1452 Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Proposed Rules

[FR Doc. 2020–29006 Filed 1–7–21; 8:45 am] ACTION: Revised proposed rule; DATES: Comments must be received by BILLING CODE 3510–22–P reopening of comment period. March 9, 2021. Public hearings on the revised proposed rule will be held in SUMMARY: We, the National Marine Alaska. The dates and times of these DEPARTMENT OF COMMERCE Fisheries Service (NMFS), announce hearings will be provided in a revisions to our December 9, 2014, subsequent Federal Register notice. National Oceanic and Atmospheric proposed designation of critical habitat Administration for the Arctic subspecies of the ringed ADDRESSES: You may submit data, seal (Pusa hispida hispida) under the information, or comments on this 50 CFR Parts 223 and 226 Endangered Species Act (ESA). The document, identified by NOAA–NMFS– 2013–0114, and on the associated Draft [Docket No.: 201228–0357] revised proposed designation comprises an area of marine habitat in the Bering, Impact Analysis Report (i.e., report RIN 0648–BC56 Chukchi, and Beaufort seas. Based on titled ‘‘Draft RIR/ESA Section 4(b)(2) consideration of national security Preparatory Assessment/IRFA of Critical Endangered and Threatened Species; impacts, we also propose to exclude a Habitat Designation for the Arctic Designation of Critical Habitat for the ’’) for the revised proposed Arctic Subspecies of the Ringed Seal particular area north of the shelf from the designation. We seek rule by either of the following methods: AGENCY: National Marine Fisheries comments on all aspects of the revised • Electronic Submission: Submit all Service (NMFS), National Oceanic and proposed critical habitat designation electronic comments via the Federal Atmospheric Administration (NOAA), and will consider information received eRulemaking Portal. Go to Commerce. before issuing a final designation. www.regulations.gov/

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#!docketDetail;D=NOAA-NMFS-2013- Secretary, critical habitat shall not 76706). Section 4(b)(6)(C) of the ESA 0114, click the ‘‘Comment Now!’’ icon, include the entire geographical area requires the Secretary to designate complete the required fields, and enter which can be occupied by the critical habitat concurrently with or attach your comments. threatened or endangered species. Also, making a determination to list a species • Mail: Submit written comments to by regulation, critical habitat shall not as threatened or endangered unless it is Jon Kurland, Assistant Regional be designated within foreign countries not determinable at that time, in which Administrator for Protected Resources, or in other areas outside U.S. case the Secretary may extend the Alaska Region NMFS, Attn: James jurisdiction (50 CFR 424.12(g)). deadline for this designation by one Bruschi, P.O. Box 21668, Juneau, AK Section 4(b)(2) of the ESA requires the year. At the time of listing, we 99082–1668. Secretary to designate critical habitat for announced our intention to designate Instructions: NMFS may not consider threatened and endangered species on critical habitat for the Arctic ringed seal comments sent by any other method, to the basis of the best scientific data in a separate rulemaking, as its critical any other address or individual, or available and after taking into habitat was not then determinable. received after the end of the comment consideration the economic impact, the Concurrently, we solicited information period. All comments received are a impact on national security, and any to assist us in (1) identifying the part of the public record and will other relevant impact of specifying any physical or biological features essential generally be posted for public viewing particular area as critical habitat. This to the conservation of Arctic ringed on www.regulations.gov without change. section also grants the Secretary seals, and (2) assessing the economic All personal identifying information discretion to exclude any area from consequences of designating critical (e.g., name, address), confidential critical habitat if he determines the habitat for this species. Subsequently business information, or otherwise benefits of such exclusion outweigh the we researched, reviewed, and compiled sensitive information submitted benefits of specifying such area as part the best scientific data available to voluntarily by the sender will be of the critical habitat. However, the develop a critical habitat proposal for publicly accessible. NMFS will accept Secretary may not exclude areas if such the Arctic ringed seal. anonymous comments (enter ‘‘N/A’’ in exclusion will result in the extinction of On December 3, 2014, we published the required fields if you wish to remain the species (16 U.S.C. 1533(b)(2)). a proposed rule to designate critical anonymous). Once critical habitat is designated, habitat for the Arctic ringed seal under Electronic copies of the Draft Impact section 7(a)(2) of the ESA requires the ESA (79 FR 71714). Due to a clerical Analysis Report for this revised Federal agencies to ensure that actions error, that document contained proposed rule and a complete list of they authorize, fund, or carry out are not mistakes, and we therefore published a references cited in this revised proposed likely to destroy or adversely modify corrected proposed rule on December 9, rule are available on the Federal that habitat (16 U.S.C. 1536(a)(2)). This 2014 (79 FR 73010). We requested eRulemaking Portal at requirement is additional to the section public comment on this proposed www.regulations.gov/ 7(a)(2) requirement that Federal designation through March 9, 2015. In #!docketDetail;D=NOAA-NMFS-2013- agencies ensure that their actions are response to comments, we extended the 0114. not likely to jeopardize the continued public comment period through March existence of ESA-listed species. 31, 2015 (80 FR 5498, February 2, 2015). FOR FURTHER INFORMATION CONTACT: Specifying the geographic location of We held five public hearings in Alaska Tammy Olson, NMFS Alaska Region, critical habitat also facilitates on the proposed rule (80 FR 1618, (907) 271–5006; Jon Kurland, NMFS implementation of section 7(a)(1) of the January 13, 2015; 80 FR 5498, February Alaska Region, (907) 586–7638; or ESA by identifying areas where Federal 2, 2015). Heather Austin, NMFS Office of agencies can focus their conservation Subsequently, on March 17, 2016, the Protected Resources, (301) 427–8422. programs and use their authorities to listing of Arctic ringed seals as a SUPPLEMENTARY INFORMATION: Section further the purposes of the ESA. See 16 threatened species was vacated by the 3(5)(A) of the ESA defines critical U.S.C. 1536(a)(1). Critical habitat U.S. District Court for the District of habitat as (1) the specific areas within requirements do not apply to citizens Alaska (Alaska Oil & Gas Ass’n v. Nat’l the geographical area occupied by the engaged in actions on private land that Marine Fisheries Serv., Case Nos. 4:14- species, at the time it is listed, on which do not involve a Federal agency. cv-29–RRB, 4:15-cv-2–RRB, 4:15-cv-5– are found those physical or biological This revised proposed rule describes RRB, 2016 WL 1125744 (D. Alaska Mar. features essential to the conservation of our revised proposed designation of 17, 2016)). This decision was reversed the species and which may require critical habitat for the Arctic ringed seal, by the U.S. Court of Appeals for the special management considerations or including supporting information on Ninth Circuit on February 12, 2018 protection; and (2) specific areas outside Arctic ringed seal distribution and (Alaska Oil & Gas Ass’n v. Ross, 722 F. the geographical area occupied by the habitat use, and the methods used to App’x 666 (9th Cir. 2018)), and the species at the time it is listed, upon a develop the revised proposed listing was reinstated on May 15, 2018. determination by the Secretary of designation. The Arctic ringed seal is On June 13, 2019, the Center for Commerce (Secretary) that such areas listed with the scientific name Phoca Biological Diversity filed a complaint in are essential for the conservation of the (=Pusa) hispida hispida. In this revised the U.S. District Court for the District of species (16 U.S.C. 1532(5)(A)). proposed rule, we use the genus name Alaska alleging that NMFS had failed to Conservation is defined in section 3(3) Pusa to reflect currently accepted use timely designate critical habitat for the of the ESA as the use of all methods and (e.g., Committee on Taxonomy (Society Arctic ringed seal. Under a court- procedures which are necessary to bring for Marine Mammalogy) 2019, approved stipulated settlement any endangered species or threatened Integrated Taxonomic Information agreement between the parties (which species to the point at which the System (online database) 2019). was subsequently amended to extend measures provided pursuant to this Act the dates specified in the original order), are no longer necessary (16 U.S.C. Background NMFS agreed to submit a proposed 1532(3)). Section 3(5)(C) of the ESA On December 28, 2012, we published determination concerning the provides that, except in those a final rule to list the Arctic ringed seal designation of critical habitat for Arctic circumstances determined by the as threatened under the ESA (77 FR ringed seals to the Federal Register by

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March 15, 2021, and (to the extent a for these subnivean lairs, we clarify that position of the ice edge in the Bering proposed rule has been published) a such snow drifts are ‘‘typically’’ at least Sea during spring based on a time series final rule by March 15, 2022. NMFS 54 centimeters (cm) deep. of satellite records. decided to issue this revised proposed (2) We modified the southern In our 2014 proposed rule, we based rule rather than proceeding directly boundary of the proposed critical the southern boundary of proposed with a final rule because we are also habitat designation to more accurately critical habitat on the estimated median considering the designation of critical reflect where one or more of the ice edge position in April, which is the habitat for the Beringia distinct essential features occur. Consistent with peak month for Arctic ringed seal population segment (DPS) of the Pacific our 2014 proposed rule, in this revised whelping (Kelly et al. 2010a). We subspecies Erignathus proposed rule we primarily determined interpreted the limited information barbatus nauticus (for which no this boundary by identifying the available at that time on whelping proposed rule has been issued), and we southern extent of snow-covered sea ice locations and the spring distribution of expect that stakeholders will want to essential for birth lairs. Birth lairs are Arctic ringed seals in the as comment on both proposals used to shelter pups during whelping suggesting that snow-covered sea ice simultaneously, because both species and nursing. We propose to define this essential for birth lairs extends to some are ice-dependent and their habitats essential feature as areas of seasonal point south of St. Matthew Island and overlap. A revised proposed rule also landfast (shorefast) ice and dense, stable Nunivak Island. After verifying that the affords an opportunity for additional pack ice, excluding any bottom-fast ice estimated position of the April median public comment to help ensure that our extending seaward from the coastline ice edge contour appeared generally decision is based on the best scientific (typically in waters less than 2 meters consistent with this information, we data available, considering that several (m) deep), that have undergone defined the southern boundary in that years have elapsed since our December deformation (i.e., rafting, ridging, or proposed rule based on a simplified 9, 2014, proposal. We are therefore hummocking due to wind and ocean version of this contour. issuing this revised proposed rule in currents) and contain snowdrifts of However, while developing this tandem with a proposed rule for sufficient depth, typically at least 54 cm revised proposed rule, we recognized bearded seal critical habitat. deep (see Physical and Biological that suitable snow-covered sea ice Features Essential to the Conservation of would need to persist for several weeks Summary of Revisions to Proposed the Species section). We relied on the for pups to be sheltered and nursed in Critical Habitat birth lair essential feature to determine birth lairs. We therefore considered In this revised proposed critical the southern boundary of this proposed whether the position of the ice edge habitat designation, we incorporate critical habitat designation because peak during May (rather than April) would additional relevant information that molting (for adults) takes place later in more accurately represent the southern became available since the publication the spring as sea ice retreats northward, extent of where snow-covered sea ice of our 2014 proposed rule. Based on the and also because the annual extent and persists sufficiently to provide suitable best scientific data currently available, timing of sea ice is especially variable conditions for pup development within our understanding of the physical and in the southern periphery of the Arctic birth lairs (and as noted above, biological features essential to the ringed seal’s habitat in the Bering Sea potentially for basking and molting). We conservation of the Arctic ringed seal (Boveng et al. 2009, Stabeno et al. examined the estimated position of the and the specific areas where those 2012b, Frey et al. 2015). Consequently, May median ice edge for both the 30- features occur has not changed we concluded that the southern extent year 1981 to 2010 reference period markedly since 2014. However, in the of sea ice suitable for birth lairs also currently used by NSIDC for the Sea Ice preamble of this revised proposed rule provides the best estimate of the Index (Fetterer et al. 2017, Version 3.0; we provide updated information in the southern extent of sea ice suitable for accessed November 2019), and for the Description and Natural History section basking and molting. more recent 30-year period of 1990 to about the Arctic ringed seal’s As discussed in detail below, because 2019, which was calculated using distribution and habitat use, and we existing information is limited on methods and data types similar to those include more details in the Specific whelping locations and the distribution used for the Sea Ice Index. We note that Areas Containing the Essential Features of Arctic ringed seals in the Bering Sea the two most recent years included in section regarding the information during spring, a precise southern the 1990 to 2019 period had record low considered in determining the areas that boundary for the critical habitat cannot ice extent in the Bering Sea (Stabeno meet the definition of critical habitat for be determined based on such and Bell 2019). The May median ice this species. After updating and information. Available estimates of edge from the Sea Ice Index is located evaluating the best scientific snow-depth on Arctic sea ice derived about 22 kilometers (km) southwest of information available, we have also from satellite remote-sensing data are St. Matthew Island and about 85 km made the following changes from the spatially and temporally limited and are north of Nunivak Island; and for the December 9, 2014, proposed rule (79 FR subject to a variety of sources of more recent 1990 to 2019 period, is 73010): uncertainty (Spreen and Kern 2017, generally similar to that of the Sea Ice (1) We refined our descriptions of the Sturm and Massom 2017, Webster et al. Index, except that east of St. Matthew essential features associated with sea 2018). Further, there is a high degree of Island the ice edge for the more recent ice, including the essential feature of sea variability evident in snow depths on period has a more variable shape. As a ice suitable for the formation and sea ice and the spatial distribution of result, although the median ice edge for maintenance of birth lairs. We now refer those depths within and between years both 30-year periods reaches the coast at to ‘‘snow-covered sea ice’’ to underscore (Sturm and Massom 2017, Webster et al. a similar location south of Hooper Bay, that this essential feature consists of a 2018). We therefore turned to Sea Ice between that location and St. Matthew combination of sea ice and the on-ice Index data maintained by the National Island, the median ice edge for the more snow layer within which subnivean Snow and Ice Data Center (NSIDC) recent period is primarily located north birth lairs (snow caves) are constructed. (Fetterer et al. 2017, Version 3.0; of Hooper Bay. In recognition of the limits of the data accessed November 2019) for After our 2014 proposed rule was available on snow drift depths sufficient information on the estimated monthly issued, additional data also became

