Endangered and Threatened Species; Designation of Critical Habitat for the Beringia Distinct Population Segment of the Bearded Seal

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and 226

[Docket No. 220318-0073]

RIN 0648-BJ65

Endangered and Threatened Species; Designation of Critical Habitat for the Beringia Distinct Population Segment of the Bearded Seal

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We, the National Marine Fisheries Service (NMFS), issue this final rule to designate critical habitat for the Beringia distinct population segment (DPS) of the Pacific bearded seal subspecies

Erignathus barbatus nauticus

under the Endangered Species Act (ESA). The critical habitat designation comprises an area of marine habitat in the Bering, Chukchi, and Beaufort seas.

DATES:

This rule is effective May 2, 2022.

ADDRESSES:

The final rule, critical habitat map, and associated Final Impact Analysis Report (

i.e.,

report titled “Final RIR/ESA Section 4(b)(2) Preparatory Assessment/FRFA of Critical Habitat Designation for the Beringia Distinct Population Segment (DPS) of the Bearded Seal”) can be found on the NMFS website at

www.fisheries.noaa.gov/species/bearded-seal#conservation-management.

FOR FURTHER INFORMATION CONTACT:

Tammy Olson, NMFS Alaska Region, (907) 271-5006; Jon Kurland, NMFS Alaska Region, (907) 586-7638; or Heather Austin, NMFS Office of Protected Resources, (301) 427-8422.

SUPPLEMENTARY INFORMATION:

Background

On December 28, 2012, we published a final rule to list the Beringia DPS of the Pacific bearded seal subspecies as threatened under the ESA (77 FR 76740). Section 4(b)(6)(C) of the ESA requires the Secretary to designate critical habitat concurrently with listing a species as threatened or endangered unless it is not determinable at that time, in which case the Secretary may extend the deadline for this designation by one year. At the time of listing, we announced our intention to designate critical habitat for the Beringia DPS in a separate rulemaking, as it was not then determinable. Concurrently, we solicited information to assist us in (1) identifying the physical or biological features essential to the conservation of the Beringia DPS, and (2) assessing the economic impacts of designating critical habitat for this species.

On July 25, 2014, the listing of the Beringia DPS as a threatened species was vacated by the U.S. District Court for the District of Alaska (

Alaska Oil & Gas Ass'n

v.

Pritzker,

Case No. 4:13-cv-18-RRB, 2014 WL 3726121 (D. Alaska July 25, 2014)). This decision was reversed by the U.S. Court of Appeals for the Ninth Circuit on October 24, 2016 (

Alaska Oil & Gas Ass'n

v.

Ross,

840 F.3d 671 (9th Cir. 2016)), and the listing was reinstated on February 22, 2017.

On June 13, 2019, the Center for Biological Diversity filed a complaint in the U.S. District Court for the District of Alaska alleging that NMFS had failed to timely designate critical habitat for the Beringia DPS of bearded seals. Under a court-approved stipulated settlement agreement between the parties, NMFS published a proposed rule to designate critical habitat for the Beringia DPS of bearded seals on January 8, 2021 (86 FR 1433). Specifically, we proposed to designate as critical habitat for the Beringia DPS an area of marine habitat in the northern Bering, Chukchi, and Beaufort seas containing physical and biological features essential to the conservation of the species and that may require special management considerations or protection. On January 27, 2021, a correction to the comment period closing date identified in this proposal from “March 9, 2020” to “March 9, 2021” was published in the

Federal Register

(86 FR 7242).

We requested public comments on the proposed designation and associated Draft Impact Analysis Report (NMFS 2020) through March 9, 2021, and held three public hearings (86 FR 7686, February 1, 2021). In response to requests, we extended the public comment period through April 8, 2021 (86 FR 13518, March 9, 2021). For a complete description of our proposed action, we refer the reader to the proposed rule (86 FR 1433, January 8, 2021).

This final rule describes the critical habitat designation for Beringia DPS bearded seals and the basis for the designation, including a summary of, and responses to, comments received. A detailed discussion and analysis of probable economic impacts associated with this critical habitat designation is provided in the Final Impact Analysis Report (NMFS 2021), which is referenced throughout this final rule.

Critical Habitat Definition and Process

Section 3(5)(A) of the ESA defines critical habitat as (1) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features essential to the conservation of the species and which may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary of Commerce (Secretary) that such areas are essential for the conservation of the species (16 U.S.C. 1532(5)(A)). Section 3(5)(C) of the ESA provides that, except in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species. Also, by regulation, critical habitat shall not be designated within foreign countries or in other areas outside U.S. jurisdiction (50 CFR 424.12(g)).

Conservation is defined in section 3(3) of the ESA as the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary (16 U.S.C. 1532(3)). Therefore, a critical habitat designation is not limited to the areas necessary for the survival of the species, but rather includes areas necessary for supporting the species' recovery. (

See Gifford Pinchot Task Force

v.

U.S. Fish and Wildlife Service,

378 F.3d 1059, 1070 (9th Cir. 2004) (“Clearly, then, the purpose of establishing `critical habitat' is for the government to carve out territory that is not only necessary for the species' survival but also essential for the species' recovery.”),

amended on other grounds,

387 F.3d 968 (9th Cir. 2004);

Alaska Oil and Gas Ass'n

v.

Jewell,

815 F.3d 544, 555-56 (9th Cir. 2016).)

Section 4(b)(2) of the ESA requires the Secretary to designate critical habitat for threatened and endangered species on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact of specifying any particular area as critical habitat. This section also grants the Secretary discretion to exclude any area from critical habitat if he or she determines the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat. However, the

Secretary may not exclude areas if such exclusion will result in the extinction of the species (16 U.S.C. 1533(b)(2)).

Critical habitat designations must be based on the best scientific data available, rather than the best scientific data

possible. Bldg. Indus. Ass'n. of Superior Cal.

v.

Norton,

247 F.3d 1241, 1246-47 (D.C. Cir. 2001).

See also Alaska Oil & Gas Ass'n

v.

Jewell,

815 F.3d 544, 555 (9th Cir. 2016) (The ESA “requires use of the best available technology, not perfection.”). Provided that the best available information is sufficient to enable us to make a determination as required under the ESA, we must rely on it even though there is some degree of imperfection or uncertainty.

See Alaska

v.

Lubchenco,

825 F. Supp. 2d 209, 223 (D.D.C. 2011) (“[E]ven if plaintiffs can poke some holes in the agency's models, that does not necessarily preclude a conclusion that these models are the best available science. Some degree of predictive error is inherent in the nature of mathematical modeling.”);

Oceana, Inc.

v.

Ross,

321 F. Supp. 3d 128, 142 (D.D.C. 2018) (“[E]ven where data may be inconclusive, an agency must rely on the best available scientific information.”). There is no obligation to conduct independent studies and tests to acquire the best possible data.

Ross,

321 F. Supp. 2d at 142 (citations omitted).

See also San Luis & Delta-Mendota Water Auth.

v.

Locke,

776 F.3d 971, 995 (9th Cir. 2014) (holding that the best available science standard “does not require an agency to conduct new tests or make decisions on data that does not yet exist.”);

Am. Wildlands

v.

Kempthorne,

530 F.3d 991, 999 (D.C. Cir. 2008);

Southwest Ctr. for Biological Diversity

v.

Babbitt,

215 F.3d 58, 60 (D.C. Cir. 2000) (“The `best available data' requirement makes it clear that the Secretary has no obligation to conduct independent studies.”)

Once critical habitat is designated, section 7(a)(2) of the ESA requires Federal agencies to ensure that actions they authorize, fund, or carry out are not likely to destroy or adversely modify that habitat (16 U.S.C. 1536(a)(2)). This requirement is additional to the section 7(a)(2) requirement that Federal agencies ensure that their actions are not likely to jeopardize the continued existence of ESA-listed species (sometimes referred to as the “jeopardy” standard). Specifying the geographic location of critical habitat also facilitates implementation of section 7(a)(1) of the ESA by identifying areas where Federal agencies can focus their conservation programs and use their authorities to further the purposes of the ESA (16 U.S.C. 1536(a)(1)). Critical habitat requirements do not apply to citizens engaged in actions on private land that do not involve a Federal agency.

Description and Natural History

The bearded seal is the largest of the northern ice-associated seals. Adults average 2.1 to 2.4 meters (m) in length and weigh up to 360 kilograms (Chapskii 1938, McLaren 1958, Johnson

et al.

1966, Burns 1967, Benjaminsen 1973, Burns 1981). In general, bearded seals reach sexual maturity at 5 to 6 years of age for females and 6 to 7 years of age for males (McLaren 1958, Tikhomirov 1966, Burns 1967, Burns and Frost 1979, Smith 1981, Andersen

et al.

1999). The life span of bearded seals is reported to be about 20 to 25 years (Kovacs 2002), although some can reach 40 years, and females surviving into their late 20s or early 30s can remain reproductively active (Quakenbush 2020a). The average life span is likely to be much lower, due to high first-year mortality rates (Fedoseev 2000, Cameron

et al.

2010, Trukhanova

et al.

2018).

General Seasonal Distribution and Habitat Use

Bearded seals of the Beringia DPS inhabit seasonally ice-covered waters of the Bering, Chukchi, Beaufort, and East Siberian seas. They primarily feed on organisms on or near the seafloor (benthic organisms) that are more numerous in shallow water where light can reach the sea bottom. Thus, their effective habitat is generally restricted to areas where seasonal ice occurs over relatively shallow waters, typically less than 200 m, where they can reach the ocean floor to forage (Burns and Frost 1979, Burns 1981, Nelson

et al.

1984, Fedoseev 2000). Still, bearded seal dive depths have been recorded to greater than 488 m (Gjertz

et al.

2000). Cameron

et al.

(2010) defined the core distribution of bearded seals as those areas of known extent that are in water less than 500 m deep.

Sea ice provides bearded seals isolation from terrestrial predators, as well as some protection from aquatic predators such as killer whales (

Orcinus orca

), although the extent of such predation is unknown. The ice serves as a platform out of the water for whelping and nursing of pups, pup maturation, and molting (shedding and regrowing hair and outer skin layers), as well as for resting (Cameron

et al.

2010). Bearded seals can be found in a broad range of different ice types (Fay 1974, Burns and Frost 1979, Burns 1981, Nelson

et al.

1984), but they favor drifting pack ice with natural openings and areas of open water, such as leads, fractures, and polynyas, for breathing, hauling out on the ice, and accessing the water for foraging (Heptner

et al.

1976, Burns and Frost 1979, Nelson

et al.

1984, Kingsley

et al.

1985, Cleator and Stirling 1990). Although bearded seals prefer sea ice with natural access to the water, observations indicate the seals are able to make breathing holes in thinner ice (Burns 1967, Burns and Frost 1979, Burns 1981, Nelson

et al.

1984). They tend to avoid areas of continuous, thick, landfast (shorefast) ice—which is attached to the shoreline and forms seasonally to varying extent along the Alaskan Arctic coast—and are rarely seen in the vicinity of unbroken, heavy, drifting ice or large areas of multi-year ice (Heptner

et al.

1976, Burns and Frost 1979, Nelson

et al.

1984, Kingsley

et al.

1985, Cleator and Stirling 1990). Still, some bearded seals may occur in areas of landfast ice, as documented by aerial surveys conducted during late May to early June in the Beaufort Sea in 1999 to 2002 (Moulton

et al.

2000, Moulton

et al.

2001, Moulton

et al.

2002, Moulton

et al.

2003).

Although adult bearded seals have rarely been seen hauled out on land in Alaska (Burns 1981, Nelson 1981), two adults were captured for tagging in September 2019 while they were hauled out on land near Utqiag

vik (Alaska Department of Fish and Game (ADF&G), 2019, unpublished data). Juvenile bearded seals have been observed hauled out on land along lagoons and rivers in some areas of Alaska, including in the Bering Strait region in summer to early fall (Huntington 2000, Oceana and Kawerak 2014, Gadamus

et al.

2015, Huntington

et al.

2015b), on the Chukchi Sea coast near Wainwright (Nelson 1981), and on sandy islands near Utqiag

vik (Cameron

et al.

2010). In addition, satellite tracking data obtained from juvenile bearded seals tagged in Alaska during 2014 to 2018 indicate that during the period of minimum ice extent (July to October), about half of the seals that hauled out (7 of 13 individuals) used terrestrial sites located south of the ice edge in Kotzebue Sound and Norton Sound (and for one individual, in a bay on the Chukotka Peninsula) whereas the other seals remained near the ice edge and hauled out on ice, and two individuals showed both patterns in separate years (Olnes

et al.

2020). There is some evidence that, other than during the critical life history periods related to reproduction and molting, bearded seals can remain at sea for extended periods without requiring the presence of sea ice for hauling out. Some bearded seals tagged in Alaska have remained in the

water for weeks or months at a time during the open-water period and into early winter (Frost

et al.

2008, Boveng and Cameron 2013, Quakenbush

et al.

2019).

The region that includes the Bering and Chukchi seas is the largest area of continuous habitat for bearded seals (Burns 1981, Nelson

et al.

1984). The Bering-Chukchi Platform is a shallow intercontinental shelf that encompasses about half of the Bering Sea, spans the Bering Strait, and covers nearly all of the Chukchi Sea. Bearded seals can reach the bottom everywhere along the shallow shelf, so it provides them favorable foraging habitat (Burns 1967). The Bering and Chukchi seas are generally covered by sea ice in late winter and spring and are then mostly ice-free in late summer and fall, a process that helps to drive a seasonal pattern in the movements and distribution of bearded seals in this region (Johnson

et al.

1966, Burns 1967, Heptner

et al.

1976, Burns and Frost 1979, Burns 1981, Nelson

et al.

1984). In spring, as the sea ice begins to melt, many of the bearded seals that overwintered in the Bering Sea migrate northward with the receding ice through the Bering Strait and into the Chukchi and Beaufort seas and spend the summer and early fall foraging in these waters, while an unknown proportion of these seals, in particular juveniles, may remain in the Bering Sea.

Studies that have inferred locations of foraging activity for bearded seals tagged in Alaska based on movement and dive data (Boveng and Cameron 2013, Gryba

et al.

2019, Quakenbush

et al.

2019, Olnes

et al.

2020) show some overlap in the areas used extensively by individual seals, including for some seals near the 100-m isobath in the Bering Sea in July to November. However, the spatial patterns of habitat use and locations of intensive use can vary substantially among individuals (

e.g.,

Quakenbush

et al.

2019, Olnes

et al.

2020). The results of these studies represent use by primarily juvenile tagged bearded seals, and it is unknown how representative they are for older animals. Bearded seal sightings recorded during aerial surveys of the northeastern Chukchi and Beaufort seas off Alaska conducted in summer and/or fall from 1982 to 2019 (formerly to monitor the fall migration of bowhead whales and more recently to document the distribution and relative abundance of whales and other marine mammals) were distributed over the continental shelf in both coastal and offshore areas (Alaska Fisheries Science Center 2020).

Some bearded seals (largely juveniles), have been observed or tracked via satellite telemetry in small coastal bays, lagoons, and estuaries, near river mouths, and up some rivers, in particular during late summer and fall (

e.g.,

Burns 1981, Nelson 1981, Oceana and Kawerak 2014, Huntington

et al.

2016, Northwest Arctic Borough 2016, Huntington

et al.

2017a, 2017b, Huntington

et al.

2017d, Gryba

et al.

2019, Quakenbush

et al.

2019, Quakenbush 2020b), although the majority of Alaska Native hunters interviewed at Utqiag

vik indicated that all ages of bearded seals use rivers and creeks (Gryba

et al.

