of the ESA section 9 prohibitions would apply to any activities that are currently unregulated and are having, or have the potential to have, significant effects on the Arctic, Okhotsk, or Baltic subspecies. Further, the Arctic, Okhotsk, and Baltic subspecies appear sufficiently abundant to withstand typical year-to-year variation and natural episodic perturbations in the near term. The principal threat to these subspecies of ringed seals is habitat alteration stemming from climate change within the foreseeable future. This is a long-term threat and the consequences for ringed seals will manifest themselves over the next several decades. Finally, ringed seals currently benefit from existing protections under the MMPA, and activities that may take listed species and involve a Federal action will still be subject to consultation under section 7(a)(2) of the ESA to ensure such actions will not jeopardize the continued existence of the species. We therefore conclude that it is unlikely that the proposed section 4(d) regulations would provide appreciable conservation benefits. As a result, we have concluded that the 4(d) regulations are not necessary at this time. Such regulations could be promulgated at some future time if warranted by new information.

Section 7(a)(2) of the ESA requires Federal agencies to consult with us to ensure that activities they authorize, fund, or conduct are not likely to jeopardize the continued existence of a listed species or a species proposed for listing, or to adversely modify critical habitat or proposed critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with us. Examples of Federal actions that may affect Arctic ringed seals include permits and authorizations relating to coastal development and habitat alteration, oil and gas development (including seismic exploration), toxic waste and other pollutant discharges, and cooperative agreements for subsistence harvest.

For the Ladoga subspecies of the ringed seal that we are listing as endangered, take will be prohibited under section 9 of the ESA. Sections 10(a)(1)(A) and (B) of the ESA provide us with authority to grant exceptions to the ESA's section 9 “take” prohibitions. Section 10(a)(1)(A) scientific research and enhancement permits may be issued to entities (Federal and non-Federal) for scientific purposes or to enhance the propagation or survival of a listed species. The type of activities potentially requiring a section 10(a)(1)(A) research/enhancement permit include scientific research that targets ringed seals. Section 10(a)(1)(B) incidental take permits are required for non-Federal activities that may incidentally take a listed species in the course of otherwise lawful activity.

Identification of Those Activities That Would Constitute a Violation of Section 9 of the ESA

On July 1, 1994, NMFS and FWS published a series of policies regarding listings under the ESA, including a policy for peer review of scientific data (59 FR 34270) and a policy to identify, to the maximum extent possible, those activities that would or would not constitute a violation of section 9 of the ESA (59 FR 34272). The intent of this policy is to increase public awareness of the effect of our ESA listing on proposed and ongoing activities within the species' range. We identify, to the extent known, specific activities that will be considered likely to result in violation of section 9, as well as activities that will not be considered likely to result in violation. Because the Ladoga ringed seal occurs outside the jurisdiction of the United States, we are presently unaware of any specific activities that could result in violation of section 9 of the ESA for this subspecies. However, we note that it is illegal for any person subject to the jurisdiction of the United States to “take” within the United States or upon the high seas, import or export, deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of a commercial activity, or to sell or offer for sale in interstate or foreign commerce, any endangered wildlife species. It also is illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken in violation of the Act.

Critical Habitat

Section 3 of the ESA (16 U.S.C. 1532(5)(A)) defines critical habitat as: (i) specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the 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 also defines the terms “conserve,” “conserving,” and “conservation” to mean “to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary.”

Section 4(a)(3) of the ESA requires that, to the extent practicable and determinable, critical habitat be designated concurrently with the listing of a species. Designation of critical habitat must be based on the best scientific data available, and must take into consideration the economic, national security, and other relevant impacts of specifying any particular area as critical habitat. Once critical habitat is designated, section 7 of the ESA requires Federal agencies to ensure that they do not fund, authorize, or carry out any actions that are likely to destroy or adversely modify that habitat. This requirement is in addition to the section 7 requirement that Federal agencies ensure their actions do not jeopardize the continued existence of the species.

In determining what areas qualify as critical habitat, 50 CFR 424.12(b) requires that NMFS “consider those physical or biological features that are essential to the conservation of a given species including space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, and rearing of offspring; and habitats that are protected from disturbance or are representative of the historical geographical and ecological distribution of a species.” The regulations further direct NMFS to “focus on the principal biological or physical constituent elements * * * that are essential to the conservation of the species,” and specify that the “known primary constituent elements shall be listed with the critical habitat description.” The regulations identify primary constituent elements (PCEs) as including, but not limited to: “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.”

The ESA directs the Secretary of Commerce to consider the economic impact, the national security impacts, and any other relevant impacts from designating critical habitat, and under section 4(b)(2), the Secretary may exclude any area from such designation if the benefits of exclusion outweigh those of inclusion, provided that the exclusion will not result in the extinction of the species. At this time, we lack the data and information necessary to identify and describe PCEs of the habitat of the Arctic ringed seal, as well as the economic consequences of designating critical habitat. In the proposed rule, we solicited information on the economic attributes within the range of the Arctic ringed seal that could be impacted by critical habitat designation, as well as the identification of the PCEs or “essential features” of this habitat and to what extent those features may require special management considerations or protection. However, few substantive comments were received in response to this request. We find designation of critical habitat for Arctic ringed seals to be not determinable at this time. We will propose critical habitat for Arctic ringed seals in a separate rulemaking. Because the known distributions of the Okhotsk, Baltic, and Ladoga subspecies of the ringed seal occur outside the jurisdiction of the United States, we will not propose critical habitat for Okhotsk, Baltic, or Ladoga ringed seals.

Public Comments Solicited

To ensure that subsequent rulemaking resulting from this final rule will be as accurate and effective as possible, we are soliciting information from the public, other governmental agencies, Alaska Natives, the scientific community, industry, and any other interested parties. Specifically, we request comments and information to help us identify: (1) The PCEs or “essential features” of critical habitat for Arctic ringed seals, and to what extent those features may require special management considerations or protection; as well as (2) the economic, national security, and other relevant attributes within the range of the Arctic ringed seal that could be impacted by critical habitat designation. Although the range of the Arctic ringed seal is circumpolar, regulations at 50 CFR 424.12(h) specify that critical habitat shall not be designated within foreign countries or in other areas outside U.S. jurisdiction. Therefore, we request information only on potential areas of critical habitat within the United States or waters within U.S. jurisdiction. You may submit this information by any one of several methods (see

ADDRESSES

and

DATES

). Comments and information submitted during the initial comment period on the December 10, 2010 proposed rule (75 FR 77476) or during the comment period on the peer review report (77 FR 20773; April 6, 2012) should not be resubmitted since they are already part of the record.