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available on the spring distribution of average ice extent in the Bering Sea Description and Natural History ice-associated seals (including ringed (e.g., Stabeno et al. 2012a), and we The Arctic ringed seal is the smallest seals) in the Bering Sea from aerial inferred that use of these data would of the northern seals, with typical adult surveys conducted in 2012 and 2013 have resulted in the inclusion of areas body size of 1.5 m in length and 70 (NMFS Marine Laboratory, (farther south and east in the Bering kilograms in weight (Kelly et al. 2010a). unpublished data). We used these data Sea) that are unlikely to contain the sea Age of sexual maturity for female Arctic to inform our determination of the ice essential features on a consistent ringed seals generally ranges from 3 to southern boundary in this revised basis in more than a few scattered 7 years (Smith 1987, Holst et al. 1999, proposed rule. Overall, ringed seal portions of those areas. However, upon Quakenbush et al. 2011, Crawford et al. observations appeared to be more further review, we concluded that the 2015), and for males ranges from 5 to 7 frequent along transect segments flown 30-year periods considered in this years (Frost and Lowry 1981), but with north of St. Matthew and Nunivak revised proposed rule provide a more geographic and temporal variability Islands than those flown farther south appropriate basis for our analysis, in depending on condition and (i.e., habitat we proposed for that more recent data on sea ice population structure (Kelly et al. 2010a). designation in 2014 based on the conditions are included and the median The average life span of ringed seals is estimated median position of the ice calculated over a lengthened 30-year about 15 to 28 years (Kelly et al. 2010a). edge in April). Although relatively few period of record, which is commonly ringed seal pups were documented used in climatologies, incorporates more Distribution and Habitat Use during these surveys (likely reflecting, of the year-to-year variation in the sea Arctic ringed seals are circumpolar at least in part, that pups were sheltered ice extent. and are found throughout ice-covered in subnivean lairs and thus would not (3) We modified the textual waters of the Arctic Ocean Basin and have been detected), the majority of the description of the shoreward boundary southward into adjacent seas, including limited detections of pups were located of the proposed critical habitat the Bering, Chukchi, and Beaufort seas in Norton Sound, and few observations designation. In our 2014 proposed rule, off Alaska’s coast (Frost and Lowry of pups were documented south of St. we described the shoreward boundary 1981, Frost 1985, Kelly 1988, Rice Matthew Island and Nunivak Islands. as the ‘‘coast line’’ of Alaska as that term Taken as a whole, we concluded that 1998). Ringed seals are adapted to has been defined in the Submerged remaining in heavily ice-covered areas the data currently available on whelping Lands Act (‘‘the line of ordinary low locations and the spring distribution of throughout the fall, winter, and spring water along that portion of the coast by using the stout claws on their ringed seals in the Bering Sea suggest which is in direct contact with the open that information on the estimated foreflippers to maintain breathing holes sea and the line marking the seaward in the ice. Arctic ringed seals are highly position of the ice edge for May limit of inland waters’’) (43 U.S.C. provides the best estimate of the associated with sea ice, and use the ice 1301(c)). Upon further review, we southern extent of snow-covered sea ice as a substrate for resting, whelping concluded that delineating the that persists sufficiently to provide (birthing), nursing, and molting shoreward boundary on this basis suitable conditions for pup (shedding and regrowing hair and outer results in the omission of some smaller development within birth lairs. As we skin layers). The seasonality of ice cover bays and shallow nearshore waters that explained above, we also concluded that strongly influences Arctic ringed seal contain the essential physical and this southern boundary most accurately movements, foraging, reproductive biological features of habitat for Arctic defines the southern extent of sea ice behavior, and vulnerability to predation. ringed seals. Given the occurrence of essential for basking and molting. Kelly et al. (2010b) referred to three Arctic ringed seal primary prey in Therefore, in this revised proposed rule periods important to Arctic ringed seal we use information on the position of shallow nearshore waters and evidence seasonal movements and habitat use: the ice edge for May, rather than for of ringed seal use of such waters during The winter through early spring April, to delineate the southern the open-water foraging period, in this ‘‘subnivean period’’ when the seals rest boundary of Arctic ringed seal critical revised proposed rule we delineate the primarily in subnivean lairs (snow caves habitat. Specifically, given the reduction shoreward boundary as the line that on top of the ice); the late spring to early in sea ice east of St. Matthew Island marks mean lower low water (MLLW). summer ‘‘basking period’’ between between the reference period used for This proposed critical habitat does not abandonment of the lairs and melting of the Sea Ice Index and the more recent extend into tidally-influenced channels the seasonal sea ice when the seals 30-year period described above, we of tributary waters of the Bering, undergo their annual molt; and the elected to delineate the southern Chukchi, or Beaufort seas. open-water ‘‘foraging period’’ from ice boundary to reflect the estimated (4) We revised our analysis of the break-up to freeze-up in the fall, when position of the May median ice edge for impacts of designating the proposed feeding occurs most intensively. the more recent 1990 to 2019 period. critical habitat for the Arctic ringed seal Subnivean Period: With the onset of This revised proposed southern to reflect the revisions summarized freeze-up in the fall, many Arctic ringed boundary is located roughly 125 km above, and to incorporate the best data seals that summer in the Beaufort and (western portion) to 325 km (eastern currently available. This analysis is Chukchi seas are thought to move portion) north of the southern boundary summarized in this revised proposed generally southward with the advancing we proposed in 2014. rule and described in detail in the ice, while others remain in these waters In our 2014 proposed rule, we associated Draft Impact Analysis Report. over winter (Frost 1985). Adult referred to the estimated position of the (5) In response to information movements during the subnivean period April median ice edge for the 22-year submitted by the U.S. Navy, we propose have been reported as typically limited, 1979 to 2000 reference period to exclude one particular area north of especially where ice cover is extensive previously used (from 2002 through the Beaufort Sea shelf from the (Kelly and Quakenbush 1990, Harwood June 2013) for the Sea Ice Index. At that designation based on national security et al. 2007, Kelly et al. 2010b, Crawford time, we reasoned that several of the impacts because the benefits of et al. 2012b, Luque et al. 2014), likely more recent years included in the 1981 exclusion outweigh the benefits of due to maintenance of breathing holes to 2010 reference period had above- inclusion of this area. and social behavior during the breeding

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season (Kelly et al. 2010b). However, cover are more vulnerable to remained, for the most part, in the some adult males have been found to predation than pups in lairs with thick and Bering Sea north of St. make long-distance movements in the snow cover (Hammill and Smith 1989, Lawrence Island during winter and Chukchi and Beaufort seas during Ferguson et al. 2005). For example, spring (Crawford et al. 2012a). However, January to March (Quakenbush et al. Hammill and Smith (1991) noted that movement data for ringed seals tagged 2019). In contrast, subadult Arctic polar bear predation on ringed seal pups near Utqiag˙vik, Alaska, in 2011 ringed seals have been observed to increased four-fold in a year when indicated that some adults overwintered travel relatively long distances in winter average snow depths in their study area toward the shelf break in the Bering Sea to near the ice edge in the Bering Sea decreased from 23 to 10 cm. Stirling and (North Slope Borough, 2012, (Crawford et al. 2012a, 2019). Smith (2004) surmised that most pups unpublished data). Ringed seals tagged During freeze-up, ringed seals surface that survived exposure to cold after more recently in the Chukchi and to breathe in the remaining open water their subnivean lairs collapsed during Beaufort seas (primarily adults) used of cracks and leads, and as these unseasonal rains were eventually killed areas as far south as Nunivak Island openings in the ice freeze over, the seals by polar bears, Arctic foxes, or gulls. during December to May, but the core- open breathing holes that they maintain Subnivean lairs also provide refuge use area was located in southern as the ice thickens by abrading the ice from air temperatures too low for Kotzebue Sound (Quakenbush et al. with the claws on their foreflippers survival of ringed seal pups. When 2019). Finally, the subsistence harvest (Smith and Stirling 1975). Ringed seals forced to flee into the water to avoid of ringed seal pups by hunters in excavate lairs in snowdrifts over their predators, the ringed seal pups that Quinhagak, Alaska (Coffing et al. 1998), breathing holes where snow depth is survive depend on the subnivean lairs suggests that some ringed seals may sufficient (e.g., McLaren 1958, Smith to subsequently warm themselves whelp south of Nunivak Island. and Stirling 1975, Smith 1987). These (Smith et al. 1991). When snow depth Basking Period: Numbers of ringed subnivean lairs are occupied for resting, is insufficient, pups can freeze in their seals hauled out on the surface of the ice whelping, and nursing pups in areas of lairs, as documented when roofs of lairs typically begin to increase during spring annual landfast (shorefast) ice (McLaren in the were only 5 to 10 cm as the temperatures warm and the snow 1958, Burns 1970, Kelly et al. 1986, thick (Lukin and Potelov 1978). Stirling covering the seals’ lairs melts. Although Frost and Burns 1989, Smith et al. 1991, and Smith (2004) also documented the snow cover can melt rapidly, the ice Oceana and Kawerak 2014) and stable exposure of ringed seals to hypothermia remains largely intact and serves as a pack ice (Finley et al. 1983, Fedoseev et following the collapse of subnivean lairs substrate for annual molting, during al. 1988, Wiig et al. 1999, Pilfold et al. during unseasonal rains near which time seals spend many hours 2014). Snowdrifts of sufficient depth southeastern Baffin Island. basking in the sun (Smith 1973, Finley typically occur only where the ice has During winter and spring, ringed seals 1979, Smith and Hammill 1981, Kelly undergone a low to moderate amount of are found throughout the Chukchi and and Quakenbush 1990, Kelly et al. deformation and where snow on the ice Beaufort seas (Frost 1985, Kelly 1988). 2010b). Adults generally molt from mid- has drifted along pressure ridges or ice In the Bering Sea, surveys indicate that May to mid-July (McLaren 1958), hummocks (Smith and Stirling 1975, ringed seals use nearly the entire ice although there is regional variation (Ryg Lydersen and Gjertz 1986, Furgal et al. field over the Bering Sea shelf. During and ;ritsland 1991), and pups molt at 1996, Lydersen 1998). an exceptionally high ice year (1976), or shortly after weaning (Kelly 1988, Females give birth to a single pup in Braham et al. (1984) found ringed seals Lydersen and Hammill 1993). Subadult their lairs generally from mid-March present in the southeastern Bering Sea harbor seals (Phoca vitulina) and through April, and the pups are nursed north of the Pribilof Islands to outer spotted seals (Phoca largha) tend to in the lairs for an average of 39 days Bristol Bay, primarily north of the ice molt earlier than adults (Ashwell- (Hammill and Smith 1991), with front. But the authors noted that most of Erickson et al. 1986, Burns 2002, Daniel considerable variation (Kelly et al. these seals were likely immature or et al. 2003), and this may also be the 2010a). Females continue to forage nonbreeding . Frost (1985) case for subadult ringed seals (Kelly and throughout lactation while making indicated that ringed seals ‘‘occur as far Quakenbush 1990). Usually the largest frequent visits to birth lairs (Hammill south as Nunivak Island and Bristol numbers of basking seals are observed 1987, Kelly and Wartzok 1996, Bay, depending on ice conditions in a in June (Smith 1973, Finley 1979, Smith Simpkins et al. 2001). The pups develop particular year, but generally are not et al. 1979, Smith and Hammill 1981, foraging skills before weaning (Lydersen abundant south of Norton Sound except Moulton et al. 2002). Feeding is reduced and Hammill 1993), and are normally in nearshore areas.’’ More recently, and the seals’ metabolism declines weaned before break-up of spring ice surveys conducted in the Bering Sea during the molt (Ashwell-Erickson et al. (McLaren 1958, Smith 1973, Smith et al. during spring documented numerous 1986). As seals complete this phase of 1991, Hammill et al. 1991, Kelly 1988). ringed seals in both nearshore and the annual pelage cycle and the seasonal Subnivean lairs provide protection offshore habitat, including south of sea ice melts during the summer, ringed from cold and predators throughout the Norton Sound (NMFS Marine Mammal seals spend increasing amounts of time winter months, but they are especially Laboratory, 2012–2013, unpublished in the water feeding (Kelly et al. 2010b). important for protecting newborn ringed data). Relatively few ringed seal pups Most Arctic ringed seals that winter in seals. The lairs conceal ringed seals were documented during these surveys, the Bering and southern Chukchi seas from predators, an advantage especially likely reflecting, at least in part, that are believed to migrate northward in important to the small pups that start pups were sheltered in subnivean lairs spring as the ice edge recedes and spend life with minimal tolerance for and thus would not have been detected the summer open-water foraging period immersion in cold water (Smith et al. during the surveys. Although the in the pack ice of the northern Chukchi 1991). Major predators of ringed seals majority of the limited detections of and Beaufort seas (Frost 1985). Existing include polar bears (Ursus maritimus) pups were located in Norton Sound, information on the distribution and and Arctic foxes (Alopex lagopus) (e.g., pups were also documented in offshore abundance of Arctic ringed seals in the Smith 1976, Frost and Burns 1989, habitat farther south. Satellite tracking U.S. Chukchi and Beaufort seas during Derocher et al. 2004, Thiemann et al. data for ringed seals tagged in Kotzebue the molting period comes largely from 2008). Pups in lairs with thin snow Sound, Alaska, showed that adults aerial surveys conducted for the most

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part over the continental shelf within north of the shelf (Crawford et al. 2019, Critical Habitat Identification about 25 to 40 km of the Alaska coast. Quakenbush et al. 2019; Alaska In the following sections, we describe However, Bengtson et al. (2005) Department of Fish and Game (ADF&G) the relevant definitions and reported results for spring aerial surveys and North Slope Borough, 2019, requirements in the ESA and conducted during two successive years unpublished data, Von Duyke et al. implementing regulations at 50 CFR part in the Chukchi Sea that included a 2020). Von Duyke et al. (2020) reported 424, and the key information and limited number of offshore (beyond 43 that most of the forays by tagged ringed criteria used to prepare this revised km from the coast) transect lines flown seals north of the shelf involved proposed critical habitat designation. In perpendicular from the coast up to 185 movements to retreating pack ice and accordance with section 4(b)(2) of the km. Ringed seals were observed along included days when the seals hauled ESA, this revised proposed critical these offshore transects, albeit at lower out on the ice. Dive recorders indicated habitat designation is based on the best densities than transects flown closer to that foraging-type movements occurred scientific data available. Our primary the coast. Aerial surveys conducted in over both the continental shelf and sources of information include the spring to early summer (coincident with north of the shelf, suggesting that both status review report for the ringed seal the periods of Arctic ringed seal areas may be important during the open- (Kelly et al. 2010a), our proposed and reproduction and molting) in the U.S. water period. Similarly, during the final rules to list four subspecies of Beaufort Sea to investigate bowhead open-water period, some, primarily ringed seals, including the Arctic ringed whale density and distribution were subadult, ringed seals satellite-tagged in seal, under the ESA (75 FR 77476, concentrated over the continental shelf, Svalbard, Norway, made forays into the December 10, 2010; 77 FR 76706, but less extensive surveys were also December 28, 2012), articles in peer- conducted over the adjacent shelf slope Arctic Ocean Basin, and that time spent and deeper waters up to about 100 km there increased after a major collapse of reviewed journals, other scientific north of the shelf (Ljungblad 1981, sea ice in this region, when the seals reports, and relevant Geographic Ljungblad et al. 1982, Ljungblad et al. traveled farther to find sea ice (Hamilton Information System (GIS) and satellite 1983, Ljungblad et al. 1984, Ljungblad et al. 2015, Hamilton et al. 2017). data (e.g., shoreline data, U.S. maritime et al. 1985, Ljungblad et al. 1986, Observations of ringed seals near and limits and boundaries data, sea ice Ferguson 2013). Incidental sightings of beyond the outer extent of the U.S. extent) for geographic area calculations ringed seals were recorded throughout Exclusive Economic Zone (EEZ) north of and mapping. the survey area, including in the limited the shelf were also documented by To identify specific areas that may areas surveyed north of the shelf. marine mammal observers during a qualify as critical habitat for Arctic Open-Water Foraging Period: Arctic research geophysical survey conducted ringed seals, in accordance with 50 CFR ringed seals typically lose a significant in the summer of 2010 (Beland and 424.12(b), we followed a five-step proportion of their blubber mass in late Ireland 2010). process: (1) Identify the geographical winter through early summer and then area occupied by the species at the time replenish their blubber reserves during Diet of listing; (2) identify physical or biological habitat features essential to the open-water period, when the seals High-quality abundant food is spend much of their time feeding (Ryg the conservation of the species; (3) important to the annual energy budgets determine the specific areas within the et al. 1990, Ryg and ;ritsland 1991, of Arctic ringed seals (Kelly et al. Belikov and Boltunov 1998, Goodyear geographical area occupied by the 2010a). The seals eat a wide variety of species that contain one or more of the 1999, Young and Ferguson 2013). prey spanning several trophic levels; Most Arctic ringed seals that winter in physical or biological features essential however, most prey are small, and the Bering and southern Chukchi seas to the conservation of the species; (4) preferred fishes tend to be schooling are believed to migrate northward in determine which of these essential species that form dense aggregations spring as the ice edge recedes and spend features may require special (Kovacs 2007). Arctic ringed seals rarely the summer open-water foraging period management considerations or prey upon more than 10 to 15 species in the pack ice of the northern Chukchi protection; and (5) determine whether a and Beaufort seas (Frost 1985). Arctic in any specific geographic location, and critical habitat designation limited to ringed seals are also dispersed in ice- not more than 2 to 4 of those species are geographical areas occupied would be free areas of the Bering, Chukchi, and considered to be key prey (We˛sławski et inadequate to ensure the conservation of Beaufort seas during this period. al. 1994). Despite regional and seasonal the species. Our evaluation and Tracking data indicate that tagged variations in the diets of Arctic ringed conclusions are described in detail in ringed seals made extensive use of the seals, fishes of the cod family tend to the following sections. continental shelf waters of the U.S. dominate their diet in many areas from Geographical Area Occupied by the Chukchi and Beaufort seas during the late autumn through early spring (Kelly Species open-water period (Crawford et al. et al. 2010a). Arctic cod (Boreogadus 2012a, Quakenbush et al. 2019, Von saida) is often reported to be among the The phrase ‘‘geographical areas Duyke et al. 2020). Quakenbush et al. primary prey species, especially during occupied by the species,’’ which (2019) identified a high-use area for the ice-covered periods of the year (e.g., appears in the statutory definition of tagged ringed seals during the open- Lowry et al. 1980, Bradstreet and Finley critical habitat, is defined by regulation water period that included Barrow 1983, Smith 1987, Belikov and Boltunov as an area that may generally be Canyon and the western Beaufort Sea 1998, Siegstad et al. 1998, Labansen et delineated around species’ occurrences over the continental shelf similar to al. 2007, Quakenbush et al. 2011). as determined by the Secretary (i.e., where Citta et al. (2018) mapped a Crustaceans are also commonly found in range) (50 CFR 424.02). Such areas may relatively high density of locations of the diet of ringed seals and can be include those areas used throughout all tagged ringed seals during summer. important in some regions, at least or part of the species’ life cycle, even if Although tagged ringed seals tracked in seasonally (e.g., Lowry et al. 1980, not used on a regular basis, such as U.S. waters tended to remain over the Bradstreet and Finley 1983, Smith 1987, migratory corridors, seasonal habitats, continental shelf, several individuals Belikov and Boltunov 1998, Siegstad et and habitats used periodically, but not also made trips into the deep waters al. 1998, Quakenbush et al. 2011). solely, by vagrant individuals (Id.).

