# Endangered and Threatened Species; Threatened Status for the Beringia and Okhotsk Distinct Population Segments of the Erignathus barbatus nauticus Subspecies of the Bearded Seal

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2012-31068

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** December 28, 2012
- **Citation:** 77 FR 76740

## Text

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No. 101126591-2477-03]
RIN 0648-XZ58
Endangered and Threatened Species; Threatened Status for the Beringia and Okhotsk Distinct Population Segments of the Erignathus barbatus nauticus Subspecies of the Bearded 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 Beringia and Okhotsk distinct populations segments (DPSs) of the
Erignathus barbatus nauticus
subspecies of the bearded seal (
Erignathus barbatus
) as threatened under the Endangered Species Act (ESA). We will propose to designate critical habitat for the Beringia DPS in a future rulemaking. To assist us with this effort, we solicit information that may be relevant to the designation of critical habitat for the Beringia DPS. In light of public comments and upon further review, we are withdrawing the proposed ESA section 4(d) protective regulations for the Beringia and Okhotsk DPSs because we have determined that such regulations are not necessary or advisable for the conservation of the Beringia and Okhotsk DPSs at this time. Given their current population sizes, the long-term nature of the primary threat to these DPSs (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 the Beringia DPS must be received by February 26, 2013.

ADDRESSES:

You may submit comments and information related to the identification of critical habitat for the Beringia DPS of bearded seals 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-2010-0259, 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 comments via the e-Rulemaking Portal, first click the “submit a comment” icon, then enter NOAA-NMFS-2010-0259 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:

On March 28, 2008, we initiated status reviews of bearded, ringed (
Phoca hispida
), 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 bearded seal (and the ringed 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 bearded and ringed seals.

The status review report for the bearded seal (Cameron
et al.,
2010) 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' 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 bearded seal biology, Arctic sea ice, climate change, and ocean acidification.

Based on the best scientific and commercial data available on the bearded seals' taxonomy, the BRT concluded that there are two currently recognized subspecies of the bearded seal that qualify as “species” under the ESA:
Erignathus barbatus nauticus,
inhabiting the Pacific sector, and
Erignathus barbatus barbatus,
inhabiting the Atlantic sector. Based on evidence for discreteness and ecological uniqueness of bearded seals in the Sea of Okhotsk, we determined that the
E. b. nauticus
subspecies consists of two distinct populations segments—the Okhotsk DPS and the Beringia DPS.

On December 10, 2010, we published in the
Federal Register
a 12-month finding and proposed to list the Beringia and Okhotsk DPSs of the
E. b. nauticus
subspecies of the bearded seal as threatened (75 FR 77496). We published a 12-month finding for ringed seals as a

separate notification concurrently with this finding (75 FR 77476; December 10, 2010), and proposed to list four subspecies of ringed 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 a substantial disagreement relating to the sufficiency or accuracy of the model projections and analysis of future sea ice for the Beringia DPS (76 FR 77465). 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 public comment the resulting peer review report that consolidated the comments received (77 FR 20774; 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 the 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). Under our DPS Policy two elements are considered when evaluating whether a population segment qualifies as a DPS under the ESA: (1) The discreteness of the population segment in relation to the remainder of the species or subspecies to which it belongs; and (2) the significance of the population segment to the species or subspecies to which it belongs. As stated in the joint DPS policy, Congress expressed its expectation that the Services would exercise authority with regard to DPSs sparingly and only when the biological evidence indicates such action is warranted.

In the preamble to the proposed rule and in the status review report we evaluated whether
E. b. nauticus
population segments met the DPS policy criteria. We determined that this subspecies consists of two DPSs—the Okhotsk DPS and the Beringia DPS. Comments regarding the DPS evaluation are addressed below in the
Summary of Comments and Responses.

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 bearded 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 bearded seals, 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, NMFS scientists have revised their analytical approach to the foreseeability of threats 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 for bearded 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 Beringia and Okhotsk DPSs of the bearded seal under the ESA.

Species Information

A thorough review of the taxonomy, life history, and ecology of the bearded seal is presented in the status review report (Cameron
et al.,
2010; 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 77496; December 10, 2010) and will not be repeated here.

Summary of Factors Affecting the Bearded 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 the Beringia and Okhotsk DPSs (75 FR 77496; 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 bearded seals (see
ADDRESSES
). The data on bearded seal abundance and trends of most populations are unavailable or imprecise, and there is little basis for quantitatively linking projected environmental conditions or other factors to bearded 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 bearded 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 bearded seals therefore requires a focus on observed and projected changes in sea ice, ocean temperature, ocean pH (acidity), and associated changes in bearded seal prey species.

The threats associated with impacts of the warming climate on the habitat of bearded 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 sea ice related threats) or throughout the entire range (for ocean warming and acidification) of the Beringia and Okhotsk DPSs.

While our inferences about future regional ice 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 onset of potential impacts to bearded 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 bearded seals in the foreseeable future.

Potential Impacts of Changes in Sea Ice on Bearded Seals

In order to feed on the seafloor, bearded seals nearly always occupy shallow waters (Fedoseev, 2000; Kovacs, 2002). The preferred depth range is often described as less than 200 m (Kosygin, 1971; Heptner
et al.,
1976; Burns and Frost, 1979; Burns, 1981; Fedoseev, 1984; Nelson
et al.,
1984; Kingsley
et al.,
1985; Fedoseev, 2000; Kovacs, 2002), though adults have been known to dive to around 300 m (Kovacs, 2002; Cameron and Boveng, 2009), and six of seven pups instrumented near Svalbard have been recorded at depths greater than 488 m (Kovacs, 2002). The BRT defined the core distribution of bearded seals as those areas of known extent that are in water less than 500 m deep.

An assessment of the risks to bearded seals posed by climate change must consider the species' life-history functions, how they are linked with sea ice, and how altering that link will affect the vital rates of reproduction and survival. The main functions of sea ice relating to the species' life-history are: (1) A dry and stable platform for whelping and nursing of pups in April and May (Kovacs
et al.,
1996; Atkinson, 1997); (2) a rearing habitat that allows mothers to feed and replenish energy reserves lost while nursing; (3) a habitat that allows a pup to gain experience diving, swimming, and hunting with its mother, and that provides a platform for resting, relatively isolated from most terrestrial and marine predators; (4) a habitat for rutting males to hold territories and attract post-lactating females; and (5) a platform suitable for extended periods of hauling out during molting.

Whelping and nursing:
Pregnant female bearded seals require sea ice as a dry birthing platform (Kovacs
et al.,
1996; Atkinson, 1997). Similarly, pups are thought to nurse only while on ice. If suitable ice cover is absent from shallow feeding areas during whelping and nursing, bearded seals would be forced to seek either sea ice habitat over deeper water or coastal regions in the vicinity of haul-out sites on shore. A shift to whelping and nursing on land would represent a major behavioral change that could compromise the ability of bearded seals, particularly pups, to escape predators, as this is a highly developed response on ice versus land. Further, predators abound on continental shorelines, in contrast with sea ice habitat where predators are sparse; and small islands where predators are relatively absent offer limited areas for whelping and nursing as compared to the more extensive substrate currently provided by suitable sea ice.