2021). Indigenous Knowledge (IK) documented for several communities in northern and western Alaska indicates that in these areas, bearded seals feed on fishes such as whitefish species, cods, smelts, herring, and salmon, as well as shrimps and clams (Oceana and Kawerak 2014, Huntington

et al.

2016, 2017c).

As the ice forms in the fall and winter, many bearded seals move south with the advancing ice edge through the Bering Strait into the Bering Sea where they spend the winter (Burns 1967, Heptner

et al.

1976, Burns and Frost 1979, Burns 1981). Bearded seal vocalizations were recorded throughout winter and spring in the northeastern Chukchi Sea and western Beaufort Sea, indicating that some bearded seals overwinter in these seas (Hannay

et al.

2013, MacIntyre

et al.

2013, Jones

et al.

2014, MacIntyre

et al.

2015, Frouin-Mouy

et al.

2016, Berchok

et al.

2019, Vate Brattström

et al.

2019). Intermittent coastal leads deep in the ice pack of these seas provide at least marginal habitat for low densities of females to whelp in the spring (Burns and Frost 1979, Cameron

et al.

2010).

Of the bearded seals tagged in Alaska to date, few have been adults, and the majority were tagged in Norton Sound and Kotzebue Sound. Tracking data for most tagged seals have shown an overall pattern of broad latitudinal movement northward in summer with receding sea ice and southward in fall as sea ice advances (Frost

et al.

2008, Boveng and Cameron 2013, Breed

et al.

2018, Cameron

et al.

2018, Quakenbush

et al.

2019). However, Quakenbush

et al.

(2019) and Olnes

et al.

(2020) found that the extent of these movements for seals tracked during their study depended on where the seals were tagged. Two juveniles tagged in the western Beaufort Sea did not travel south of about 70° N (in the Chukchi Sea) and one juvenile tagged in Kotzebue Sound remained there during winter, whereas juveniles tagged in Norton Sound made more extensive latitudinal movements (Quakenbush

et al.

2019). Similarly, an adult male tagged in the western Beaufort Sea near Utqiaġvik in the fall of 2019 remained in nearshore areas southeast of Utqiaġvik and in the vicinity of Barrow Canyon and overwintered near Barrow Canyon in two consecutive years, a habitat use pattern also shown by one of the two subadults that remained north of about 70° N (Quakenbush

et al.

2019, Quakenbush 2020b; ADF&G, 2021, unpublished data).

Breed

et al.

(2018) and Cameron

et al.

(2018) found that from late fall to early spring, juvenile bearded seals tagged in Kotzebue Sound from 2004 to 2009 selected habitat at the southern ice edge, which depending on ice conditions may extend to near the shelf break during late winter and early spring. In contrast, using data from juvenile bearded seals tagged mainly in Norton Sound during the more recent 2014 to 2018 period, Olnes

et al.

(2021) reported differences in habitat selection in both winter and spring that appear to be the result of recent changes to the distribution of sea ice concentrations and habitats. Although ice concentrations were similar in both periods, in the more recent period, those ice concentrations were located well north of the ice edge, and some individuals overwintered in the Chukchi and Beaufort seas (Quakenbush

et al.

2019, Olnes

et al.

2021).

Reproduction

During the winter and spring, pregnant female bearded seals find broken pack ice over shallow areas on which to whelp, nurse pups, and molt (Fay 1974, Heptner

et al.

1976, Burns 1981, Andersen

et al.

1999, Kovacs 2002). Females with pups are generally solitary, tending not to aggregate (Heptner

et al.

1976, Kovacs

et al.

1996). After giving birth on the ice, female bearded seals feed throughout the lactation period of about 24 days, continuously replenishing fat reserves lost while nursing pups (Holsvik 1998, Andersen

et al.

1999, Krafft

et al.

2000). Pups nurse on the ice (Lydersen

et al.

1994, Andersen

et al.

1999, Kovacs

et al.

2019), and by the time they are a few days old, they spend half their time in the water (Lydersen

et al.

1994, Gjertz

et al.

2000, Watanabe

et al.

2009). Pups develop diving, swimming, and foraging skills over the nursing period and beyond (Lydersen

et al.

1994, Gjertz

et al.

2000, Watanabe

et al.

2009, Hamilton

et al.

2019). In the Bering Sea, newborn pups have been observed from mid-March to early May (Cameron

et al.

2010). A peak in births in the Bering Strait and central Chukchi Sea is estimated to occur in late April (Johnson

et al.

1966, Tikhomirov 1966, Heptner

et

al.

1976, Burns 1981, Cameron

et al.

2010).

Bearded seals vocalize intensively during the breeding season, which Cameron

et al.

(2010) estimated extends from April into June. Passive acoustic monitoring studies in the northern Bering, Chukchi, and Beaufort seas off Alaska have recorded a variable progressive increase in bearded seal call activity over winter, with peak rates occurring from about mid-March or April to late June in the Chukchi and Beaufort seas (Hannay

et al.

2013, MacIntyre

et al.

2013, Jones

et al.

2014, MacIntyre

et al.

2015, Frouin-Mouy

et al.

2016, Berchok

et al.

2019, Vate Brattström

et al.

2019), and from about mid-March to the middle or end of May in the northern Bering Sea (MacIntyre

et al.

2015, Chou

et al.

2019). Some male bearded seals maintain a single small aquatic territory during the breeding season, while others roam across larger areas (Van Parijs

et al.

2003, 2004, Van Parijs and Clark 2006). Male vocalizations during the breeding season are considered to function to maintain aquatic territories and/or advertise breeding condition (Ray

et al.

1969, Cleator

et al.

1989, Van Parijs

et al.

2003, Van Parijs and Clark 2006, Risch

et al.

2007).

Surveys indicate that in the Bering Sea during spring, bearded seals use nearly the entire extent of pack ice over the continental shelf. The highest densities of bearded seals in early spring have typically been observed between St. Lawrence and St. Matthew Islands, with lower densities reported southeast of St. Matthew Island and in the southern Gulf of Anadyr (Krylov

et al.

1964, Kosygin 1966b, Braham

et al.

1981, Cameron and Boveng 2007, Cameron

et al.

2008). In early spring of some years, high densities of bearded seals have also been observed north and west of St. Lawrence Island (Braham

et al.

1977, Fedoseev

et al.

1988, Cameron

et al.

2008). The age-sex composition of these aggregations was not documented, so it is not known if these are whelping areas. However, spring aerial surveys of the Bering Sea conducted in 2012 and 2013 documented numerous bearded seals, including pups, in Norton Sound and the Chirikov Basin north of St. Lawrence Island, extending to well south of St. Matthew and Nunivak Islands (NMFS Marine Mammal Laboratory, unpublished data). The subsistence harvest of bearded seal pups by hunters in Quinhagak also suggests that some bearded seals may whelp south of Nunivak Island (Coffing

et al.

1999). Existing information on the spring distribution of bearded seals is otherwise limited. Aerial surveys conducted in parts of the Chukchi Sea during April and May of 2016 documented numerous bearded seals, including some pups, in the Hope Basin south of Point Hope, and less frequent sightings of bearded seals (which included a few pups) north of Point Hope (NMFS Marine Mammal Laboratory, unpublished data). Bearded seals were also more commonly observed south of Point Hope during aerial surveys flown primarily along the coast of the northeastern Chukchi Sea in late May to early June of 1999 and 2000 (Bengtson

et al.

2005). However, the age-sex composition of bearded seals observed was not reported and this survey was timed toward the molting period.

Molting

Adult and juvenile bearded seals molt annually, a process that for adults typically begins shortly after mating, as it does with other mature phocid or “true” seals (Chapskii 1938, Ling 1970, Ling 1972, King 1983, Yochem and Stewart 2002). Juvenile bearded seals have been reported to molt earlier than adults (Krylov

et al.

1964, Heptner

et al.

1976, Fedoseev 2000). Bearded seals haul out of the water onto the ice more frequently during molting (Burns 1981, Fedoseev 2000, Olnes

et al.

2020), a behavior that facilitates higher skin temperatures and may accelerate shedding and regrowth of hair and epidermis (Héroux 1960, Feltz and Fay 1966, Fay 1982). A captive bearded seal showed only a slight elevation in metabolic rate during molt (Thometz

et al.

2021), but also a prolonged molt, consistent with natural history descriptions. In this way, the species may avoid the pulse of energy demand experienced by ringed seals (

Pusa hispida

) and spotted seals (

Phoca largha

), which complete their molt in about one quarter of the time. The molting period of bearded seals in the Bering, Chukchi, and Beaufort seas off Alaska has not been specifically investigated, but has been described as protracted, occurring between April and August with a peak in May and June (Tikhomirov 1964, Kosygin 1966a, Burns 1981). This observed timing of molting coincides with the period in which bearded seals that overwintered in the Bering Sea migrate long distances to summering grounds in the Chukchi and Beaufort seas. Measures of body condition and blubber thickness are at their annual minimums following the molt (Burns and Frost 1979, Smith 1981, Andersen

et al.

1999).

Diet

Bearded seals feed primarily on benthic organisms, including a variety of invertebrates dwelling on the surface of the seabed (epifauna) and in the seabed substrate (infauna), and some fishes found on or near the sea bottom (demersal). They are also able to switch their diet to include schooling pelagic (non-demersal) fishes when advantageous (Antonelis

et al.

1994). A wide variety of prey species have been reported for bearded seals of the Beringia DPS, though the bulk of their diet appears to consist of relatively few major prey types. Bearded seals of the Beringia DPS primarily feed on bivalve mollusks and crustaceans like crabs and shrimps, while fishes such as sculpins, cods, and flatfishes can also be a significant component of their diet (Kenyon 1962, Johnson

et al.

1966, Burns 1967, Kosygin 1971, Burns and Frost 1979, Lowry

et al.

1979, 1980, Antonelis

et al.

1994, Hjelset

et al.

1999, Fedoseev 2000, Dehn

et al.

2007, Quakenbush

et al.

2011, Crawford

et al.

2015, Bryan 2017, Quakenbush 2020a). Quakenbush

et al.

(2011) reported that in the Bering and/or Chukchi seas, the diet of bearded seals shifted toward an increased proportion and diversity of fish between the periods 1961 to 1979 and 1998 to 2009.

Specific bearded seal prey species differ somewhat between geographic locations. This variability is likely a result of differences in prey assemblages in each region (Burns and Frost 1979, Lowry

et al.

1980, Dehn

et al.

2007). Diet composition of bearded seals has been observed to change seasonally (Johnson

et al.

1966, Burns and Frost 1979, Quakenbush

et al.

2011, Quakenbush 2020a), and has also been reported to vary interannually as well as longer-term (Lowry

et al.

1980, Quakenbush

et al.

2011, Carroll

et al.

2013, Crawford

et al.

2015, Quakenbush 2020a). Further, bearded seal diet composition may be influenced by interannual variations in sea ice conditions (Hindell

et al.

2012). No differences have been shown in the feeding habitats of male and female bearded seals (Kelly 1988); however, prey composition of the bearded seal's diet has shown some variation with age (Burns and Frost 1979, Lowry

et al.

1980, Quakenbush

et al.

2011, Crawford

et al.

2015, Quakenbush 2020a). Although major prey types documented in the diets of all bearded seal age classes in the Bering and Chukchi seas included crabs, shrimps, clams, and fishes, differences among age classes were reported in the relative importance of certain prey types and prey species

consumed (based on frequency of occurrence and/or volume) (Burns and Frost 1979, Lowry

et al.

1980, Quakenbush

et al.

2011, Crawford

et al.

2015, Quakenbush 2020a).

Critical Habitat Identification

In the following sections, we describe the relevant definitions and requirements in the ESA and implementing regulations at 50 CFR part 424, and the key information and criteria used to prepare this final critical habitat designation. In accordance with section 4(b)(2) of the ESA, this critical habitat designation is based on the best scientific data available. Our primary sources of information include the status review report for the bearded seal (Cameron

et al.

2010), our proposed and final rules to list the Beringia and Okhotsk DPSs of the bearded seal as threatened under the ESA (75 FR 77496, December 10, 2010; 77 FR 76740, December 28, 2012), articles in peer-reviewed journals, other scientific reports, peer reviewer and public comments on the proposed rule, and relevant Geographic Information System (GIS) and satellite data (

e.g.,

shoreline data, U.S. maritime limits and boundaries data, sea ice extent) for geographic area calculations and mapping. We also rely upon IK of Alaska Native subsistence users.

To identify specific areas that may qualify as critical habitat for bearded seals of the Beringia DPS, in accordance with 50 CFR 424.12(b), we followed a five-step process: (1) Identify the geographical area occupied by the species at the time of listing; (2) identify physical or biological habitat features essential to the conservation of the species; (3) determine the specific areas within the geographical area occupied by the species that contain one or more of the physical and biological features essential to the conservation of the species; (4) determine which of these essential features may require special management considerations or protection; and (5) determine whether a critical habitat designation limited to geographical areas occupied by the species at the time of listing would be inadequate to ensure the conservation of the species. Our evaluation and conclusions are described in detail in the following sections, and incorporate changes in response to peer reviewer and public comments (see Summary of Comments and Responses and Summary of Changes From the Proposed Designation sections).

Geographical Area Occupied by the Species

The phrase “geographical area occupied by the species at the time it is listed,” which appears in the statutory definition of critical habitat, is defined by regulation as an area that may generally be delineated around species' occurrences as determined by the Secretary (

i.e.,

range) (50 CFR 424.02). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis, such as migratory corridors, seasonal habitats, and habitats used periodically, but not solely, by vagrant individuals (

Id.

).

Based on existing literature, including available information on sightings and movements of bearded seals of the Beringia DPS, we identified the range of the Beringia DPS in the final ESA listing rule (77 FR 76740; December 28, 2012) as the Arctic Ocean and adjacent seas in the Pacific Ocean between 145° E longitude and 130° W longitude, except west of 157° E longitude, or west of the Kamchatka Peninsula, where the Okhotsk DPS of the bearded seal is found. As noted previously, we cannot designate areas outside U.S. jurisdiction as critical habitat. Thus, the geographical area under consideration for this designation is limited to areas under U.S. jurisdiction that the Beringia DPS occupied at the time of listing. This area extends to the outer boundary of the U.S. Exclusive Economic Zone (EEZ) in the Chukchi and Beaufort seas and south over the continental shelf in the Bering Sea (Cameron

et al.

2010).

Physical and Biological Features Essential to the Conservation of the Species

The statutory definition of critical habitat refers to “physical or biological features essential to the conservation of the species,” but the ESA does not specifically define or further describe these features. Implementing regulations at 50 CFR 424.02 define such features as those that occur in specific areas and that are essential to support the life-history needs of the species. The regulations provide additional details and examples of such features.

Based on the best scientific information available regarding the natural history of bearded seals and the habitat features that are essential to support the species' life-history needs, we have identified the following physical and biological features that are essential to the conservation of the Beringia DPS of bearded seals within U.S. waters occupied by the species.

(1)

Sea ice habitat suitable for whelping and nursing, which is defined as areas with waters 200 m or less in depth containing pack ice of at least 25 percent concentration and providing bearded seals access to those waters from the ice.

Sea ice habitat suitable for bearded seal whelping and nursing is essential to the conservation of the Beringia DPS because the seals rely on sea ice as a dry platform for whelping, nursing, and rearing pups in proximity to benthic foraging habitats. Further, hauling out on the ice reduces thermoregulatory demands, and is thus especially important for growing pups, which have a disproportionately large skin surface and rate of heat loss in the water (Harding

et al.

2005, Cameron

et al.