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Based on existing literature, including ringed seal because without the seaward from shore may freeze to the available information on Arctic ringed protection of lairs, ringed seal pups are sea bottom in very shallow water seal sightings and movements, the range more vulnerable to freezing and (typically less than about 1.5 to 2 m of the Arctic ringed seal was identified predation (Lukin and Potelov 1978, deep) during the course of winter in the final ESA listing rule (77 FR Smith 1987, Hammill and Smith 1991, (commonly referred to as ‘‘bottom-fast’’ 76706; December 28, 2012) as the Arctic Smith et al. 1991, Smith and Lydersen ice; Reimnitz et al. 1977, Newbury 1983, Ocean and adjacent seas, except west of 1991, Stirling and Smith 2004, Ferguson Hill et al. 1991, Dammann et al. 2018, 157°00′ E (the Kamchatka Peninsula), et al. 2005). Dammann et al. 2019), rendering it where the Okhotsk subspecies of the Snowdrifts of sufficient depth for unsuitable for ringed seal birth lairs. ringed seal occurs, or in the birth lair formation and maintenance Arctic ringed seal whelping has also where the Baltic subspecies of the typically occur in deformed ice where been observed on both nearshore and ringed seal is found. As noted drifting has taken place along pressure offshore drifting pack ice. As Reeves previously, we cannot designate areas ridges or ice hummocks (Smith and (1998) noted, nearly all research on outside U.S. jurisdiction as critical Stirling 1975, Lydersen and Gjertz 1986, Arctic ringed seal reproduction has been habitat. Thus, the geographical area Smith 1987, Kelly 1988, Furgal et al. conducted in landfast ice, and the under consideration for this designation 1996, Lydersen 1998). For purposes of potential importance of stable but is limited to areas under the jurisdiction assessing potential impacts of projected drifting pack ice has not been of the United States that Arctic ringed changes in April Northern Hemisphere adequately investigated. Studies in the seals occupied at the time of listing. snow conditions on ringed seals, Kelly (Wiig et al. 1999), Baffin This area extends to the outer boundary et al. (2010a) considered 20 cm to be the Bay (Finley et al. 1983) and the of the U.S. EEZ in the Chukchi and minimum average snow depth required Canadian Beaufort Sea (Pilfold et al. Beaufort seas, and as far south as Bristol on areas of flat ice to form drifts of 2014) have documented pup production Bay in the Bering Sea (Kelly et al. sufficient depth to support birth lair in pack ice, and Smith and Stirling 2010a). formation. Further, Kelly et al. (2010a) (1975), citing unpublished data from the discussed that ringed seals require ‘‘Western Arctic’’ (presumably the Physical and Biological Features snowdrift depths of 50 to 65 cm or more Canadian Beaufort Sea), also indicated Essential to the Conservation of the to support birth lair formation. To that ‘‘the offshore areas of shifting but Species identify the typical snowdrift depth for relatively stable ice are an important The statutory definition of occupied snow-covered sea ice habitat that we part of the breeding habitat.’’ Lentfer critical habitat refers to ‘‘physical or consider sufficient for Arctic ringed seal (1972) reported ‘‘a significant amount of biological features essential to the birth lair formation and maintenance, ringed seal denning and pupping on conservation of the species,’’ but the we derived a specific depth threshold as moving heavy pack ice north of Barrow ESA does not specifically define or follows. At least seven studies have [i.e., Utqiag˙vik].’’ Moreover, surveys further describe these features. reported minimum snowdrift depth conducted in the Bering and Chukchi Implementing regulations at 50 CFR measurements at Arctic ringed seal birth seas during spring have documented 424.02, however, define such features as lairs (typically measured near the center ringed seals, including observations of those that occur in specific areas and of the lairs or over the breathing holes) pups, in offshore areas (NMFS Marine that are essential to support the life- off the coasts of Alaska (Kelly et al. Mammal Laboratory, 2012–2013 and history needs of the species. The 1986, Frost and Burns 1989), the 2016, unpublished data). Ringed seal regulations provide additional details Canadian Arctic Archipelago (Smith vocalizations detected throughout the and examples of such features. and Stirling 1975, Kelly 1988, Furgal et winter and spring in long-term Based on the best scientific al. 1996), Svalbard (Lydersen and Gjertz autonomous acoustic recordings information available regarding the 1986), and in the White Sea (Lukin and collected along the shelf break north- natural history of the Arctic ringed seal Potelov 1978). The average minimum northwest of Utqiag˙vik, along with a and the habitat features that are snowdrift depth measured at birth lairs seasonal change in the repertoire during essential to support the species’ life- was 54 cm across all of the studies the breeding season, also suggest that history needs, we have identified the combined, and 64 cm in the Alaska some Arctic ringed seals overwinter and following physical or biological features studies only. The average from studies breed in offshore pack ice (Jones et al. that are essential to the conservation of in Alaska is based on data from fewer 2014). We therefore conclude that the the Arctic ringed seal within U.S. waters years over a shorter time span than from best scientific information available occupied by the species. all seven studies combined (3 years indicates that snow-covered sea ice (1) Snow-covered sea ice habitat during 1982–1984 versus 11 years habitat essential for the formation and suitable for the formation and during 1971–1993, respectively); maintenance of birth lairs includes areas maintenance of subnivean birth lairs consequently, the Alaska-specific of both landfast ice (except for any used for sheltering pups during average is more likely to be biased if an bottom-fast ice extending seaward from whelping and nursing, which is defined anomalous weather pattern occurred the coastline) and dense, stable pack ice as areas of seasonal landfast (shorefast) during its more limited timeframe. For that have undergone deformation and ice and dense, stable pack ice, this reason, we conclude that the contain snowdrifts of sufficient depth, excluding any bottom-fast ice extending average minimum snowdrift depth typically at least 54 cm deep. seaward from the coastline (typically in based on all studies combined (54 cm) (2) Sea ice habitat suitable as a waters less than 2 m deep), that have provides the best estimate of the typical platform for basking and molting, which undergone deformation and contain minimum snowdrift depth that is is defined as areas containing sea ice of snowdrifts of sufficient depth, typically sufficient for birth lairs. 15 percent or more concentration, at least 54 cm deep. Arctic ringed seals favor landfast ice excluding any bottom-fast ice extending Snow-covered sea ice habitat suitable as whelping habitat (e.g., Smith and seaward from the coastline (typically in for the formation and maintenance of Stirling 1975, 1978, Smith and Hammill waters less than 2 m deep). subnivean birth lairs used for sheltering 1981, Lydersen and Gjertz 1986, Smith Sea ice habitat suitable as a platform pups during whelping and nursing is and Lydersen 1991, Pilfold et al. 2014). for basking and molting is essential to essential to conservation of the Arctic However, landfast ice extending conservation of the Arctic ringed seal

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because molting is a biologically- Arctic ringed seals in the Chukchi Sea (Thysanoessa spp.), cods (primarily important, energy-intensive process that have also been observed basking in high Arctic and saffron cod), mysids (Mysis could incur increased energetic costs if densities on the last remnants of the and Neomysis spp.), amphipods, and it were to occur in water, or increased seasonal sea ice during late June to early pandalid shrimps. Finally, Lowry et al. risk of predation if it were to occur on July, near the end of the molting period (1980; Table 2) found that prey items land due to the absence of readily (S. Dahle, NMFS, personal frequently consumed by ringed seals accessible escape routes to avoid communication, 2013). As discussed (considered here to be at least 25 predators (i.e., breathing holes or above, landfast ice extending seaward percent of the total food volume in natural openings in sea ice). Moreover, from shore may freeze to the sea bottom ringed seal stomachs collected in any of we are unaware of any studies in very shallow water (typically less the five seasonal samples) in the Bering establishing whether Arctic ringed seals than about 1.5 to 2 m deep) during the and Chukchi seas included Arctic cod, can molt successfully in water, or course of winter and remain so into saffron cod, shrimps, and amphipods, reports of healthy Arctic ringed seals spring, potentially during part of the and in the central Beaufort Sea hauled out on land during the molt basking and molting period. There is (approximately 80 km northwest of (they are known to come ashore during also some evidence that ringed seal Prudhoe Bay) included Arctic cod, as this period when sick). Traditional densities are lower in very shallow well as gammarid and hyperiid ecological knowledge indicates that waters, at least in the Beaufort Sea amphipods. ringed seals, mostly young individuals, during late May to early June (Moulton In summary, Arctic cod, saffron cod, have been occasionally seen hauled out et al. 2002, Frost et al. 2004). Based on shrimps, and amphipods were on land in spring near Elim, Alaska, the best scientific information available, identified as prominent prey species for although molt status was not addressed we therefore conclude that sea ice the studies conducted in both the Bering (Huntington et al. 2015a). If Arctic habitat essential for basking and molting Sea and the Chukchi Sea, and Arctic ringed seals were unable to complete is of at least 15 percent ice cod and amphipods were also identified their annual molt successfully, they concentration, but does not include as prominent prey species for ringed would be at increased risk from bottom-fast ice extending from the seals sampled in the central Beaufort parasites and disease. coastline. Sea. Therefore, based on these studies, During their annual molt, Arctic (3) Primary prey resources to support we conclude that Arctic cod, saffron ringed seals transition from lair use to Arctic ringed seals, which are defined to cod, shrimps, and amphipods are the basking on the surface of the ice for long be Arctic cod, saffron cod, shrimps, and primary prey resources of Arctic ringed periods of time near breathing holes, amphipods. seals in U.S. waters. Because Arctic lairs, or cracks in the ice (Kelly et al. Primary prey resources are essential ringed seals feed on a variety of prey 2010a). The relatively long periods of to conservation of the Arctic ringed seal items and regional and seasonal time that ringed seals spend out of the because the seals likely rely on these differences in diet have been reported, water during the molt (e.g., Smith 1973, prey resources the most to meet their we conclude that areas in which the Smith and Hammill 1981, Kelly et al. annual energy budgets. Although Arctic primary prey essential feature occurs are 2010b) have been ascribed to the need ringed seals feed on a wide variety of those that contain one or more of these to maintain elevated skin temperatures vertebrate and invertebrate prey species, particular prey resources. during new hair growth (Feltz and Fay certain prey species appear to occupy a Specific Areas Containing the Essential 1966, Kelly and Quakenbush 1990). prominent role in their diets in waters Features Higher skin temperatures are facilitated along the Alaskan coast. Quakenbush et by basking on the ice and this may al. (2011; Tables 4–6) reported that prey To determine which areas qualify as accelerate shedding and regrowth of items frequently consumed by ringed critical habitat within the geographical hair and skin (Feltz and Fay 1966). seals (considered here to be prey items area occupied by the species, we are Limited data are available on ice identified in at least 25 percent of required to identify ‘‘specific areas’’ that concentrations (percentage of ocean ringed seal stomachs collected) within contain one or more of the physical or surface covered by sea ice) favored by the 1961 to 1984 and 1998 to 2009 biological features essential to the Arctic ringed seals during the basking periods in the Bering and Chukchi seas conservation of the species (and that period, in particular for the period included Arctic cod, saffron cod may require special management following ice breakup. Although a (Eleginus gracilis), shrimps (from the considerations or protection, as number of studies have reported an families Hippolytidae, Pandalidae, and described below) (50 CFR apparent preference for consolidated Crangonidae), and amphipods 424.12(b)(1)(iii)). Delineation of the stable ice (i.e., landfast ice and (primarily from the families specific areas is done at a scale consolidated pack ice), at least during Gammaridae and Hyperiidae). Results determined by the Secretary to be the initial weeks of the basking period, reported by Crawford et al. (2015; appropriate (50 CFR 424.12(b)(1)). some of these studies have also reported Tables 1 and 2) indicated that prey Regulations at 50 CFR 424.12(c) also observations of Arctic ringed seals items frequently consumed by ringed require that each critical habitat area be hauled out at low densities in seals during May through July within shown on a map. unconsolidated ice (e.g., Stirling et al. the 1975 to 1984 and 2003 to 2012 In determining the scale and 1982, Kingsley et al. 1985, Kingsley and periods in the Bering Strait near boundaries for the specific areas, we Stirling 1991, Lunn et al. 1997, Diomede included Arctic cod and considered, among other things, the Chambellant et al. 2012). Crawford et al. shrimps (for seals ≥1 year of age); and scales at which biological data are (2012a) reported that the average ice in the Chukchi Sea near Shishmaref available and the availability of concentrations (plus or minus standard included saffron cod and shrimps (for standardized geographical data error (SE), a measure of variability in the both pups and seals ≥1 year of age). necessary to map boundaries. Because data) used by ringed seals in the Dehn et al. (2007; Table 2) reported that the ESA implementing regulations allow Chukchi and Bering seas during the in the Utqiag˙vik vicinity, prey items for discretion in determining the basking period in June was 20 percent frequently consumed by ringed seals appropriate scale at which specific areas (SE = 7.8 percent) for subadults and 38 between 1996 and 2001 (primarily are drawn (50 CFR 424.12(b)(1)), we are percent (SE = 21.4 percent) for adults. during summer) included euphausiids not required, nor was it possible, to