Bearded seal mothers feed throughout the lactation period, continuously replenishing fat reserves lost while nursing pups (Holsvik, 1998, cited in Krafft
et al.,
2000). Therefore, the presence of a sufficient food resource near the nursing location is also important. Rearing young in poorer foraging grounds would require mothers to forage for longer periods and/or compromise their own body condition, likely impacting the transfer of energy to

offspring and affecting survival of pups, mothers, or both.

Pup maturation:
When not on the ice, there is a close association between mothers and pups, which travel together at the surface and during diving (Lydersen
et al.,
1994; Gjertz
et al.,
2000; Krafft
et al.,
2000). Pups develop diving, swimming, and foraging skills over the nursing period, and perhaps beyond (Watanabe
et al.,
2009). Learning to forage in a sub-optimal habitat could impair a pup's ability to learn effective foraging skills, potentially impacting its long-term survival. Further, hauling out reduces thermoregulatory demands which, in Arctic climates, may be critical for maintaining energy balance. Hauling out is especially important for growing pups, which have a disproportionately large skin surface and rate of heat loss in the water (Harding
et al.,
2005; Jansen
et al.,
2010).

Mating:
Male bearded seals are believed to establish territories under the sea ice and exhibit complex acoustic and diving displays to attract females. Breeding behaviors are exhibited by males up to several weeks in advance of females' arrival at locations to give birth. Mating takes place soon after females wean their pups. The stability of ice cover is believed to have influenced the evolution of this mating system.

Molting:
There is a peak in the molt during May-June, when most bearded seals (except young of the year) tend to haul out on ice to warm their skin. Molting in the water during this period could incur energetic costs which might reduce survival rates.

For any of these life history events, a greater tendency of bearded seals to haul out on land or in reduced ice could increase intra- and inter-specific competition for resources, the potential for disease transmission, and predation, all of which could affect annual survival rates. In particular, a reduction in suitable sea ice habitat would likely increase the overlap in the local distributions of bearded seals and walrus (
Odobenus rosmarus
), another ice-associated benthic (ocean bottom) feeder with similar habitat preferences and diet. The walrus is also a predator of bearded seal, though seemingly infrequent. Hauling out closer to shore or on land could also increase the risks of predation from polar bears, terrestrial carnivores, and humans.

For a long-lived and abundant animal with a large range, the factors identified above (i.e., low ice extent or absence of sea ice over shallow feeding areas) are not likely to be significant to an entire population in any one year. Rather, the overall strength of the impacts is likely a function of the frequency of years in which they occur, and the proportion of the population's range over which they occur. The low ice years, which are projected to occur more frequently than in the past, may reduce recruitment and pup survival if, for example, pregnant females are ineffective or slow at adjusting their breeding locales for variability of the position of the sea ice front.

Potential mechanisms for resilience on relatively short time scales include adjustments to the timing of breeding in response to shorter periods of ice cover, and adjustments of the breeding range in response to reduced ice extent. The extent to which bearded seals might adapt to more frequent years with early ice melt by shifting the timing of reproduction is uncertain. There are many examples of shifts in timing of reproduction by pinnipeds and terrestrial mammals in response to body condition and food availability. In most of these cases, sub-optimal conditions led to reproduction later in the season, a response that would not likely be beneficial to bearded seals. A shift to an earlier melt date may, however, over the longer term provide selection pressure for an evolutionary response over many generations toward earlier reproduction.

It is impossible to predict whether bearded seals would be more likely to occupy ice habitats over the deep waters of the Arctic Ocean basin or terrestrial habitats if sea ice failed to extend over the shelf. Outside the critical life history periods related to reproduction and molting there is evidence that bearded seals might not require the presence of sea ice for hauling out, and instead remain in the water for weeks or months at a time. Even during the spring and summer bearded seals also appear to possess some plasticity in their ability to occupy different habitats at the extremes of their range. For example, throughout most of their range, adult bearded seals are seldom found on land; however, in the Sea of Okhotsk, bearded seals are known to use haul-out sites ashore regularly and predictably during the ice free periods in late summer and early autumn. Also, western and central Baffin Bay are unique among whelping areas as mothers with dependent pups have been observed on pack ice over deep water (greater than 500 m). These behaviors are extremely rare in the core distributions of bearded seals; therefore, the habitats that necessitate them should be considered sub-optimal. Consequently, predicted reductions in sea ice extent, particularly when such reductions separate ice from shallow water feeding habitats, can be reasonably used as a proxy for predicting years of reduced survival and recruitment, though not the magnitude of the impact. In addition, the frequency of predicted low ice years can serve as a useful tool for assessing the cumulative risks posed by climate change.

Assessing the potential impacts of the predicted changes in sea ice cover and the frequency of low ice years on the Beringia and Okhotsk DPSs of bearded seals requires knowledge or assumptions about the relationships between sea ice and bearded seal vital rates. Because no quantitative studies of these relationships have been conducted, we relied upon two studies in the Bering Sea that estimated bearded seal preference for ice concentrations based on aerial survey observations of seal densities. Simpkins
et al.
(2003) found that bearded seals near St. Lawrence Island in March preferred 70-90 percent ice coverage, as compared with 0-70 percent and 90-100 percent. Preliminary results from another study in the Bering Sea (Ver Hoef
et al., In review
) found substantially lower probability of bearded seal occurrence in areas of 0-25 percent ice coverage during April-May. Lacking a more direct measure of the relationship between bearded seal vital rates and ice coverage, we considered areas within the current core distribution of bearded seals where the decadal averages and minimums of ice projections (centered on the years 2050 and 2090) were below 25 percent concentrations as inadequate for whelping and nursing. We also assumed that the sea ice requirements for molting in May-June are less stringent than those for whelping and rearing pups, and that 15 percent ice concentration in June would be minimally sufficient for molting. The amount of ice cover required by bearded seals for critical life functions has not been documented in the scientific literature, but for purposes of this final listing determination, we concluded that the above percentages are reasonable assumptions based upon the life history characteristics and field observations of bearded seals by NMFS marine mammal biologists.

Beringia DPS:
In the Bering Sea, early springtime sea ice habitat for bearded seal whelping should be sufficient in most years through 2050 and out to the second half of the 21st century, when the average ice extent in April is forecasted to be approximately 50 percent of the present-day extent. The general trend in projections of sea ice for May (nursing, rearing, and some molting) through June (molting) in the Bering Sea is toward a longer ice-free

period resulting from more rapid spring melt. Until at least the middle of the 21st century, projections show some years with near-maximum ice extent; however, less ice is forecasted on average, manifested as more frequent years in which the spring retreat occurs earlier and the peak ice extent is lower. By the end of the 21st century, projections for the Bering Sea indicate that there will commonly be years with little or no ice in May, and that sea ice in June is expected to be non-existent in most years.