Summary of Comments and Responses

With the publication of the proposed listing determination for the Arctic, Okhotsk, Baltic, and Ladoga subspecies of the ringed seal on December 10, 2010 (75 FR 77476), we announced a 60-day public comment period that extended through February 8, 2011. We extended the comment period an additional 45 days in response to public requests (76 FR 6754; February 8, 2011). Also in response to public requests, including from the State of Alaska, we held three public hearings in Alaska in Anchorage, Barrow, and Nome (76 FR 9733, February 22, 2011; 76 FR 14882, March 18, 2011).

During the public comment periods on the proposed rule we received a total of 5,294 comment submissions in the form of letters via mail, fax, and electronically through the Federal eRulemaking portal. These included 5,238 form letter submissions and 56 other unique submissions. In addition, at the three public hearings we received testimony from 41 people and received written submissions from 12 people. Comments were received from U.S. State and Federal Agencies including the Marine Mammal Commission and the Alaska Department of Fish and Game (ADFG); government agencies of Canada, Nunavut, and Greenland; Native Organizations such as the Ice Seal Committee (ISC; Alaska Native co-management organization); environmental groups; industry groups; and interested individuals.

In accordance with our July 1, 1994, Interagency Cooperative Policy on Peer Review (59 FR 34270), we requested the expert opinion of four independent scientists with expertise in seal biology and/or Arctic sea ice and climate change regarding the pertinent scientific data and assumptions concerning the biological and ecological information use in the proposed rule. The purpose of the review was to ensure that the best biological and commercial information was used in the decision-making process, including input of appropriate experts and specialists. We received comments from three of these reviewers. Two of the reviewers questioned the magnitude and immediacy of the threats posed to Arctic ringed seals by the projected changes in sea ice habitat, in particular on-ice snow cover, while the third reviewer was generally supportive of the information and analyses underlying the determinations.

The differences of opinion amongst the peer reviewers, as well as uncertainty in the best available information regarding the effects of climate change, led NMFS to take additional steps to ensure a sound basis for our final determination on whether to list ringed seals under the ESA. To better inform our final listing determination and address the disagreement regarding the sufficiency or accuracy of the available data relevant to the determination, on December 13, 2011, we extended the deadline for the final listing decision by 6 months to June 10, 2012 (76 FR 77466). Subsequently, we conducted special independent peer review of the sections of the ringed seal status review report (Kelly

et al.,

2010a) related to the disagreement. For this special peer review, we recruited two scientists with marine mammal expertise and specific knowledge of ringed seals, and two physical scientists with expertise in climate change and Arctic sea ice and snow to review these sections of the status review report and provide responses to specific review questions. We received comments from the two physical scientists and one of the marine mammal specialists. We

consolidated the comments received in a peer review report that was made available for comment during a 30-day comment period that opened April 6, 2012 (77 FR 20773). During this public comment period on the special peer review we received an additional 15 comment submissions via fax and electronically through the Federal eRulemaking portal.

We fully considered all comments received from the public and peer reviewers on the proposed rule in developing this final listing of the Arctic, Okhotsk, Baltic, and Ladoga subspecies of the ringed seal. Summaries of the substantive public and peer review comments that we received concerning our proposed listing determination for these subspecies, and our responses to all of the significant issues they raise, are provided below. Comments of a similar nature were grouped together where appropriate.

Some peer reviewers provided feedback of an editorial nature that noted inadvertent minor errors in the proposed rule and offered non-substantive but clarifying changes to wording. We have addressed these editorial comments in this final rule as appropriate. Because these comments did not result in substantive changes to the final rule, we have not detailed them here. In addition to the specific comments detailed below relating to the proposed listing rule, we also received comments expressing general support for or opposition to the proposed rule and comments conveying peer-reviewed journal articles, technical reports, and references to scientific literature regarding threats to the species and its habitat. Unless otherwise noted in our responses below, after thorough review, we concluded that the additional information received was considered previously or did not alter our determinations regarding the status of the four ringed seal subspecies.

Peer Review Comments

Comment 1:

Four peer reviewers commented that the best available data on ringed seal demographics and current and past abundance are limited to poor or non-existent. Consequently, these reviewers noted that there is considerable uncertainty associated with these parameters, including in many areas of Canadian waters. In addition, one reviewer noted that results of ringed seal surveys reported by Kingsley

et al.

(1985) were not cited. One of the reviewers also commented that new information regarding the health and status of ringed seals in Alaska that became available after the proposed rule was published (

i.e.,

Quakenbush

et al.,

2011) should be considered, and that this information indicates they are currently doing as well or better than they have since the 1960s. The State of Alaska submitted a summary of this information with its comments on the proposed rule, and also subsequently submitted a full copy of Quakenbush

et al.

(2011), commenting that these data indicate Arctic ringed seals are currently healthy.

Response:

We agree that data on ringed seal demography and population size are limited. None of the published reports (including Kingsley

et al.,

1985) provide reliable estimates of total or range-wide population size. We have taken Quakenbush

et al.'

s (2011) data (available at

http://alaskafisheries.noaa.gov/protectedresources/seals/ice.htm

) into consideration in reaching our final listing determination, and these data will be useful in future status reviews. We note, however, that healthy individual animals are not inconsistent with a population facing threats that would cause it to become in danger of extinction in the foreseeable future. For example, animals sampled from the endangered Western DPS of Steller sea lions have consistently been found to be healthy. In the case of ringed seals, substantial losses due to predation and hypothermia associated with reduced snow cover could not be detected by assessing the health of survivors. In fact, survivors might be expected to fare well for a period of time as a consequence of reduced competition.

Comment 2:

A peer reviewer suggested that although the ringed seal population in the Sea of Okhotsk is reported to have been in a state of steady decline for 55 years, there are still a substantial number of seals estimated in this population. This reviewer noted that it is possible that the perceived decline reflects sampling error rather than an actual decline in abundance.

Response:

We must base our listing decisions solely on the best scientific and commercial data available, after conducting a status review of the species and taking into account efforts to protect the species. Improved population estimates certainly are desirable. In the meantime, as discussed in the proposed rule and detailed in the status review report, the best available information indicates a decline for the Okhotsk subspecies from historical numbers.