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determine that each square inch, acre, or ice habitat used by Arctic ringed seals 177°45′56″ W) and the point southwest even square mile independently meets occur vary from year to year, or even of St. Matthew Island where the contour the definition of ‘‘critical habitat.’’ A day to day, depending on many factors, line turns northeastward (60°7′ N/172°1′ main goal in determining and mapping including time of year, local weather, W) were removed to form the segment the boundaries of the specific areas is to and oceanographic conditions (e.g., of the southern boundary that extends provide a clear description and Frost et al. 1988, Frost et al. 2004, from the seaward limit of the U.S. EEZ documentation of the areas containing Gadamus et al. 2015). In addition, the southeastward approximately 340 km; the identified essential features. This is duration that sea ice habitat essential for and (2) intermediate points along the ultimately fundamental to ensuring that birth lairs, or for basking and molting, contour line between the point Federal action agencies are able to is present in any given location can vary southwest of St. Matthew Island and the determine whether their particular annually depending on the rate of ice point where the contour line reaches the actions may affect the critical habitat. melt and other factors. The temporal coast near Cape Romanzof were As we explain below, the essential overlap of Arctic ringed seal molting removed and connected to the coast to features of Arctic ringed seal critical with whelping and nursing, combined form the second segment of the southern habitat, in particular the sea ice with the dynamic nature of sea ice and boundary that extends northeastward essential features, are dynamic and on-ice snow depths, also makes it approximately 370 km (at 61°48′42″ N/ variable on both spatial and temporal impracticable to separately identify 166°6′5″ W). This editing produced a scales. As climatic conditions change specific areas where each of these simplified southern boundary that there may be increased variability in sea essential features occur. However, it is retains the general shape of the original ice characteristics and spatial/temporal unnecessary to distinguish between ice edge contour line. coverage, including with respect to the specific areas containing sea ice Because Arctic ringed seals use nearly southern extent of sea ice in the spring essential for birth lairs and sea ice the entire ice field over the Bering Sea and the timing and rate of the retreat of essential for basking and molting shelf in the spring, depending upon ice sea ice during spring and early summer. because the ESA permits the conditions in a given year, some ringed Arctic ringed seal movements and designation of critical habitat where one seals may use sea ice for whelping south habitat use are strongly influenced by or more essential features occur. of the southern boundary described the seasonality of sea ice and the seals Arctic ringed seals can range widely, above. But we concluded that the can range widely in response to the which, combined with the dynamic variability in the annual extent and specific locations of the most suitable variations in sea ice and on-ice snow timing of sea ice in this southernmost habitat conditions. We have therefore depths, results in individuals portion of the Arctic ringed seal’s range identified one specific area to propose distributing broadly and using sea ice in the Bering Sea (e.g., Boveng et al. as critical habitat in the Bering, habitats within a range of suitable 2009, Stabeno et al. 2012b, Frey et al. Chukchi, and Beaufort seas based on the conditions. We integrated these physical 2015) renders these waters unlikely to expected occurrence of the identified and biological factors into our contain the sea ice essential features on essential features. identification of specific areas where a consistent basis in more than limited We first focused on identifying where one or both sea ice essential features areas. sea ice essential features that support occur by considering the information We then identified the northern the species’ life history functions of currently available on the seasonal boundary of the specific area that whelping and nursing (when birth lairs distribution and movements of Arctic contains one or both of the sea ice are constructed and maintained), and ringed seals during the annual period of essential features. As discussed above, molting occur. As discussed above, reproduction and molting, along with Arctic ringed seals have a widespread Arctic ringed seals are highly associated satellite-derived estimates of the distribution, including in offshore pack with sea ice, and the seals tend to position of the sea ice edge over time. ice. The period during which ringed migrate seasonally to maintain access to Although this approach allowed us to seals bask and molt overlaps with when the ice. Arctic ringed seal whelping, identify specific areas that contain one many ringed seals also migrate north nursing, and molting takes place in the or both of the sea ice essential features with the receding ice edge, sea ice and Bering, Chukchi, and Beaufort seas. at certain times, the available data on-ice snow depths are dynamic and Therefore, we considered where the sea supported delineation of specific areas variable on both spatial and temporal ice essential features occur in all of only at a coarse scale. Consequently, we scales, and sea ice suitable for basking these waters. delineated a single specific area that and molting, and potentially for birth The dynamic nature of sea ice and the contains the sea ice features essential to lairs, occurs over waters extending up to spatial and temporal variations in sea the conservation of Arctic ringed seals, and beyond the seaward limit of the ice and on-ice snow cover conditions as follows. U.S. EEZ (see, e.g., Fetterer et al. 2017, constrain our ability to map with We first identified the southern Sea Ice Index Version 3.0, accessed precision the specific geographic boundary of this specific area. As November 2019, Blanchard- locations where the sea ice essential explained in detail previously in the Wrigglesworth et al. 2018). We therefore features will occur. Sea ice Summary of Revisions to Proposed concluded that the outer extent of the characteristics such as ice extent, ice Critical Habitat section, we delineated U.S. EEZ to the north, west, and east concentration, and ice surface the southern boundary of where one or best defines the remaining boundaries of topography vary spatiotemporally (e.g., both of the sea ice essential features the area containing the sea ice essential Iacozza 2011). Snowdrift depths on sea occur to reflect the estimated position of features. We note that Canada contests ice are also spatiotemporally variable, as the May median ice edge for the 1990 the limits of the U.S. EEZ in the eastern drifting of snow is determined by to 2019 period. To simplify the southern Beaufort Sea, asserting that the line characteristics of the ice, such as surface boundary for purposes of delineation on delimiting the two countries’ EEZs topography and weather conditions maps, we modified this ice edge contour should follow the 141st meridian out to (e.g., wind speed/direction and snowfall line as follows: (1) Intermediate points a distance of 200 nautical miles (nm) (as amounts), among other factors (Iacozza along the contour line between its opposed to an equidistant line that and Ferguson 2014). The specific intersection point with the seaward extends seaward perpendicular to the geographic locations where essential sea limit of the U.S. EEZ (61°18′15″ N/ coast at the U.S.-Canada land border).

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The primary prey species essential to habitat use of foraging Arctic ringed summer in the Bering Strait region Arctic ringed seals are found in a range seals, we conclude that the seaward (Oceana and Kawerak 2014), and that in of habitats in U.S. waters occupied by boundaries delineated above for the sea the fall, ringed seals return to and feed these seals. Amphipods documented in ice essential features are also in Kotzebue Sound, including the the diet of Arctic ringed seals in U.S. appropriate for defining the specific relatively shallow waters of Hotham waters include the pelagic hyperiid area where the primary prey essential Inlet (Gadamus et al. 2015, Northwest amphipod Parathemisto libellula; feature occurs. Arctic Borough 2016). After considering gammarid amphipod species that Crawford et al. (2012b) suggested that the information currently available as a inhabit the underside of sea ice; and southern ice edge habitat in the Bering whole, principally based on occurrence benthic amphipods and shrimps, which Sea near the shelf break south of the of the primary prey essential feature, we were well represented in sampling southern boundary specified above may are proposing to define the shoreward conducted for benthic assessments in be important for overwintering of boundary of critical habitat as the line the Beaufort and Chukchi seas (e.g., subadult ringed seals, including for that marks MLLW. This specific area Bluhm et al. 2009, Grebmeier et al. foraging. But aside from the limited data does not extend into tidally-influenced 2015, Ravelo et al. 2015, Sigler et al. on subadult movements and dive channels of tributary waters of the 2017). Notably, Arctic cod and saffron behavior during winter near the ice edge Bering, Chukchi, or Beaufort seas. cod make up a substantial portion of the and shelf break in the Bering Sea, we Data to determine the boundaries of fish biomass in the U.S. Chukchi Sea lack specific information on the the specific area containing the essential and Arctic cod dominates the fish significance of this habitat to the features are limited. We specifically conservation of the species. We seek additional data and comments on biomass in the U.S. Beaufort Sea (North therefore conclude that it is appropriate our proposed delineation of these Pacific Fishery Management Council to delineate the southern boundary as boundaries (see Public Comments 2009, Logerwell et al. 2015). Arctic cod described above. Solicited section). are regularly observed in association Finally, we considered the shoreward with sea ice, but they are also found in extent of where one or more of the Special Management Considerations or seasonally ice-free waters (e.g., essential features occur. Essential fish Protection Bradstreet et al. 1986, Parker-Stetter et habitat (EFH) has been described and A specific area within the geographic al. 2011, Logerwell et al. 2015). The identified for certain life stages of both area occupied by a species may only be southern extent of the distribution of Arctic cod and saffron cod, which are designated as critical habitat if the area Arctic cod and its abundance in the two of the essential Arctic primary prey contains one or more essential physical northern and eastern Bering Sea are species (North Pacific Fishery or biological feature that may require more limited and linked to the extent of Management Council 2009; 83 FR special management considerations or ice cover and associated cold bottom 31340, July 5, 2018). EFH for late protection (16 U.S.C. 1532(5)(A)(ii); 50 temperatures (Love et al. 2016, juvenile and adult Arctic cod includes CFR 424.12(b)(iv)). ‘‘Special Mecklenburg et al. 2016, Forster 2019, shallow nearshore areas of the management considerations or Marsh and Mueter 2019). The continental shelf in the Chukchi and protection’’ is defined as methods or distribution of saffron cod overlaps to Beaufort seas, and EFH for late juvenile procedures useful in protecting the some extent with that of Arctic cod in and adult saffron cod also includes a physical or biological features essential the Chukchi and Beaufort seas, but this substantial portion of the shallow to the conservation of listed species (50 species is typically found in warmer nearshore shelf habitat in the Chukchi CFR 424.02). Courts have indicated that water and has a more shallow coastal Sea. Studies conducted in very shallow the ‘‘may require’’ standard requires that distribution that extends farther south nearshore waters have documented the NMFS determine that special in the Bering Sea (Love et al. 2016, presence of one or both species at management considerations or Mecklenburg et al. 2016). The sampling sites in the Alaskan Beaufort protection of the essential features movements and foraging activities of Sea (Craig et al. 1982, Underwood et al. might be required either now or in the Arctic ringed seals are strongly 1995, Wiswar et al. 1995, Johnson et al. future (i.e., such considerations or influenced by the seasonality of ice 2010, Logerwell et al. 2015) and in protection need not be immediately cover, the seals forage throughout the Norton Sound (Barton 1978). There have required). See Cape Hatteras Access year (albeit with reduced feeding during been limited ringed seal surveys Pres. Alliance v. U.S. Dep’t of Interior, molting), and they are broadly conducted in areas with very shallow 344 F. Supp. 2d 108, 123–24 (D.D.C. distributed and can range widely. Thus, waters (less than 3 to 5 m in depth). 2004); Home Builders Ass’n of N. Cal. v. although Arctic ringed seals may forage Nevertheless, there is some evidence U.S. Fish & Wildlife Serv., 268 F. Supp. seasonally in some particular areas, that ringed seal densities are lower in 2d 1197, 1218 (E.D. Cal. 2003). The such as Barrow Canyon, the seals also such areas, at least in the Beaufort Sea relevant management need may be ‘‘in make extensive use of a diversity of during late May to early June (Moulton the future based on possibility.’’ See habitats for foraging across much et al. 2002, Frost et al. 2004). Still, Bear Valley Mut. Water Co. v. Salazar, broader areas in the Bering, Chukchi, during the open-water foraging period No. SACV 11–01263–JVS, 2012 WL and Beaufort seas. Although tagged and into early winter, satellite tracking 5353353, at *25 (C.D. Cal. Oct. 17, ringed seals tracked in U.S. waters data indicate some tagged ringed seals 2012); see also Ctr. for Biological tended to remain over the continental used shallow nearshore waters, for Diversity v. Norton, 240 F. Supp. 2d shelf, several individuals also made example, in Harrison Bay and Smith 1090, 1098–99 (D. Ariz. 2003) (noting trips into the deep waters north of the Bay (Quakenbush et al. 2019), and we that the ‘‘may require’’ phrase can be shelf during the open-water period, infer that this nearshore habitat use is rephrased and understood as ‘‘can where dive recorders indicated that the due to the availability of suitable prey. require’’ or ‘‘possibly requires’’). seals showed foraging-type movements Similarly, information from traditional We have identified four primary (see Distribution and Habitat Use ecological knowledge indicates that sources of potential threats to each of section). Because of these some, primarily juvenile, ringed seals the habitat features identified above as considerations, as well as the limits of use shallow nearshore waters, including essential to the conservation of Arctic the currently available information on river mouths, for feeding during the ringed seals: Climate change; oil and gas

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exploration, development, and suitable for basking and molting, and by or in ice-covered waters are the most production; marine shipping and causing changes in the distribution, challenging to deal with due to, among transportation; and commercial abundance, and/or species composition other factors, limitations on the fisheries. As further detailed below, of prey resources (including Arctic effectiveness of current containment both sea ice essential features and the ringed seal primary prey resources) (e.g., and recovery technologies when sea ice primary prey essential feature may Kortsch et al. 2015, Alabia et al. 2018, is present. The extreme depth and the require special management Holsman et al. 2018, Thorson et al. pressure that oil was under during the considerations or protection as a result 2019, Huntington et al. 2020). Declines 2010 oil blowout at the Deepwater of impacts (either independently or in in the extent and timing of sea ice cover Horizon well in the Gulf of Mexico may combination) from these sources. We may also lead to increased shipping not exist in the shallow continental note that our evaluation does not activity (discussed below) and other shelf waters of the Beaufort and consider an exhaustive list of threats changes in anthropogenic activities, Chukchi seas. Nevertheless, the that could have impacts on the essential with the potential for increased risks to difficulties experienced in stopping and features, but rather considers the the habitat features essential to Arctic containing the Deepwater Horizon primary potential threats that we are ringed seal conservation (Kelly et al. blowout, where environmental aware of at this time that support our 2010a). The best scientific data available conditions, available infrastructure, and conclusion that special management do not allow us to identify a causal response preparedness were considerations or protection of each of linkage between any particular single comparatively good, point toward even the essential features may be required. source of GHG emissions and greater challenges in containing and Further, we highlight particular threats identifiable effects on the sea ice and cleaning a large spill in a much more associated with each source of impacts primary prey features essential to the environmentally severe and while recognizing that certain threats conservation of the Arctic ringed seal. geographically remote Arctic location. are associated with more than one Regardless, given that the quality and Although planning, management, and source (e.g., marine pollution and quantity of these essential features, in use of best practices can help reduce noise). particular sea ice, may be diminished by risks and impacts, the history of oil and the effects of climate change, we gas activities indicates that accidents Climate Change conclude that special management cannot be eliminated (AMAP 2007). The principal threat to the persistence considerations or protection may be Data on large spills (e.g., operational of the Arctic ringed seal is anticipated necessary, either now or in the future, discharges, spills from pipelines, loss of sea ice and reduced on-ice snow although the exact focus and nature of blowouts) in Arctic waters are limited depths stemming from climate change. that management is presently because oil exploration and production Climate-change-related threats to the undeterminable. there has been limited. The Bureau of Arctic ringed seal’s habitat are Ocean Energy Management (BOEM) discussed in detail in the ringed seal Oil and Gas Activity (BOEM 2011) estimated the chance of status review report (Kelly et al. 2010a), Oil and gas exploration, development, one or more oil spills greater than or as well as in our proposed and final and production activities in the U.S. equal to 1,000 barrels occurring if rules to list the Arctic ringed seal as Arctic may include: Seismic surveys; development were to take place in the threatened. Total Arctic sea ice extent exploratory, delineation, and Beaufort Sea or Chukchi Sea Planning has been showing a decline through all production drilling operations; Areas as 26 percent for the Beaufort Sea months of the satellite record since 1979 construction of artificial islands, over the estimated 20 years of (Meier et al. 2014). Although there will causeways, ice roads, shore-based production and development, and 40 continue to be considerable annual facilities, and pipelines; and vessel and percent for the Chukchi Sea over the variability in the rate and timing of the aircraft operations. These activities have estimated 25 years of production and breakup and retreat of sea ice, trends in the potential to affect the essential development. climate change are moving toward ice features of Arctic ringed seal critical Icebreaking vessels, which may be that is more susceptible to melt (Markus habitat, primarily through pollution used for in-ice seismic surveys or to et al. 2009), and areas of earlier spring (particularly in the event of a large oil manage ice near exploratory drilling ice retreat (Stammerjohn et al. 2012, spill), noise, and physical alteration of ships, also have the potential to affect Frey et al. 2015). Notably, February and the species’ habitat. the sea ice essential features of Arctic March ice extent in the Bering Sea in Large oil spills (considered in this ringed seal critical habitat through 2018 and 2019 were the lowest on section to be spills of relatively great physical alteration of the sea ice (also record (Stabeno and Bell 2019), and in size, consistent with common usage of see Marine Shipping and the spring of 2019, melt onset in the the term) are generally considered to be Transportation section). Other examples Chukchi Sea occurred 20 to 35 days the greatest threat associated with oil of activities associated with oil and gas earlier than the 1981 to 2010 average and gas activities in the Arctic marine activities that may physically alter the (Perovich et al. 2019). Activities that environment (Arctic Monitoring and essential sea ice features include release carbon dioxide and other heat- Assessment Programme (AMAP) 2007). construction and maintenance of trapping greenhouse gases (GHGs) into In contrast to spills on land, large spills offshore ice roads, ice pads, and camps; the atmosphere, most notably those that at sea, especially when ice is present, as well as other offshore through-ice involve combustion, are a are difficult to contain or clean up activities such as trenching and major contributing factor to climate (National Research Council 2014, installation of pipelines. In addition, change and loss of sea ice Wilkinson et al. 2017). Responding to a there is evidence that noise associated (Intergovernmental Panel on Climate sizeable spill in the Arctic environment with activities such as seismic surveys Change 2013, U.S. Global Climate would be particularly challenging. can result in behavioral and other Change Research Program 2017). Such Reaching a spill site and responding effects on fishes and invertebrate activities may adversely affect the effectively would be especially difficult, species (Carroll et al. 2017, Slabbekoorn essential features of Arctic ringed seal if not impossible, in winter when et al. 2019), although the available data habitat by diminishing snow-covered weather can be severe and daylight on such effects are currently limited, in sea ice suitable for birth lairs and sea ice extremely limited. Oil spills under ice particular for invertebrates (Hawkins et