Projections of sea ice concentration indicate that there will typically be 25 percent or greater ice concentration in April-May over a substantial portion of the shelf zone in the Bering Sea through 2055. By 2095 ice concentrations of 25 percent or greater are projected for May only in small zones of the Gulf of Anadyr and in the area between St. Lawrence Island and Bering Strait. In the minimal ice years the projections indicate there will be little or no ice of 25 percent or greater concentration over the shelf zone in the Bering Sea during April and May, perhaps commencing as early as the next decade. Conditions will be particularly poor for the molt in June when typical ice predictions suggest less than 15 percent ice by mid-century. Projections suggest that the spring and summer ice edge could retreat to deep waters of the Arctic Ocean basin, potentially separating sea ice suitable for pup maturation and molting from benthic feeding areas.

In the East Siberian, Chukchi, and Beaufort seas, the average ice extents during April and May (i.e., the period of whelping, nursing, mating, and some molting) are all predicted to be very close to historical averages out to the end of the 21st century. However, the annual variability of this extent is forecasted to continue to increase, and single model runs indicate the possibility of a few years in which April and May sea ice would cover only half (or in the case of the Chukchi Sea, none) of the Arctic shelf in these regions by the end of the century. The projections indicate that there will typically be 25 percent or greater ice concentration in April-June over the entire shelf zones in the Beaufort, Chukchi, and East Siberian Seas through the end of the century. In the minimal ice years 25 percent or greater ice concentration is projected over the shelf zones in April and May in these regions through the end of the century, except in the eastern Chukchi and central Beaufort Seas. In the 2090s, ice suitable for molting in June (i.e., 15 percent or more concentration) is projected to be mostly absent in these regions in minimal years, except in the western Chukchi Sea and northern East Siberian Sea.

A reduction in spring and summer sea ice concentrations could conceivably result in the development of new areas containing suitable habitat or enhancement of existing suboptimal habitat. For example, the East Siberian Sea has been said to be relatively low in bearded seal numbers and has historically had very high ice concentrations and long seasonal ice coverage. Ice concentrations projected for May-June near the end of the century in this region include substantial areas with 20-80 percent ice, potentially suitable for bearded seal reproduction, molting, and foraging. However, the net difference between sea ice related habitat creation and loss is likely to be negative, especially because other factors like ocean warming and acidification (discussed below) are likely to affect habitat.

A substantial portion (about 70 percent) of the Beringia DPS currently whelps in the Bering Sea, where a longer ice-free period is forecasted in May and June. To adapt to this modified sea ice regime, bearded seals would likely have to shift their nursing, rearing, and molting areas to the ice covered seas north of the Bering Strait, potentially with poor access to food, or to coastal haul-out sites on shore, potentially with increased risks of disturbance, predation, and competition. Both of these scenarios would require bearded seals to adapt to novel (i.e., suboptimal) conditions, and to exploit habitats to which they may not be well suited, likely compromising their reproduction and survival rates. Further, the spring and summer ice edge may retreat to deep waters of the Arctic Ocean basin, which could separate sea ice suitable for pup maturation and molting from benthic feeding areas. Accordingly, we conclude that the projected changes in sea ice habitat pose significant threats to the persistence of the Beringia DPS throughout all of its range.

Okhotsk DPS:
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.

The Sea of Okhotsk is located southwest of the Bering Sea, and thus can be expected to have earlier radiative heating in the spring. The region is dominated in winter and spring, however, by cold continental air masses and offshore flow. Sea ice is formed rapidly and is generally advected southward. As this region is dominated by cold air masses for much of the winter and spring, we would expect that the present seasonal cycle of first year sea ice will continue to dominate the future habitat of the Sea of Okhotsk.

Based on the temperature proxies, a continuation of sea ice formation or presence is expected for March (some whelping and nursing) in the Sea of Okhotsk through the end of this century, though the ice may be limited to the northern region in most years after mid-century. However, little to no sea ice is expected in May by 2050, and in April by the end of the century. These months are critical for whelping, nursing, pup maturation, breeding, and molting. Hence, the most significant threats posed to the Okhotsk DPS were judged to be decreases in sea ice habitat suitable for these important life history events.

Over the long term, bearded seals in the Sea of Okhotsk do not have the prospect of following a shift in the average position of the ice front northward. Therefore, the question of whether a future lack of sea ice will cause the Okhotsk DPS of bearded seals to become in danger of going extinct depends in part on how successful the populations are at moving their reproductive activities from ice to haul-out sites on shore. Although some bearded seals in this area use land for hauling out, this only occurs in late summer and early autumn. We are not aware of any occurrence of bearded seals whelping or nursing young on land, so this predicted loss of sea ice is expected to be significantly detrimental to the long term viability of the population. We conclude that the expected changes in sea ice habitat pose a significant threat to the Okhotsk DPS throughout all of its range.

Impacts on Bearded 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. The most likely impact of ocean acidification on bearded seals will be through the loss of benthic calcifiers and lower trophic 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 of the oceans is predicted to drive species ranges toward higher latitudes. Additionally, climate change can strongly influence fish distribution and abundance. Further shifts in spatial distribution and northward range extensions appear to be inevitable, and the species composition of the plankton and fish communities will continue to change under a warming climate.

Bearded seals of different age classes are thought to feed at different trophic levels, so any ecosystem change could be expected to affect bearded seals in a variety of ways. Changes in bearded seal prey, anticipated in response to ocean warming and loss of sea ice and, potentially, ocean acidification, have the potential for negative impacts, but the possibilities are complex. These ecosystem responses may have very long lags as they propagate through trophic webs. Because of bearded seals' apparent dietary flexibility, these threats are of less concern than the direct effects of potential sea ice degradation.

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

Recreational, scientific, and educational utilization of bearded seals is currently at low levels and is not expected to increase to significant threat levels in the foreseeable future. The solitary nature of bearded seals has made them less suitable for commercial exploitation than many other seal species. Still, they may have been depleted by commercial harvests in some areas of the Sea of Okhotsk and the Bering Sea during the mid-20th century. There is currently no significant commercial harvest of bearded seals and significant harvests seem unlikely in the foreseeable future.

Bearded seals have been a very important species for subsistence of indigenous people in the Arctic for thousands of years. The current subsistence harvest is substantial in some areas, but there is little or no evidence that subsistence harvests have or are likely to pose serious risks to the species at present. Climate change is likely to alter patterns of subsistence harvest of marine mammals by changing their 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 the interacting variables and imprecision of climate and sea 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. We conclude that there is no evidence overutilization of the Beringia or Okhotsk DPS is occurring at present.