Comment 3:

Four peer reviewers expressed the view that the atmosphere-ocean general circulation models (AOGCMs) used for climate, sea ice, and snow prediction are not appropriate for directly linking to ringed seal habitat or for predicting snow on sea ice at a scale that is important for ringed seals. For example, some of these reviewers commented that the models: (1) Do not represent precipitation adequately, particularly at a local scale (one reviewer stated that it is well known that AOGCMs do not adequately predict precipitation, and two reviewers noted that some regional models predict precipitation poorly); (2) do not account for openings in the ice that are large sources of moisture and heat in the atmosphere, thus making winter precipitation prediction problematic; and (3) do not account for ice surface roughness caused by deformation in autumn through winter, or wind speeds and directions, which are critical to the distribution and accumulation pattern of snow on ice. Related comments of some of these reviewers suggested that increased deformation can be expected as ice forms later in the autumn and remains thinner throughout the winter, and that this could actually mean an improvement to Arctic ringed seal habitat. One of these reviewers pointed out that in addition, the projections of future Arctic snow cover are discussed in terms of the present climatology of snow over sea ice (

i.e.,

increased precipitation in autumn and spring, and less in winter). This reviewer suggested that snow climatology would be expected to change due to more open water later into the winter, which would provide a moisture source for increasing pulses of snow on sea ice in the autumn and perhaps through winter if the atmosphere remained warmer. Several public comments, including from the State of Alaska, Canada's Department of Fisheries and Oceans (DFO), and Nunavut's Department of Environment, expressed more general concerns about limitations with the model projections of snow cover, and some commenters also suggested that the model projections should be verified by field observations.

In contrast, a third peer reviewer commented that the model considered in the status review is the best source available for snow cover projections, and a commenter expressed a similar view. The commenter also noted that the snow depth findings of the status review are now supported by a new snow depth analysis by Hezel

et al.

(2012) that uses a more advanced suite of models from the Coupled Model Intercomparison Project Phase 5 (CMIP5; IPCC AR5) and suggested that this analysis addresses some of the

critiques raised in the special peer review.

Response:

The model (CCSM3; IPCC) that we used to project snow depths includes the ice-thickness distribution and therefore accounts for sea ice deformation as a function of the sea ice compressive strength (resistance to compressive stresses; computed from the potential energy of the ice-thickness distribution) and the opening and closing rates of leads (linear cracks of open water in the ice) in the ice (computed from the ice motion field). The model has roughly 2 percent open water and 10 percent of the area with ice thickness less than 60 cm in the central Arctic in winter months. These aspects of the model are well documented in Holland

et al.

(2006). The consequence of resolving open water and thin ice allows for higher evaporation rates over these surfaces. The model shows a greater rate of evaporation as the sea ice concentration declines over the 21st century. This contributes to higher snowfall rates in winter (November-March).

Sea ice deformation rates in the CCSM3 indicate the 21st century will see increased deformation rates in regions where sea ice motion is towards the shore, such as north of Greenland and the Canadian Archipelago. As we noted in the proposed rule and the status review report, this region is projected to maintain summer sea ice cover during this century longer than any other. Though we agree that there may be a greater concentration of deformed ice in some regions where snow may collect, the CCSM3 (and other models analyzed by Hezel

et al.,

2012) also predicts that snow depths will decrease on average in this region within this century. When ice floes (sheets of floating ice) converge, they first must fill in leads between the floes. Hence when there is more open water in the 21st century and only occasional converging events, there can be less rafting and ridging. Therefore, deformation is not expected to increase in frequency everywhere. For example, the projected deformation rate changes little in the CCSM3 in most of the Barents Sea and Siberian coastal regions.

As noted by a commenter, recently, Hezel

et al.

(2012) considered historical and 21st century snow depth changes on Arctic sea ice using 10 models from the CMIP5 that had snow depth data available. The model projections were compared with existing observations, and according to Hezel

et al.

(2012), the model projections were on average about 10 percent below observations, but about one-third of the individual models projected more snow than observed. Despite the broad range of snow depths among the 10 models over the 21st century, the models all agree that snow depths will decline substantially in the future, similar to the CCSM3. Snow depths decline faster in the models with greater initial depth, so the spread in the model projections declines over time, lending greater support for these forecasts. Hezel

et al.

(2012) discuss that over the 21st century, the loss of sea ice as a platform to collect snow in autumn and early winter (due to later sea ice formation) results in a substantial reduction in the amount of snow that can accumulate on sea ice, the primary concern that was also expressed in the status review report and the proposed rule. Hezel

et al.

(2012) also discuss that their analysis may underestimate future decreases in snow depths because decreases in autumn and winter sea ice concentrations could result in loss of drifting snow into leads, and the models also do not account for the effect of rainfall in winter and spring on net snow accumulation and melting.

We continue to conclude that the best available information suggests that the CCSM3 projects snow depth reasonably well. We note, for example, that snow depths from the CCSM3 are consistent with measured snow in the Arctic Ocean (Radionov

et al.,

1997) and Hudson Bay (Ferguson

et al.,

2005). The resolution of the model projections of snow is certainly limited, but the CCSM3 and more recent model results point unequivocally to less snow accumulation on the ice throughout the range of the species. The reviewers/commenters did not present—and we are not aware of—evidence that snow accumulation is likely to increase at any scale that would likely be helpful for ringed seal populations responding to the expected climate warming.

Comment 4:

A peer reviewer commented that fast (shorefast) ice conditions are not considered adequately in any of the AOGCMs used. This reviewer expressed the opinion that this is a key problem with the assessment because a significant amount of Arctic ringed seal habitat is related to fast ice, and fast ice zones will also be less affected than marginal ice zones.

Response:

The sea ice dynamical schemes used in AOGCMs (including the CCSM3) have regions of very slow moving ice, though not perfectly rigid. These regions exhibit little deformation and lead openings in AOGCMs. NMFS did not use AOGCMs to estimate changes to the fast ice area. Instead, we used AOGCMs to estimate changes to snow depth and sea ice area. Nevertheless, the status review report indicated that there is already clear evidence of advancement in the break-up date of fast ice and the onset of snow melt in several parts of the Arctic (

e.g.,

Ferguson

et al.,

2005; Kelly

et al.,

2006). No evidence was found by the BRT or presented by the peer reviewers or other commenters that indicates these trends are likely to abate or reverse. Early break up and early snow melt dates have clearly been associated with poor survival of ringed seal young. Therefore, these trends are likely to result in reduced productivity, resilience, and abundance of the Arctic ringed seal population, despite the fact that the models do not explicitly distinguish fast ice from pack ice (both of which are important ringed seal habitats).