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al. 2015, Hawkins and Popper 2017), reduced activity to accelerated growth) substances carried by ships (Arctic and the nature of potential effects suggests from 2008 to 2030, the number Council 2009). specifically on the primary prey of unique vessels operating in U.S. Vessel discharges associated with resources of Arctic ringed seals are waters north of 60° N (i.e., northern normal operations, including sewage, unclear. Bering sea and northward) may increase grey water, and oily wastes are expected In summary, a large oil spill could by 136 to 346 percent (U.S. Committee to increase as a result of increasing render areas containing the identified on the Marine Transportation System marine shipping and transportation in essential features unsuitable for use by 2019). Arctic waters (Arctic Council 2009, Arctic ringed seals. In such an event, sea The fact that nearly all vessel traffic Parks et al. 2019), which could affect the ice habitat suitable for whelping, in the Arctic, with the exception of primary prey of Arctic ringed seals. nursing, and/or for basking and molting icebreakers, purposefully avoids areas of Increases in marine shipping and could be oiled. The primary prey ice, and primarily occurs during the ice- transportation and other vessel traffic is resources could also become free or low-ice seasons, helps to mitigate also introducing greater levels of contaminated, experience mortality, or the risks of shipping to the essential underwater noise (Arctic Council 2009, be otherwise adversely affected by habitat features identified for Arctic Moore et al. 2012), with the potential for spilled oil. In addition, disturbance ringed seals. However, icebreakers pose behavioral and other effects in fishes effects (both physical alteration of greater risks to these features since they and invertebrates (Slabbekoorn et al. habitat and acoustic effects) could alter are capable of operating year-round in 2010, Hawkins and Popper 2017, the quality of the essential features of all but the heaviest ice conditions and Popper and Hawkins 2019), although Arctic ringed seal critical habitat, or are often used to escort other types of there are substantial gaps in the render habitat unsuitable. We conclude vessels (e.g., tankers and bulk carriers) understanding of such effects, in that the essential features of the habitat through ice-covered areas. Furthermore, particular for invertebrates (Hawkins et of the Arctic ringed seal may require new classes of ships are being designed al. 2015, Hawkins and Popper 2017), special management considerations or that serve the dual roles of both tanker/ and the nature of potential effects protection in the future to minimize the carrier and icebreaker (Arctic Council specifically on the primary prey of risks posed to these features by oil and 2009). Therefore, if icebreaking Arctic ringed seals are unclear. We conclude that the essential gas exploration, development, and activities increase in the Arctic in the features of the habitat of the Arctic production. future, as expected, the likelihood of ringed seal may require special negative impacts (e.g., habitat alteration Marine Shipping and Transportation management considerations or and risk of oil spills) occurring in ice- The reduction in Arctic sea ice that protection in the future to minimize the has occurred in recent years has covered areas where Arctic ringed seals risks posed by potential shipping and renewed interest in using the Arctic reside will likely also increase. We are transportation activities because: (1) Ocean as a potential waterway for not aware of any data currently Physical alteration of sea ice by coastal, regional, and trans-Arctic available on the effects of icebreaking on icebreaking activities could reduce the marine operations and in extension of the habitat of Arctic ringed seals during quantity and/or quality of the sea ice the navigation season in surrounding the reproductive and molting periods. essential features; (2) in the event of an seas (Brigham and Ellis 2004, Arctic Although impacts of icebreaking are oil spill, sea ice essential for birth lairs Council 2009). Marine traffic along the likely to vary between species and/or for basking and molting could western and northern coasts of Alaska depending on a variety of factors, we become oiled; and (3) the quantity and/ includes tug, towing, and cargo vessels, note that Wilson et al. (2017) or quality of the primary prey resources tankers, research and government demonstrated the potential for impacts could be diminished as a result of spills, vessels, vessels associated with oil and of icebreaking on (Pusa vessel discharges, and noise associated gas exploration and development, caspica) mothers and pups, including with shipping, transportation, and ice- fishing vessels, and cruise ships (Adams displacement, break-up of whelping and breaking activities. and Silber 2017, U.S. Committee on the nursing habitat, and vessel collisions Marine Transportation System 2019). with mothers or pups. The authors Commercial Fisheries Automatic Identification System data noted that while pre-existing shipping The specific area identified in this indicate that the number of unique channels were used by seals as artificial revised proposed rule as meeting the vessels operating annually in U.S. leads, which expanded access to definition of critical habitat for the waters north of the Bering Sea in 2015 whelping habitat, seals that whelp on Arctic ringed seal overlaps with the to 2017 increased 128 percent over the the edge of such leads are vulnerable to Arctic Management Area and the Bering number recorded in 2008 (U.S. vessel collision and repeated Sea and Aleutian Islands Management Committee on the Marine disturbance. Area identified by the North Pacific Transportation System 2019). Climate In addition to the potential effects of Fishery Management Council. No models predict that the warming trend icebreaking on the essential features, the commercial fishing is permitted within in the Arctic will accelerate, causing the maritime shipping industry transports the Arctic Management Area due to ice to begin melting earlier in the spring various types of petroleum products, insufficient data to support the and resume freezing later in the fall, both as fuel and cargo. In particular, if sustainable management of a resulting in an expansion of potential increased shipping involves the tanker commercial fishery there. However, as transit routes and a lengthening of the transport of crude oil or oil products, additional information becomes potential navigation season, and a there would be an increased risk of available, commercial fishing may be continuing increase in vessel traffic spills (Arctic Climate Impact allowed in this management area. Two (Khon et al. 2010, Smith and Assessment 2005, U.S. Arctic Research of the primary Arctic ringed seal prey Stephenson 2013, Stephenson et al. Commission 2012). Similar to oil and species identified as essential to the 2013, Huntington et al. 2015b, Melia et gas activities, the most significant threat species’ conservation—Arctic cod and al. 2016, Aksenov et al. 2017, Khon et posed by shipping activities is saffron cod—have been identified as al. 2017). For instance, analysis of four considered to be the accidental or illegal likely initial target species for potential growth scenarios (ranging from discharge of oil or other toxic commercial fishing in the Arctic

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Management Area in the future (North Application of ESA Section 4(a)(3)(B)(i) critical habitat designation, and thus the Pacific Fishery Management Council Section 4(a)(3)(B)(i) of the ESA exemptions requested by the Air Force 2009). precludes designating as critical habitat are not necessary because no critical In the northern portion of the Bering any lands or other geographical areas habitat would be designated in those radar sites. Sea and Aleutian Islands Management owned or controlled by the Department Area, commercial fisheries overlap with of Defense (DOD), or designated for its Analysis of Impacts Under Section the southernmost portion of the use, that are subject to an Integrated 4(b)(2) of the ESA Natural Resources Management Plan proposed critical habitat. Portions of the Section 4(b)(2) of the ESA requires the (INRMP) prepared under section 101 of proposed critical habitat also overlap Secretary to designate critical habitat for with certain state commercial fisheries the Sikes Act (16 U.S.C. 670a), if the threatened and endangered species on management areas. Commercial catches Secretary determines in writing that the basis of the best scientific data from waters of the specific area such plan provides a benefit to the available after taking into consideration identified as containing the features species for which critical habitat is the economic impact, the impact on essential to the conservation of the proposed for designation. See 16 U.S.C. national security, and any other relevant Arctic ringed seal primarily include: 1533(a)(3)(B)(i); 50 CFR 424.12(h). impact, of specifying any particular area Pacific halibut (Hippoglossus Where these standards are met, the as critical habitat. Regulations at 50 CFR stenolepis), several other flatfish relevant area is ineligible for 424.19(b) also specify that the Secretary species, Pacific cod (Gadus consideration as potential critical will consider the probable impacts of habitat. The regulations implementing macrocephalus), several crab species, the designation at a scale that the the ESA set forth a number of factors to walleye pollock (Theragra Secretary determines to be appropriate, guide consideration of whether this chalcogramma), and several salmon and that such impacts may be standard is met, including the degree to species. qualitatively or quantitatively described. which the plan will protect the habitat The Secretary is also required to Commercial fisheries may affect the of the species (50 CFR 424.12(h)(4)). compare impacts with and without the primary prey resources identified as This process is separate and distinct designation (50 CFR 424.19(b)). In other essential to the conservation of the from the analysis governed by section words, we are required to assess the Arctic ringed seal, through removal of 4(b)(2) of the ESA, which directs us to incremental impacts attributable to the prey biomass and potentially through consider the economic impact, the critical habitat designation relative to a modification of benthic habitat by impact on national security, and any baseline that reflects existing regulatory fishing gear that contacts the seafloor. other relevant impact of designation, impacts in the absence of the critical Given the potential changes in and affords the Secretary discretion to habitat. commercial fishing that may occur with exclude particular areas if the benefits Section 4(b)(2) also describes an the expected increasing length of the of exclusion outweigh the benefits of optional process by which the Secretary open-water season and distribution inclusion of such areas. See 16 U.S.C. may go beyond the mandatory shifts of some economically valuable 1533(b)(2). consideration of impacts and weigh the species responding to climate change Before publication of this revised benefits of excluding any particular area (e.g., Stevenson and Lauth 2019, proposed rule, we contacted DOD (Air (that is, avoiding the economic, national Thorson et al. 2019, Spies et al. 2020), Force and Navy) and requested security, or other relevant impacts) we conclude that the primary prey information on any facilities or managed against the benefits of designating it resources essential feature may require areas that are subject to an INRMP and (primarily, the conservation value of the special management considerations or are located within areas that could area). If the Secretary concludes that the protection in the future to address potentially be designated as critical benefits of excluding particular areas potential adverse effects of commercial habitat for the Arctic ringed seal. In outweigh the benefits of designation, the fishing on this feature. response to our request, the Air Force Secretary may exclude the particular provided information regarding twelve area(s) so long as the Secretary Unoccupied Areas radar sites with an INRMP in place, 10 concludes on the basis of the best of which (7 active and 3 inactive) are available scientific and commercial Section 3(5)(A)(ii) of the ESA located adjacent to the area under information that the exclusion will not authorizes the designation of specific consideration for designation as critical result in extinction of the species (16 areas outside the geographical area habitat: Barter Island Long Range Radar U.S.C. 1533(b)(2)). NMFS and the U.S. occupied by the species, if those areas Site (LRRS), Cape Lisburne LRRS, Cape Fish and Wildlife Service have adopted are determined to be essential for the Romanzof, LRRS, Kotzebue LRRS, a joint policy setting out non-binding conservation of the species. Our Oliktok LRRS, LRRS, Tin guidance explaining generally how we regulations at 50 CFR 424.12(b)(2) City LRRS, Bullen Point Short Range exercise our discretion under 4(b)(2). require that we first evaluate areas Radar Site (SRRS), Point Lay LRRS, and See Policy Regarding Implementation of occupied by the species, and only Point Lonely SRRS. The Air Force Section 4(b)(2) of the Endangered consider unoccupied areas to be requested exemption of these radar sites Species Act (‘‘4(b)(2) policy,’’ 81 FR essential where a critical habitat pursuant to section 4(a)(3)(B)(i) of the 7226, February 11, 2016). designation limited to geographical ESA. Based on our review of the INRMP While section 3(5) of the ESA defines areas occupied would be inadequate to (draft 2020 update), the area being critical habitat as ‘‘specific areas,’’ ensure the conservation of the species. considered for designation as critical section 4(b)(2) requires the agency to Because Arctic ringed seals are habitat, all of which occurs seaward of consider the impacts of designating any considered to occupy their entire the MLLW line, does not overlap with ‘‘particular area.’’ Depending on the historical range that falls within U.S. DOD lands. Therefore, we conclude that biology of the species, the jurisdiction, we find that there are no there are no properties owned, characteristics of its habitat, and the unoccupied areas within U.S. controlled, or designated for use by nature of the impacts of designation, jurisdiction that are essential to their DOD that are subject to ESA section ‘‘particular’’ areas may be—but need not conservation. 4(a)(3)(B)(i) for this revised proposed necessarily be—delineated so that they

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are the same as the already identified listing and under other Federal, state, requirement that all Federal agencies ‘‘specific’’ areas of potential critical and local regulations. The ‘‘with critical ensure that their actions are not likely habitat. For the reasons set forth below, habitat’’ scenario describes the to jeopardize listed species’ continued we have exercised the discretion incremental impacts associated existence. Another benefit of critical delegated to us by the Secretary to specifically with the designation of habitat designation is that it provides conduct an exclusion analysis based on critical habitat for the Arctic ringed seal. specific notice of the areas and features national security impacts with respect Our analysis for this revised proposed essential to the conservation of the to a particular area north of the Beaufort rule is described in detail in the Arctic ringed seal. This information will Sea shelf that meets the definition of associated Draft Impact Analysis Report focus future ESA section 7 consultations critical habitat for the Arctic ringed seal, that is available for public review and on key habitat attributes. By identifying and we are proposing to exclude this comment (see Public Comments the specific areas where the features area from the designation because we Solicited). This analysis assesses the essential to the conservation of the have concluded that the benefits of incremental costs and benefits that may Arctic ringed seal occur, there may also exclusion outweigh the benefits of arise due to the critical habitat be enhanced awareness by Federal inclusion. designation, with economic costs agencies and the general public of The primary impacts of a critical estimated over the next 10 years. We activities that might affect those habitat designation arise from the ESA chose the 10-year timeframe because it essential features. The designation of section 7(a)(2) requirement that Federal is lengthy enough to reflect the planning critical habitat can also inform Federal agencies ensure that their actions are horizon for reasonably predicting future agencies regarding the habitat needs of not likely to result in the destruction or human activities, yet it is short enough Arctic ringed seals, which may facilitate adverse modification of critical habitat to allow reasonable projections of using their authorities to support the (i.e., adverse modification standard). changes in use patterns in an area, as conservation of this species pursuant to Determining these impacts is well as of exogenous factors (e.g., world ESA section 7(a)(1), including to design complicated by the fact that section supply and demand for petroleum, U.S. proposed projects in ways that 7(a)(2) contains the overlapping inflation rate trends) that may be minimize adverse effects to critical requirement that Federal agencies influential. This timeframe is consistent habitat. ensure that their actions are not likely with guidance provided in Office of In addition, the critical habitat to jeopardize the species’ continued Management and Budget (OMB) designation may result in indirect existence. One incremental impact of Circular A–4 (OMB 2003, 2011). We critical habitat designation is the extent recognize that economic costs of the benefits, as discussed in detail in the to which Federal agencies change their designation are likely to extend beyond Draft Impact Analysis Report, including proposed actions to ensure they are not the 10-year timeframe of the analysis, education and enhanced public likely to adversely modify critical though we have no information awareness, which may help focus and habitat, beyond any changes they would indicating that such costs in subsequent contribute to conservation efforts for the make to ensure actions are not likely to years would be different from those Arctic ringed seal and its habitat. For jeopardize the continued existence of projected for the first 10-year period. example, by identifying areas and the species. Additional impacts of Although not quantified or analyzed in features essential to the conservation of critical habitat designation include any detail due to the high level of the Arctic ringed seal, complementary state and/or local protection that may be uncertainty regarding longer-term protections may be developed under triggered as a direct result of designation effects, the Draft Impact Analysis Report state or local regulations or voluntary (we did not identify any such impacts includes a discussion of the potential conservation plans. These other forms of for this proposed designation), and types of costs and benefits that may benefits may be economic in nature benefits that may arise from education accrue beyond the 10-year time window (whether market or non-market, of the public to the importance of an of the analysis. consumptive, non-consumptive, or area for species conservation. Below, we summarize our analysis of passive), educational, cultural, or In determining the impacts of the impacts of designating the specific sociological, or they may be expressed designation, we focused on the area identified in this revised proposed through beneficial changes in the incremental change in Federal agency rule as meeting the definition of critical ecological functioning of the species’ actions as a result of critical habitat habitat for the Arctic ringed seal. habitat, which itself yields ancillary designation and the adverse Additional detail is provided in the welfare benefits (e.g., improved quality modification standard (see Ariz. Cattle Draft Impact Analysis Report prepared of life) to the region’s human Growers’ Ass’n v. Salazar, 606 F.3d for this revised proposed rule. population. For example, because the 1160, 1172–74 (9th Cir. 2010) (holding critical habitat designation is expected Benefits of Designation that the U.S. Fish and Wildlife Service to result in enhanced conservation of permissibly attributed the economic We expect that Arctic ringed seals the Arctic ringed seal over time, impacts of protecting the northern will increasingly experience the ongoing residents of the region who value these spotted owl as part of the baseline and loss of sea ice and changes in ocean seals, such as subsistence users, are was not required to factor those impacts conditions associated with climate expected to experience indirect benefits. into the economic analysis of the effects change, and the significance of other As another example, the geographic area of the critical habitat designation)). We habitat threats will likely increase as a identified in this revised proposed rule analyzed the impacts of this designation result. As noted above, the primary as meeting the definition of critical based on a comparison of conditions benefit of a critical habitat designation— habitat for the Arctic ringed seal with and without the designation of and the only regulatory consequence— overlaps substantially with the range of critical habitat for the Arctic ringed seal. stems from the ESA section 7(a)(2) the polar bear in the United States, and The ‘‘without critical habitat’’ scenario requirement that all Federal agencies the Arctic ringed seal is the primary represents the baseline for the analysis. ensure that their actions are not likely prey species of the polar bear, so the It includes process requirements and to destroy or adversely modify the designation may also provide indirect habitat protections already extended to designated habitat. This benefit is in conservation benefits to the polar bear. the Arctic ringed seal under its ESA addition to the section 7(a)(2) Indirect conservation benefits may also