C. Diseases, Parasites, and Predation

A variety of diseases and parasites have been documented to occur in bearded seals. The seals have likely co-evolved with many of these and the observed prevalence is typical and similar to other species of seals. The transmission of many known diseases of pinnipeds is often facilitated by animals crowding together and by the continuous or repeated occupation of a site. The pack ice habitat and the more solitary behavior of bearded seals may therefore limit disease transmission. Other than at shore-based haul-out sites in the Sea of Okhotsk in summer and fall, bearded seals do not crowd together and rarely share small ice floes with more than a few other seals, so conditions that would favor disease transmission do not exist for most of the year. 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. A small number of sick or dead bearded seals were also reported. The underlying cause of this UME is unknown and remains under focused expert investigation. Abiotic and biotic changes to bearded seal habitat potentially could lead to exposure to new pathogens or new levels of virulence, but we continue to consider the potential threats to bearded seals from disease as low.

Polar bears are the primary predators of bearded seals. Other predators include brown bears (
Ursus arctos
), killer whales (
Orcinus orca
), sharks, and walruses. Predation under the future scenario of reduced sea ice is difficult to assess. Polar bear predation may decrease, but predation by killer whales, sharks, and walrus may increase. The range of plausible scenarios is large, making it impossible to predict the direction or magnitude of the net impact on bearded seal mortality. The data that are currently available do not suggest that predation is posing a significant threat to the persistence of bearded seals at present.

D. Inadequacy of Existing Regulatory Mechanisms

As noted above in the discussion of Factor A, a primary concern about the conservation status of the bearded 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 bearded 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 bearded seals by these emissions.

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

Pollution and Contaminants

Research on contaminants and bearded seals is limited compared to the extensive information available for ringed seals. Pollutants such as organochlorine compounds (OC) and heavy metals have been found in most bearded seal populations. The variety, sources, and transport mechanisms of the contaminants vary across the bearded seal's range, but these compounds appear to be ubiquitous in the Arctic marine food chain. Statistical analysis of OCs in marine mammals has shown that, for most OCs, the European Arctic is more contaminated than the

Canadian and U.S. Arctic. Present and future impacts of contaminants on bearded 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 bearded seal contaminant levels. The BRT considered the potential threat posed from contaminants as of low to moderate significance to the Beringia DPS and of moderate significance to the Okhotsk DPS.

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 bearded seals, primarily through noise, physical disturbance, and pollution, particularly in the event of a large oil spill or blowout.

Within the range of the Beringia and the Okhotsk DPSs, offshore oil and gas exploration and production activities are currently underway in the United States, Canada, 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 been previously 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). 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.

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 recovering spilled oil effectively 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 coat. Though bearded seal pups exhibit some prenatal molting, they are generally not fully molted at birth, and thus would be particularly prone to physical impacts of contacting oil. 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. Other acute effects of oil exposure which have been shown to reduce seal's health and possibly survival include skin irritation, disorientation, lethargy, conjunctivitis, corneal ulcers, and liver lesions. Direct ingestion of oil, ingestion of contaminated prey, or inhalation of hydrocarbon vapors can cause serious health effects including death.

In summary, the threats to bearded seals from oil and gas activities are greatest where these activities converge with breeding aggregations or in migration corridors such as in the Bering Strait. In particular, bearded seals in ice-covered remote regions are most vulnerable to oil and gas activities, primarily due to potential oil spill impacts. The BRT considered the threat posed to the Beringia and Okhotsk DPSs by disturbance, injury, or mortality from oil spills, and/or other discharges, as moderately significant.

Commercial Fisheries Interactions and Bycatch

Commercial fisheries may impact bearded 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 bearded seal bycatch only for commercial fisheries that operate in Alaska waters. Based on data from 2002-2006, there has been an annual average of 1.0 bearded seal mortality incidental to commercial fishing operations. We could find no information regarding bearded seal bycatch in the Sea of Okhotsk; however, given the intensive levels of commercial fishing that occur in this sea, bycatch of bearded seals likely occurs there. The BRT considered the threat posed to the Okhotsk DPS from physical disturbance associated with the combined factors of oil and gas development, shipping, and commercial fisheries moderately significant.

For indirect impacts, we note that commercial fisheries target a number of known bearded seal prey species, such as walleye pollock (
Theragra chalcogramma
) and cod. These fisheries may affect bearded seals indirectly through reduction in prey biomass and through other fishing mediated changes in their prey species. Bottom trawl

fisheries also have the potential to indirectly affect bearded seals through destruction or modification of benthic prey and/or their habitat.

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 to bearded seals 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 bearded 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 bearded seal food webs.

Current and future shipping activities in the Arctic pose varying levels of threats to bearded seals depending on the type and intensity of the shipping activity and its degree of spatial and temporal overlap with bearded seal habitats. These factors are inherently difficult to predict, making threat assessment highly uncertain. Most ships in the Arctic purposefully avoid areas of ice and thus prefer periods and areas which minimize the chance of encountering ice. This necessarily mitigates many of the risks of shipping to populations of bearded seals, since they are closely associated with ice throughout the year. Icebreakers pose special risks to bearded 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 bearded seals occur will likely also increase.

The potential threats and general threat assessment in the Sea of Okhotsk are largely the same as they are in the Arctic, though with less detail available regarding the spatial and temporal correspondence of ships and bearded seals, save one notable exception. Though noise and oil pollution from vessels are expected to have the same general relevance in the Sea of Okhotsk, oil and gas activities near Sakhalin Island are currently at high levels and poised for another major expansion of the offshore oil fields that would require an increasing number of tankers. About 25 percent of the Okhotsk bearded seal population uses this area during whelping and molting, and as a migration corridor (Fedoseev, 2000).

The main aggregations of bearded seals in the northern Sea of Okhotsk are likely within the commercial shipping routes, but vessel frequency and timing relative to periods when seals are hauled out on ice are presently unknown. Some ports are kept open year-round by icebreakers, largely to support year-round fishing, so there is greater probability here of spatial and temporal overlaps with bearded seals hauled out on ice. In a year with reduced ice, bearded seals were more concentrated close to shore (Fedoseev, 2000), suggesting that seals could become increasingly prone to shipping impacts as ice diminishes.

As is the case with the Arctic, a quantitative assessment of actual threats and impacts in the Sea of Okhotsk is unrealistic due to a general lack of published information on shipping patterns. Modifications to shipping routes and possible choke points (where increases in vessel traffic are focused at sensitive places and times for bearded seals) due to diminishing ice are likely, but there are few data on which to base even qualitative predictions. However, the predictions regarding shipping impacts in the Arctic are generally applicable, and because of significant increases in predicted shipping, it appears that bearded seals inhabiting the Sea of Okhotsk, in particular the shelf area off central and northern Sakhalin Island, are at increased risk of impacts. 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 BRT considered the threat posed from physical disturbance associated with the combined factors of oil and gas development, shipping, and/or commercial fisheries as of low to moderate significance to the Beringia DPS and of moderate significance to the Okhotsk DPS.

Summary for Factor E

We find that the threats posed by pollutants, oil and gas industry activities, fisheries, and shipping do not individually or collectively place the Beringia DPS or the Okhotsk DPS 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. This is of particular note for bearded seals in the Sea of Okhotsk, where oil and gas related activities are expected to increase, and are judged to pose a moderate threat.