Comment 5:

A peer reviewer, as well as Canada's DFO, noted observations of regional snow conditions and ringed seal pupping that they suggested may conflict with the model projections of snow depths and the 20 cm minimum snow depth criterion identified for ringed seal birth lairs. The reviewer pointed out that based on CCSM3 model projections presented in the status review report, average April snow depths on sea ice for the first decade of this century in Hudson Bay appear to be below 20 cm, which she suggested implies longer-term reproductive failure in this population than the decline and/or perhaps decadal cycles suggested by the available data. In addition, this reviewer noted that loss of sea ice and snow can vary regionally, and that this needs to be taken into consideration in evaluating impacts. A few public comments also pointed out what were believed to be discrepancies in some regions between the model projections of snow depths and local observations, and expressed the view that a model that does not agree with current conditions should not be used to project future conditions. For example, these comments noted that: (1) Ringed seals continue to occupy and reproduce in the northern Bering Sea, while the model projections suggest that snow depths are currently below 20 cm in these areas; and (2) the observed trend in annual snowfall accumulation since the 1980s in the vicinity of Barrow shows a clear upward trend, with levels similar to or exceeding those recorded during previous periods when ringed seals successfully maintained lairs.

Response:

The models should be interpreted as indicating trends in conditions when averaged over large areas. There may well be local or regional variation sufficient to produce locally different trends. A single model is prone to large errors on the scale of

a few hundred kilometers. For example, the CCSM3 has too much sea ice area in the Sea of Okhotsk and in the Labrador Sea. On the scale of the Northern Hemisphere, the errors across these regions cancel somewhat. Another appropriate use of a model is to evaluate agreement across regions. Although the rate of change varies by region, the CCSM3 has snow depth decreasing everywhere, which lends support for the projected direction of future change.

Comment 6:

A peer reviewer expressed the opinion that insufficient consideration is given to the greater role that the Arctic Archipelago will likely play as an ice retention zone over the coming decades.

Response:

The proposed rule noted that the Arctic Archipelago is predicted to become an ice refuge through the end of this century. Indeed, the Archipelago “will likely play” a “greater role” in ringed seal habitat “over the coming decades,” but not because habitat will improve there (snow accumulation, for example, is projected to decline). Rather, the Archipelago's increased role will reflect greater losses of ice and snow elsewhere in the Arctic. In other words, the Archipelago is projected to be the last possible remnant of suitable habitat, although we do not know how suitable or for how long.

Comment 7:

A peer reviewer expressed the opinion that use of temperatures as a proxy for projecting sea ice conditions in the Sea of Okhotsk appears problematic given that: (1) The climate models did not perform satisfactorily at projecting sea ice, and sea ice extent is strongly controlled by temperature; and (2) temperature itself is strongly controlled by sea ice conditions.

Response:

The decision to use temperature as an indicator for the presence of ice is a geographic size issue. While the climate models' grid size is too coarse to develop full sea ice physics for the Sea of Okhotsk, these models are able to resolve temperature, which is mostly controlled by large-scale weather patterns on the order of 500 km or more. As the reviewer notes, sea ice extent is strongly controlled by temperature; this is especially true for smaller bodies of water relative to the grid size of available models. Thus, whether the whole geographic region around the Sea of Okhotsk is above or below the freezing point of sea water should be a reasonable indicator of the presence or absence of sea ice.

Comment 8:

A peer reviewer suggested that climate models capable of adequately capturing fast ice formation, the physics of snow precipitation, and the catchment of snow should be a high priority for development.

Response:

We agree with this recommendation.

Comment 9:

A peer reviewer expressed the view that climate model predictions should not be considered beyond mid-century because they rely on assumptions about future policy decisions that will affect GHG emissions and are thus highly speculative. Related public comments, including from the State of Alaska, noted that NMFS's recent ESA listing determination for the ribbon seal and a subsequent court decision concluded that projections of climate scenarios beyond 2050 are too heavily dependent on socioeconomic assumptions and are therefore too divergent for reliable use in assessing threats to the species. Two reviewers and several commenters expressed the opinion that trying to predict the response of seals to environmental change beyond mid-century increases the uncertainty unreasonably. A reviewer and several public comments also pointed out that assessing impacts to ringed seals from climate change through the end of this century is inconsistent with: (1) Other recent ESA determinations for Arctic species, such as ribbon seal and polar bear, that considered species responses through mid-century; (2) the IUCN red list process, which uses a timeframe of three generation lengths; and (3) the mid-century timeframe considered to evaluate environmental responses of marine mammals to climate change in a special issue (March 2008) of the journal Ecological Applications (Walsh, 2008). A few commenters expressed the opinion that the altered approach is significant because the listing determinations are wholly dependent upon NMFS's use of a 100-year foreseeable future. Several commenters expressed the opinion that inadequate justification was provided for NMFS's use of a 100-year foreseeable future. Many of these commenters suggested that the best scientific data support a “foreseeable future” time frame of no more than 50 years, and some commenters such as the State of Alaska suggested a shorter time horizon of no more than 20 years. In contrast, another peer reviewer and some commenters expressed support for use of climate model projections through the end of the 21st century.

Response:

The ESA requires us to make a decision as to whether the species under consideration is in danger of extinction throughout all or a significant portion of its range (endangered), or is likely to become endangered within the foreseeable future throughout all or a significant portion of its range (threatened) based on the best scientific and commercial data available. While we may consider the assessment processes of other scientists (

i.e.,

IUCN; Walsh, 2008), we must make a determination as to whether a species meets the definition of threatened or endangered based upon an assessment of the threats according to section 4 of the ESA. We have done so in this rule, using a threat-specific approach to the “foreseeable future” as discussed below and in the proposed listing rule.

In the December 30, 2008, ribbon seal listing decision (73 FR 79822) the horizon of the foreseeable future was determined to be the year 2050. The reasons for limiting the review to 2050 included the difficulty in incorporating the increased divergence and uncertainty in future emissions scenarios beyond this time, as well as the lack of data for threats other than those related to climate change beyond 2050, and that the uncertainty inherent in assessing ribbon seal responses to threats increased as the analysis extended farther into the future. By contrast, in our more recent analyses for spotted, ringed, and bearded seals, we did not identify a single specific time as the foreseeable future. Rather, we addressed the foreseeable future based on the available data for each respective threat. This approach better reflects real conditions in that some threats (

e.g.,

disease outbreaks) appear more randomly through time and are therefore difficult to predict, whereas other threats (climate change) evince documented trends supported by paleoclimatic data from which reasonably accurate predictions can be made farther into the future. Thus, the time period covered for what is reasonably foreseeable for one threat may not be the same for another. The approach is also consistent with the memorandum issued by the Department of Interior, Office of the Solicitor, regarding the meaning of the term “foreseeable future” (Opinion M-37021; January 16, 2009). In consideration of this modified threat-specific approach, NMFS initiated a new status review of the ribbon seal on December 13, 2011 (76 FR 77467).