2010). If suitable ice cover is absent from shallow-water feeding areas during whelping and nursing, maternal females would be forced to seek sea ice over deeper waters, with less access to benthic food, or may haul out on shore, with potential increased risk of disturbance, predation, intra- and interspecific competition, and disease transmission. However, we are not aware of any occurrence of bearded seals whelping or nursing pups on land. Rearing pups in poorer foraging grounds would also require mothers to forage for longer periods to replenish energy reserves lost while nursing and/or compromise their own body condition, both of which could impact the transfer of energy to offspring and the survival of pups, mothers, or both. In addition, learning to forage in sub-optimal habitat could impair a pup's ability to learn effective foraging skills, and hence, impact its long-term survival.

To identify ice concentrations (percentage of ocean surface covered by sea ice) that we consider essential for bearded seal whelping and nursing, we relied upon three studies in the Bering Sea that estimated ice concentrations selected by bearded seals in the spring, based on aerial survey observations of bearded seals hauled out on ice. Simpkins

et al.

(2003) found that between St. Lawrence and St. Mathew Islands in March, bearded seals selected areas with ice concentrations of 70 to 90 percent. Another study conducted in a broader area of the Bering Sea south of St. Lawrence Island in April and May found the highest probability of bearded seal occurrence was in ice concentrations of 75 to 100 percent, but only the 0 to 25 percent ice class had substantially lower probability of occurrence (Ver Hoef

et al.

2014). Informed by these two studies (specifically, Simpkins

et al.

(2003) and Ver Hoef

et al.

(

In review

), later

published as Ver Hoef

et al.

(2014)), Cameron

et al.

(2010) defined the minimum ice concentration sufficient for bearded seal whelping and nursing as 25 percent. Subsequently, a third paper by Conn

et al.

(2014), which established analytical methods to estimate the abundance of ice-associated seals from survey data collected across the U.S. Bering Sea in April and May, showed that in April bearded seals occupied ice concentrations exceeding 95 percent. Bearded seal abundance peaked in ice concentrations between about 50 and 75 percent, and abundance was lowest in ice concentrations largely below 25 percent. Based on the information from these studies, we concluded that sea ice habitat suitable for bearded seal whelping and nursing is of at least 25 percent ice concentration.

Cameron

et al.

(2010) defined the core distribution of bearded seals as those areas of the known extent of the species' distribution that are in waters less than 500 m deep. However, as discussed above, the bearded seal's effective habitat is generally restricted to areas where seasonal sea ice occurs over relatively shallow waters, typically less than 200 m. Moreover, in the U.S. portion of its range, the Beringia DPS occurs largely in waters less than 200 m deep. Also, bearded seals favor ice with access to the water, and tend to avoid continuous areas of landfast ice and unbroken drifting ice. Therefore, we conclude that sea ice habitat essential for bearded seal whelping and nursing occurs in areas with waters 200 m or less in depth containing pack ice (

i.e.,

sea ice other than landfast ice; pack ice is also termed drift ice) of at least 25 percent concentration and providing bearded seals access to those waters from the ice.

(2)

Sea ice habitat suitable as a platform for molting, which is defined as areas with waters 200 m or less in depth containing pack ice of at least 15 percent concentration and providing bearded seals access to those waters from the ice.

Sea ice habitat suitable for molting is essential to the conservation of the Beringia DPS because molting is a biologically important, energy-intensive process that could incur increased energetic costs if it occurs in water or could involve increased risk of predation (due to the absence of readily accessible escape routes to avoid predators,

i.e.,

natural opening in the sea ice), intra- and inter-specific competition, and the potential for disease transmission if it occurs on land. In light of the studies referenced above by Simpkins

et al.

(2003) and Ver Hoef

et al.

(

In review

) (later published as Ver Hoef

et al.

(2014)) documenting spring ice concentrations selected by bearded seals, and based on the assumption that sea ice requirements for molting in May and June are less stringent than those for whelping and nursing pups, Cameron

et al.

(2010) concluded that 15 percent ice concentration would be minimally sufficient for molting. As discussed above, the U.S. range of the Beringia DPS is largely in waters 200 m or less in depth, and the preferred depth range of bearded seals is less than 200 m. Further, bearded seals favor ice with access to the water, and tend to avoid continuous areas of landfast ice and unbroken drifting ice. Therefore, we conclude that sea ice essential for molting occurs in areas with waters 200 m or less in depth containing pack ice of at least 15 percent concentration and providing bearded seals access to those waters from the ice.

(3)

Primary prey resources to support bearded seals: Waters 200 m or less in depth containing benthic organisms, including epifaunal and infaunal invertebrates, and demersal fishes.

Primary prey resources to support bearded seals in waters 200 m or less in depth are essential to the conservation of the Beringia DPS because bearded seals rely on those prey resources to meet their annual energy budgets. As discussed above, bearded seals have a diverse diet with a large variety of prey items throughout their range, and are considered benthic generalists. The proportion of benthic dives made by tagged juvenile bearded seals (

n

=14) ranged from 0.66 to 0.93, indicating that most but not all foraging was done near the bottom (Olnes

et al.

2020).

Quakenbush

et al.

(2011) found that a diverse assemblage of invertebrates (63 taxa) and fish (20 taxa), associated with both benthic and pelagic habitats, was consumed by bearded seals sampled in the Bering and Chukchi seas between 1961 and 2009. Major prey types reported for bearded seals in the Bering, Chukchi, and western Beaufort seas include epifaunal crustaceans like crabs and shrimps as well as infaunal invertebrates like clams and marine worms, but fishes such as sculpins, Arctic cod (

Boreogadus saida

), and saffron cod (

Eleginus gracilis

) can also be a significant component (Johnson

et al.

1966, Burns 1967, Kosygin 1971, Burns and Frost 1979, Lowry

et al.

1979, 1980, Antonelis

et al.

1994, Dehn

et al.

2007, Quakenbush

et al.

2011, Crawford

et al.

2015).

Stomach content analysis of bearded seals from the Alaska Native subsistence harvest in the northern Bering and Chukchi seas during 2000 to 2019 (

n

=834) forms the most comprehensive source for description of recent and current diets of these seals in U.S. waters (Quakenbush 2020a). The results reported by age class (non-pup versus pup), season (open-water vs. ice-covered), and sampling period (2000 to 2015 versus 2016 to 2020) for common prey types (prey items identified in 20 percent or more of stomachs) show that bearded seals eat many species of fish and invertebrates. Sample-weighted averages across age class, season, and sampling periods indicate invertebrate remains were found in most (96 percent) of the bearded seal stomachs. The most prevalent invertebrate groups were shrimps (71 percent of stomachs; mostly family Crangonidae), crabs (infraorder Brachyura, 52 percent of stomachs), and bivalve mollusks (45 percent of stomachs). The most prevalent fish groups were sculpins (family Cottidae, 63 percent of stomachs), and righteye flounders (family Pleuronectidae, 48 percent of stomachs). Small cods were also important (family Gadidae, 46 percent of stomachs). All of these prevalent fish are demersal, spending much of their lives on or near the bottom. Arctic cod was the most prevalent small cod (saffron cod was also identified as a common prey species). It is more pelagic than the other most prevalent fishes identified in the seals' diet and is often associated with the under surface of the sea ice; whether bearded seals catch Arctic cod near the bottom, consistent with their main foraging habits, has not been determined.

As described below in the section, Summary of Changes From the Proposed Designation, peer reviewer and public comments led us to re-evaluate and refine the proposed primary prey resources essential feature, which we identified in the proposed rule as benthic organisms, including epifaunal and infaunal invertebrates, and demersal and schooling pelagic fishes. The U.S. range of the Beringia DPS is largely in waters 200 m or less in depth and the preferred depth range of bearded seals is less than 200 m (see

General Seasonal Distribution and Habitat Use

section). We therefore continue to find that it is appropriate to identify the maximum water depth of this feature as 200 m. As we stated in the proposed rule, the broad number of prey species consumed by bearded seals makes specification of particular essential prey species impracticable. However, in considering the best scientific data available on the diets of bearded seals in Alaska, we recognized

that the high prevalence of benthic invertebrates and demersal fishes reported reflects the seals' reliance on seafloor prey communities in particular to meet their annual energy budgets. We therefore conclude that the primary prey resources essential to the conservation of the Beringia DPS are benthic organisms, including epifaunal and infaunal invertebrates, and demersal fishes found in water depths of 200 m or less. We find that this level of specificity, identifying prey types known to be part of the diet of Beringia DPS bearded seals but not limiting the definition to specific prey species or a limited subset of prey types, is most appropriate for defining this essential feature based on the best scientific data available. Because bearded seals feed on a variety of benthic prey items and temporal differences in diet composition have been reported (Cameron

et al.

2010, Quakenbush

et al.

2011, Crawford

et al.

2015, Quakenbush 2020a), we conclude that areas in which the primary prey resources essential feature occurs are those that contain one or more of these prey resources.

Specific Areas Containing the Essential Features

To determine which areas qualify as critical habitat within the geographical area occupied by the species, we are required to identify “specific areas” that contain one or more of the physical or biological features essential to the conservation of the species (and that may require special management considerations or protection, as described below) (50 CFR 424.12(b)(1)(iii)). Delineation of the specific areas is done at a scale determined by the Secretary to be appropriate (50 CFR 424.12(b)(1)). Regulations at 50 CFR 424.12(c) also require that each critical habitat area be shown on a map.

In determining the scale and boundaries for the specific areas, we considered, among other things, the scales at which biological data are available and the availability of standardized geographical data necessary to map boundaries. Because the ESA implementing regulations allow for discretion in determining the appropriate scale at which specific areas are drawn (50 CFR 424.12(b)(1)), we are not required, nor was it possible, to determine whether each square inch, acre, or even square mile independently meets the definition of “critical habitat.” A main goal in determining and mapping the boundaries of the specific areas is to provide a clear description and documentation of the areas containing the identified essential features. This is ultimately fundamental to ensuring that Federal action agencies are able to determine whether their particular actions may affect the critical habitat.

As described below in the section, Summary of Changes From the Proposed Designation, after refining the proposed definition of the primary prey resources essential feature, and in response to public comments and concerns regarding our proposed delineation of the boundaries of critical habitat with respect to the primary prey resources essential feature, we re-evaluated the best scientific data available and the approach we used to identify those boundaries to ensure that they were drawn appropriately. As a result of this evaluation, we now identify one specific area that contains this feature in addition to the sea ice essential features as described in this section.

As we explain below, the essential features of bearded seal critical habitat, in particular the sea ice essential features, are dynamic and their locations are variable on both spatial and temporal scales. Bearded seal movements and habitat use are strongly influenced by the seasonality of sea ice, and the seals can range widely in response to the specific locations of the most suitable habitat conditions. Based on the best scientific data available, we have therefore identified one specific area that comprises parts of the Bering, Chukchi, and Beaufort seas as critical habitat, within which all of the identified essential features can be found in any given year.

We first focused on identifying where the essential features that support the species' life history functions of whelping, nursing, and molting occur (

i.e.,

specific areas that contain the sea ice essential features). As discussed above, bearded seals generally maintain an association with drifting sea ice, and many seals migrate seasonally to maintain access to this ice. Bearded seal whelping and nursing take place in the Bering Sea while ice cover is at or near its peak extent. Bearded seal molting overlaps with the periods of whelping, nursing, pup maturation, and breeding, and continues into early summer as the pack ice edge recedes north through the Bering Strait and into the Chukchi and Beaufort seas. Therefore, we considered where the sea ice essential features occur in all three seas.

The dynamic nature of sea ice and the spatial and temporal variations in sea ice cover constrain our ability to map precisely the specific geographic locations where the sea ice essential features occur. Sea ice characteristics such as ice extent and ice concentration vary spatiotemporally ((

e.g.,

Frey

et al.

2015). Thus, the specific geographic locations of essential sea ice habitat used by bearded seals vary from year to year, or even day to day, depending on many factors, including time of year, local weather (

e.g.,

wind speed/direction), and oceanographic conditions (

e.g.,

Burns and Frost 1979, Frey

et al.

2015, Gadamus

et al.

2015). In addition, the duration that sea ice habitat essential for whelping and nursing, or for molting, is present in any given location can vary annually depending on the rate of ice melt and other factors. The temporal overlap of bearded seal molting with whelping and nursing, combined with the dynamic nature of sea ice, also makes it impracticable to separately identify specific areas where each of these essential features occur. However, it is unnecessary to distinguish between specific areas containing each sea ice essential feature because the ESA permits the designation of critical habitat where one or more essential features occur.

Bearded seals of the Beringia DPS can range widely, which, combined with the dynamic variations in sea ice conditions, results in individuals distributing broadly and using sea ice habitats within a range of suitable conditions. We integrated these physical and biological factors into our identification of specific areas where one or both sea ice essential features occur based on the information currently available on the seasonal distribution and movements of bearded seals during the annual period of reproduction and molting, the maximum depth where the sea ice essential features occur, and satellite-derived estimates of the position of the sea ice edge and extent and seasonality of landfast ice over time. Although this approach allowed us to identify specific areas that contain one or both of the sea ice essential features at certain times, the available data supported delineation of specific areas only at a coarse scale. Consequently, we delineated a single specific area that contains the sea ice features essential to the conservation of the Beringia DPS, as follows.

We first identified the southern boundary of this specific area. The information discussed above regarding the seasonal distribution and movements of bearded seals in the Bering Sea suggests that sea ice essential for whelping and nursing (and potentially for molting) extends south of St. Matthew and Nunivak Islands. But a more precise southern boundary for this habitat is unavailable because existing

information is limited on the spatial distribution and whelping locations of bearded seals in the Bering Sea during spring, and the temporal and spatial distribution of sea ice cover, which influences bearded seal distributions, is variable between years.

We therefore turned to Sea Ice Index data maintained by the National Snow and Ice Data Center (NSIDC) for information on the estimated median position of the ice edge in the Bering Sea during April (Fetterer

et al.

2017, Version 3.0, accessed November 2019), which is the peak month for bearded seal whelping activity (peak molting for adults occurs later in the spring). This estimated median ice edge is derived by the NSIDC from a time series of satellite records for the 30-year reference period from 1981 to 2010. To further inform our evaluation, we also examined the position of the median ice edge in April for the more recent 30-year period from 1990 to 2019, which was estimated using methods and data types similar to those used for the Sea Ice Index. We note that the two most recent years included in this 30-year period had record low ice extent in the Bering Sea (Stabeno and Bell 2019).

The April median ice edge for the 1981 to 2010 reference period from the Sea Ice Index is located approximately 170 kilometers (km) southwest of St. Matthew Island and 175 km south of Nunivak Island, and it extends eastward across lower Kuskokwim Bay to near Cape Newenham, a headland between Kuskokwim Bay and Bristol Bay. Because bearded seals use nearly the entire extent of pack ice over the Bering Sea shelf in spring, depending upon ice conditions in a given year, some bearded seals may use sea ice for whelping south of this median ice edge. But we concluded that the variability in the annual extent and timing of sea ice in this southernmost portion of the bearded seal's range in the Bering Sea (

e.g.,

Boveng

et al.

2009, Stabeno

et al.

2012, Frey

et al.

2015) renders these waters unlikely to contain the sea ice essential features on a consistent basis in more than limited areas. The position of the April median ice edge for the more recent 1990 to 2019 period is generally similar to that of the Sea Ice Index, except that the ice edge has a wide inverted U-shape in Kuskokwim Bay, and as a result, there is roughly half as much area with sea ice there. Given the reduction in sea ice in Kuskokwim Bay between the reference period used for the Sea Ice Index and the more recent period, we also concluded that these waters appear unlikely to contain the sea ice essential features on a consistent basis in more than limited areas.