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 degree of risk posed by the threats associated with the impacts of global climate change on bearded seal habitat is uncertain due to a lack of quantitative information linking environmental conditions to bearded seal vital rates, and a lack of information about how resilient bearded seals will be to these changes. The BRT considered the current risks (in terms of abundance, productivity, spatial structure, and diversity) to the persistence of the Beringia DPS and the Okhotsk DPS as low or very low. The BRT judged the risks to the persistence of the Beringia DPS within the foreseeable future to be moderate (abundance and diversity) to high (productivity and spatial structure), and to the Okhotsk DPS to be high for

abundance, productivity, and spatial structure, and moderate for diversity.

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 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 bearded seal is currently classified as a species of “Least Concern” on the IUCN Red List. These listings highlight the conservation status of listed species and can inform conservation planning and prioritization.

Domestic Conservation Efforts

NMFS is not aware of any formalized conservation efforts for bearded 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' National Marine Mammal Laboratory is engaged in an active research program for bearded seals. The new information from research will be used to enhance our understanding of the risk factors affecting bearded seals, thereby improving our ability to develop effective management measures for the species.

Listing Determinations

We have reviewed the status of the bearded seal, fully considering the best scientific and commercial data available, including the status review report. We have reviewed threats to the Beringia DPS and the Okhotsk DPS, as well as other relevant factors, and considered conservation efforts and special designations for bearded seals by states and foreign nations. In consideration of all of the threats and potential threats to bearded 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:

Beringia DPS:
(1) The present population size of the Beringia DPS is uncertain, but is estimated to be about 155,000 individuals. (2) It is highly likely that reductions will occur in both the extent and timing of sea ice in the range of the Beringia DPS within the foreseeable future, particularly in the Bering Sea. To adapt to this modified ice regime, bearded seals would likely have to shift their nursing, rearing, and molting areas to ice-covered seas north of the Bering Strait, where projections suggest there is potential for the ice edge to retreat to deep waters of the Arctic basin, forcing the seals to adapt to suboptimal conditions and exploit potentially unsuitable habitats, and likely compromising their reproduction and survival rates. (3) Available information indicates a moderate to high threat that reductions in spring and summer sea ice will result in spatial separation of sea ice resting areas from benthic feeding habitat. (4) Available information indicates a moderate to high threat of reductions in sea ice suitable for molting (i.e., areas with at least 15 percent ice concentration in May-June) and a moderate threat of reductions in sea ice suitable for pup maturation (i.e., areas with at least 25 percent ice concentration in April-May). (5) Within the foreseeable future, the risks to the persistence of the Beringia DPS appear to be moderate (abundance and diversity) to high (productivity and spatial structure). We have determined that the Beringia DPS is not in danger of extinction throughout all of its range, but it is likely to become so within the foreseeable future. Therefore, we are listing it as threatened.

Okhotsk DPS:
(1) The present population size of the Okhotsk DPS is very uncertain, but is estimated to be about 95,000 individuals. (2) Decreases in sea ice habitat suitable for whelping, nursing, pup maturation, and molting pose the greatest threats to the persistence of the Okhotsk DPS. As ice conditions deteriorate, Okhotsk bearded seals will be limited in their ability to shift their range northward because the Sea of Okhotsk is bounded to the north by land. (3) Although some bearded seals in the Sea of Okhotsk are known to use land for hauling out, this presently only occurs in late-summer and early autumn. We are not aware of any occurrence of bearded seals whelping or nursing young on land, so the predicted loss of sea ice for these critical life history functions is expected to be significantly detrimental to the long term viability of the population. (4) Within the foreseeable future the risks to the persistence of the Okhotsk DPS due to demographic problems associated with abundance, productivity, and spatial structure are expected to be high. We have determined that the Okhotsk DPS is not in danger of extinction throughout all its range, but it is likely to become so in the foreseeable future. Therefore, we are listing it as threatened.

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 Beringia and Okhotsk DPSs of the bearded seal 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 bearded seals, and that the ongoing and projected changes in sea ice habitat pose significant threats to the persistence of these DPSs. The magnitude of the threats posed to the persistence of bearded 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 Beringia or Okhotsk DPSs 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 [DPSs] 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 both the Beringia and Okhotsk DPSs, we found it more efficient to address the status consideration first.

The consequences of the potential threats to the Beringia and Okhotsk DPSs, 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 Beringia and Okhotsk DPSs, including those associated with the changes in sea ice habitat, are so severe or so concentrated as to indicate that either DPS currently qualifies as endangered within some portion of its range. As described in the section entitled
Listing Determinations of this final rule,
the threats are such that we concluded that Beringia and Okhotsk DPSs 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 DPS in danger of extinction. Because we find that the Arctic and Okhotsk DPSs are not endangered in any portions of their ranges, we need not address the question of whether any portions may be significant.

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 77496) based on a preliminary finding that such measures were necessary and advisable for the conservation of the Beringia DPS and the Okhotsk DPS.

In light of public comments and following further review, we are withdrawing the proposed ESA section 4(d) protective regulations for the Beringia and Okhotsk DPSs. 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 Beringia or Okhotsk DPS. Further, the Beringia and Okhotsk DPSs appear sufficiently abundant to withstand typical year-to-year variation and natural episodic perturbations in the near term. The principal threat to these DPSs of bearded seals is habitat alteration stemming from climate change within the foreseeable future. This is a long-term threat and the consequences for bearded seals will manifest themselves over the next several decades. Finally, bearded 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 the Beringia DPS of bearded 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.

Critical Habitat

Section 3 of the ESA (16 U.S.C. 1532(5)(A)) defines critical habitat as: (i) The 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 Beringia DPS, 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 Beringia DPS 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 the Beringia DPS to be not determinable at this time. We will propose critical habitat for the Beringia DPS of the bearded seal in a separate rulemaking. Because the known distribution of the Okhotsk DPS of the bearded seal occurs in areas outside the jurisdiction of the United States, we will not propose critical habitat for the Okhotsk DPS.

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 the Beringia DPS of bearded 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 Beringia DPS that could be impacted by critical habitat designation. 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 77496) or during the comment period on the peer review report (77 FR 20774; 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 Beringia and Okhotsk DPSs on December 10, 2010 (75 FR 77496), 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 6755; 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 9734, February 22, 2011; 76 FR 14883, March 18, 2011).

During the public comment periods on the proposed rule we received a total of 5,298 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 60 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); Canada's Department of Fisheries and Oceans (DFO); 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. There was significant disagreement among the peer reviewers regarding magnitude and immediacy of the threats posed to the Beringia DPS by the projected changes in sea ice habitat.