As discussed in the proposed listing rule, the analysis and synthesis of information presented in the IPCC's AR4 represents the scientific consensus view on the causes and future of climate change. The IPCC's AR4 used state-of-the-art AOGCMs under six “marker” scenarios from the Special Report on Emissions Scenarios (SRES; IPCC, 2000) to develop climate projections under

clearly stated assumptions about socioeconomic factors that could influence the emissions. Conditional on each scenario, the best estimate and likely range of emissions were projected through the end of the 21st century. In our review of the status of the ringed seal, we considered model projections of sea ice developed using the A1B scenario, a medium “business-as-usual” emissions scenario, as well the A2 scenario, a high emissions scenario, to represent a significant range of variability in future emissions.

We also note that the SRES scenarios do not assume implementation of additional climate initiatives beyond current mitigation policies. This is consistent with consideration of “existing” regulatory mechanisms in our analysis under ESA listing Factor D. It is also consistent with our Policy on Evaluating Conservation Efforts (68 FR 15100; March 28, 2003), which requires that in making listing decisions we consider only formalized conservation efforts that are sufficiently certain to be implemented and effective.

The model projections of global warming (defined as the expected global change in surface air temperature) out to about 2040-2050 are primarily due to emissions that have already occurred and those that will occur over the next decade. Thus conditions projected to mid-century are less sensitive to assumed future emissions scenarios. For the second half of the 21st century, however, the choice of an emissions scenario becomes the major source of variation among climate projections. As noted above, in our 2008 listing decision for ribbon seal, the foreseeable future was determined to be the year 2050. The identification of mid-century as the foreseeable future took into consideration the approach taken by FWS in conducting its status review of the polar bear under the ESA, and the IPCC assertion that GHG levels are expected to increase in a manner that is largely independent of assumed emissions scenarios until about the middle of the 21st century, after which the emissions scenarios become increasingly influential.

Subsequently, in the listing analyses for spotted, ringed, and bearded seals, we noted that although projections of GHGs become increasingly uncertain and subject to assumed emissions scenarios in the latter half of the 21st century, projections of air temperatures consistently indicate that warming will continue throughout the century. Although the magnitude of the warming depends somewhat on the assumed emissions scenario, the trend is clear and unidirectional. To the extent that the IPCC model suite represents a consensus view, there is relatively little uncertainty that warming will continue. Because sea ice production and persistence is related to air temperature through well-known physical processes, the expectation is also that loss of sea ice and reduced snow cover will continue throughout the 21st century. Thus, the more recent inclusion of projections out to the year 2100 reflects NMFS's intention to use the best and most current data and analytical approaches available. AOGCM projections consistently show continued reductions in ice extent and multi-year ice (ice that has survived at least one summer melt season) throughout the 21st century (

e.g.,

Holland

et al.,

2006; Zhang and Walsh, 2006; Overland and Wang, 2007), albeit with a spread among the models in the projected reductions. In addition, as discussed by Douglas (2010), the observed rate of Arctic sea ice loss has been reported as greater than the collective projections of most IPCC-recognized AOGCMs (

e.g.,

Stroeve

et al.,

2007; Wang and Overland, 2009), suggesting that the projections of sea ice declines within this century may in fact be conservative.

We concluded that in this review of the status of the ringed seal, the climate projections in the IPCC's AR4, as well as the scientific papers used in this report or resulting from this report, represent the best scientific and commercial data available to inform our assessment of the potential impacts from climate change. In our risk assessment for ringed seals, we therefore considered the full 21st century projections to analyze the threats stemming from climate change. We continue to recognize that the farther into the future the analysis extends, the greater the inherent uncertainty, and we incorporated that consideration into our assessments of the threats and the species' responses to the threats.

Comment 10:

Three peer reviewers expressed the opinion that the potential for ringed seals to modify their behavior in response to climate conditions is underestimated. These reviewers suggested that plasticity in ringed seal life-history activities includes variability in timing of reproduction and molting relative to changes in the ice and snow cover season; the ability to survive slightly shortened nursing periods; and the ability to migrate over long distances, to use alternative platforms to haul out on, and to use alternative food resources. One reviewer noted that changes in Ladoga and Saimaa seal reproductive behavior in recent history (

e.g.,

increased use of shorelines for lair construction) also demonstrate adaptive responses. The resilience and adaptability of ringed seals was also noted in several public comments, including those of Canada's DFO, Nunavut's Department of Environment, and Greenland's Department of Fishing, Hunting, and Agriculture (DFHA). In addition, a related public comment expressed the view that the determination appears to contradict NMFS's emphasis in its recent ESA listing determinations for ribbon and spotted seals on the ability of ice seals to adapt to declines in sea ice.

Response:

Presumably the reviewers are referring to phenotypic plasticity, which is the ability of an individual genotype (genetic composition) to produce multiple phenotypes (observable characteristics or traits) in response to its environment. Plasticity in the timing of ringed seal reproduction and molting is not established. More importantly, the BRT would predict population reductions as habitat changes (

i.e.,

depth and duration of ice and especially snow cover decreases) require changes in the timing of reproduction and molting, decreased nursing periods, changes in migration, use of alternative haul-out substrates, and changes in diet. If the reviewers are arguing that ringed seal populations might persist in the face of such changes, we agree. If the reviewers are suggesting that ringed seal populations would not be expected to decline significantly in the face of such changes, we disagree.

Comment 11:

A peer reviewer commented that regional variation in the minimum snow depth required for Arctic ringed seal lair construction and maintenance is an important consideration, and noted that the ambient temperatures and primary predator in a particular region may influence the minimum snow drift depth needed for birth lair formation and maintenance. This reviewer discussed that ringed seal birth lairs have been successfully constructed in drifts shallower than 45 cm, with corresponding snow depths on flat ice of less than 20 cm, in some parts of the subspecies' range, and also noted how difficult it is to measure snow depth and how poor the data coverage is across various parts of the Arctic ringed seal's range. A commenter expressed the opinion that given the reviewer's emphasis on regional variation, 20 cm average snow depth might not be adequate in many regions. This commenter also noted that Ferguson

et al.