As such, we delineated the southern boundary to reflect the estimated position of the April median ice edge west of Kuskokwim Bay. To simplify the southern boundary for purposes of delineation on maps, we modified the ice edge contour line for the 1990 to 2019 period as follows: (1) Intermediate points along the contour line between its intersection point with the seaward limit of the U.S. EEZ (60°32′26″ N/179°9′53″ W) and the point where the contour line turns eastward (57°58′ N/170°25′ W) were removed to form the segment of the southern boundary that extends from the seaward limit of the U.S. EEZ southeastward approximately 575 km; (2) intermediate points along the contour line between the point where the contour line turns eastward and the approximate point on the west side of Kuskokwim Bay where the contour line turns northeastward (58°29′ N/164°46′ W) were removed to form a second segment of the southern boundary that extends eastward approximately 335 km; and (3) these two line segments were connected to the mainland by an approximately 200-km line segment that follows 164°46′ W longitude to near the west side of the mouth of the Kolovinerak River, about 50 km east of Nunivak Island. This editing produced a simplified southern boundary that retains the general shape of the original ice edge contour line west of Kuskokwim Bay.

We then identified the northern boundary of the specific area that contains one or both of the sea ice essential features. As discussed above (see Description and Natural History section), limited spring aerial survey information, satellite tracking data for tagged bearded seals, and year-round passive acoustic recordings of bearded seal vocalizations suggest that some portion of the Beringia DPS overwinters in the Chukchi and Beaufort seas. In addition, many of the bearded seals that overwinter in the Bering Sea migrate northward with the receding ice edge in the spring and early summer into the Chukchi and Beaufort seas, coincident with the timing of molting. Therefore, consistent with the maximum depth identified for the sea ice essential features, we defined the northern boundary as the 200-m isobath over the continental shelf break in the Chukchi and Beaufort seas (

i.e.,

the northern extent of waters 200 m or less in these seas), and the boundaries to the east and west as the limit of the U.S. EEZ. Sea ice concentrations suitable for whelping, nursing, and molting occur over waters extending up to and beyond these boundaries (see,

e.g.,

Fetterer

et al.

2017, Sea Ice Index Version 3.0, accessed November 2019). We note that Canada contests the limits of the U.S. EEZ in the eastern Beaufort Sea, asserting that the line delimiting the two countries' EEZs should follow the 141st meridian out to a distance of 200 nautical miles as opposed to an equidistant line that extends seaward perpendicular to the coast at the U.S.-Canada land border.

Sea ice habitat identified as essential for bearded seal whelping, nursing, and molting is found in waters 200 m or less in depth containing pack ice,

i.e.,

sea ice other than landfast ice, of suitable concentrations. We therefore considered the best scientific data available regarding the spatial extent of landfast ice and its annual cycle in the Beaufort, Chukchi, and Bering seas to inform our delineation of the appropriate shoreward boundary for the specific area containing one or both sea ice essential features. In the following discussion of landfast ice, we refer to the northeastern Chukchi Sea (from Wainwright to Point Barrow) and Beaufort Sea as the Beaufort region, the Chukchi Sea extending south of Wainwright to the tip of the northern Seward Peninsula as the Chukchi region, and the Bering Sea from there south to Kuskokwim Bay as the Bering region. Analysis of data derived using satellite imagery for each of twelve annual cycles between 1996 and 2008 indicates that landfast ice in the Beaufort region extended farther from shore and occurred in deeper water than in the Chukchi and Bering regions (Mahoney

et al.

2012, Mahoney

et al.

2014, Jensen

et al.

2020).

Mahoney

et al.

(2014) found that the water depth at the seaward landfast ice edge in the Beaufort region developed over the course of winter to a single well-defined mode around 20 m, in agreement with earlier findings by Mahoney

et al.

(2007), although there was significant variability in water depths at the seaward landfast ice edge and multiple modes at a local scale (some of which is related to differences in local configuration of the coastline and bathymetry, as is the case more broadly across the Beaufort, Chukchi, and Bering seas). Thus, overall there is similarity between the average seaward landfast ice edge location and isobaths near 20 m in the Beaufort region (Mahoney

et al.

2007, Mahoney

et al.

2012, Mahoney

et al.

2014). In contrast, the distribution of water depths at the seaward landfast ice edge in the Chukchi region was found to be broader and less symmetric than in the Beaufort region (modal water depth at the

seaward landfast ice edge was approximately 12 to 13 m), and showed substantial variation in modal water depth at the seaward landfast ice edge in each subregion (Mahoney

et al.

2012, Mahoney

et al.

2014). Hence, the modal depth at the seaward landfast ice edge in the Chukchi region is highly locally specific and, therefore, the position of the seaward landfast ice edge is not well represented by a particular isobath (Mahoney

et al.

2012, Mahoney

et al.

2014). Finally, Jensen

et al.

(2020) reported that in the Bering region, the modal water depths at the seaward landfast ice edge varied by subregion (for the northern, central, and southern subregions, respective values were 13 m, 7 m, and 8.5 m). They attributed this variation to differing conditions in nearshore bathymetry and physical geography (

e.g.,

presence of coastal features such as lagoons and sheltered embayments).

To assess changes in landfast ice in the Chukchi and Beaufort regions, Mahoney

et al.

(2014) compared data from their study with late winter maximum seaward landfast ice edges mapped by Stringer (1978) for the period 1973 to 1976. They found that in the Beaufort region, the late winter maximum seaward landfast ice edges delineated for the period 1973 to 1976 were within the same range as those delineated for the period 1996 to 2008. However, in the Chukchi region, there was evidence of a significant reduction in the late winter maximum extent of landfast ice (Mahoney

et al.

2014). In addition, trends were identified that in general indicate an earlier end (and later start) to the landfast ice season in the both regions (Mahoney

et al.

2012, Mahoney

et al.

2014). A similar comparison is not available for the Bering region; however, Jensen

et al.

(2020) reported a trend in earlier landfast ice breakup (and later formation) from 1996 to 2008 in two of the three Bering subregions (breakup of landfast occurred between March and May, but persistence of this ice varied with local physical geography). They also noted that the results of their analysis for the Bering region do not account for trends in recent periods of sea ice decline in this region (

e.g.,

Perovich

et al.

2019a, Perovich

et al.

2019b, Stabeno and Bell 2019). IK of landfast ice conditions documented for several coastal communities in the Bering Strait region indicates that landfast ice can be particularly dynamic in some locations in the Bering Sea, and those communities have noted changes in landfast ice in recent years,

e.g.,

a reduction in the winter/early spring average extent of landfast ice in Norton Bay (Oceana and Kawerak 2014, Huntington

et al.

2017d).

As shown in the preceding discussion, the best information available indicates that relationships between landfast ice and bathymetry in the Beaufort region, Chukchi region, and Bering region differ regionally and locally. Significant inter-annual variability in the maximum extent of landfast ice was also observed, in particular in the Beaufort region (Mahoney

et al.

2007, Mahoney

et al.

2012, Mahoney

et al.

2014). In addition, there is evidence of decreases in the extent of landfast ice trends in earlier breakup of landfast ice in the Chukchi and Bering regions. It is therefore impracticable to delineate a single isobath as the shoreward boundary for the specific area containing one or both of the sea ice essential features that accounts precisely for where landfast may occur during the period of whelping, nursing, and molting in a given year. Nonetheless, we concluded that defining the nearshore boundary by a depth contour at a coarse level for each region is appropriate given that landfast ice forms in areas of shallow bathymetry and such ice is not identified as essential to the conservation of the Beringia DPS. Because the available information indicates that in the Beaufort region, the 20-m isobath provides a reasonable approximation of the average stable extent of landfast ice, and landfast ice extent has apparently not changed significantly in the past several decades, we selected the 20-m isobath (relative to MLLW) as the shoreward boundary in the Beaufort region. The available information indicates that in the Chukchi and Bering regions landfast ice occupies shallower water overall, though water depths at the seaward landfast ice edge are more variable and locally specific. In addition, there is evidence of decreases in the extent of landfast ice and trends in earlier breakup of this ice in the Chukchi region, as well as of changes in landfast ice conditions in the Bering region in recent years. In determining the shoreward boundary in the Chukchi and Bering regions, we considered the above information on landfast ice in these areas in addition to examining existing information on the spring distribution of bearded seals from aerial surveys of the Bering Sea (in 2012 and 2013) and parts of the Chukchi Sea (in 2016) (NMFS Marine Mammal Laboratory, unpublished data) to inform our selection of appropriate shoreward boundaries. After considering the available information, we selected the 10-m isobath (relative to MLLW) as the shoreward boundary in the Chukchi region, and the 5-m isobath (relative to MLLW) as the shoreward boundary in the Bering region. For both of these regions, we conclude that shallower waters are likely to contain landfast ice and are therefore less likely to contain the sea ice essential features. We adjusted the shoreward boundary to form a continuous line crossing the entrance to Port Clarence Bay because available information does not indicate this area contains the sea ice essential features. For the purpose of delineating the shoreward boundary, we defined the division between the Beaufort and Chukchi regions as the line of latitude south of Wainwright at 70°36′ N, and the division between the Chukchi and Bering regions as the line of latitude south of Cape Prince of Wales (tip of the Seward Peninsula) at 65°35′ N. Although we recognize that landfast ice can occur to a varying extent within the specific area delineated for the sea ice essential features, given the dynamic nature of sea ice, we conclude that the shoreward boundary is drawn at an appropriate scale based on the best scientific data available.

The seasonally ice-covered shelf waters of the Alaskan Bering, Chukchi, and Beaufort seas support an abundance of bearded seal benthic prey resources (review of abundance and distribution of Beringia DPS prey in Cameron

et al.

2010, also,

e.g.,

Logerwell

et al.

2011, McCormick-Ray

et al.

2011, Rand and Logerwell 2011, Stevenson and Lauth 2012, Blanchard

et al.

2013, Konar and Ravelo 2013, Ravelo

et al.

2014, Grebmeier

et al.

2015, Norcross

et al.

2017a, Norcross

et al.

2017b, Sigler

et al.

2017, Grebmeier

et al.

2018, Lauth

et al.

2019). Primary prey species important in the diet of bearded seals in the Beringia DPS include decapod crustaceans, such as the multitude of crangonid shrimp species known to inhabit the Bering and Chukchi seas (Cameron

et al.

2010). Most crangonid shrimp species are broadly distributed throughout this region (

e.g., Sclerocrangon boreas

and

Argis lar

) (Butler 1980), and in the Beaufort Sea the crangonid shrimp

Sabinea septemcarinata

is widespread (Frost and Lowry 1983, Konar and Ravelo 2013, Ravelo

et al.

2015, Norcross

et al.

2017b). Crabs commonly consumed by bearded seals that inhabit the Bering and Chukchi seas include the Arctic lyre crab (

Hyas coarctatus)

and snow crab (

Chionoecetes opilio

) (Ravelo

et al.

2014, Gross

et al.

2017, Divine

et al.

2019), which trawl surveys indicate are

also found in the western Beaufort Sea (Logerwell

et al.

2011, Ravelo

et al.

2015). Demersal fishes common in bearded seal diets in Alaska include sculpins, Arctic cod, saffron cod, and flatfishes. One of the most common flatfish in the eastern Bering Sea, yellowfin sole (

Limanda aspera

) (Spies

et al.

2020b), has been documented in the diet of bearded seals in Alaska, and is also common in the Chukchi Sea (Love

et al.

2016). In the far northern Bering Sea and the Chukchi and Beaufort seas, the fish fauna transitions from a community dominated by flatfishes to one dominated by smaller cods and sculpins (Cameron

et al.

2010). Sculpins, which are commonplace in the Bering, Chukchi, and Beaufort seas, include Arctic staghorn sculpin (

Gymnocanthus tricuspis

) (Love

et al.

2016, Mecklenburg

et al.

2016), a species prevalent in the diet of bearded seals in Alaska. Arctic cod and saffron cod, which are also commonly consumed by bearded seals, make up a substantial portion of the fish biomass in the U.S. Chukchi Sea, and Arctic cod dominates the fish biomass in the U.S. Beaufort Sea (North Pacific Fishery Management Council 2009, Logerwell

et al.

2015). The distribution of saffron cod overlaps to some extent with that of Arctic cod in the Chukchi and Beaufort seas, but this species is typically found in warmer waters and has a more coastal distribution that extends further south in the Bering Sea (Love

et al.

2016, Mecklenburg

et al.

2016).

In summary, the available data on the distributions of bearded seal primary prey species indicate that they occur throughout the geographical area occupied by the species. However, except in limited circumstances that do not apply here, the Secretary cannot designate as critical habitat the entire geographical area occupied by a species. We have no information that suggests any portions of the species' occupied habitat contains prey species that are of greater importance or otherwise differ from those found within the specific area defined by the sea ice essential features. The best information available indicates that the movements of bearded seals and their use of habitat for foraging are influenced by a variety of factors and the seals' spatial patterns of habitat use and locations of intensive use can vary substantially among individuals. Most importantly, the movements and habitat use of bearded seals are strongly influenced by the seasonality of ice cover and they forage throughout the year. Given this and our consideration of the best scientific data available, we concluded that the best approach to determine the appropriate boundaries for critical habitat is to base the delineation on the same boundaries identified above for the sea ice essential features. We conclude this specific area contains sufficient primary prey resources to support the conservation of the Beringia DPS. Thus, we are designating as critical habitat a single specific area that contains all three of the identified essential features.

Special Management Considerations or Protection

A specific area within the geographic area occupied by a species may only be designated as critical habitat if the area contains one or more essential physical or biological feature that may require special management considerations or protection (16 U.S.C. 1532(5)(A)(i); 50 CFR 424.12(b)(1)(iv)). “Special management considerations or protection” is defined as methods or procedures useful in protecting the physical or biological features essential to the conservation of listed species (50 CFR 424.02). In determining whether the essential physical or biological features “may require” special management considerations or protection, it is necessary to find only that there is a possibility that the features may require special management considerations or protection in the future; it is not necessary to find that such management is presently or immediately required.

Home Builders Ass'n of N. California

v.

U.S. Fish and Wildlife Serv.,

268 F. Supp. 2d 1197, 1218 (E.D. Cal. 2003). The relevant management need may be “in the future based on possibility.”

Bear Valley Mut. Water Co.

v.

Salazar,

No. SACV 11-01263-JVS, 2012 WL 5353353, at *25 (C.D. Cal. Oct. 17, 2012).

See also Cape Hatteras Access Pres. Alliance

v.

U.S. Dept. of Interior,

731 F. Supp. 2d 15, 24 (D.D.C. 2010) (“The Court explained in CHAPA I that `the word “may” indicates that the requirement for special considerations or protections need not be immediate' but must require special consideration or protection `in the future.'”) (citing

Cape Hatteras Access Pres. Alliance

v.

U.S. Dept. of Interior,

344 F. Supp. 2d 108, 123-24 (D.D.C. 2004)).

We have identified four primary sources of potential threats to one or more of the habitat features identified above as essential to the conservation of the Beringia DPS of bearded seals: climate change; oil and gas exploration, development, and production; marine shipping and transportation; and commercial fisheries. As further detailed below, both sea ice essential features and the primary prey resources essential feature may require special management considerations or protection as a result of impacts (either independently or in combination) from these sources. Our evaluation does not consider an exhaustive list of threats that could have impacts on the essential features, but rather considers the primary potential threats that we are aware of at this time that support our conclusion that special management considerations or protection of each of the essential features may be required. Further, we highlight particular threats associated with each source of impacts while recognizing that certain threats are associated with more than one source (

e.g.,

marine pollution and noise).

Climate Change

The principal threat to the persistence of the Beringia DPS of bearded seals is the ongoing and anticipated decreases in the extent and timing of sea ice stemming from climate change. Climate-change-related threats to the Beringia DPS's habitat are discussed in detail in the bearded seal status review report (Cameron

et al.