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 the Beringia and Okhotsk DPSs 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 77465). Subsequently, we conducted special independent peer review of the sections of the bearded seal status review report (Cameron
et al.,
2010) related to the disagreement. For this special peer review, we recruited three scientists with marine mammal expertise and specific knowledge of

bearded seals to review these sections of the status review report and provide responses to specific review questions. We received comments from two 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 20774). During this public comment period on the special peer review we received an additional 14 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 Beringia and Okhotsk DPSs of the bearded seal. Summaries of the substantive public and peer review comments that we received concerning our proposed listing determination for these DPSs, 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 Beringia and Okhotsk DPSs. We also received comments addressing our final decision regarding
E. b. barbatus
(the Atlantic subspecies of bearded seals). Because we previously determined that a status review was not warranted for
E. b. barbatus
(75 FR 77496; December 10, 2010) and this rulemaking concerns listing of the Beringia and Okhotsk DPSs, we have not provided specific responses to those comments here.

Peer Review Comments

Comment 1:
A peer reviewer expressed the opinion that there is compelling evidence of additional discrete populations within the Beringia DPS. This reviewer noted that Davis
et al.
(2008) reported significant genetic differentiation between bearded seals in the Bering and Beaufort seas, and that Risch
et al.
(2007) found differences in bearded seal vocalizations between the Barrow and the Canadian Beaufort regions.

Response:
The reviewer's assertion that there are additional discrete populations within the Beringia DPS stemmed in part from a misunderstanding about the sampling locations for the Davis
et al.
(2008) study. That study used samples referred to as “Beaufort Sea” bearded seals, though they were obtained from the Amundsen Gulf, which is east of the Beaufort Sea in the Canadian Arctic. Even if one considers the Amundsen Gulf to be part of the Beaufort Sea, there were no other Beaufort Sea samples, so the vast majority of the Beaufort Sea was not represented. In fact, the samples came from the region that is thought to be transitional between the two subspecies of bearded seals and where the boundary was identified in the proposed rule between the Beringia DPS and the
E. b. barbatus
subspecies.

The vocalizations studied by Risch
et al.
(2007) in the Canadian Beaufort region also came from the zone of transition between the two subspecies. The differences in vocalizations cited by the reviewer, between the Barrow region and the Canadian Beaufort region, are insufficient evidence on their own for population discreteness. It is unknown whether vocal differences in bearded seals reflect breeding population structure, or simply local variations in calls that are learned and used by breeding individuals. In the latter case, if bearded seals commonly disperse from natal sites to different sites for breeding, the vocal differences would not reflect breeding population structure (Risch
et al.,
2007).

In the status review report, the BRT considered a zone in the western Canadian Arctic where skull morphology was intermediate between the two recognized subspecies, vocalizations were more similar to those of
E. b. nauticus
than to those of
E. b. barbatus,
and the genetics were more similar to
E. b. barbatus
than to
E. b. nauticus.
Recognizing the likelihood that no truly distinct boundary occurs in the distribution of the two bearded seal subspecies, and also the great uncertainty about where the best location for a boundary should be, the BRT selected the midpoint between the Beaufort Sea and Pelly Bay (112° W. longitude), which was the region encompassed by the intermediate samples in the skull morphology study, as the North American delineation between the two subspecies, and thus also between the Beringia DPS and
E. b. barbatus.
We concurred with this delineation in the proposed rule.

Based on the reviewer's comment above, and further consideration of the genetic results of Davis
et al.
(2008), we now conclude a stronger argument can be made for placing the boundary between the two subspecies at 130° W. long., rather than at 112° W. long. The study by Davis
et al.
(2008) used two different approaches to detect genetic variation. A pairwise comparison of bearded seal samples from around the Arctic found differentiation between all sample locations, including the Bering Sea and the Amundsen Gulf (the eastern extent of the Beaufort Sea, which was included in our proposed Beringia DPS); the second approach, with a commonly used population-genetic analysis called STRUCTURE, found only two groups, with the Bering Sea (St. Lawrence Island and Gulf of Anadyr) samples clustering separately from the remainder (Amundsen Gulf, Labrador Sea, Greenland, and Svalbard). One of the 16 Amundsen Gulf samples was strongly assigned to the Bering Sea cluster, and the inferred ancestry of the Amundsen Gulf samples was 21 percent from the Bering Sea cluster indicating substantial current or historical gene flow between the Bering Sea and the Amundsen Gulf (and presumably the Beaufort Sea, which lies between), and again confirming that the Amundsen Gulf is a transitional region.

A line at 130° W. long. divides the two clusters found by Davis
et al.
(2008) in the STRUCTURE analysis and is consistent with that study's pairwise differences between the Bering Sea and Amundsen Gulf samples. This line also falls within the zone found to be transitional in skull morphology, and it recognizes the vocalization differences found between Barrow and the western Canadian Arctic (7 of 8 recording locations east of 130° W. long.). Finally, this line corresponds closely to the margin of the continental shelf that runs north along the Arctic Basin at the western edge of the Canadian Arctic.

Moving the eastern boundary of the Beringia DPS from 112° W. long. to 130° W. long. would have little or no impact on risk and threat scores and no impact on ESA listing status. The estimates of bearded seal abundance in the vicinity of these alternative boundaries are too low to significantly alter the overall abundance estimate of either the Beringia DPS or the
E. b. barbatus
subspecies by including them in one or

the other group. The average bearded seal numbers estimated by Stirling
et al.
(1982) in the Amundsen Gulf, which was originally included in the Beringia DPS but is now considered part of the
E. b. barbatus
subspecies after moving the eastern boundary, was 1,015 individuals. Compared with the overall population estimates of 155,000 for the Beringia DPS and 188,000 for
E. b.

barbatus,
this number is small and well within the imprecision associated with the estimates. Therefore, we have concluded that the best information currently available supports an eastern boundary line for the Beringia DPS at 130° W. long. and we have revised this final rule accordingly.

Comment 2:
A peer reviewer expressed the view that there are conservation concerns associated with the failure to recognize a DPS in the Bering Sea and noted that the Bering Sea is at the southern edge of the distribution of bearded seals where there is greater risk of losing ice during the spring pupping season than in the Beaufort and Chukchi seas. This reviewer also suggested that certain other threats are also likely to affect this region more; for example, increased shipping and fishing are expected in the Bering Sea.

Response:
Under our DPS Policy, we determine whether any species division is discrete and significant before evaluating whether any such potential DPSs qualify as threatened or endangered. In the case of the Bering Sea, there is no compelling evidence that the bearded seals there are distinct from the bearded seals of the Chukchi and Beaufort seas, and indeed large numbers of the bearded seals found seasonally in the Chukchi and Beaufort seas are associated with breeding areas in the Bering Sea. Species often are more vulnerable to threats at the extremes of the range, but the ESA status must be based on the species, subspecies, or DPS as a whole, with due regard for whether any vulnerable extremities of the range constitute a significant portion of the overall range.

Although increases in shipping and commercial fishing pose potential threats to bearded seals, it is not clear that those threats will be greater in the Bering Sea than in the Beaufort and Chukchi seas. Future conditions in which a reduced ice regime allows for more shipping and fishing will likely also result in very different distributions of bearded seal prey communities and seasonal congregations that might be vulnerable to oil spills from shipping accidents. The BRT considered the likelihood that these risks would increase in the future, but projecting the specific geographic distributions of these risks within the Beringia DPS is presently not feasible.