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extend to other co-occurring species, the essential features of the critical Sea and BOEM’s 2017–2022 OCS Oil such as the Pacific (Odobenus habitat. These activities include oil and and Gas Leasing Program. Although rosmarus divergens), the Beringia DPS gas related activities, dredge mining, NMFS completed formal consultations bearded seal, and other seal species. navigation dredging, in-water for oil and gas exploration activities in It is not presently feasible to construction, commercial fishing, oil the Chukchi Sea in all but two years monetize, or even quantify, each spill response, and certain military between 2006 and 2015, no such component part of the benefits accruing activities. We projected the occurrence activities or related consultations with from the designation of critical habitat of these activities over the timeframe of NMFS have occurred since that time. for the Arctic ringed seal. Therefore, we the analysis (the next 10 years) using the As detailed in the Draft Impact augmented the quantitative best available information on planned Analysis Report, the total incremental measurements that are summarized here activities and the frequency of recent costs associated with designating the and discussed in detail in the Draft consultations for particular activity entire area identified in this revised Impact Analysis Report with qualitative types. Notably, all of the projected proposed rule as meeting the definition and descriptive assessments, as future Federal actions that may trigger of critical habitat for the Arctic ringed provided for under 50 CFR 424.19(b) an ESA section 7 consultation due to the seal over the next 10 years, in and in guidance set out in OMB Circular potential to affect one or more of the discounted present value terms, are A–4. Although we cannot monetize or essential habitat features also have the estimated to be $800,000 (discounted at quantify all of the incremental benefits potential to affect Arctic ringed seals. In 7 percent). In annual terms, the of the critical habitat designation, we other words, none of the activities we estimated range of discounted conclude that they are not identified would trigger a consultation incremental costs is $58,000 to inconsequential. solely on the basis of the critical habitat $106,000. About 80 percent of these incremental costs are expected to accrue Economic Impacts designation. We recognize there is inherent uncertainty involved in from ESA section 7 consultations Direct economic costs of the critical predicting future Federal actions that associated with oil and gas related habitat designation accrue primarily may affect the essential features of activities in the Chukchi and Beaufort through implementation of section Arctic ringed seal critical habitat. We seas and adjacent onshore areas. 7(a)(2) of the ESA in consultations with specifically seek comments and Although not quantifiable at this time, Federal agencies to ensure that their information regarding the types of the Draft Impact Analysis Report proposed actions are not likely to activities that are likely be subject to acknowledges that the oil and gas destroy or adversely modify critical section 7 consultation as a result of the industry may also incur indirect costs habitat. Those economic impacts may proposed designation, and we will associated with the critical habitat include both administrative costs and designation if future third-party costs associated with project consider any relevant information received during the comment period in litigation over specific section 7 modifications. At this time, on the basis consultations creates delays or other of how protections are currently developing the economic analysis supporting the final rule (see Public sources of regulatory uncertainty. implemented for Arctic ringed seals We have preliminarily concluded that Comment Solicited section). under the Marine Mammal Protection the potential economic impacts Act (MMPA) and as a threatened species We expect that the majority of future associated with the critical habitat under the ESA, we do not anticipate ESA section 7 consultations analyzing designation are modest both in absolute that additional requests for project potential effects on the proposed terms and relative to the level of modifications will result specifically essential habitat features will involve economic activity expected to occur in from this designation of critical habitat. NMFS and BOEM authorizations and the affected area, which is primarily In other words, the critical habitat permitting of oil and gas related associated with oil and gas activities designation is not likely to result in activities. In assessing costs associated that may occur in the Beaufort and more requested project modifications with these consultations, we took a Chukchi seas. As a result, and in light because our section 7 consultations on conservative approach by estimating of the benefits of critical habitat potential effects to Arctic ringed seals that future formal and informal designation discussed above and in the and our incidental take authorizations consultations addressing these activities Draft Impact Analysis Report, we are not for Arctic activities under section 101(a) would be more complex than for other proposing to exercise our discretion to of the MMPA both typically address activities, and would therefore incur exclude any particular area from the habitat-associated effects to the seals higher third party (i.e., applicant/ critical habitat designation by even in the absence of a critical habitat permittee) incremental administrative evaluating whether the benefits of designation. As a result, the direct costs per consultation to consider effects excluding such area based on economic incremental costs of this critical habitat to Arctic ringed seal critical habitat (see impacts outweighs the benefits of designation are expected to be limited to Draft Impact Analysis Report). These including such area. the additional administrative costs of higher third party costs may not be considering Arctic ringed seal critical realized in all cases because the National Security Impacts habitat in future section 7 consultations. administrative effort required for a Section 4(b)(2) of the ESA also To identify the types of Federal specific consultation depends on factors requires consideration of national activities that may affect critical habitat such as the location, timing, nature, and security impacts. As noted in the for the Arctic ringed seal, and therefore scope of the potential effects of the Application of ESA Section 4(a)(3)(B)(i) would be subject to the ESA section 7 proposed action on the essential section above, before publication of our adverse modification standard, we features. There is also considerable 2014 proposed rule, we contacted DOD examined the record of section 7 uncertainty regarding the timing and regarding any potential impacts of consultations for 2013 to 2019 to extent of future oil and gas exploration designating critical habitat for the Arctic identify Federal activities that occur and development in Alaska’s Outer ringed seal on military operations. In a within the specific area being Continental Shelf (OCS) waters, as letter dated June 3, 2013, the DOD considered as critical habitat for the indicated by Shell’s 2015 withdrawal Regional Environmental Coordinator Arctic ringed seal and that may affect from exploratory drilling in the Chukchi indicated that no impacts on national

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security were foreseen from such a which it plans to continue in the future, above, here we consider whether to designation. As a result, in that and expressed concern that the propose excluding critical habitat proposed rule we did not identify any designation of critical habitat could located adjacent to these sites under direct impacts from the critical habitat impact these activities. The Navy section 4(b)(2). designation on activities associated with indicated that it also conducts other The Air Force noted that annual fuel national security. training and testing activities in the and cargo resupply activities occur at Following publication of our 2014 Arctic region in support of gaining and these radar sites primarily in the proposed rule, by a letter dated April maintaining military readiness in this summer and installation beaches are 17, 2015, DOD indicated that upon region, and expects additional training used for offload. The Air Force further review, it had identified national and testing activities to occur in this indicated that coastal operations at security concerns with the designation region. The activities may be similar to these installations are limited, and due to overlap of the proposed critical those identified for ICEXs, and likely when barge operations occur, protective habitat with the area north of Prudhoe also would include vessel movements, measures are implemented per the Polar Bay to the Canadian border extending icebreaking, and support transport by Bear and Pacific Walrus Avoidance Plan seaward from approximately 125 to 200 air and sea. Testing activities may (preliminary final 2020) associated with nm that is used by the U.S. Navy for include air platform/vehicle tests, the INRMP in place for these sites. The training and testing activities. DOD missile testing, gunnery testing, and Air Force discussed that it also conducts requested that NMFS exclude this area anti-submarine warfare tracking testing. sampling and monitoring at these sites from the critical habitat designation due The Navy expressed the concern that as part of the department’s Installation to national security impacts, expressing the critical habitat may impact national Restoration Program, and conducts the view that designation of this area security if training and testing activities larger scale contaminant or debris will impact national security if training are prohibited or are required to be removal in some years that can require and testing activities are prohibited or mitigated (for the protection of critical active disturbance of the shoreline. severely degraded, as detailed in a habitat) to the point where training and Coastal barge operations are a feature of comment letter from the Navy dated testing value is severely degraded, or if both monitoring and removal actions. March 30, 2015. More recently, by letter the Navy is unable to access certain Federal agencies have an existing dated March 17, 2020, the Navy locations within the Arctic region. The obligation to consult with NMFS under reiterated its request for this exclusion Navy indicated that if the critical habitat section 7(a)(2) of the ESA to ensure the due to national security impacts, but designation maintains the same activities they fund or carry out are not modified the description of the boundaries identified in our 2014 likely to jeopardize the continued particular area to extend seaward from proposed designation, it does not existence of the Arctic ringed seal, approximately 100 to 200 nm (noting foresee a way that its training and regardless of whether or where critical that ice conditions have required a shift testing activities will be able to be habitat is designated for the species. The closer to shore). conducted without significant impacts activities described in the Air Force’s The Navy indicated in its written on those activities. In support of this exclusion request are localized and communications that it conducts Arctic assertion the Navy noted that through small in scale, and it is unlikely that training and testing exercises, referred consultation with NMFS under section modifications to these activities would to by the Navy as Ice Exercises (ICEXs), 7 of the ESA for training on the east be needed to address impacts to critical on and below the sea ice within the coast of the United States, the Navy habitat beyond any modifications that particular area requested for exclusion. agreed to restrict certain training may be necessary to address impacts to ICEXs and the accompanying base activities in North Atlantic right whale Arctic ringed seals. We therefore camps are established anywhere from critical habitat during the calving anticipate that the time and costs 100 to 200 nm north of Prudhoe Bay, season, noting that those training associated with consideration of the Alaska. These exercises are planned to activities can be conducted in nearby effects of future Air Force actions on occur every 2 years and typically last 25 areas that are not designated as critical Arctic ringed seal critical habitat under to 45 days. ICEX camps include habitat during the calving season. The section 7(a)(2) of the ESA would be approximately 15 to 20 temporary Navy indicated that due to the size of limited if any, and the consequences for shelters which support 30 to 65 the area proposed in 2014 as critical the Air Force’s activities, even if we do personnel. Training and testing habitat for the Arctic ringed seal and the not exempt or exclude the requested activities include: Submarine activities; uniqueness of Arctic conditions, the areas from critical habitat designation, submarine surfacing, in which Navy would not be able to shift its would be negligible. submarines avoid pressure ridges and training activities to other areas or to As a result, and in light of the benefits conduct surfacings in first year ice or in different times of the year. of critical habitat designation discussed polynyas; aircraft operations; building In addition to the information above and in the Draft Impact Analysis of runways; and other on-ice activities. provided by the Navy, by letter dated Report, we have preliminarily The Navy noted that ICEX activities April 30, 2020, the Air Force provided concluded that the benefits of exclusion alter the ice by creating holes to deploy information concerning its activities at do not outweigh the benefits of training and testing equipment and radar sites located adjacent to the area designation and are therefore not surfacing submarines. The Navy under consideration for designation as proposing to exercise our discretionary explained that due to the need for stable critical habitat (relevant sites identified authority to exclude these particular ice, flights are conducted immediately above in the Application of ESA Section areas pursuant to section 4(b)(2) of the prior to buildup of the ICEX camp to 4(a)(3)(B)(i) section). The Air Force ESA with respect to the Air Force’s determine the final location. requested that we consider excluding request based on national security The Navy also noted that the Office of critical habitat near these sites under impacts. However, given the specific Naval Research conducts research section 4(b)(2) of the ESA due to national security concerns identified by testing activities in the deep waters of impacts on national security. Although the Navy, below we provide an analysis the Beaufort Sea with acoustic sources we are not proposing to exempt the of our decision to exercise our and the use of icebreaking ships to radar sites pursuant to section discretionary authority under section deploy and retrieve these sources, 4(a)(3)(B)(i) of the ESA, as discussed 4(b)(2) of the ESA to propose excluding