2010), as well as in our proposed and final rules to list the Beringia DPS of bearded seals as threatened. Total Arctic sea ice extent has been showing a decline through all months of the satellite record since 1979 (Meier

et al.

2014). Although there will continue to be considerable annual variability in the rate and timing of the breakup and retreat of sea ice, trends in climate change are moving toward ice that is more susceptible to melt (Markus

et al.

2009), and areas of earlier spring ice retreat (Stammerjohn

et al.

2012, Frey

et al.

2015). Notably, February and March ice extent in the Bering Sea in 2018 and 2019 were the lowest on record (Stabeno and Bell 2019), and in the spring of 2019, melt onset in the Chukchi Sea occurred 20 to 35 days earlier than the 1981 to 2010 average (Perovich

et al.

2019b).

Activities that release carbon dioxide and other heat-trapping greenhouse gases (GHGs) into the atmosphere, most notably those that involve fossil fuel combustion, are the major contributing factor to climate change and loss of sea ice (Intergovernmental Panel on Climate Change (IPCC) 2013, U.S. Global Climate Change Research Program (USGCRP) 2017, Stroeve and Notz 2018, IPCC 2021). Such activities may adversely affect the essential features of the habitat of the Beringia DPS by diminishing sea ice suitable for whelping, nursing, and molting, and by causing changes in the distribution, abundance, and/or species composition of primary prey resources to support

bearded seals in association with changes in ocean conditions, such as warming and acidification (caused primarily by uptake of atmospheric CO

2

) (as reviewed by Cameron

et al.

2010, also,

e.g.,

Kędra

et al.

2015, Kortsch

et al.

2015, Renaud

et al.

2015, Alabia

et al.

2018, Arctic Monitoring and Assessment Programme (AMAP) 2018, Thorson

et al.

2019, Baker

et al.

2020, Huntington

et al.

2020). Declines in the extent and timing of sea ice cover may also lead to increased shipping activity (discussed below) and other changes in anthropogenic activities, with the potential for increased risks to the habitat features essential to the Beringia DPS (Cameron

et al.

2010). Given that the quality and quantity of these essential features, in particular sea ice, may be diminished by the effects of climate change, we conclude that special management considerations or protection may be necessary, either now or in the future.

Oil and Gas Activity

Oil and gas exploration, development, and production activities in the U.S. Arctic may include: seismic surveys; exploratory, delineation, and production drilling operations; construction of artificial islands, causeways, shore-based facilities, and pipelines; and vessel and aircraft operations. These activities have the potential to affect the essential features of Beringia DPS critical habitat, primarily through pollution (particularly in the event of a large oil spill), noise, and physical alteration of the species' habitat.

Large oil spills (considered in this section to be spills of relatively great size, consistent with common usage of the term) are generally considered to be the greatest threat associated with oil and gas activities in the Arctic marine environment (AMAP 2007). Experiences with spills in subarctic regions, such as in Prince William Sound, Alaska, have shown that large oil spills can have lasting ecological effects (AMAP 2007, Barron

et al.

2020). In contrast to spills on land, large spills at sea, especially when ice is present, are difficult to contain or clean up, and may spread over hundreds or thousands of square kilometers (National Research Council 2014, Wilkinson

et al.

2017). Responding to a sizeable spill in the Arctic environment would be particularly challenging. Reaching a spill site and responding effectively would be especially difficult, if not impossible, in winter when weather can be severe and daylight extremely limited. Oil spills under ice or in ice-covered waters are the most challenging to deal with due to, among other factors, limitations on the effectiveness of current containment and recovery technologies when sea ice is present (Wilkinson

et al.

2017). The extreme depth and the pressure that oil was under during the 2010 blowout at the Deepwater Horizon well in the Gulf of Mexico may not exist in the shallow continental shelf waters of the Beaufort and Chukchi seas. Nevertheless, the difficulties experienced in stopping and containing the Deepwater Horizon blowout, where environmental conditions, available infrastructure, and response preparedness were comparatively good, point toward even greater challenges in containing and cleaning a large spill in a much more environmentally severe and geographically remote Arctic location.

Although planning, management, and use of best practices can help reduce risks and impacts, the history of oil and gas activities indicates that accidents cannot be eliminated (AMAP 2007). Data on large spills (

e.g.,

operational discharges, spills from pipelines, blowouts) in Arctic waters are limited because oil exploration and production there has been limited, and to date, no large spills have occurred in U.S. Arctic marine waters. The Bureau of Ocean Energy Management (BOEM) (2011) estimated the chance of one or more oil spills greater than or equal to 1,000 barrels occurring if development were to take place in the Beaufort Sea or Chukchi Sea Planning Areas as 26 percent for the Beaufort Sea over the estimated 20 years of production and development, and 40 percent for the Chukchi Sea over the estimated 25 years of production and development.

Icebreaking vessels, which may be used for in-ice seismic surveys or to manage ice near exploratory drilling ships, also have the potential to affect the sea ice essential features of bearded seal habitat through physical alteration of the sea ice (see also

Marine Shipping and Transportation

section). Other activities associated with oil and gas exploration and development that may physically alter the essential sea ice features include offshore through-ice activities such as trenching and installation of pipelines. In addition, there is evidence that noise associated with activities such as seismic surveys can result in behavioral and other effects on fishes and invertebrate species (Carroll

et al.

2017, Slabbekoorn

et al.

2019), although the available data on such effects are currently limited, in particular for invertebrates (Hawkins

et al.

2015, Hawkins and Popper 2017), and the nature of potential effects specifically on the primary prey resources essential feature are unclear.

In summary, a large oil spill could render areas containing the identified essential features unsuitable for use by bearded seals of the Beringia DPS. In such an event, sea ice habitat suitable for whelping, nursing, and/or for molting could be oiled. Primary prey resources essential to support bearded seals could also become contaminated, experience mortality, or be otherwise adversely affected by spilled oil. In addition, disturbance effects (both physical disturbance and acoustic effects) could alter the quality of the essential features of bearded seal critical habitat, or render habitat unsuitable. We conclude that the essential features of the habitat of the Beringia DPS may require special management considerations or protection in the future to minimize the risks posed to these features by oil and gas exploration, development, and production.

Marine Shipping and Transportation

The reduction in Arctic sea ice that has occurred in recent years has renewed interest in using the Arctic Ocean as a potential waterway for coastal, regional, and trans-Arctic marine operations and in extension of the navigation season in surrounding seas (Brigham and Ellis 2004, Arctic Council 2009). Marine traffic along the western and northern coasts of Alaska includes tug, towing, and cargo vessels, tankers, research and government vessels, vessels associated with oil and gas exploration and development, fishing vessels, and cruise ships (Adams and Silber 2017, U.S. Committee on the Marine Transportation System 2019). Automatic Identification System data indicate that the number of unique vessels operating annually in U.S. waters north of the Bering Sea in 2015 to 2017 increased 128 percent over the number recorded in 2008 (U.S. Committee on the Marine Transportation System 2019). Climate models predict that the warming trend in the Arctic will accelerate, causing the ice to begin melting earlier in the spring and resume freezing later in the fall, resulting in an expansion of potential transit routes and a lengthening of the potential navigation season, and a continuing increase in vessel traffic (Khon

et al.

2010, Smith and Stephenson 2013, Stephenson

et al.

2013, Huntington

et al.

2015a, Melia

et al.

2016, Aksenov

et al.

2017, Khon

et al.

2017). For instance, analysis of four potential growth scenarios (ranging from reduced activity to accelerated growth) suggests from 2008 to 2030, the number

of unique vessels operating in U.S. waters north of 60° N (

i.e.,

northern Bering Sea and northward) may increase by 136 to 346 percent (U.S. Committee on the Marine Transportation System 2019).

The fact that nearly all vessel traffic in the Arctic, with the exception of icebreakers, purposefully avoids areas of ice, and primarily occurs during the ice-free or low-ice seasons, helps to mitigate the risks of shipping to the essential habitat features identified for bearded seals of the Beringia DPS. However, icebreakers pose greater risks to these features since they are capable of operating year-round in all but the heaviest ice conditions and are often used to escort other types of vessels (

e.g.,

tankers and bulk carriers) through ice-covered areas. Furthermore, new classes of ships are being designed that serve the dual roles of both tanker/carrier and icebreaker (Arctic Council 2009). Therefore, if icebreaking activities increase in the Arctic in the future, as expected, the likelihood of negative impacts (

e.g.,

habitat alteration and risk of oil spills) occurring in ice-covered areas where bearded seals reside will likely also increase. We are not aware of any data currently available on the effects of icebreaking on the habitat of bearded seals during the reproductive and molting periods. Although impacts of icebreaking are likely to vary between species depending on a variety of factors, Wilson

et al.

(2017) demonstrated the potential for impacts of icebreaking, which for Caspian seal (

Pusa caspica

) mothers and pups and their sea-ice-breeding habitat included displacement, breakup of whelping and nursing habitat, and vessel collisions with mothers or pups. The authors noted that while pre-existing shipping channels were used by seals as artificial leads, which expanded access to whelping habitat, seals that whelp on the edge of such leads are vulnerable to vessel collision and repeated disturbance.

In addition to the potential effects of icebreaking on the essential features, the maritime shipping industry transports various types of petroleum products, both as fuel and cargo. In particular, if increased shipping involves the tanker transport of crude oil or oil products, there would be an increased risk of spills (Arctic Climate Impact Assessment 2005, U.S. Arctic Research Commission 2012). Similar to oil and gas activities, the most significant threat posed by shipping activities is considered to be the accidental or illegal discharge of oil or other toxic substances carried by ships (Arctic Council 2009).

Vessel discharges associated with normal operations, including sewage, grey water, and oily wastes are expected to increase as a result of increasing marine shipping and transportation in Arctic waters (Arctic Council 2009, Parks

et al.

2019), which could affect the primary prey resources essential feature. Increases in marine shipping and transportation and other vessel traffic is also introducing greater levels of underwater noise (Arctic Council 2009, Moore

et al.

2012), with the potential for behavioral and other effects in fishes and invertebrates (Slabbekoorn

et al.

2010, Hawkins and Popper 2017, Popper and Hawkins 2019), although there are substantial gaps in the understanding of such effects, in particular for invertebrates (Hawkins

et al.

2015, Hawkins and Popper 2017), and the nature of potential effects specifically on the primary prey resources of the Beringia DPS are unclear.

We conclude that the essential features of the habitat of the Beringia DPS may require special management considerations or protection in the future to minimize the risks posed by potential shipping and transportation activities because: (1) Physical alteration of sea ice by icebreaking activities could reduce the quantity and/or quality of the sea ice essential features; (2) in the event of an oil spill, sea ice essential for whelping, nursing, and molting could become oiled; and (3) the quantity and/or quality of primary prey resources essential to the conservation of the Beringia DPS could be diminished as a result of spills, vessel discharges, and noise associated with shipping, transportation, and ice-breaking activities.

Commercial Fisheries

The specific area identified in this final rule as meeting the definition of critical habitat for the Beringia DPS overlaps with the Arctic Management Area and the Bering Sea and Aleutian Islands Management Area identified by the North Pacific Fishery Management Council. No commercial fishing is permitted within the Arctic Management Area due to insufficient data to support the sustainable management of a commercial fishery there. However, as additional information becomes available, commercial fishing may be allowed in this management area. For example, two bearded seal prey species—Arctic cod and saffron cod—have been identified as likely initial target species for commercial fishing in the Arctic Management Area in the future (North Pacific Fishery Management Council 2009).

In the northern portion of the Bering Sea and Aleutian Islands Management Area, commercial fisheries overlap with the southernmost portion of the critical habitat. Portions of the critical habitat also overlap with certain state commercial fisheries management areas. Commercial catches from waters in the critical habitat area primarily include: Pacific halibut (

Hippoglossus stenolepis

), several other flatfish species (from the family Pleuronectidae), Pacific cod (

Gadus macrocephalus

), several crab species, walleye pollock (

Theragra chalcogramma

), and several salmon species.

Commercial fisheries may affect primary prey resources identified as essential to the conservation of the Beringia DPS, through removal of prey biomass and potentially through modification of benthic habitat by fishing gear that contacts the seafloor. Given the potential changes in commercial fishing that may occur with the expected increase in the length of the open-water season and range expansion of some economically valuable species responding to climate change (

e.g.,

Stevenson and Lauth 2019, Thorson

et al.

2019, Spies

et al.

2020a), we conclude that the primary prey resources essential feature may require special management considerations or protection in the future to address potential adverse effects of commercial fishing on this feature.

Unoccupied Areas

Section 3(5)(A)(ii) of the ESA authorizes the designation of specific areas outside the geographical area occupied by the species, if those areas are determined to be essential for the conservation of the species. Our regulations at 50 CFR 424.12(b)(2) require that we first evaluate areas occupied by the species, and only consider unoccupied areas to be essential where a critical habitat designation limited to geographical areas occupied would be inadequate to ensure the conservation of the species. Because bearded seals of the Beringia DPS are considered to occupy their entire historical range that falls within U.S. jurisdiction, we find that there are no unoccupied areas within U.S. jurisdiction that are essential to their conservation.

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

Section 4(a)(3)(B)(i) of the ESA precludes designating as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense (DOD), or designated for its

use, that are subject to an Integrated Natural Resources Management Plan (INRMP) prepared under section 101 of the Sikes Act (16 U.S.C. 670a) if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.

See

16 U.S.C. 1533(a)(3)(B)(i); 50 CFR 424.12(h). Where these standards are met, the relevant area is ineligible for consideration as potential critical habitat. The regulations implementing the ESA set forth a number of factors to guide consideration of whether this standard is met, including the degree to which the plan will protect the habitat of the species (50 CFR 424.12(h)(4)). This process is separate and distinct from the analysis governed by section 4(b)(2) of the ESA, which directs us to consider the economic impact, the impact on national security, and any other relevant impact of designation, and affords the Secretary discretion to exclude particular areas if the benefits of exclusion outweigh the benefits of inclusion of such areas.

See

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

Before publication of the proposed rule, we contacted DOD (Air Force and Navy) and requested information on any facilities or managed areas that are subject to an INRMP and are located within areas that could potentially be designated as critical habitat for the Beringia DPS. In response to our request, the Air Force provided information regarding an INRMP addressing twelve radar sites, 10 of which (7 active and 3 inactive) are located adjacent to the area that was under consideration for designation as critical habitat: Barter Island Long Range Radar Site (LRRS), Cape Lisburne LRRS, Cape Romanzof LRRS, Kotzebue LRRS, Oliktok LRRS, Point Barrow LRRS, Tin City LRRS, Bullen Point Short Range Radar Site (SRRS), Point Lay LRRS, and Point Lonely LRRS. The Air Force requested exemption of these 10 radar sites pursuant to section 4(a)(3)(B)(i) of the ESA. Based on our review of the INRMP (draft 2020 update), the area we are designating as critical habitat, all of which occurs seaward of the 5-m isobath, does not overlap with DOD lands subject to this INRMP. Therefore, we conclude that there are no properties owned, controlled, or designated for use by DOD that are subject to ESA section 4(a)(3)(B)(i) for this critical habitat designation, and thus the exemptions requested by the Air Force are not necessary because no critical habitat would be designated in those radar sites.

Analysis of Impacts Under Section 4(b)(2) of the ESA

Section 4(b)(2) of the ESA requires the Secretary to designate critical habitat for threatened and endangered species on the basis of the best scientific data available after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. Regulations at 50 CFR 424.19(b) also specify that the Secretary will consider the probable impacts of the designation at a scale that the Secretary determines to be appropriate, and that such impacts may be described qualitatively or quantitatively. The Secretary is also required to compare impacts with and without the designation (50 CFR 424.19(b)). In other words, we are required to assess the incremental impacts attributable to the critical habitat designation relative to a baseline that reflects existing regulatory impacts in the absence of the critical habitat.