Comment 3:
A peer reviewer commented that the identified components of uncertainty with the model projections of changes in sea ice cover were not particularly well explained. This reviewer expressed the opinion that additional detail could be provided regarding the relative size of the uncertainty components and how maximum and minimum concentrations were defined when considering projections from several models, averaged over 11-year periods, with presumably a range of starting conditions, and under at least two different emissions scenarios. In contrast, another peer reviewer expressed the opinion that the uncertainties associated with the model projections were well identified and characterized.

Response:
As we discussed in the status review report and in the preamble to the proposed rule, there are three main sources of uncertainty in climate predictions: large natural variability, the range in emissions scenarios, and across-model differences (i.e., differences between models in physical parameterizations and resolution). For the 21st century projections considered in our analysis, beyond about 2050, the dominant source of uncertainty is the choice of emissions scenario. Because the current consensus is to treat all six “marker” scenarios from the Special Report on Emissions Scenarios (SRES; IPCC, 2000) as equally likely, one option for representing the full range of variability in potential outcomes would be to project from any model under all six scenarios. This approach is impractical in many situations, so the typical procedure is to use an intermediate scenario to predict trends, or one intermediate and one extreme scenario to represent a significant range of variability. In our analysis, model outputs under both the A1B (“medium”) and A2 (“high”) emissions scenarios were included in projecting the seasonal cycle of sea ice extent at a regional level. By including output under both scenarios, the number of ensemble members was doubled and represented much of the range of variability contained in the SRES scenarios. The projected distributions of sea ice were mapped using model output under the A1B emissions scenario from the six CMIP3 models that met the performance criteria for projecting sea ice, and the ice concentrations were averaged over 11-year periods to minimize the influence of year-to-year variability.

Hawkins and Sutton (2009) discussed that for time horizons of many decades or longer and at regional or larger scales, the other dominant source of uncertainty is across-model differences. As was noted in the status review report, for the bearded seal analysis, these across-model differences were addressed, and mitigated in part, by using ensemble means from multiple models. To reduce the impacts of models that performed poorly, criteria were applied to cull models with large errors in reproducing the magnitude of the observed seasonal cycle of sea ice extent. The uncertainty due to differences among the models was also explored by mapping for each 11-year period the projected ice distribution for the model with the least and greatest ice extent, along with the distribution of average ice concentrations as noted above.

Comment 4:
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 5:
A peer reviewer and several public comments pointed out that assessing impacts to bearded 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; and (2) IUCN red list process, which uses a timeframe of three generation lengths. 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. A reviewer and some commenters expressed the opinion that trying to predict the responses of bearded seals to environmental changes beyond mid-century increases the uncertainty unreasonably. A few commenters suggested that the altered approach is significant because the listing determination is 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), 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 the Interior, Office of the Solicitor, regarding the meaning of 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 atmosphere-ocean general circulation models (AOGCMs) under six “marker” scenarios from the 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 bearded 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 the 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 bearded 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 bearded 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 6:
A peer reviewer noted that the cut-off criteria used to define areas of projected sea ice concentrations suitable for whelping, nursing, and molting were reasonable. Another reviewer commented that the criteria probably provide an adequate basis for estimating changes in the amount of available bearded seal habitat, but noted that the question of whether a more complex definition of suitable habitat could be supported by the available data was not fully explored in the status review report. Both of these reviewers noted that the relationship between sea ice characteristics and bearded seal habitat selection is likely more complex than the simple sea ice concentration and bathymetry criteria considered in the proposed rule.

A related public comment suggested that NMFS should re-evaluate the sea ice concentration criteria (i.e. the sea ice concentrations identified as sufficient for bearded seal whelping, nursing, rearing, and molting) to determine whether these thresholds are protective enough because they do not take into account the lower probability of occurrence of bearded seals at medium-low ice concentrations, and thus may have over-estimated the seals' ability to use marginal sea ice habitat. Another commenter suggested that NMFS should use an empirical static modeling approach (Guisan and Zimmerman, 2000) to defensibly derive habitat parameters and use traditional ecological knowledge (TEK) to provide presence/absence data for model fitting and evaluation.

Response:
We acknowledge that the prediction and projection of bearded seal habitat based solely on water depth and a range of preferred sea ice concentration is based upon incomplete information and incorporates assumptions. We are not aware of additional data that would support alternative, more complex, and possibly more realistic habitat descriptions, and the reviewers and commenters did not identify additional data sets that should be considered in this context. Without such additional data, the suggestion to create a more formal empirical static model for bearded seal habitat is not presently feasible (though we did use a form of this approach in deriving the preferred ice concentrations from surveys in a portion of the Bering Sea). We agree that TEK can be a good source of information about bearded seal habitat requirements. However, incorporating information obtained by traditional ways of observing bearded seals into statistical models of habitat would require additional, dedicated studies that are beyond the scope of ESA listing determinations, which must be made within the time limits required by section 4(b) of the ESA and the regulations implementing the ESA at 50 CFR 424.17, using the best scientific and commercial data that are currently available.

Comment 7:
A peer reviewer questioned whether the 500 m depth limit used to define the core distribution (e.g., whelping, breeding, molting, and most feeding) of bearded seals is too deep, and suggested that an analysis of how sensitive the conclusions might be to the choice of depth limit would be appropriate. A commenter agreed, noting that the literature review for the petition to list bearded seals and the status review report found that bearded seals prefer depths less than 200 m.

Response:
Our literature review found that although bearded seals seem to prefer depths less than 200 m, the species occurs in waters deeper than 500 m, and dives to depths of 300-500 m have been recorded for a substantial portion of the bearded seals that have been studied with satellite-linked dive recorders. Because the 200 m and 500 m depth contours tend to be very close to each other around the continental slope margins of the Beringia DPS, the area defined by a boundary of 200 m is only 2 percent smaller than that defined by a 500 m boundary. Therefore, the conclusions about risk from habitat loss for that DPS would not be sensitive to the choice of depth limit. In the Sea of Okhotsk and the range of
E. b. barbatus,
the differences in area encompassed by the 200 m and 500 m depth boundaries are greater (27 percent and 36 percent, respectively). Even for these populations units, however, the conclusions about risk from habitat loss are not expected to be particularly sensitive to the choice of depth limit because both present and future habitat areas were computed as the areas where water depth and ice concentration are suitable. If we have overestimated the current areas of available habitat by selecting 500 m as the depth limit, the projected future areas of available habitat would also be overestimated, but the predicted change, driven by loss of sea ice extent, would be similar under either depth limit choice.