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the area requested by the Navy based on adversely affected by the critical habitat season, some of these seals made forays national security impacts. We will designation. In conducting our review of north of the Beaufort Sea shelf, continue to coordinate with DOD this exclusions request under section including into parts of the area regarding the identification of potential 4(b)(2) of the ESA, we also gave great requested for exclusion (Crawford et al. national security impacts that could weight to the Navy’s national security 2019, Quakenbush et al. 2019; Alaska result from the critical habitat concerns. To weigh the national security Department of Fish and Game (ADF&G) designation to further inform our impacts against conservation benefits of and North Slope Borough, 2019, determinations regarding exclusions a potential critical habitat designation, unpublished data, Von Duyke et al. from the designation under section we considered the following: (1) The 2020). We note that the telemetry data 4(b)(2) based on national security size of the area requested for exclusion for these seals are unlikely to fully impacts. compared with the total size of the reflect the distribution of this species in U.S. waters, for instance because, as Other Relevant Impacts specific area that meets the definition of critical habitat for the Arctic ringed seal; discussed by Citta et al. (2018), the Finally, under ESA section 4(b)(2) we (2) the conservation value of the area distribution of telemetry locations for consider any other relevant impacts of requested for exclusion; (3) the tagged ringed seals is influenced by the critical habitat designation to inform our likelihood that the Navy’s activities location and season of tagging. Thus, decision as to whether to exclude any would affect the area requested for although the area requested for areas. For example, we may consider exclusions and trigger ESA section 7 exclusion contains one or more of the potential adverse effects on existing consultations, and the likelihood that essential features of the Arctic ringed management or conservation plans that Navy activities would need to be seal’s critical habitat, data are limited to benefit listed species, and we may modified to avoid adverse modification inform our assessment of the relative consider potential adverse effects on or destruction of critical habitat; and (4) value of this area to the conservation of tribal lands or trust resources. In the likelihood that other Federal actions the species. Dive recorders indicated preparing this revised proposed may occur that would no longer be that foraging-type movements of some of designation, we have not identified any subject to the ESA’s critical habitat these tagged seals occurred over both such management or conservation provisions if the particular area were the continental shelf and north of the plans, tribal lands or resources, or excluded from the designation. shelf, suggesting that both areas may be anything else that would be adversely important to ringed seals during the The area requested for exclusion affected by the critical habitat open-water period. Observations of comprises approximately 12 percent of designation. Some Alaska Native ringed seals near and beyond the outer the marine habitat that meets the organizations and tribes have expressed extent of the U.S. EEZ in the Arctic definition of critical habitat for the concern that the critical habitat Ocean Basin were also documented by Arctic ringed seal, and approximately designation might restrict subsistence marine mammal observers during a 41 percent of the portion of this marine hunting of ringed seals or other marine research geophysical survey conducted habitat north of the Beaufort Sea shelf , such that important hunting in the summer of 2010. areas should be considered for (north of the 200-m isobath). As noted The testing and training activities exclusion, but no restrictions on by the Navy in its exclusion request, described in the Navy’s exclusion subsistence hunting are associated with and as discussed above in the request are temporally limited, this designation. Accordingly, we are Distribution and Habitat Use and localized, and small in scale, and it is not exercising our discretion to conduct Specific Areas Containing the Essential very unlikely that modifications to these an exclusion analysis pursuant to Features sections, data currently activities would be needed to address section 4(b)(2) of the ESA based on available on ringed seal use of the impacts to critical habitat beyond any other relevant impacts. requested exclusion area, particularly modifications that may be necessary to for the northernmost portion, are address impacts to Arctic ringed seals. Proposed Exclusion Based on National limited. As we discussed above (see Security Impacts Moreover, the Navy has an existing Specific Areas Containing the Essential obligation to consult with NMFS under Based on the written information Features section), aerial surveys of section 7(a)(2) of the ESA to ensure the provided by the Navy (summarized in ringed seals during the periods of activities it funds or carries out are not the National Security Impacts section reproduction and molting have been likely to jeopardize the continued above), and clarifications provided conducted for the most part over the existence of the Arctic ringed seal, through subsequent communications continental shelf within about 25 to 40 regardless of whether or where critical with the Navy regarding the location of km of the Alaska coast. However, habitat is designated for the species. the particular area requested for incidental sightings of ringed seals were Aside from the Navy’s training and exclusion, we evaluated whether there documented up to about 100 km north testing activities, we are aware of few was a reasonably specific justification of the Beaufort Sea shelf during other Federal actions that would be indicating that designating certain areas aerial surveys expected to affect the particular area as critical habitat would have a probable conducted during spring and early requested for exclusion. incremental impact on national security. summer. Although we are not aware of We recognize that there are limited In accordance with our 4(b)(2) policy any similar data for U.S. waters farther data currently available to inform our (81 FR 7226, February 11, 2016), when north, the trend toward areas of earlier evaluation of the conservation value to the Navy provides a reasonably specific spring ice retreat lends support for our the Arctic ringed seal of the particular justification, we will defer to its expert decision to propose defining the area requested for exclusion. Therefore, judgment as to: (1) Whether activities on northern boundary of the specific area given the Navy’s specific justification its lands or waters, or its activities on that meets the definition of critical regarding potential impacts on national other lands or waters, have national habitat for the Arctic ringed seal as the security stemming from the potential security or homeland-security outer extent of the U.S. EEZ. In designation of critical habitat for the implications; (2) the importance of those addition, recent satellite telemetry data Arctic ringed seal in the particular area implications; and (3) the degree to for ringed seals tagged on the Alaska requested for exclusion, and the fact which the cited implications would be coast show that during the open-water that few other Federal actions are

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expected to occur that would no longer habitat north of the Beaufort Sea shelf Federal agency’s legal authority and be subject to consideration of effects on that is used by the Navy for training and jurisdiction, that are economically and Arctic ringed seal critical habitat if the testing activities because we determined technologically feasible, and that would particular area were excluded from the that the benefits to national security of avoid the destruction or adverse designation, we have concluded that the exclusion outweigh the benefits of modification of critical habitat. NMFS benefits of excluding this particular area designation. We have not identified any may also provide with the biological due to national security impacts unoccupied areas that are essential to opinion a statement containing outweigh the benefits of designating this the conservation of the Arctic ringed discretionary conservation area as critical habitat for the Arctic seal, and thus we are not proposing any recommendations. Conservation ringed seal. Moreover, failure to such areas for designation as critical recommendations are advisory and are designate this area as critical habitat is habitat. In accordance with our not intended to carry any binding legal not expected to result in the extinction regulations regarding critical habitat force. of the species because the area is small designation (50 CFR 424.12(c)), the map Regulations at 50 CFR 402.16 require in comparison to the entirety of the included in the proposed regulation, as Federal agencies that have retained proposed critical habitat, we have no clarified by the accompanying discretionary involvement or control reason to believe it is more valuable for regulatory text, would constitute the over an action, or where such Arctic ringed seals than other portions official boundary of the proposed discretionary involvement or control is of the proposed critical habitat, and designation. authorized by law, to reinitiate threats to Arctic ringed seals in this area consultation on previously reviewed Effects of Critical Habitat Designation (including habitat-related threats) from actions in instances where: (1) Critical Federal actions would continue to be Section 7(a)(2) of the ESA requires habitat is subsequently designated; or subject to section 7 consultations. Federal agencies, including NMFS, to (2) new information or changes to the Consequently, we are proposing to ensure that any action authorized, action may result in effects to critical exclude this area from the designation funded, or carried out by the agency is habitat not previously considered of critical habitat for the Arctic ringed not likely to jeopardize the continued (among other reasons for reinitiation). seal, and we adjusted the proposed existence of any threatened or Consequently, some Federal agencies boundaries accordingly. We modified endangered species or destroy or may request reinitiation of consultation the curvilinear southern boundary of the adversely modify designated critical or conference with us on actions for proposed exclusion area recommended habitat. Federal agencies must consult which consultation has been completed, by the Navy to simplify its delineation with us on any agency action that may if those actions may affect designated while still including the full area the affect listed species or critical habitat. critical habitat for the Arctic ringed seal. Navy recommended, resulting in a During interagency consultation, we Activities subject to the ESA section 7 slightly larger area (about 1 percent evaluate the agency action to determine consultation process include activities more area) being proposed for whether the action is likely to adversely on Federal lands as well as activities exclusion. affect listed species or critical habitat. requiring a permit or other authorization As explained in the Draft Impact The potential effects of a proposed from a Federal agency (e.g., a section Analysis Report, the total incremental action may depend on, among other 10(a)(1)(B) permit from NMFS), or some costs associated with the particular area factors, the specific timing and location other Federal action, including funding we are proposing to exclude, which of the action relative to the seasonal (e.g., Federal Highway Administration stem from administrative costs of presence of essential features or or Federal Emergency Management adding critical habitat analyses to seasonal use of critical habitat by listed Agency funding). Consultation under consultations on the Navy’s ICEX species for essential life history section 7 of the ESA would not be activities over the next 10 years, are functions. Although the requirement to required for Federal actions that do not estimated to be $13,300 (discounted at consult on an action that may affect affect listed species or designated 7 percent). Thus, the total incremental critical habitat applies regardless of the critical habitat, and would not be costs associated with the revised season, NMFS addresses spatial- required for actions on non-Federal and proposed critical habitat designation temporal considerations when private lands that are not carried out, over the next 10 years, if this area is evaluating the potential impacts of a funded, or authorized by a Federal excluded, are estimated to be $786,000 proposed action during the ESA section agency. (discounted at 7 percent). In annual 7 consultation process. For example, if Activities That May Be Affected by terms, the estimated range of discounted an action with short-term effects is Critical Habitat Designation incremental costs is $57,000 to proposed during a time of year that sea $105,000. ice is not present, we may advise that Section 4(b)(8) of the ESA requires, to consequences to critical habitat are the maximum extent practicable, in any Revised Proposed Critical Habitat unlikely. If we conclude in a biological proposed regulation to designate critical Designation opinion pursuant to section 7(a)(2) of habitat, an evaluation and brief We propose to designate as critical the ESA that the agency action would description of those activities that may habitat a specific area of marine habitat likely result in the destruction or adversely modify such habitat or that in Alaska and offshore Federal waters of adverse modification of critical habitat, may be affected by such designation. A the Bering, Chukchi, and Beaufort seas, we would recommend reasonable and variety of activities may affect Arctic within the geographical area presently prudent alternatives to the action that ringed seal critical habitat and, if carried occupied by the Arctic ringed seal. This avoid that result. out, funded, or authorized by a Federal critical habitat area contains physical or Reasonable and prudent alternatives agency, may be subject to ESA section biological features essential to the are defined in 50 CFR 402.02 as 7 consultation. Such activities include: conservation of Arctic ringed seals that alternative actions identified during In-water and coastal construction; may require special management formal consultation that can be activities that generate water pollution; considerations or protection. Based on implemented in a manner consistent dredging; commercial fishing; oil and national security impacts, we propose to with the intended purpose of the action, gas exploration, development, and exclude a particular area of marine that are consistent with the scope of the production; oil spill response; and

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certain military readiness activities. As Draft Impact Analysis Report; (9) describes the effects of the rule on small explained above, at this time, on the additional information regarding entities (i.e., small businesses, small basis of how protections are currently impacts on small businesses and not-for-profit organizations, and small implemented for Arctic ringed seals federally recognized tribes not government jurisdictions). We have under the MMPA and as a threatened identified in the Draft Impact Analysis prepared an initial regulatory flexibility species under the ESA, we do not Report; and (10) whether any particular act analysis (IRFA) that is included as anticipate that additional requests for areas that we are proposing for critical part of the Draft Impact Analysis Report project modifications will result habitat designation should be for this revised proposed rule. The IRFA specifically from this proposed considered for exclusion under section estimates the potential number of small designation of critical habitat. 4(b)(2) of the ESA and why. For these businesses that may be directly Private or non-Federal entities may described impacts or benefits, we regulated by this revised proposed rule, also be affected by the proposed critical request that the following specific and the impact (incremental costs) per habitat designation if a Federal permit is information (if relevant) be provided to small entity for a given activity type. required, Federal funding is received, or inform our ESA section 4(b)(2) analysis: Specifically, based on an examination of the entity is involved in or receives (1) A map and description of the the North American Industry benefits from a Federal project. These affected area; (2) a description of the Classification System (NAICS), this activities would need to be evaluated activities that may be affected within analysis classifies the economic with respect to their potential to destroy the area; (3) a description of past, activities potentially directly regulated or adversely modify Arctic ringed seal ongoing, or future conservation by the proposed action into industry critical habitat. As noted in the Public measures conducted within the area that sectors and provides an estimate of their Comments Solicited section below, may protect Arctic ringed seal habitat; number in each sector, based on the NMFS also requests information on the and (4) a point of contact. applicable NAICS codes. A summary of types of non-Federal activities that may You may submit your comments and the IRFA follows. be affected by this rulemaking. information concerning this revised A description of the action (i.e., revised proposed designation of critical Public Comments Solicited proposed rule by any one of the methods described under ADDRESSES habitat), why it is being considered, and To ensure the final action resulting above. The revised proposed rule and its legal basis are included in the from this revised proposal will be as supporting documentation can be found preamble of this revised proposed rule. accurate and effective as possible, we on the Federal eRulemaking Portal at This proposed action does not impose solicit comments and information from www.regulations.gov/ new recordkeeping or reporting the public, other concerned government #!docketDetail;D=NOAA-NMFS-2013- requirements on small entities. The agencies, Alaska Native tribes and 0114. We will consider all comments analysis did not reveal any Federal rules organizations, the scientific community, that duplicate, overlap, or conflict with industry, non-governmental and information received during the reopened comment period for this the proposed action. Existing Federal organizations, and any other interested laws and regulations overlap with the parties concerning our revised proposed revised proposed rule in preparing the final rule. Accordingly, the final revised proposed rule only to the extent designation of critical habitat for the that they provide protection to natural Arctic ringed seal. In particular, we are decision may differ from this revised proposed rule. resources within the area proposed as interested in data and information critical habitat generally. However, no regarding the following: (1) The References Cited existing regulations specifically prohibit distribution and habitat use of Arctic A complete list of all references cited destruction or adverse modification of ringed seals; (2) the identification, in this revised proposed rule can be critical habitat for the Arctic ringed seal. location, and quality of physical or This revised proposed critical habitat found on the Federal eRulemaking biological features essential to the rule does not directly apply to any Portal and is available upon request conservation of the Arctic ringed seal, particular entity, small or large. The from the NMFS office in Juneau, Alaska including in particular, the delineation regulatory mechanism through which (see ADDRESSES). of the northern, southern, and critical habitat protections are enforced shoreward boundaries of where one or Classifications is section 7 of the ESA, which directly more of these features occur; (3) the regulates only those activities carried National Environmental Policy Act potential impacts of designating the out, funded, or permitted by a Federal proposed critical habitat, including We have determined that an agency. By definition, Federal agencies information on the types of Federal environmental analysis as provided for are not considered small entities, activities that may trigger an ESA under the National Environmental although the activities they fund or section 7 consultation; (4) current or Policy Act of 1969 for critical habitat permit may be proposed or carried out planned activities in the area proposed designations made pursuant to the ESA by small entities. In some cases, small for designation and their possible is not required. See Douglas Cnty. v. entities may participate as third parties impacts on the proposed critical habitat; Babbitt, 48 F.3d 1495, 1502–08 (9th Cir. (e.g., permittees, applicants, grantees) (5) the potential effects of the 1995). during ESA section 7 consultations (the designation on Alaska Native cultural primary parties being the Federal action Regulatory Flexibility Act practices and villages; (6) any agency and NMFS) and thus they may foreseeable economic, national security, Under the Regulatory Flexibility Act be indirectly affected by the critical Tribal, or other relevant impacts (RFA) (5 U.S.C. 601 et seq.), as amended habitat designation. resulting from the revised proposed by the Small Business Regulatory Based on the best information designation; (7) whether any data used Enforcement Fairness Act (SBREFA) of currently available, the Federal actions in the economic analysis needs to be 1996, whenever an agency publishes a projected to occur within the time frame updated; (8) foreseeable additional costs notice of rulemaking for any proposed of the analysis (i.e., the next 10 years) arising specifically from the designation or final rule, it must prepare and make that may trigger an ESA section 7 of critical habitat for the Arctic ringed available for public comment a consultation due to the potential to seal that have not been identified in the regulatory flexibility analysis that affect one or more of the essential