Section 4(b)(2) also describes an optional process by which the Secretary may go beyond the mandatory consideration of impacts and weigh the benefits of excluding any particular area (that is, avoiding the economic, national security, or other relevant impacts) against the benefits of designating it (primarily, the conservation value of the area). If the Secretary concludes that the benefits of excluding particular areas outweigh the benefits of designation, the Secretary may exclude the particular area(s) so long as the Secretary concludes on the basis of the best scientific and commercial data available that the exclusion will not result in extinction of the species (16 U.S.C. 1533(b)(2)). We have adopted a policy setting out non-binding guidance explaining generally how we exercise our discretion under 4(b)(2).

See

Policy Regarding Implementation of Section 4(b)(2) of the Endangered Species Act (“4(b)(2) policy,” 81 FR 7226, February 11, 2016).

While section 3(5) of the ESA defines critical habitat as “specific areas,” section 4(b)(2) requires the agency to consider the impacts of designating any “particular area.” Depending on the biology of the species, the characteristics of its habitat, and the nature of the impacts of designation, “particular” areas may be—but need not necessarily be—delineated so that they are the same as the already identified “specific” areas of potential critical habitat. For the reasons set forth below, we are not exercising the discretion delegated to us by the Secretary to exclude any particular areas from the critical habitat designation.

The primary impacts of a critical habitat designation arise from the ESA section 7(a)(2) requirement that Federal agencies ensure that their actions are not likely to result in the destruction or adverse modification of critical habitat (

i.e.,

adverse modification standard). Determining these impacts is complicated by the fact that section 7(a)(2) contains the overlapping requirement that Federal agencies ensure that their actions are not likely to jeopardize the species' continued existence. One incremental impact of critical habitat designation is the extent to which Federal agencies change their proposed actions to ensure they are not likely to adversely modify critical habitat, beyond any changes they would make to ensure actions are not likely to jeopardize the continued existence of the species. Additional impacts of critical habitat designation include any state and/or local protection that may be triggered as a direct result of designation (we did not identify any such impacts for this designation), and other benefits that may arise, such as education of the public regarding the importance of an area for species conservation.

In determining the impacts of designation, we focused on the incremental change in Federal agency actions as a result of critical habitat designation and the adverse modification standard (see

Ariz. Cattle Growers' Ass'n

v.

Salazar,

606 F.3d 1160, 1172-74 (9th Cir. 2010) (holding that the USFWS permissibly attributed the economic impacts of protecting the northern spotted owl as part of the baseline and was not required to factor those impacts into the economic analysis of the effects of the critical habitat designation)). We analyzed the impacts of this designation based on a comparison of conditions with and without the designation of critical habitat for the Beringia DPS. The “without critical habitat” scenario represents the baseline for the analysis. It includes process requirements and habitat protections already extended to bearded seals of the Beringia DPS under its ESA listing and under other Federal, state, and local regulations. The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the Beringia DPS.

Our analysis for this final rule is described in detail in the associated Final Impact Analysis Report. This analysis assesses the incremental costs and benefits that may arise due to the critical habitat designation, with economic costs estimated over the next

10 years. We chose the 10-year timeframe because it is lengthy enough to reflect the planning horizon for reasonably predicting future human activities, yet it is short enough to allow reasonable projections of changes in use patterns in an area, as well as of exogenous factors (

e.g.,

world supply and demand for petroleum, U.S. inflation rate trends) that may be influential. This timeframe is consistent with guidance provided in Office of Management and Budget (OMB) Circular A-4 (OMB 2003, 2011). We recognize that economic costs of the designation are likely to extend beyond the 10-year timeframe of the analysis, though we have no information indicating that such costs in subsequent years would be different from those projected for the first 10-year period. However, we could not monetize or quantify such costs, as forecasting potential future Federal actions that may require section 7 consultation regarding critical habitat for the Beringia DPS becomes increasingly speculative beyond the 10-year time window of the analysis.

Below, we summarize our analysis of the impacts of designating the specific area identified in this final rule as meeting the definition of critical habitat for the Beringia DPS. Additional detail is provided in the Final Impact Analysis Report prepared for this final rule.

Benefits of Designation

We expect that the Beringia DPS will increasingly experience the ongoing loss of sea ice and changes in ocean conditions associated with climate change, and the significance of other habitat threats will likely increase as a result. As noted above, the primary benefit of a critical habitat designation—and the only regulatory consequence—stems from the ESA section 7(a)(2) requirement that all Federal agencies ensure that any actions authorized, funded, or carried out by such agencies are not likely to destroy or adversely modify the designated habitat. This benefit is in addition to the section 7(a)(2) requirement that all Federal agencies ensure that their actions are not likely to jeopardize listed species' continued existence. Another benefit of critical habitat designation is that it provides Federal agencies and the public specific notice of the areas and features essential to the conservation of the Beringia DPS, and the types of activities that may reduce the conservation value or otherwise affect the habitat. This information will consistently focus future ESA section 7 consultations on key habitat attributes. The designation of critical habitat can also inform Federal agencies regarding the habitat needs of the Beringia DPS, which may facilitate using their authorities to support the conservation of this species pursuant to ESA section 7(a)(1), including to design proposed projects in ways that avoid, minimize, and/or mitigate adverse effects to critical habitat from the outset.

In addition, the critical habitat designation may result in indirect benefits, as discussed in detail in the Final Impact Analysis Report, including education and enhanced public awareness, which may help focus and contribute to conservation efforts for bearded seals of the Beringia DPS and their habitat. For example, by identifying areas and features essential to the conservation of the Beringia DPS, complementary protections may be developed under state or local regulations or voluntary conservation plans. These other forms of benefits may be economic in nature (whether market or non-market, consumptive, non-consumptive, or passive), educational, cultural, or sociological, or they may be expressed through enhanced or sustained ecological functioning of the species' habitat, which itself yields ancillary welfare benefits (

e.g.,

improved quality of life) to the region's human population. For example, because the critical habitat designation is expected to result in enhanced conservation of the Beringia DPS over time, residents of the region who value these seals, such as subsistence users, could experience indirect benefits by enjoying subsistence activities associated with this species. As another example, the geographic area identified as meeting the definition of critical habitat for the Beringia DPS overlaps substantially with the range of the polar bear (

Ursus maritimus

) in the United States, and the bearded seal is a prey species of the polar bear, so the designation may also enhance conservation of the polar bear, and in turn provide indirect benefits (

e.g.,

existence and option values). Indirect benefits may also be associated with enhanced habitat conditions for other co-occurring species, such as the Pacific walrus (

Odobenus rosmarus divergens

), the Arctic ringed seal, and other seal species.

It is not presently feasible to monetize, or even quantify, each component part of the benefits accruing from the designation of critical habitat for the Beringia DPS. Therefore, we augmented the quantitative measurements that are summarized here and discussed in detail in the Final Impact Analysis Report with qualitative and descriptive assessments, as provided for under 50 CFR 424.19(b) and in guidance set out in OMB Circular A-4. Although we cannot monetize or quantify all of the incremental benefits of the critical habitat designation, we conclude that they are not inconsequential.

Economic Impacts

Direct economic costs of the critical habitat designation accrue primarily through implementation of section 7(a)(2) of the ESA in consultations with Federal agencies (“section 7 consultations”) to ensure that their proposed actions are not likely to destroy or adversely modify critical habitat. Those economic impacts may include both administrative costs and costs associated with project modifications. Based on the best scientific and commercial data available and our assessment of the record of section 7 consultations from 2013 to 2019 on activities that may have affected the essential features (relatively few relevant consultations were identified for the 3 years prior to when the Beringia DPS was listed under the ESA), as well as available information on planned activities, we have not identified any likely incremental economic impacts associated with project modifications that would be required solely to avoid impacts to Beringia DPS critical habitat. The critical habitat designation is not likely to result in more requested project modifications because our section 7 consultations on potential effects to bearded seals and our incidental take authorizations for Arctic activities under section 101(a) of the Marine Mammal Protection Act (MMPA) both typically address habitat-associated effects to the seals even in the absence of a critical habitat designation. This is not to say such project modifications could not occur in situations we are unable to predict at this time, but based on the best information available for the 10-year period of the analysis, it is likely that any project modifications necessary to avoid impacts to critical habitat for the Beringia DPS would also be necessary to avoid impacts to the species in section 7 consultations that would occur irrespective of this designation. As a result, the direct incremental costs of this critical habitat designation are expected to be limited to the additional administrative costs of considering Beringia DPS critical habitat in future section 7 consultations.

To identify the types of Federal activities that may affect critical habitat for the Beringia DPS, and therefore would be subject to the ESA section 7 adverse modification standard, we

examined the record of section 7 consultations from 2013 to 2019. These activities include oil and gas related activities, dredge mining, navigation dredging, in-water construction, commercial fishing, oil spill response, and certain military activities. We projected the occurrence of these activities over the timeframe of the analysis (the next 10 years) using the best available information on planned activities and the frequency of recent consultations for particular activity types. Notably, all of the projected future Federal actions that may trigger an ESA section 7 consultation because of their potential to affect one or more of the essential habitat features also have the potential to affect bearded seals of the Beringia DPS. In other words, none of the activities we identified would trigger a section 7 consultation solely on the basis of the critical habitat designation. We recognize there is inherent uncertainty involved in predicting future Federal actions that may affect the essential features of critical habitat for the Beringia DPS; however, we did not receive any relevant new information that would change our projections in response to our specific request for comments and information regarding the types of activities that are likely to be subject to section 7 consultation as a result of the designation.

We expect that the majority of future ESA section 7 consultations analyzing potential effects on the essential habitat features will involve NMFS and BOEM authorizations and permitting of oil and gas related activities. In assessing costs associated with these consultations, we took a conservative approach by estimating that future section 7 consultations addressing these activities would be more complex than for other activities, and would therefore incur higher third party (

i.e.,

applicant/permittee) incremental administrative costs per consultation to consider effects to Beringia DPS bearded seal critical habitat (see Final Impact Analysis Report). These higher third party costs may not be realized in all cases because the administrative effort required for a specific consultation depends on factors such as the location, timing, nature, and scope of the potential effects of the proposed action on the essential features. There is also considerable uncertainty regarding the timing and extent of future oil and gas exploration and development in Alaska's Outer Continental Shelf (OCS) waters, as indicated by Shell's 2015 withdrawal from exploratory drilling in the Chukchi Sea, BOEM's 2017-2022 OCS Oil and Gas Leasing Program, and the reinstatement of the 2016 withdrawal of the Chukchi Sea and most of the Beaufort Sea from consideration for oil and gas leasing in January 2021 (Executive Order (E.O.) 13990). Although NMFS completed formal consultations for oil and gas exploration activities in the Chukchi Sea in all but 2 years between 2006 and 2015, no such activities or related consultations with NMFS have occurred since that time.

As detailed in the Final Impact Analysis Report, the total incremental costs associated with this critical habitat designation over the next 10 years, in discounted present value terms, are estimated to be $563,000 at 7 percent discount rate and $658,000 at a 3 percent discount rate, for an annualized cost of $74,900 at both a 7 percent and a 3 percent discount rate. About 81 percent of the incremental costs attributed to the critical habitat designation are expected to accrue from ESA section 7 consultations associated with oil and gas activities in the Chukchi and Beaufort seas and adjacent onshore areas.

We have concluded that the potential economic impacts associated with the critical habitat designation are modest both in absolute terms and relative to the level of economic activity expected to occur in the affected area, which is primarily associated with oil and gas activities that may occur in the Beaufort and Chukchi seas. As a result, and in light of the benefits of critical habitat designation discussed above and in the Final Impact Analysis Report, we are not exercising our discretion to further consider and weigh the benefits of excluding any particular area based on economic impacts against the benefits of designation.

National Security Impacts

Section 4(b)(2) of the ESA also requires consideration of national security impacts. As noted in the Application of ESA Section 4(a)(3)(B)(i) section above, before publication of this proposed rule, we contacted the DOD regarding any potential military operations impacts of designating critical habitat for the Beringia DPS. In a letter dated June 3, 2013, the DOD Regional Environmental Coordinator indicated that no impacts on national security were foreseen from such a designation. More recently, by letter dated March 17, 2020, the Navy submitted a request for exclusion of a particular area north of the Beaufort Sea shelf from the designation of critical habitat based on national security impacts. This area does not overlap with the specific area identified as meeting the definition of critical habitat for the Beringia DPS. In this letter, the Navy also provided information regarding its training and testing activities that currently occur or are planned to occur in U.S. waters inhabited by bearded seals. The Navy commented that based on the current and expected training and testing activities occurring in the Arctic region, it has determined that training and testing activities do not pose any substantial threat to the essential features of the habitat of the Beringia DPS.

In addition, by letter dated April 30, 2020, the Air Force provided information concerning its activities at radar sites located adjacent to the area under consideration for designation as critical habitat (relevant sites identified above in the Application of ESA Section 4(a)(3)(B)(i) section). The Air Force requested that we consider excluding critical habitat near these sites under section 4(b)(2) of the ESA due to impacts on national security. Although we do not exempt the radar sites pursuant to section 4(a)(3)(B)(i) of the ESA, as discussed above, here we consider whether to exclude critical habitat located adjacent to these sites under section 4(b)(2) based on national security impacts.

The Air Force noted that annual fuel and cargo resupply activities occur at these radar sites primarily in the summer, and installation beaches are used for offload. The Air Force indicated that coastal operations at these installations are limited, and when barge operations occur, protective measures are implemented per the Polar Bear and Pacific Walrus Avoidance Plan (preliminary final 2020) associated with the INRMP in place for these sites. The Air Force discussed that it also conducts sampling and monitoring at these sites as part of the DOD's Installation Restoration Program, and conducts larger scale contaminant or debris removal in some years that can require active disturbance of the shoreline. Coastal barge operations are a feature of both monitoring and removal actions.

Federal agencies have an existing obligation to consult with NMFS under section 7(a)(2) of the ESA to ensure the activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the Beringia DPS of bearded seals, regardless of whether or where critical habitat is designated for the species. The specific area identified as meeting the definition of critical for the Beringia DPS in this final rule includes marine habitat extending seaward from particular isobaths, rather than from the line of MLLW as we had proposed. Thus, waters adjacent to the

radar sites identified by the Air Force overlap to lesser extent with this specific area. The activities described in the Air Force's exclusion request are localized and small in scale, and it is unlikely that modifications to these activities would be needed to address impacts to critical habitat beyond any modifications that may be necessary to address impacts to Beringia DPS bearded seals. We therefore anticipate that the time and costs associated with consideration of the effects of future Air Force actions on critical habitat of the Beringia DPS under section 7(a)(2) of the ESA would be limited, if any, and the consequences for the Air Force's activities would be negligible even if we do not exclude the requested areas from critical habitat designation.

As a result, and in light of the benefits of critical habitat designation discussed above and in the Final Impact Analysis Report, we have concluded that the benefits of exclusion do not outweigh the benefits of designation and are therefore not exercising our discretionary authority to exclude these particular areas pursuant to section 4(b)(2) of the ESA based on national security impacts.

Other Relevant Impacts

Finally, under ESA section 4(b)(2) we consider any other relevant impacts of critical habitat designation. For example, we may consider potential adverse effects on existing management or conservation plans that benefit listed species, and we may consider potential adverse effects on tribal lands or trust resources. In preparing this critical habitat designation, we have not identified any such management or conservation plans, tribal lands or resources, or anything else that would be adversely affected by the critical habitat designation. Some Alaska Native organizations and tribes have expressed concern that the critical habitat designation might restrict subsistence hunting of bearded seals or other marine mammals, such that important hunting areas should be considered for exclusion, but no restrictions on subsistence hunting are associated with this designation. Accordingly, we are not exercising our discretion to conduct an exclusion analysis pursuant to section 4(b)(2) of the ESA based on other relevant impacts.