(2005) found a minimum of 32 cm average snow depth was needed for lairs in western Hudson Bay.

Response:

We recognize that there is some uncertainty in measurement of snow depth and in identifying a threshold depth (measured as the average accumulation of snow on flat ice) for adequate recruitment of ringed seals. The minimum adequate snow depth is unlikely to be a sharp threshold, so that there will no doubt be many cases in which successful lairs have been created and maintained in snow shallower than the threshold, and also many cases where ringed seals have succumbed to predation or exposure in lairs made in deeper snow. Also, there may be regional differences in this threshold depth, though the examples that were cited in the status review report and the proposed rule, and used to estimate the snow depth threshold, included documentation of predation by bears, foxes, and birds. However, our conclusions were based primarily on the expectation that snow depths will decrease substantially in the coming decades, and that poor survival of young seals has already been documented in recent years with early break-up or onset of snow melt. No compelling evidence was received during the peer reviews and public comment periods to indicate that these impacts are likely to abate or reverse, or that they are expected to be isolated to particular regions. We discussed in the preamble to the proposed rule that the best available estimate of the minimum average snow depth (on flat ice) for the formation of birthing lairs is at least 20-30 cm, and we considered areas projected to have less than 20 cm average snow depth in April to be inadequate for the formation of ringed seal birth lairs. However, the conclusion that snow habitat will decline substantially throughout the ringed seal's range was not highly dependent on that specific value.

Comment 12:

A peer reviewer commented that while the observations reported of the effects of extreme weather events on Arctic ringed seals are important to consider, there are relatively few data on how these habitat effects are influencing longer-term reproductive potential and population dynamics need to be considered in the proper geographic and temporal context. This reviewer noted that these observations are also for Arctic ringed seals in the southern extent of their range and in the western Arctic, where ringed seals are expected to be more strongly affected by climate change. Therefore, they need to be considered in the proper geographic and temporal context.

Response:

Long-term data on population dynamics of ice-associated seals would be prohibitively difficult and expensive to acquire. Therefore, it is critical and required by the ESA to make use of existing data, which include observations from years or short periods of extreme conditions, as analogs for projected future trends. As the reviewer noted, it is important to keep in mind possible limitations of this approach, including the geographic and temporal contexts. Although several of the key studies relating ringed seal vital rates to environmental conditions do come from southern parts of the species' distribution, the conditions encountered in those studies did not exceed the values for temperatures, minimum snow depths, and ice break-up dates that are anticipated in the coming decades throughout most of the Arctic ringed seal's range.

Comment 13:

A peer reviewer suggested that the assumption that inadequate snow depths and warmer temperatures will cause high pup mortality due to the loss of thermal protection is based on very limited data. This reviewer also commented that ringed seal pups may not need lairs for thermal protection to the same degree as temperatures warm, which may be why ringed seals successfully pup without lairs in the Sea of Okhotsk. Another reviewer commented that the thermal benefit of lairs appears secondary to predator avoidance. A related public comment noted that some data on seal pup mortality due to hypothermia (

i.e.,

Hammill and Smith, 1991) suggest that seal pups are largely unaffected by the snow depth of subnivean lairs, and are in fact much more tolerant of temperature extremes than suggested.

Response:

Substantial data indicate high pup mortality due to hypothermia and predation as a consequence of inadequate snow cover (Kumlien, 1879; Lydersen

et al.,

1987; Lydersen and Smith, 1989; Smith

et al.,

1991; Smith and Lydersen, 1991; Hammill and Smith, 1989; Hammill and Smith, 1991). The suggestion that ringed seals may not need lairs to the same degree as temperatures warm is overly simplistic. Unseasonal warming and rains will become increasingly common as the climate warms, and such events have led to high pup mortality when collapse of lairs was followed by a return to cold temperatures (Lukin and Potelov, 1978; Stirling and Smith, 2004; Ferguson

et al.,

2005). Whether one benefit is secondary or not, the preamble to the proposed rule summarized considerable data that was detailed in the status review report indicating that lairs protect seals from both cold and predators.

Comment 14:

A peer reviewer suggested that the climate model projections of snow cover indicate it is highly likely sufficient snow will be available to Arctic ringed seals in the foreseeable future during the key months when reproduction is likely to occur.

Response:

As discussed in the preamble to the proposed rule, contrary to this reviewer's suggestion, by the end of the century, April snow cover is projected to become inadequate for the formation and occupation of ringed seal birth lairs over much of the Arctic ringed seal's range.

Comment 15:

A peer reviewer commented that the increasing probability of spring precipitation coming in the form of rain during the critical birth lair period (

i.e.,

April) is of particular concern.

Response:

This concern (

i.e.,

potential for spring rain to damage lairs) was identified in the preamble to the proposed rule and was acknowledged and considered by the BRT in its risk assessment (see Kelly

et al.,

2010a). We note that Hezel

et al.

(2012) reported a projected increase in rainfall in April and May through the end of this century.

Comment 16:

One of the peer reviewers expressed the opinion there should be more focus on the seasonal thresholds and types of ice that are thought to be important for ringed seals, as some thresholds are likely to be more critical than others. This reviewer suggested this type of synthesis is needed to evaluate how important changing ice extent, thickness, and presence of multiyear ice will be in the future. For example, a change in ice thickness in core Arctic habitat may be less significant than a change in freeze-up dynamics that affects ice roughness and subsequent snow drift development in the medium and long-term.

Response:

A multi-factorial model of the impacts of ice extent, thickness, and ice type on ringed seal populations would be desirable. However, we are not aware of any time series or other data sets that could be used in such an analysis.

Comment 17:

A peer reviewer noted there are few data on what proportion of the habitat identified as “suitable” is actually used by Arctic ringed seals, and commented that without this information it is difficult to evaluate the impact of ice loss. This reviewer suggested that in core Arctic areas, availability of ice may not be a limiting factor, even with changes in the short and medium term.

Response:

The greatest uncertainty about areas actually used by ringed seals

is with respect to the offshore areas, especially the central Arctic Basin. Along the coasts and in the marginal seas, there is relatively good evidence that ringed seals are currently widespread if not ubiquitous in areas with regular presence of suitable winter ice and snow cover. Many of these areas are projected to become unsuitable within the 21st century. Because potentially suitable sea ice and snow are projected to be present in parts of core Arctic areas longer than in other areas of the Arctic ringed seal's range, ringed seals may be affected later in these areas. Nevertheless, reductions in snow depths are projected throughout the Arctic ringed seal's range, including in core Arctic areas, such that Arctic ringed seals are threatened by the anticipated habitat changes throughout their range.

