department of the interior - united states fish and ... habitat/esa... · department of the...

Tuesday,

February 6, 2001

Part II

Department of theInteriorFish and Wildlife Service

50 CFR Part 17Endangered and Threatened Wildlife andPlants; Final Determination of CriticalHabitat for the Spectacled Eider; FinalRule

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9146 Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AF92

Endangered and Threatened Wildlifeand Plants; Final Determination ofCritical Habitat for the SpectacledEider

AGENCY: Fish and Wildlife Service,Interior.ACTION: Final rule.

SUMMARY: We, the U.S. Fish andWildlife Service (Service), designatecritical habitat for the spectacled eider(Somateria fischeri), a threatenedspecies listed pursuant to theEndangered Species Act of 1973, asamended (Act). Critical habitat for thespectacled eider includes areas on theYukon-Kuskokwim Delta (Y–K Delta), inNorton Sound, Ledyard Bay, and theBering Sea between St. Lawrence andSt. Matthew Islands. These areas totalapproximately 10,098,827 hectares(100,988.3 square kilometers; 38,991.6square miles; 24,954,638 acres).

Section 4 of the Act requires us toconsider economic and other impacts ofspecifying any particular area as criticalhabitat. We solicited data and commentsfrom the public on all aspects of theproposed rule and economic analysis.Section 7 of the Act prohibitsdestruction or adverse modification ofcritical habitat by any activity funded,authorized, or carried out by anyFederal agency.DATES: The effective date of this rule isMarch 8, 2001.FOR FURTHER INFORMATION CONTACT: AnnG. Rappoport, Field Supervisor,Anchorage Field Office, U.S. Fish andWildlife Service, 605 West 4th Avenue,Room G–61, Anchorage, Alaska 99501(telephone 907/271–2787 or toll-free800/272–4174; facsimile 907/271–2786).SUPPLEMENTARY INFORMATION:

Background

The spectacled eider is a large seaduck, 52–56 centimeters long (20–22inches). Sea ducks, waterfowl thatspend at least part of their lives at seaor on large waterbodies, are a subgroupof the subfamily Anatinae, familyAnatidae. Within each subfamily,taxonomists group the waterfowlspecies into tribes, but while Delacourand Mayr (1945) originally placed theeiders (Tribe Somaterini) in a separatetribe from other sea ducks (TribeMergini), Johnsgard (1960) and othershave grouped them together under Tribe

Mergini. The spectacled eider was firstdescribed by Brandt in 1847 as Fuligulafischeri, then later placed in the generaLampronetta and Arctonetta, and finallyunder Somateria (AmericanOrnithologists’ Union 1983). Thespectacled eider is one of three speciesin the genus Somateria. All Somateriaspecies’ ranges include the UnitedStates.

In the winter and spring, adult malespectacled eiders are in breedingplumage with a black chest, white back,and pale green head with a long slopingforehead and black-rimmed whitespectacle-like patches around the eyes.During the late summer and fall, malesare mottled brown. Females andjuveniles are mottled brown year-roundwith pale brown eye patches.Spectacled eiders are diving ducks thatspend most of the year in marine waterswhere they primarily feed on bottom-dwelling molluscs and crustaceans.

Geographic RangeIn the United States, spectacled eiders

historically had a discontinuous nestingdistribution from the NushagakPeninsula in southwestern Alaska northto Barrow and east nearly to theCanadian border. Today two breedingpopulations remain in Alaska. Theremainder of the species breeds inArctic Russia. The species throughoutits range, including the Arctic Russianpopulation, is listed under the Act (16U.S.C. 1531 et seq.) as threatenedwherever it occurs.

On the Y–K Delta, spectacled eidersbreed mostly within 15 kilometers (km)(9.3 statute miles (mi)) of the coast fromKigigak Island north to Kokechik Bay(Service 1996), with smaller numbersnesting south of Kigigak Island toKwigillingok and north of Kokechik Bayto the mouth of Uwik Slough. Thecoastal fringe of the Y–K Delta is theonly subarctic breeding habitat wherespectacled eiders occur at high density(3.0–6.8 birds/square kilometer (km2),1.2–2.6 birds/square mile (mi2)) (Service1996). Nesting on the Y–K Delta isrestricted to the vegetated intertidalzone (areas dominated by low wet-sedgeand grass marshes with numerous smallshallow water bodies). Nests are rarelymore than 190 meters (m) (680 feet (ft))from water and are usually within a fewmeters of a pond or lake.

On Alaska’s North Slope, nearly allspectacled eiders breed north of 70°latitude between Icy Cape and theShaviovik River. Within this region,most spectacled eiders occur betweenCape Simpson and the SagavanirktokRiver (Service 1996). Spectacled eiderson the North Slope occur at lowdensities (0.03–0.79 birds/km2, 0.01–

0.31 birds/mi2) (Larned and Balogh1997) within about 80 km (43.2 nauticalmiles (nm)) of the coast. During pre-nesting and early nesting, they occurmost commonly on large shallowproductive thaw lakes usually withconvoluted shorelines or small islands(Larned and Balogh 1997). Such shallowwater bodies with emergent vegetationand low islands or ridges appear to beimportant as eider nesting and brood-rearing habitat on the North Slope(Derksen et al. 1981, Warnock and Troy1992, Andersen et al. 1998).

Within the United States, spectacledeiders molt in Norton Sound andLedyard Bay, where they congregate inlarge, dense flocks that may beparticularly susceptible to disturbanceand environmental perturbations.During their time on the moltinggrounds (early July through October),each bird is flightless for a few weeks.However, there is no time in which allbirds are simultaneously flightless(Petersen et al. 1999).