Final Critical Habitat Designation

We are designating as critical habitat a specific area of marine habitat in Alaska and offshore Federal waters of the Bering, Chukchi, and Beaufort seas, within the geographical area presently occupied by the Beringia DPS of bearded seals. This critical habitat area contains physical or biological features essential to the conservation of the Beringia DPS of bearded seals that may require special management considerations or protection. We are not excluding any areas based on economic impacts, impacts to national security, or other relevant impacts of this designation. We have not identified any unoccupied areas that are essential to the conservation of the Beringia DPS of bearded seals, and thus we are not designating any such areas as critical habitat. In accordance with our regulations regarding critical habitat designation (50 CFR 424.12(c)), the map we include in the regulation, clarified by the accompanying regulatory text, constitutes the official boundaries of the critical habitat designation.

Effects of Critical Habitat Designation

Section 7(a)(2) of the ESA requires Federal agencies, including NMFS, to ensure that any action authorized, funded, or carried out by the agency is not likely to jeopardize the continued existence of any threatened or endangered species or destroy or adversely modify designated critical habitat. Federal agencies must consult with us on any agency action that may affect listed species or critical habitat. During interagency consultation, we evaluate the agency action to determine whether the action is likely to adversely affect listed species or critical habitat. Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species (50 CFR 402.02). The potential effects of a proposed action may depend on, among other factors, the specific timing and location of the action relative to the seasonal presence of essential features or seasonal use of critical habitat by listed species for essential life history functions. Although the requirement to consult on an action that may affect critical habitat applies regardless of the season, NMFS addresses spatial-temporal considerations when evaluating the potential impacts of a proposed action during the ESA section 7 consultation process. For example, if an action with short-term effects is proposed during a time of year that sea ice is not present, we may advise that consequences to critical habitat are unlikely. If we conclude in a biological opinion pursuant to section 7(a)(2) of the ESA that the agency action would likely result in the destruction or adverse modification of critical habitat, we would recommend one or more reasonable and prudent alternatives to the action that avoid that result.

Reasonable and prudent alternatives are defined in 50 CFR 402.02 as alternative actions identified during formal consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that would avoid the destruction or adverse modification of critical habitat. NMFS may also provide with the biological opinion a statement containing discretionary conservation recommendations. Conservation recommendations are advisory and are not intended to carry any binding legal force.

Regulations at 50 CFR 402.16 require Federal agencies that have retained discretionary involvement or control over an action, or where such discretionary involvement or control is authorized by law, to reinitiate consultation on previously reviewed actions in instances where (among other reasons): (1) Critical habitat is subsequently designated; or (2) new information or changes to the action may result in effects to critical habitat not previously considered. Consequently, some Federal agencies may request reinitiation of consultation or conference with us on actions for which consultation has been completed if those actions may affect designated critical habitat for the Beringia DPS. Activities subject to the ESA section 7 consultation process include activities on Federal lands as well as activities requiring a permit or other authorization from a Federal agency (

e.g.,

a section 10(a)(1)(B) permit from NMFS), or some other Federal action, including funding (

e.g.,

Federal Highway Administration or Federal Emergency Management Agency funding). Consultation under section 7 of the ESA would not be required for Federal actions that do not affect listed species or designated critical habitat, and would not be required for actions on non-Federal and private lands that are not carried out, funded, or authorized by a Federal agency.

Activities That May Be Affected by Critical Habitat Designation

Section 4(b)(8) of the ESA requires, to the maximum extent practicable, in any regulation to designate critical habitat, an evaluation and brief description of those activities that may adversely modify such habitat or that may be affected by such designation. A variety of activities may affect critical habitat

designated for the Beringia DPS of bearded seals and, if carried out, funded, or authorized by a Federal agency, may be subject to ESA section 7 consultation. Such activities include: In-water and coastal construction; activities that generate water pollution; dredging; commercial fishing; oil and gas exploration, development, and production; oil spill response; and certain military readiness activities. Section 7 consultations must be based on the best scientific and commercial information available, and outcomes are case-specific. Inclusion (or exclusion) from this list, therefore, does not predetermine the occurrence or outcome of any section 7 consultation. However, as explained above, based on our review of prior consultations in the area, we have not identified a circumstance in which project modifications would be necessary solely to avoid impacts to critical habitat for the Beringia DPS, as it is likely any such modifications would also be necessary to avoid impacts to the species.

Private or non-Federal entities may also be affected by the critical habitat designation if a Federal permit is required, Federal funding is received, or the entity is involved in or receives benefits from a Federal project. These activities would need to be evaluated with respect to their potential to destroy or adversely modify Beringia DPS critical habitat. For ongoing activities, this designation of critical habitat may trigger reinitiation of past consultations. Although we cannot predetermine the outcome of section 7 consultations, we do not anticipate at this time that the outcome of reinitiated consultations would require project modifications because habitat-related effects on Beringia DPS bearded seals would likely have been assessed in the original consultation. We are committed to working closely with other Federal agencies to conduct any reinitiated consultations in an efficient and streamlined manner to the maximum extent possible and consistent with our statutory and regulatory requirements.

References Cited

A complete list of all references cited in this final rule can be found on the NMFS website at

www.fisheries.noaa.gov/species/bearded-seal#conservation-management,

the Federal eRulemaking Portal at

www.regulations.gov/docket/NOAA-NMFS-2020-0029,

and is available upon request from the NMFS office in Juneau, Alaska (see

FOR FURTHER INFORMATION CONTACT

).

Summary of Comments and Responses

We solicited comments on the proposed rule to designate critical habitat for the Beringia DPS and the associated Draft Impact Analysis Report during a 90-day comment period and held three public hearings, as described above. We also contacted Federal, State, Tribal, and local agencies, and other interested parties by mail and invited them to comment on the proposed rule, and we issued news releases and published notices in local newspapers summarizing the proposed rule and inviting public comments. We received 31 unique written comment submissions and testimony from seven people during the public hearings.

In addition, we solicited peer review from four reviewers of our evaluation, interpretation, and use of available data regarding what areas meet the definition of critical habitat in the proposed rule. The peer reviewers generally agreed that we relied on the best available data regarding the habitat requirements of the Beringia DPS of bearded seals and generally concurred with our application of this information in determining specific areas that meet the definition of critical habitat, except for some particular aspects that we address below in our responses to peer reviewer comments. We also solicited peer review from three reviewers of the information we considered in the Draft Impact Analysis Report for the proposed designation. The peer reviewers found the information considered in the Draft Impact Analysis Report to be thorough and analyzed using appropriate methods.

Most of the peer reviewers provided additional information, clarifications, and suggestions to further inform and improve the analyses. Some peer reviewers provided comments of an editorial nature that noted minor errors in the proposed rule or Draft Impact Analysis Report and offered non-substantive but clarifying changes in wording. We have addressed these editorial comments in the final rule and the Final Impact Analysis Report, as appropriate. Because these editorial comments did not result in substantive changes to the final rule, we have not detailed them here. The peer reviewer comments are available online (see

Information Quality Act and Peer Review

section). A few peer reviewers volunteered comments related to aspects of the proposed designation that were outside the scope of the requested reviews. We address those comments below in our responses to public comments.

We have reviewed and fully considered all comments and significant new information received from peer reviewers and the public. Summaries of the substantive comments received and our responses are provided below. As some peer reviewer and public comments were similar, we have, in certain cases, combined the comments and responded to both the peer reviewer and public comments in the

Peer Review Comments

section below. General comments that did not provide information pertinent to the proposed rule have been noted but are not addressed further here. We have not responded to comments or concerns outside the scope of this rulemaking, such as comments disagreeing with NMFS's prior decision to list the Beringia DPS as threatened under the ESA.

Peer Review Comments

Evaluation of Critical Habitat

Comment 1:

One peer reviewer commented that the bearded seal lifespan we identified is low relative to sample collections from the subsistence harvested bearded seals in Alaska between 2000 and 2019, which indicate that the life span and reproductively active age are likely longer, and the reviewer summarized other related information (Quakenbush 2020a; ADF&G, unpublished data).

Response:

We have updated the Description and Natural History section of this final rule to reflect the peer reviewer's comment regarding bearded seal lifespan and reproductively active age.

Comment 2:

In reference to the statement in the proposed rule that adult bearded seals have rarely been seen hauled out on land in Alaska, one peer reviewer commented this may no longer be the case. The peer reviewer stated that in September 2019, two adult bearded seals were captured for tagging while they were hauled out on land near Utqiaġvik, Alaska (ADF&G, unpublished data). Additionally, the peer reviewer noted that a recent study by Olnes

et al.

(2020) reported that during summer when sea ice was minimal, about half of the juvenile bearded seals tagged during the study hauled out on land in Kotzebue Sound and Norton Sound, while the others remained near and continued to haul out on sea ice; and a couple individuals used both strategies in different years.

Response:

We appreciate the information provided by the peer reviewer. We have considered this information and have incorporated the additional reference and information

into the Description and Natural History section of this final rule. In addition, we have clarified in the preamble that although adult bearded seals have rarely been seen hauled out on land, two adults were captured for tagging while hauled out on land near Utqiaġvik.

Comment 3:

In reference to the description in the proposed rule of sea ice used by bearded seals, one peer reviewer noted that a recently published study by Olnes

et al.

(2021) found that juvenile bearded seals selected intermediate ice concentrations, but in the later years of the study the selected ice concentrations occurred farther from the ice edge than during the earlier study years. Another peer reviewer pointed out that Olnes

et al.

(2021) suggested juvenile bearded seals “are adjusting” to changes in ice conditions, and stated that we should consider the significance of those behavioral adjustments in terms of expected impacts on lifetime reproductive success.

Response:

We appreciate the information provided by the peer reviewer. We have considered and incorporated information from the recent publication by Olnes

et al.

(2021) into the preamble of this final rule where applicable and relevant. Although not directly relevant to determining critical habitat for this species, regarding the comment about implications of the adjustments to changing sea ice conditions reported by that study, the authors concluded that it is not clear at this time how the observed changes in juvenile bearded seal selection of sea ice habitat affect seal health or relate to adult bearded seal behavior.

Comment 4:

We stated in the proposed rule that observations of some bearded seals remaining at sea for prolonged periods provides some evidence that bearded seals might not require sea ice for hauling out other than during reproduction and molting. One peer reviewer commented that it is a feature of habitat loss that species occupy suboptimal habitat, and thus these observations might instead reflect seals forced by habitat loss to remain at sea.

Response:

We have clarified in the preamble to this final rule that there is some evidence that, other than during the critical life history periods related to reproduction and molting, bearded seals can remain at sea for extended periods without requiring the presence of sea ice for hauling out.

Comment 5:

One peer reviewer stated that a recent study by Olnes

et al.

(2020) showed that north-south movements of tagged bearded seals (largely juveniles), relative to sea ice advance, differed by where seals were tagged, and some seals did not track sea ice advance at all, including one juvenile tagged in Kotzebue Sound that remained there during winter. The peer reviewer also noted that one juvenile female and one adult male bearded seal tagged in the Beaufort Sea overwintered in the vicinity of Barrow Canyon in two consecutive winters (Quakenbush

et al.

2019, Quakenbush 2020b; ADF&G, unpublished data).

Response:

We appreciate the information provided by the peer reviewer. We have considered this information and have incorporated it into the Description and Natural History section of this final rule.

Comment 6:

One peer reviewer stated that a recently published paper corroborates that the bearded seal molt is protracted compared to ringed and spotted seals and documents that this behavior requires less energy than the shorter molting period of ringed and spotted seals (Thometz

et al.

2021). The peer reviewer suggested that given this new information, along with greater evidence of bearded seals hauling out on land (Quakenbush

et al.

2019, Olnes

et al.

2020; ADF&G, 2020, unpublished data), sea ice may not be as critical to bearded seals for molting as previously thought.

Response:

We appreciate the information provided by the peer reviewer. We have considered this information and have updated the Description and Natural History section of this final rule to include a brief summary of the findings of Thometz

et al.

(2021). We note that the reviewer's assertion that the protracted molt in bearded seals “requires less energy” than in spotted and ringed seals was not a finding of Thometz

et al.

(2021). While the bearded seal in that study showed only a slight elevation in metabolic rate during molt, its long molting period still implies that a large amount of energy is required overall. We also note that the authors observed the haul-out time of the bearded seal in their study to increase markedly during molting, which they suggested indicates benefits of increased skin temperatures for molting, even though there were minimal changes in daily energetic cost. Although we recognize that primarily juvenile bearded seals have been observed hauling out on land, typically during the open-water season following the peak period of their annual molt, this does not imply that bearded seals necessarily have potential to shift to use of haul-out sites on shore during molting, which would require bearded seals to adapt to novel conditions. Increased use of shorelines by bearded seals for molting may distance them from preferred foraging locations and expose them to greater predation risk (Thometz

et al.

2021). Further, as compared to shorelines, sea ice provides a far more extensive substrate for bearded seals to haul out on during the molt, as well as isolation from terrestrial predators and disturbances (

e.g.,

from anthropogenic activities or presence of terrestrial animals). For example, Quakenbush

et al.

(2019) reported that haul-out duration for tagged bearded seals on land was lower than haul-outs on ice (about half the duration), which they suggested was likely because the incidence of disturbance was greater on land. We continue to conclude, based on the best scientific data available, that sea ice habitat suitable as a platform for molting is essential to the conservation of the Beringia DPS.

Comment 7:

Two peer reviewers questioned the statement in the proposed rule that sea ice provides bearded seals some protection from predators. Both of the reviewers pointed out that sea ice actually makes the seals more accessible to polar bears, which are their primary predator. One of the peer reviewers added that, although sea ice provides bearded seals some protection from predation by killer whales, the magnitude of such predation is unknown.

Response:

We agree that sea ice can facilitate polar bear access to bearded seals but under conditions of drastically reduced or absence of summer sea ice, bearded seals and polar bears would likely be forced into greater proximity on shore, where predation on the seals could well increase. Bearded seals, when they have a choice, select ice floes for hauling out that afford good visibility and quick access to the water. As summer ice in the Arctic continues to diminish, the remaining, reduced ice area is likely to be composed of greater proportions of multi-year ice with higher surface relief, favoring polar bears' hunting success. Sea ice also provides bearded seals isolation from other terrestrial predators, as well as some protection from predation by killer whales, although as noted by a peer reviewer, the magnitude of such predation is unknown (Cameron

et al.

2010). Thus, our statement that sea ice provides some protection from predators is supported by the best available scientific data. Nevertheless, we clarified the statement in the preamble to this final rule, consistent with our explanation here.

Comment 8:

One peer reviewer commented that although increased disease transmission is often cited as a

potential threat to ice-associated pinnipeds, there are many examples of pinnipeds using large terrestrial haulouts without serious disease transmission issues (

e.g.,

walrus, Steller sea lion, and northern fur seal). The peer reviewer suggested that because bearded seals are less gregarious and would likely haul out on land in low densities during molting, disease transmission would be even less likely.

Response:

We re-examined this language in the preamble to the proposed rule and determined that we sufficiently qualified the statement concerning disease transmission, as we stated that there is the “potential” for disease transmission if molting occurs on land. Because coastal shorelines provide a far less extensive haulout substrate for bearded seals than sea ice, there may be greater tendency for intraspecific contact in use of haul-out sites on shore, and bearded seals hauled out on land could also be at risk of exposure to terrestrial pathogens that they would not be exposed to on sea ice.