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habitat features also have the potential seal. We considered and rejected the regulation that would impose an to affect Arctic ringed seals. Thus, as alternative of not designating critical enforceable duty upon State, local, tribal discussed above, we expect that none of habitat for the Arctic ringed seal, governments, or the private sector and the activities we identified would because such an alternative does not includes both ‘‘Federal trigger a consultation solely on the basis meet our statutory requirements under intergovernmental mandates’’ and of this critical habitat designation; in the ESA. We also considered and ‘‘Federal private sector mandates.’’ The addition, we do not anticipate that rejected the alternative of designating as designation of critical habitat does not additional requests for project critical habitat the entire specific area impose an enforceable duty on non- modifications will result specifically that contains at least one identified Federal government entities or private from this designation of critical habitat. essential feature (i.e., no areas parties. Under the ESA, the only As a result, the direct incremental costs excluded), because the alternative does regulatory effect of a critical habitat of this critical habitat designation are not allow the agency to take into designation is that Federal agencies expected to be limited to the additional account circumstances in which the must ensure that their actions are not administrative costs of considering benefits of exclusion for national likely to destroy or adversely modify Arctic ringed seal critical habitat in security impacts outweigh the benefits critical habitat under section 7. Non- future section 7 consultations that of critical habitat designation. Finally, Federal entities that receive Federal would occur regardless based on the through the ESA 4(b)(2) exclusion funding, assistance, permits, or listing of Arctic ringed seals. analysis process, we identified and otherwise require approval or As detailed in the Draft Impact selected an alternative under which a authorization from a Federal agency for Analysis Report, the oil and gas particular area is proposed for exclusion an action, may be indirectly affected by exploration, development, and based on national security impacts after the designation of critical habitat, but production industries participate in determining that the benefits of the legally binding duty to avoid activities that are likely to require exclusion outweigh the conservation destruction or adverse modification of consideration of critical habitat in ESA benefits to the species, while the critical habitat rests squarely on the section 7 consultations. The Small remainder of the specific area that Federal agency. Furthermore, to the Business Administration size standards contains at least one identified essential extent that non-Federal entities are used to define small businesses in these feature would be designated as critical indirectly affected because they receive cases are: (1) An average of no more habitat. We selected this alternative Federal assistance or participate in a than 1,250 employees (crude petroleum because it would result in a critical voluntary Federal aid program, the and natural gas extraction industry); or habitat designation that provides for the Unfunded Mandate Reform Act would (2) average annual receipts of no more conservation of the species and is not apply, nor would critical habitat than $41.5 million (support activities for consistent with the ESA and joint NMFS shift to state governments the costs of oil and gas operations industry). Only and U.S. Fish and Wildlife Service the large entitlement programs listed two of the parties identified in the oil regulations concerning critical habitat at above. and gas category appear to qualify as 50 CFR part 424 while potentially (2) This revised proposed rule will small businesses based on these criteria. reducing national security impacts. not significantly or uniquely affect small Based on past ESA section 7 Based on the best information currently governments because it is not likely to consultations, the additional third party available, we concluded that this produce a Federal mandate of $100 administrative costs in future alternative would result in minimal million or greater in any year; that is, it consultations involving Arctic ringed impacts to small entities and the is not a ‘‘significant regulatory action’’ seal critical habitat over the next 10 economic impacts associated with the under the Unfunded Mandates Reform years are expected to be borne critical habitat designation would be Act. In addition, the designation of principally by large oil and gas modest. critical habitat imposes no obligations operations. The estimated range of on local, state, or tribal governments. annual third party costs over this 10 Paperwork Reduction Act Therefore, a Small Government Agency year period is $32,000 to $59,000 The purpose of the Paperwork Plan is not required. (discounted at 7 percent), virtually all of Reduction Act is to minimize the Information Quality Act and Peer which is expected to be associated with paperwork burden for individuals, small Review oil and gas activities. It is possible that businesses, educational and nonprofit a limited portion of these administrative institutions, and other persons resulting The data and analyses supporting this costs may be borne by small entities from the collection of information by or proposed action have undergone a pre- (based on past consultations, an for the Federal government. This revised dissemination review and have been estimated maximum of two entities). proposed rule does not contain any new determined to be in compliance with Two government jurisdictions with or revised collection of information. applicable information quality ports appear to qualify as small This rule, if adopted, would not impose guidelines implementing the government jurisdictions (serving recordkeeping or reporting requirements Information Quality Act (Section 515 of populations of fewer than 50,000). The on State or local governments, Pub. L. 106–554). total third party costs that may be borne individuals, businesses, or On December 16, 2004, the OMB by these small government jurisdictions organizations. issued its Final Information Quality over 10 years are less than $1,000 Bulletin for Peer Review (Bulletin) (discounted at 7 percent) for the Unfunded Mandates Reform Act (2 establishing minimum peer review additional administrative effort to U.S.C. 1501 et seq.) standards, a transparent process for consider Arctic ringed seal critical In accordance with the Unfunded public disclosure of peer review habitat as part of a future ESA section Mandates Reform Act, we make the planning, and opportunities for public 7 consultation involving one port. following findings: participation. The Bulletin was As required by the RFA (as amended (1) This revised proposed rule will published in the Federal Register on by the SBREFA), we considered not produce a Federal mandate. In January 14, 2005 (70 FR 2664). The alternatives to the proposed critical general, a Federal mandate is a primary purpose of the Bulletin, which habitat designation for the Arctic ringed provision in legislation, statute or was implemented under the Information

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Quality Act, is to improve the quality Government. This relationship has 12630, the revised proposed rule does and credibility of scientific information given rise to a special Federal trust not have significant takings disseminated by the Federal government responsibility involving the legal implications. The designation of critical by requiring peer review of ‘‘influential responsibilities and obligations of the habitat directly affects only Federal scientific information’’ and ‘‘highly United States toward Indian tribes and agency actions (i.e., those actions influential scientific information’’ prior the application of fiduciary standards of authorized, funded, or carried out by to public dissemination. Influential due care with respect to Indian lands, Federal agencies). Further, no areas of scientific information is defined as tribal trust resources, and the exercise of private property exist within the revised information the agency reasonably can tribal rights. Executive Order 13175 on proposed critical habitat and hence determine will have or does have a clear Consultation and Coordination with none would be affected by this action. and substantial impact on important Indian Tribal Governments outlines the Therefore, a takings implication public policies or private sector responsibilities of the Federal assessment is not required. decisions. The Bulletin provides Government in matters affecting tribal Executive Order 12866, Regulatory agencies broad discretion in interests. Section 161 of Public Law Planning and Review, and Executive determining the appropriate process and 108–199 (188 Stat. 452), as amended by Order 13771, Reducing Regulation and level of peer review. Stricter standards section 518 of Public Law 108–447 (118 Controlling Regulatory Costs were established for the peer review of Stat. 3267), directs all Federal agencies ‘‘highly influential scientific to consult with Alaska Native OMB has determined that this revised assessments,’’ defined as information corporations on the same basis as Indian proposed rule is significant for purposes whose dissemination could have a tribes under E.O. 13175. of E.O. 12866 review. A Draft Impact potential impact of more than $500 As the entire proposed critical habitat Analysis Report has been prepared that million in any one year on either the area is located seaward of the line of considers the economic costs and public or private sector or that the MLLW and does not extend into tidally- benefits of the revised proposed critical information is novel, controversial, or influenced channels of tributary waters, habitat designation and alternatives to precedent-setting, or has significant no tribal-owned lands overlap with the this rulemaking as required under E.O. interagency interest. revised proposed designation. However, 12866. To review this report, see the The evaluation of critical habitat we seek comments and information ADDRESSES section above. presented in this revised proposed rule concerning tribal and Alaska Native Based on the Draft Impact Analysis and the information presented in the corporation activities that are likely to Report, the total estimated present value supporting Draft Impact Analysis Report be affected by the proposed designation of the incremental impacts of the are considered influential scientific (see Public Comments Solicited revised proposed critical habitat information subject to peer review. To section). Although this revised proposed designation is approximately $786,000 satisfy our requirements under the OMB designation overlaps with areas used by over the next 10 years (discounted at 7 Bulletin, we obtained independent peer Alaska Natives for subsistence, cultural, percent). Assuming a 7 percent discount review of the critical habitat analysis and other purposes, no restrictions on rate, the range of annual impacts is contained in our 2014 proposed rule subsistence hunting are associated with estimated to be $57,000 to $105,000. from five reviewers, and of the the critical habitat designation. We Overall, economic impacts are expected information used to prepare the coordinate with Alaska Native hunters to be small and Federal agencies are associated impact analysis report from regarding management issues related to anticipated to bear at least 45 percent of three reviewers. We reviewed the Arctic ringed seals through the Ice Seal these costs. While there are expected comments received from these Committee (ISC), a co-management beneficial economic impacts of reviewers for substantive issues and organization under section 119 of the designating critical habitat for the Arctic new information regarding critical MMPA. We discussed the designation of ringed seal, there are insufficient data habitat for the Arctic ringed seal, and critical habitat for Arctic ringed seals available to monetize those impacts (see we used this information as applicable with the ISC and provided updates Benefits of Designation section). in the development of this revised regarding the timeline for publication of This proposed rulemaking is expected proposed rule and the associated Draft this revised proposed rule. We will also to be regulatory under E.O. 13771. Impact Analysis Report. The peer contact potentially affected tribes and Executive Order 13132, Federalism review comments are compiled in two Alaska Native corporations by mail and reports that are available on the Federal offer them the opportunity to consult on Executive Order 13132 requires eRulemaking Portal or upon request (see the revised designation of critical agencies to take into account any ADDRESSES). We are obtaining additional habitat for the Arctic ringed seal and federalism impacts of regulations under independent peer review of the discuss any concerns they may have. If development. It includes specific information used to prepare this revised we receive any such requests in consultation directives for situations in proposed rule, and will address all response to this revised proposed rule, which a regulation may preempt state comments received in developing the we will respond to each request before law or impose substantial direct final rule. issuing a final rule. compliance costs on state and local governments (unless required by Executive Order 13175, Consultation Executive Order 12630, Takings statute). Pursuant to E.O. 13132, we and Coordination With Indian Tribal Under E.O. 12630, Federal agencies determined that this revised proposed Governments must consider the effects of their actions rule does not have significant federalism The longstanding and distinctive on constitutionally protected private effects and that a federalism assessment relationship between the Federal and property rights and avoid unnecessary is not required. The designation of tribal governments is defined by takings of property. A taking of property critical habitat directly affects only the treaties, statutes, executive orders, includes actions that result in physical responsibilities of Federal agencies. As judicial decisions, and co-management invasion or occupancy of private a result, the revised proposed rule does agreements, which differentiate tribal property, and regulations imposed on not have substantial direct effects on the governments from the other entities that private property that substantially affect States, on the relationship between the deal with, or are affected by, the Federal its value or use. In accordance with E.O. national government and the States, or

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on the distribution of power and Report for this revised proposed rule). rulemaking is not a significant energy responsibilities among the various This proposed critical habitat action. levels of government, as specified in the designation overlaps with five BOEM List of Subjects Order. State or local governments may planning areas for Outer Continental be indirectly affected by the revised Shelf oil and gas leasing; however, the 50 CFR Part 223 proposed designation if they require Beaufort and Chukchi Sea planning Endangered and threatened species. Federal funds or formal approval or areas are the only areas with existing or authorization from a Federal agency as planned leases. 50 CFR Part 226 a prerequisite to conducting an action. Currently, the majority of oil and gas Endangered and threatened species. In these cases, the State or local production occurs on land adjacent to government agency may participate in Dated: December 28, 2020. the Beaufort Sea and the proposed the ESA section 7 consultation as a third Samuel D. Rauch III, critical habitat area. Any proposed party. However, in keeping with Deputy Assistant Administrator for Department of Commerce policies and offshore oil and gas projects would Regulatory Programs, National Marine consistent with ESA regulations at 50 likely undergo an ESA section 7 Fisheries Service. consultation to ensure that the project CFR 424.16(c)(1)(ii), we will request For the reasons set out in the would not likely destroy or adversely information for this revised proposed preamble, 50 CFR parts 223 and 226 are modify designated critical habitat. rule from the appropriate state resource proposed to be amended as follows: agencies in Alaska. However, as discussed in the Draft Impact Analysis Report for this revised PART 223—THREATENED MARINE Executive Order 13211, Energy Supply, proposed rule, such consultations will AND ANADROMOUS SPECIES Distribution, and Use not result in any new and significant Executive Order 13211 requires effects on energy supply, distribution, or ■ 1. The authority citation for part 223 agencies to prepare Statements of use. ESA section 7 consultations have continues to read as follows: Energy Effects when undertaking a occurred for numerous oil and gas Authority: 16 U.S.C. 1531–1543; subpart significant energy action. Under E.O. projects within the area of the critical B, § 223.201–202 also issued under 16 U.S.C. 13211, a significant energy action means habitat designation (e.g., regarding 1361 et seq.; 16 U.S.C. 5503(d) for any action by an agency that is expected possible effects on endangered bowhead § 223.206(d)(9). to lead to the promulgation of a final whales, a species without designated ■ 2. In § 223.102, amend the table in rule or regulation that is a significant critical habitat) without adversely paragraph (e), under Marine Mammals, regulatory action under E.O. 12866 and affecting energy supply, distribution, or by revising the entry for the ‘‘Seal, is likely to have a significant adverse use, and we would expect the same ringed (Arctic subspecies)’’ to read as effect on the supply, distribution, or use relative to critical habitat for Arctic follows: of energy. We have considered the ringed seals. We have, therefore, potential impacts of this revised determined that the energy effects of § 223.102 Enumeration of threatened proposed critical habitat designation on this revised proposed rule are unlikely marine and anadromous species. the supply, distribution, or use of to exceed the impact thresholds * * * * * energy (see Draft Impact Analysis identified in E.O. 13211, and that this (e) * * *

Species 1 Citation(s) for listing de- Critical habitat ESA rules Common name Scientific name Description of listed entity termination(s)

Marine Mammals

******* Seal, ringed (Arctic sub- Phoca (=Pusa) hispida Entire subspecies ...... 77 FR 76706, Dec. 28, 226.229 NA species). hispida. 2012.

******* 1 Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722; February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612; November 20, 1991).

* * * * * depicted in this section. The map, of tributary waters of the Bering, clarified by the textual descriptions in Chukchi, or Beaufort seas. The PART 226—DESIGNATED CRITICAL this section, is the definitive source for boundary extends offshore from the HABITAT determining the critical habitat northern limit of the United States- boundaries. Canada border approximately 190 km to ■ 3. The authority citation for part 226 (a) Critical habitat boundaries. 71°17′29″ N139°28′8″ W, and from this continues to read as follows: Critical habitat for the Arctic subspecies point runs generally westward along the Authority: 16 U.S.C. 1533. of the ringed seal includes marine line connecting the following points: ° ′ ″ ° ′ ″ ° ′ ″ ■ 4. Add § 226.229 to read as follows: waters within one specific area in the 71 43 32 N/141 59 29 W, 71 46 18 N/ Bering, Chukchi, and Beaufort seas, 144°31′13″ W, 71°50′25″ N/145°53′17″ § 226.229 Critical Habitat for the Arctic extending from the line of mean lower W, 72°10′39″ N/149°10′58″ W, 72°20′4″ Subspecies (Pusa hispida hispida) of the low water (MLLW) to an offshore limit N/150° W, and 72°20′4″ N/152° W. From Ringed Seal. within the U.S. Exclusive Economic this point (72°20′4″ N/152° W) the Critical habitat is designated for the Zone (EEZ). Critical habitat does not boundary follows longitude 152° W Arctic subspecies of the ringed seal as extend into tidally-influenced channels northward to the seaward limit of the

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U.S. EEZ, and then follows the limit of on or before the effective date of this snowdrifts of sufficient depth, typically the U.S. EEZ northwestward; then rule. at least 54 cm deep. southwestward and south to the (b) Essential features. The essential (2) Sea ice habitat suitable as a intersection of the southern boundary of features for the conservation of the platform for basking and molting, which the critical habitat in the Bering Sea at Arctic subspecies of the ringed seal are: is defined as areas containing sea ice of 61°18′15″ N/177°45′56″ W. The 15 percent or more concentration, southern boundary extends (1) Snow-covered sea ice habitat excluding any bottom-fast ice extending southeastward from this intersection suitable for the formation and seaward from the coastline (typically in point to 60°7′ N/172°1′ W, then maintenance of subnivean birth lairs waters less than 2 m deep). northeastward along a line extending to used for sheltering pups during (3) Primary prey resources to support near Cape Romanzof at 61°48′42″ N/ whelping and nursing, which is defined Arctic ringed seals, which are defined to 166°6′5″ W, with the shoreward as areas of seasonal landfast (shorefast) be Arctic cod (Boreogadus saida), boundary defined by line of MLLW. ice and dense, stable pack ice, excluding saffron cod (Eleginus gracilis), shrimps, Critical habitat does not include any bottom-fast ice extending seaward and amphipods. permanent manmade structures such as from the coastline (typically in waters (c) Map of Arctic ringed seal critical boat ramps, docks, and pilings that were less than 2 m deep), that have habitat. in existence within the legal boundaries undergone deformation and contain BILLING CODE 3510–22–P

[FR Doc. 2020–29008 Filed 1–7–21; 8:45 am] BILLING CODE 3510–22–C

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