Comment 8:
A peer reviewer expressed the opinion that while it is reasonable to ask the question of whether there will be habitat gains with projected changes in sea ice cover, the more important question is what types and quantities of food would be available in those areas gained. This reviewer noted that in most cases, what are projected for the Beringia DPS are not habitat gains, but rather possible earlier seasonal access to areas that are currently used somewhat later; and comparing areas of gains and losses is only informative if there is some way to scale their relative values. In addition, he pointed out that the habitat projected to be lost in the Bering Sea during spring is a region that is among the most productive for bearded seal prey species; while in contrast, areas of projected gains in the Beaufort Sea and along the shelf break of the Arctic basin are not known to be highly productive. This reviewer commented that it therefore appears that the Beringia DPS will lose highly productive habitat in southern regions, and probably gain access earlier in the spring to low productivity areas.

Two related comments expressed the opinion that the reviewer's suggestion that bearded seals will “lose highly productive habitat in southern regions, and probably gain access earlier in the spring to low productivity areas” (p. 8; NMFS, 2012) did not consider that the projected climate change effects will also affect ocean productivity such that some areas of low productivity will be highly productive in the foreseeable future (and vice versa). These commenters also expressed the view that the proposed rule did not adequately evaluate how the productivity of the ocean environment could be expected to change in response to the different projected climate scenarios, and instead focused primarily on projected changes in sea ice cover. A few other related comments more generally suggested that some habitat changes caused by projected changes in climatic conditions, such as increased open water foraging areas, may be beneficial to bearded seals.

Finally, a commenter expressed the opinion that the supplementary habitat analysis provided to the special peer reviewers indicates that in assessing the

projections of future sea ice extent and distribution and potential impacts to bearded seals, NMFS arbitrarily adopted a precautionary approach that assumed the worst possible future habitat conditions without taking into account any future potential habitat gains.

Response:
The range of opinions and lack of consensus among these reviewers and commenters is understandable given the incomplete scientific understanding of bearded seal habitat requirements and the difficulty in projecting future habitat conditions. There is a near universal consensus in the scientific community that the Arctic climate will continue to warm and that sea ice will decline in extent and thickness as a result. The magnitude of these changes is subject to debate, but the general direction of the trend is widely accepted and is based on well-known physical principles of radiative forcing by GHGs. There is little or no similar consensus about the biological responses that are most likely to follow the physical habitat changes. There is broad recognition that changes in sea ice and acidification of ocean waters will cause changes in biological communities, but the nature, direction, and magnitude of changes in these highly complex systems are highly uncertain. An additional element of uncertainty is the unknown resilience of bearded seals to whatever changes may occur.

We are unaware of documented examples of bearded seals or other closely related species occupying new habitat in response to major and rapid environmental shifts, as there are no known recent-history analogs to the climate warming presently underway. While it is clear that the predicted reductions in sea ice during the remainder of this century will entail major changes in areas that are known to be important bearded seal habitat presently, it is much less certain that regions previously covered by very dense ice during the bearded seal's whelping and nursing periods will become more suitable habitat as ice thins and declines. In particular, we are not aware of any reliable basis for concluding that presently low productivity benthic habitats would become populated with suitable prey for bearded seals that move to more northerly areas. We did not receive any new information as part of the additional peer review and public comment period to indicate that our prior analysis of habitat losses anticipated in the foreseeable future was overstated.

Comment 9:
A peer reviewer and several commenters, including Canada's DFO, suggested that the potential for bearded seals to modify their behavior in response to climate change is underestimated, and a few commenters noted that this 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. The peer reviewer noted, for example, that bearded seals are known to: (1) Feed on pelagic fish species, indicating flexibility in their diet that could allow them to adapt to feeding in deeper water; and (2) use terrestrial haul-out sites in some areas when ice is unavailable in the vicinity of their shallow water feeding habitat. A few commenters also noted that bearded seals have a diverse diet, switch from pack ice to open water in response to changing sea ice conditions to maintain access to preferred food resources, and display a wide range of habitat tolerances given their wide circumpolar distribution. Another peer reviewer commented that it is poorly known how a species with a generation time of about 11 years would adapt to the large redistribution of available habitat predicted for the Beringia DPS, noting that it would do so only under a drastically altered distribution and migratory scheme.

Response:
The status review report presented evidence for resilience of bearded seals in responding to changes in paleoclimatic history (p. 190-192; Cameron
et al.,
2010). Two main factors argue for a conservative approach to drawing inferences about whether bearded seals will be able to adapt to the changes anticipated through the remainder of this century. First, the paleoclimatic history has relatively poor resolution for determining how rapid past warming events have been and then comparing those rates with the rate of the present warming event. Although a few past warming events have apparently been rapid, there is insufficient resolution to judge whether that has typically been the case. If large warming events of the past have typically occurred over centuries rather than decades, the fact that bearded seals exist as a species today does not necessarily reflect their capacity to adapt to a more rapid change such as the present warming. The other reviewer's comment about the generation time of the species reflects this concern as well. Individual bearded seals are likely to be faithful to their breeding sites; shifts in breeding range are therefore more likely to occur by successive generations of new breeders establishing their breeding sites farther north in response to reduced ice extent, rather than by individuals making shifts within their lifetimes. If the warming and loss occurs too rapidly relative to the generation time, adaptation is unlikely to occur. Second, unlike past (pre-historic) warming events, the present warming is accompanied by other significant human-caused environmental changes that may pose additive threats, such as ocean acidification, increased shipping, and chemical pollutants.

The present-day traits of bearded seals such as a diverse diet and occasional use of terrestrial haul-out sites must be interpreted carefully in evaluating their implications for resilience. While the diet is taxonomically diverse, the vast majority of bearded seal foraging seems to be on or near the bottom. They have adaptations, such as their prominent mystacial vibrissae (whiskers) and a mouth structure for capturing prey by suction, that indicate a relatively specialized mode of feeding. This contrasts with ribbon and spotted seals, which forage substantially in the mid-water as well as at the bottom, and which are adapted to a more generalized mode of seizing prey in their sharp teeth.

Despite the use of haul-out sites on shore in the Sea of Okhotsk and occasionally in other areas, these sites have not been documented for whelping and nursing. The general phocid seal (“earless” or “true” seal) trait of having young that are vulnerable to carnivore predators has not proven to be adaptable throughout evolutionary history. The group likely evolved in sea ice as a strategy of predator avoidance and the only present-day exceptions to the ice-breeding strategy occur in places where reproductive sites on shore are devoid of or substantially protected from predators. Such sites are uncommon within the range of bearded seals and therefore it is unlikely that they could successfully make a switch to land-based reproduction. Therefore, the regional or occasional use of haul-out sites on land, primarily during summer and autumn months, does not imply that bearded seals have much potential for switching to a strategy of breeding on shore in the absence of suitable sea ice.

Comment 10:
A peer reviewer expressed the opinion that the concern about future accessibility of shallow water feeding habitat for bearded seal whelping and nursing is not reasonable. This reviewer noted that the central and northern Bering Sea and all of the Chukchi Sea are shallow water feeding habitat for bearded seal females with pups, and suggested that the ice edge

would have to be north of Barrow by May for this concern to be founded.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2012-31068. Public record. Not legal advice.