Comment 18:

A peer reviewer commented that considerable emphasis is placed on the projected loss of multi-year and seasonal ice cover. However, this reviewer noted that Arctic ringed seals avoid multi-year ice, instead preferring stable first-year ice and stable pack ice, and they only require ice during breeding and possibly molting. In addition, the reviewer commented that how Arctic ringed seals might respond to replacement of multi-year sea ice by seasonal first-year ice is not sufficiently considered, noting that although the Arctic Basin has relatively low productivity, it is unclear whether this will remain the case in the future. Another peer reviewer and Greenland's DFHA both commented that the translation of multi-year ice into more first-year ice could actually increase the amount of ringed seal habitat.

A few commenters, including Canada's DFO, similarly suggested that some habitat changes caused by projected changes in climatic conditions, such as increased open water foraging areas, may be beneficial to ringed seals. One commenter expressed the opinion that NMFS arbitrarily adopted a precautionary approach that assumed the worst possible future habitat conditions without taking into account any future potential habitat gains. This commenter also stated that it was unclear why NMFS provided the special peer reviewers of the bearded seal status review a supplemental analysis that highlighted habitat losses and gains based on the sea ice concentration criteria, but did not provide a similar analysis for ringed seals.

Response:

As discussed above, we used AOGCM projections to estimate changes to snow depth and sea ice area throughout the range of Arctic ringed seals. Thus, our analysis did not place particular emphasis on certain ages or types of ice. NMFS considered the impacts of an increased proportion of Arctic ice being made up of first-year ice. Indeed, first-year ice is predicted to form progressively later in fall, after much of the annual snow has already fallen, so snow depths are projected to be diminished on first-year ice as well. An increase in the proportion of first-year ice would not be beneficial to ringed seal breeding and pup survival if snow depths on the new regions of first-year ice are insufficient for lair creation and maintenance.

We agree that ongoing climate disruption and warming may cause some habitat changes that could be beneficial to ringed seals. However, a shift from unsuitable to suitable values of a few habitat dimensions is not a strong indication that other habitat will become suitable overall. For example, if Arctic ringed seals move north with retreating ice and occupy new areas, they may encounter less prey availability in the deeper, less productive Arctic Basin. The reviewer's assertion that the Arctic Basin may become more productive is highly speculative; unlike the physical models used to predict ice and snow, there is not a broad scientific consensus on the general direction of the expected trends.

We are not aware of any documented examples of ice-associated species expanding into previously unsuitable habitat that has become suitable due to climate or other large-scale shifts in conditions. Therefore, we conclude that it is more likely that losses of current habitat will outweigh any potential habitat gains. We also note that as ice and snow cover decline, Arctic waters may become more hospitable to species like spotted and harbor seals that do not depend on snow-covered ice for breeding. So, as breeding habitat declines for ringed seals, they may also face greater competition for food.

Regarding the supplemental analysis provided to the special peer reviewers of the bearded seal status review report, that analysis summarized the projected changes in areas of suitable bearded seal habitat based on sea ice concentration and bathymetry criteria during the months of reproduction and molting, both including and excluding areas of potential habitat gains. Possible habitat gains for bearded seals were described as areas where sea ice concentrations were currently too dense to be considered suitable, but where projected future concentrations fall within the suitable range. For ringed seals, a key consideration in evaluating the potential impacts of the projected changes in ice and snow is sufficient snow depth for the formation and maintenance of lairs. We considered areas projected to have less than 20 cm of average snow depth in April to be inadequate for the formation of ringed seal birth lairs. Model projections indicate that throughout the range of ringed seals there will be a substantial reduction in on-ice snow cover within this century. Therefore, a supplemental analysis similar to the one provided to the bearded seal special peer reviewers would not have indicated any potential gains in suitable habitat in terms of areas with snow depths sufficient for ringed seal birth lairs in April.

Comment 19:

A peer reviewer noted that there was discussion in the status review report of limited evidence suggesting lack of a suitable ice platform may lead to a delayed molt. This reviewer commented that this should be discussed, along with the longer term impact from a survival aspect. The Marine Mammal Commission submitted a related comment that the projected loss of ice poses a threat to molting Arctic ringed seals that should not be overlooked. The Commission noted that failure of ice in a molting area may mean that seals are forced to spend more time in the water, where they must expend more energy to maintain body temperature-energy that does not go to the production of a new coat.

Response:

The limited evidence suggesting that a lack of suitable ice may lead to a delayed molt was discussed in the status review report. The BRT considered the threat posed from decreases in sea ice habitat suitable for molting as moderately significant to the persistence of Arctic, Baltic, and Ladoga ringed seals, and moderately to highly significant to the persistence of Okhotsk ringed seals (Tables 5-8; Kelly

et al.,

2010a).

Comment 20:

A peer reviewer commented that given what is known about the relatively diverse diet of Arctic ringed seals in different regions and the potential for new species of forage fish to shift northward, it is very difficult to predict how quickly the distribution of ringed seals might change in some regions. This reviewer expressed the opinion that it is likely to be highly variable, making conclusions about climate change impacts over broad geographic regions difficult.

Response:

NMFS agrees that drawing such conclusions is difficult. The BRT members' assessments of the significance of specific threats to ringed seal persistence in the foreseeable future were summarized in the status review report in numerical scores. The BRT members assigned relatively low threat

scores and low degrees of certainty to threats from changes in prey availability or density and higher threat scores to changes in snow cover and the impacts on rearing young (Table 5; Kelly

et al.,

2010a). It is not clear how increased food would compensate for the loss of snow, nor is it clear that forage fish moving north would not be accompanied by predators that would compete with ringed seals for those prey.

Comment 21:

A peer reviewer suggested that the lack of subnivean lairs in the Sea of Okhotsk has apparently not increased pup mortality there to an extent that it has significantly decreased the population.

Response:

Russian literature has been inconsistent as to whether or not lairs are or were used in the Sea of Okhotsk. We know of no data that would support the reviewer's assertion that pup mortality has not increased or that the population has not significantly decreased. The best available information would suggest the population has decreased, but as noted elsewhere, estimates of population size are poor.