Comment 9:

One peer reviewer asked whether the edges of landfast ice are used by bearded seals of the Beringia DPS for whelping and molting, as documented in Svalbard (Kovacs

et al.

1996), and stated that if so, the definitions of the sea ice essential features should be expanded to include this habitat.

Response:

Although some bearded seals may use the edges of landfast ice for whelping and molting, we are not aware of available information indicating that this is common enough within the range of the Beringia DPS to be considered essential for the persistence of the DPS. Therefore, we did not expand the definitions of the sea ice essential features to include such ice.

Comment 10:

One peer reviewer suggested that we consider expanding the brief discussion of differences in the diets of bearded seals among age classes (

e.g.,

Young

et al.

2010, Crawford

et al.

2015), particularly as it is applicable for defining foraging habitat as part of the critical habitat designation. The peer reviewer noted that diet may also be influenced by interannual variations in sea ice extent (

e.g.,

Hindell

et al.

2012).

Response:

We have updated the discussion of bearded seal diets in the preamble to this final rule to reflect the peer reviewer's suggestions. Rather than delineating particular areas bearded seals use for foraging, in accordance with ESA section 3(5)(A), we delineated a specific area within the geographical area occupied by the species where the primary prey resources essential feature occurs.

Comment 11:

One peer reviewer commented they agreed that, as stated in the proposed rule, the diversity of prey consumed by bearded seals makes identification of particular essential prey species impracticable. However, the peer reviewer stated that they disagreed with our characterization of bearded seals as “benthic specialists,” arguing that because they feed on a wide variety of benthic prey taxa, bearded seals would be more accurately described as “benthic generalists.” The peer reviewer added that given the wide array of fish and invertebrate prey eaten by bearded seals, virtually the entire shallow Bering and Chukchi shelf provides feeding habitat. The peer reviewer further stated that our description of the diet of bearded seals in the “Description and Natural History” section of the proposed rule is too general and implies that there are few common prey items, giving a very different impression about their diets than has been documented for bearded seals harvested in Alaska. The peer reviewer suggested that it would be more useful to provide examples of the species of schooling pelagic fishes, demersal fishes, and invertebrates that are consumed by bearded seals in Alaska, and included a summary of related information regarding prey species consumed by bearded seals in the Alaskan Bering and Chukchi seas (Quakenbush

et al.

2011, Crawford

et al.

2015, Quakenbush 2020a).

Response:

We appreciate the comments and information provided by the peer reviewer. We have revised the preamble text to state that bearded seals are benthic generalists. We have also updated our discussion of the primary prey resources essential feature in this final rule preamble to incorporate bearded seal diet information from the recent analysis by Quakenbush (2020a) (see Physical and Biological Features Essential to the Conservation of the Species section), which we considered as part of the best scientific data available to inform our analysis. We have provided a level of detail that is appropriate for this final rule and have cited the relevant sources of information regarding bearded seal diets.

Comment 12:

One peer reviewer commented that the restriction of critical habitat to the area presently occupied by the species seems to be required by the ESA, but challenges conservation of a species whose habitat is rapidly diminishing, noting that for the Beringia DPS we cited recent reductions in sea ice in Kuskokwim Bay as a rationale for not including this area in the proposed designation.

Response:

As we stated in the proposed rule, the ESA defines critical habitat as (1) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. As we explained in the preamble to our 2016 final rule with USFWS that amended the regulations for designating critical habitat, the ESA allows for flexibility to address the effects of climate change in a critical habitat designation in cases where the best scientific data available indicate that a species may be shifting habitats or habitat use (81 FR 7414, 7426; February 11, 2016). In such cases, it is permissible to include specific areas accommodating these changes in a designation, provided that we can explain why the areas meet the definition of critical habitat. In other words, we may find that an unoccupied area is currently essential for the conservation of the species even though the functions the habitat is expected to provide may not be used by the species until a point in the foreseeable future. However, we have not identified any such areas for bearded seals of the Beringia DPS, as they occupy their entire historical range, which in the Bering Sea extends south over the continental shelf and includes Kuskokwim Bay. Although our decision regarding the southern boundary of critical habitat relative to Kuskokwim Bay takes into consideration reductions in sea ice in this area, the designation includes the majority of reproductive and molting habitat in the Bering Sea.

Comment 13:

To further describe acoustic conditions that allow for effective communication by bearded seals for breeding purposes, one peer reviewer asked whether it would be possible to analyze “background” acoustic noise in recordings collected by passive acoustic moorings where bearded seal trills were detected during the breeding season and where whelping has been observed, as these conditions would arguably be where effective communication is possible. The peer reviewer also asked whether it would be possible to analyze how reductions in sea ice extent and concentration have changed background acoustic noise during the breeding

period using the time series of passive acoustic data available from several mooring locations in the region, as this might provide insight into acoustic conditions and how they are changing. The peer reviewer commented that the reduced presence of sea ice will increase abiotic noises from wind and precipitation, lead to changes in the acoustic environment, and could conceivably lead to increases in anthropogenic noises such as from boats. The peer reviewer added that it should also be possible to quantify how much of the noise from such sources overlaps with the frequency ranges used by male bearded seals during the breeding period.

Response:

We appreciate the suggestions of the peer reviewer. While we agree that analyses such as those suggested by the peer reviewer may enhance understanding of the acoustic ecology of bearded seals during the breeding season, the ESA requires us to designate critical habitat within a specific timeframe based on the best scientific data available. In light of this mandatory timeframe, conducting such additional analyses is not feasible. We will continue to support further research that generates knowledge needed to conserve this species, including with respect to understanding of bearded seal reproductive ecology. As discussed in more detail below, following consideration of public comments received, we have not retained the proposed essential habitat feature related to acoustic conditions for bearded seals in this final rule (

e.g.,

see our response to Comment 32).

Comment 14:

Three peer reviewers and several other commenters, including the Marine Mammal Commission, identified a few recent scientific publications related to bearded seal acoustic communication and responses to noise that might provide additional relevant data. One peer reviewer also suggested that we include information on detection of bearded seal vocalizations outside of the breeding period, as bearded seal vocalizations may be used for communication during other parts of the year.

Response:

We appreciate the additional information provided by the peer reviewers and other commenters. While we did not expand our discussion of bearded seal vocalizations in this final rule, we thoroughly considered this information in our re-evaluation of the proposed acoustic essential feature (see Summary of Changes From the Proposed Designation section).

Comment 15:

Two peer reviewers questioned why we excluded tidally-influenced channels of tributary waters from proposed critical habitat, given that the information available indicates that some, primarily juvenile, bearded seals use this habitat. One of the peer reviewers noted that indigenous hunters have reported that bearded seals feed in estuaries in numerous locations along the Alaska coast, while the other noted that some of the juvenile bearded seals tagged in Alaska were captured in rivers. Another peer reviewer stated that although juvenile bearded seals are commonly seen up rivers in some areas, they are solitary and not present in large numbers, and noted that it is not likely all juveniles practice this behavior. Similarly, several other commenters, including Kawerak and the Native Village of Kotzebue, recommended that critical habitat include nearshore areas, river mouths, and extensive inshore estuaries/lagoon systems found throughout the Seward Peninsula and Norton Sound, as well as in Kotzebue Sound. Commenters stated that well-documented IK indicates that bearded seals, in particular juveniles, use these areas during the ice-free period, and described the capture of young bearded seals in rivers for tagging telemetry studies. Kawerak and another commenter stated that young seals use estuaries as sheltered calmer waters during adverse weather conditions, to escape large-bodied predators like killer whales, and to hone their fishing skills in these shallow waters during the ice-free months. Kawerak also noted that these estuaries have aquatic plants that young seals use as cover when stalking the variety of small-bodied fishes and invertebrates that reside in or travel through these waters.

Response:

We recognize that bearded seal use of river mouths and inshore lagoons during the open-water period has been reported and documented, and we reviewed and thoroughly considered the references that were cited in these comments, along with information presented in other available reports and peer-reviewed publications (

e.g.,

Oceana and Kawerak 2014, Northwest Arctic Borough 2016, Huntington

et al.

2017d) regarding this aspect of bearded seal habitat use. The ESA requires that we identify the physical or biological features that are essential to support the life-history needs of a particular species based on the best scientific data available. With regard to river mouths and inshore estuaries/lagoons, the best information available indicates that some juvenile bearded seals occur in these areas during the open-water period. However, we lack sufficient data to develop a description of the specific physical or biological features of this habitat that support bearded seal life history needs, and to assess how those features provide for the life history requirements of the species such that they are essential to the conservation of the Beringia DPS. Given this and our consideration of the best information available, in the Bering and Chukchi seas, including the areas referenced by the commenters, we are not designating any river mouths or shallow inshore estuaries/lagoon systems as critical habitat for the Beringia DPS. In the event that additional information becomes available indicating whether and what essential features occur in these or similar habitats, we can consider revising critical habitat accordingly. Although the critical habitat designation for bearded seals does not include those requested areas, ESA section 7 consultation requirements apply to any action that may affect bearded seals, including in river mouths or those shallow inshore estuaries/lagoon systems not identified as critical habitat. With regard to nearshore waters relative to the shoreward boundary of the designation, see our response below to Comment 39.

Comment 16:

With regard to the proposed shoreward boundary of critical habitat, one peer reviewer requested that we provide a definition for the term mean lower low water (MLLW). The peer reviewer agreed that it is important to include habitat up to this shoreward boundary, as it is possible that the use of land by bearded seals may expand in the future, and noted that bearded seals have been observed hauling out on land in Svalbard during summer in areas with no drifting sea ice (Merkel

et al.

2013).

Response:

MLLW, a tidal datum defined and maintained by NOAA, is calculated as the average of the lower low water height of each tidal day observed over a given period (

e.g.,

the 19-year National Tidal Datum Epoch). Thus, the line of MLLW is the intersection of the water surface with the shore (land) at the elevation of MLLW. The ESA defines critical habitat within the geographical area occupied by the species in terms of essential physical and biological features, and the associated regulations require us to focus on those features in the designation process. Although we proposed to identify the shoreward boundary of the designation for the Beringia DPS as the line of MLLW, we have revised this boundary after considering public comments and re-evaluating the best scientific data available, as described below in the

section Summary of Changes From the Proposed Designation.

Comment 17:

One peer reviewer suggested that we consider extending the proposed southern boundary of critical habitat to the continental shelf break in the Bering Sea given that some tagged juvenile bearded seals have used this habitat for foraging. However, the peer reviewer acknowledged that because a limited number of bearded seals have been tagged, it is hard to accurately know the proportion of juvenile bearded seals that use the southern continental shelf break as a foraging area. A related comment questioned whether our consideration of Bering Sea ice edge use by juvenile bearded seals relative to the proposed southern boundary of critical habitat suggested this habitat was an essential feature.

Response:

As we discussed in the proposed rule, although some tagged juvenile bearded seals selected habitat near the ice edge (which, depending on ice conditions, may extend to near the shelf break) and the 100-m isobath in the Bering Sea, other tagged juveniles did not show this use pattern. Further, as noted in this final rule, a recent study by Olnes

et al.

(2021) reported that in the later years of their study, juvenile bearded seals selected ice concentrations that occurred well north of the southern ice edge in the Bering Sea, in contrast to earlier study years. The authors suggested that the contrasting pattern of habitat selection in the later period reflected changes in ice conditions that coincided with this period. While it seems likely that prey resources would also be an important factor, data are not available on this aspect of the habitat use patterns documented for these seals.

In response to public comments and concerns regarding our delineation of the boundaries of critical habitat with respect to bearded seal primary prey resources, as well as peer reviewer and public comments related to bearded seal use of habitat for foraging, we re-evaluated the best scientific data available and the approach we used to identify the specific area(s) that contain this essential feature. In the proposed rule, we identified one specific area in the Bering, Chukchi, and Beaufort seas containing the essential features. Although the same seaward boundaries were identified for this specific area with respect to both the primary prey resources essential feature and the sea ice essential features, the shoreward boundary was identified as the line of MLLW based on occurrence of the primary prey resources essential feature. However, in reviewing the comments and considering the available data, we recognized that available information on the distributions of bearded seal primary prey species indicates that these prey resources are widely distributed across the geographic area occupied by these seals, and as such, we concluded it was not possible to delineate the boundaries of critical habitat based on the description of this feature alone. We also have no information that suggests this portion of the species' occupied habitat contains primary prey resources that differ from those found within the specific area defined by the sea ice essential features. Given that the movements and habitat use of bearded seals are strongly influenced by the seasonality of sea ice, we determined that the best approach to identify the appropriate boundaries for the specific area(s) containing all of the essential features is to base the delineation on the same boundaries identified for the sea ice essential features (

i.e.,

sea ice essential for whelping, nursing, and molting). As a result of this change in our approach, we have revised the shoreward boundary of the designation (see Summary of Changes From the Proposed Designation section); the boundaries are otherwise unchanged from the proposed rule. We note that the southern extent of critical habitat designated for the Beringia DPS in the Bering Sea includes some areas near the 100-m isobath, and some portion of habitat near the ice edge may be located within the designated area during late winter and spring, depending upon ice conditions in a given year.

Comment 18:

One peer reviewer suggested that it might be possible to create an index of bearded seal prey using existing data from benthic samples and fish trawls to better define foraging areas, similar to the approach used by Jay

et al.

(2017) to develop an index of walrus prey.

Response:

While we appreciate this suggestion, suitable data on the distributions and abundances of bearded seal primary prey species within U.S. waters occupied by bearded seals are not available at this time to develop such an index for those prey. Although future research may enhance understanding of bearded seal foraging habitat, the ESA requires us to designate critical habitat based on the best scientific data available. This information is sufficient to support our determination that the specific area designated as critical habitat for the Beringia DPS contains the primary prey resources essential feature.

Comment 19:

One peer reviewer stated that in our evaluation of climate change as a source of potential threats to the essential features that may require special management considerations or protection, more specific attention to ocean acidification would be appropriate.

Response:

Although our evaluation does not consider an exhaustive list of threats that could impact the essential features, in response to this comment, as well as public comments (see our response to Comment 49), in the preamble to this final rule we have added ocean warming and acidification to our discussion of impacts on the essential features from climate change.

Comment 20:

In reference to our discussion of primary sources of potential threats to the essential features that may require special management considerations or protection, one peer reviewer suggested that the analysis by Quakenbush

et al.

(2019) of tagged bearded seal movements relative to both oil and gas lease areas in the Chukchi and Beaufort seas, and shipping traffic in the northern Bering and Chukchi seas, could be used to describe the temporal overlap of bearded seals and these activities.

Response:

We appreciate this suggestion. However, our evaluation of oil and gas activity and marine shipping and transportation as sources of threats that may require special management considerations or protection focuses on potential impacts to each of the essential features of bearded seal critical habitat. Because the analysis referenced by the peer reviewer does not pertain directly to effects of these activities on the essential features, we have not incorporated the suggested information into that evaluation.

Comment 21:

One peer reviewer noted that, in addition to our reference to the Deep Water Horizon oil spill in discussing risks to the essential features associated with oil production in the Arctic, it might be useful to refer to information from studies on the long-term impacts of the 1989 Exxon Valdez oil spill in discussing risks of oil spills/discharges from vessels.

Response:

We have updated our discussion of oil and gas activity in the preamble of this final rule to note that experience with spills in subarctic regions, such as in Prince William Sound, Alaska, have shown that large oil spills can have lasting ecological effects.

Comment 22:

One peer reviewer commented that of the four sources of potential threats for which we concluded the essential features may require special management considerations or protection (climate change, oil and gas activity, marine

shipping and transportation, and commercial fisheries), only oil and gas activity and commercial fisheries typically have a Federal nexus requiring ESA section 7 consultation. The peer reviewer stated that

This text is long and has been trimmed here. Open the source document for the complete record.