Comment 22:

Two peer reviewers commented that Arctic ringed seals are considerably more abundant and broadly distributed than Okhotsk and Baltic ringed seals, and their habitat is forecast to change less substantially. Therefore, it is unclear why the demographic risks for all three populations were assessed at relatively similar levels.

Response:

The “relatively similar levels” are, in part, a function of the 1 to 5 numeric scale used to estimate risk in the status review report. The BRT assessed the risk in terms of abundance for the Okhotsk population as 31 percent higher than for the Arctic population, and the risk for the Baltic population as 38 percent higher than for the Arctic population in the foreseeable future (Table 10; Kelly

et al.,

2010a). The assessment of demographic risks was detailed for each population in section 4.3 of the status review report.

Comment 23:

A peer reviewer commented that while it is acknowledged that ringed seals have likely responded to previous warm periods, no attempt is made to explore the extent of these warming periods and how ringed seals may have adapted to them. The State of Alaska and another commenter similarly suggested that past warming periods were not adequately considered. They stated that the survival of ringed seals during interglacial periods can be considered better evidence for population persistence than predictive models of ice condition for species extinction, and that this is a primary reason why listing of ringed seals as threatened is not warranted. Greenland's DFHA expressed a similar view.

Response:

We are not aware of any available information on ringed seal adaptive responses during the interglacial periods. A fundamental difficulty in using pre-historic warm periods as analogs for the current climate disruption is that the rate of warming in the pre-historic periods is poorly known. The species' resilience to those previous warming events, which may have been slower than the current warming, does not necessarily translate into present-day resilience. Moreover, there may be cumulative effects from climate warming and ocean acidification, or other human impacts, that combine to limit the species' resilience to the changes anticipated in the coming decades.

Comment 24:

A peer reviewer commented that the magnitude of the impact that increased predation might have relative to mortalities associated with other climate related factors like an early spring rain or an early break-up in a particular region is not discussed. This reviewer also commented that how the suite of predators in a particular range might change from predominantly “on-ice” species (

e.g.,

polar bears) to “in-water” species (

e.g.,

sharks and killer whales) and what impacts that might have is not addressed.

Response:

Although the relative impacts of the various factors cited by the reviewer are no doubt significant to the eventual status of ringed seals in various portions of their range, we consider them too speculative to evaluate at this time. The reviewer did not provide additional data or evidence on which to base such an evaluation.

Comment 25:

A peer reviewer expressed the opinion that the threat posed to Arctic ringed seals by polar bear predation should be qualified. This reviewer commented that it is unlikely polar bear predation would cause significant pup mortality across the entire range of the Arctic ringed seal. In addition, this reviewer noted that it is assumed that polar bear abundance will remain high as snow conditions deteriorate; however, it is expected that polar bear populations will decline, which could reduce predator effects on ringed seals. In addition, this reviewer commented that ringed seals may also become less accessible to polar bears as seasonal sea ice decreases. Greenland's DFHA similarly discussed the dynamic relationship between polar bears and ringed seals, suggesting that observations of ringed seal declines from increased polar bear predation during ice reductions are part of the normal predator-prey cycle and should not be over-interpreted in considering potential impacts of projected changes in sea ice habitat.

Response:

“Significant pup mortality” from polar bear predation would not have to occur “across the entire range of the Arctic ringed seal” to pose a threat. We recognize that expected declines in polar bear populations could lessen predation on ringed seals; however, decreased snow cover has also been shown to markedly increase predation success by polar bears (Kumlien, 1879; Lydersen

et al.,

1987; Lydersen and Smith, 1989; Hammill and Smith, 1989; Hammill and Smith, 1991; Smith et

al.,

1991; Smith and Lydersen, 1991). While decreased sea ice might decrease accessibility of seals to bears, it also may be that the decreased extent of ice could concentrate ringed seals, resulting in the opposite effect. The possible decreases in predation are speculative, while increases in predation associated with decreased snow cover have been well documented. Therefore, the best scientific and commercial data available show that the threat posed to ringed seals by predation is currently moderate, but this threat can be expected to increase as snow and sea ice conditions change with a warming climate.

Comment 26:

A peer reviewer found the assessment of subsistence harvest in the proposed rule reasonable, noting that harvest appears to be substantial in some areas of the Arctic, but appears to remain sustainable. This reviewer commented that the ISC has been developing a harvest monitoring program with personnel assistance from the State of Alaska. The Marine Mammal Commission also commented that it does not believe that the subsistence harvest of ringed seals in U.S. waters constitutes a significant risk factor for Arctic ringed seals, and several other commenters expressed similar views regarding subsistence harvest in U.S. waters, as well as elsewhere. In contrast, another commenter expressed concern that the impact of Native subsistence hunting on ringed seals is substantially underestimated. The commenter expressed the view that NMFS needs to obtain reliable estimates of subsistence harvest of ringed seals such that their conservation status can be more closely monitored, in particular considering climate change is expected to have impacts on ringed seals and those could be exacerbated by other factors such as harvest. This commenter also suggested that additional resources should be

devoted to obtaining these estimates of subsistence harvest, and suggested that NMFS institute a harvest monitoring system rather than rely on self-reporting.

A number of commenters, including the ISC and Greenland's DFHA, emphasized that ice seals have been a vital subsistence species for indigenous people in the Arctic and remain a fundamental resource for many northern coastal communities. Some commenters, including the ISC, requested that NMFS identify what additional measures would be required before the subsistence hunt could be affected by Federal management of ringed seals and under what conditions the agency would consider taking those additional measures, and this information should be provided to residents of all potentially affected communities.

Response:

We recognize the importance of Arctic ringed seals to Alaska Native coastal communities. Section 101(b) of the MMPA provides an exemption that allows Alaska Natives to take ringed seals for subsistence purposes as long as the take is not accomplished in a wasteful manner. Section (10)(e) of the ESA also provides an exemption from its prohibitions on the taking of endangered or threatened species by Alaska Natives for subsistence purposes, provided that such taking is not accomplished in a wasteful manner. Although the number of ringed seals harvested annually by Alaska Natives is not precisely known or comprehensively monitored, ongoing hunter surveys in several communities give no indication that the harvest numbers are excessive or have a significant impact on the dynamics of the populations (Quakenbush

et al.,

2011). The numbers of seals harvested have likely declined substantially in recent decades because the need for food to supply sled-dog teams has diminished as snowmobiles have been adopted as the primary means of winter transport. The proportion of Alaska Natives that make substantial use of marine mammal

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