Norton Sound is located along thewestern coast of Alaska between the Y–K Delta and the Seward Peninsula. It isthe principal molting and staging areafor females nesting, and for juvenilesraised, on the Y–K Delta (Petersen et al.1999), the most imperiled of the threebreeding populations. Some Y–K Deltamale spectacled eiders, presumablysubadult males, also molt in NortonSound (Petersen et al. 1999). Breedingadult males from the Y–K Delta have notbeen observed to molt in Norton Sound,but they are known to molt in LedyardBay and in at least two locations inRussian waters (Petersen et al. 1999). Asmany as 4,030 spectacled eiders havebeen observed in Norton Sound at onetime (Larned et al. 1995a). Spectacledeiders molted in the same portion ofeastern Norton Sound each year from1993 to 1997. Charles Lean (AlaskaDepartment of Fish and Game (ADFG),pers. comm. 1999) reported seeing largeflocks in this same area in August andSeptember from 1982 to 1990,suggesting that this area has a history ofconsistent use by molting spectacledeiders. Spectacled eiders arrive ineastern Norton Sound at the end of Julyand depart in mid-October (Petersen etal. 1999). Although overall benthicbiomass (quantity of organisms living onthe sea floor) in this area is thought tobe lower than in other parts of NortonSound, the abundance of largegastropods (e.g., snails, which arepresumably a spectacled eider fooditem) is higher in this area thanelsewhere (Springer and Pirtle 1997).

Ledyard Bay is one of the primarymolting grounds for female spectacledeiders breeding on the North Slope, and


9147Federal Register / Vol. 66, No. 25 / Tuesday, February 6, 2001 / Rules and Regulations

most female birds molting here are fromthe North Slope (Petersen et al. 1999).Satellite telemetry data suggest thatmale spectacled eiders from the NorthSlope appear to molt and stage in equalnumbers in Ledyard Bay and the twoprimary molting areas in Russia,Mechigmenskiy Bay and off the coast ofthe Indigirka and Kolyma River Deltas(Petersen et al. 1999). Aerial surveys inSeptember 1995 found 33,192spectacled eiders using Ledyard Bay.Most were concentrated in a 37-km (23-mi) diameter circle with theirdistribution centered about 67 km (36.2nm) southwest of Point Lay and 41 km(22.1 nm) offshore (Larned et al. 1995b).

During winter, spectacled eiderscongregate in exceedingly large anddense flocks in pack ice openingsbetween St. Lawrence and St. MatthewIslands in the central Bering Sea (Larnedet al. 1995c). Spectacled eiders from allthree known breeding populations usethis wintering area (Service 1999a); noother wintering areas are currentlyknown. Larned and Tiplady (1999)conservatively estimated the entirewintering population, and perhaps theworldwide population, of spectacledeiders at 374,792 birds (95 percentConfidence Interval = 371,278–378,305).

Although we are unaware of largenumbers of spectacled eiders winteringelsewhere, it has been hypothesized thatthe known wintering location may notbe the only location used by thisspecies. Dau and Kistchinski (1977)hypothesized that spectacled eiders maybe overwintering south of St. Matthewand Nunivak Islands in Alaska, andsouth of the Chukotka Peninsula inRussia. No spectacled eiders wereobserved on one limited reconnaissanceflight south of St. Matthew Island in1995 (Bill Larned, Service, pers. comm.2000). We have not surveyed south ofNunivak Island during winter. To date,all satellite transmitter data gatheredduring winter has originated from theknown wintering area.

Population StatusBetween the 1970s and 1990s,

spectacled eiders on the Y–K Deltadeclined by about 96 percent, from48,000 pairs to fewer than 2,500 pairs in1992 (Stehn et al. 1993). Based uponsurveys conducted during the past fewyears, the Y–K Delta breedingpopulation is now estimated to be about3,500–4,000 pairs. This estimate is theproduct of three separate factors: anaerial survey population index, asubsample of intensively ground-searched plots, and a measure ofdetection bias (including surveyorefficiency) on the ground plots.Detection bias results from the fact that

observers see only a portion of the birdsthat are present or that some birds aremore visible than others. The errorassociated with the annual estimate is ameasure of the error associated with theaerial survey index only (as reflected inthe coefficient of variance). Thepopulation estimate for 2000, based onthe number of active and failed nests (ornesting attempts by breeding pairs),expanded to the entire aerial survey areaand adjusted for detection bias, was3,709 active nests on the Y–K Delta. Theaerial survey coefficient of variance was0.159. The population trend for thisnesting population can be characterizedas stable to slightly increasing over thelast 10 years.

The breeding population on the NorthSlope is currently the largest breedingpopulation of spectacled eiders in NorthAmerica. The most recent populationestimate, uncorrected for aerialdetection bias, is 4,744 ± 907 pairs (x̄ ±2SE; arithmetic mean plus or minus twotimes the standard error associated withthe sample) (Larned et al. 1999).However, this breeding area is nearlynine times the size of the Y–K Deltabreeding area. Consequently, the densityof spectacled eiders on the North Slopeis about one quarter that on the Y–KDelta (Larned and Balogh 1997, Service1996; Robert Stehn, Service, MigratoryBird Management (MBM), pers. comm.2000). Based on our survey data, thespectacled eider breeding population onthe North Slope does not show asignificant decline throughout most ofthe 1990s. The downward trend of 2.6percent per year is bounded by a 90percent confidence interval rangingfrom a 7.7 percent decline per year toa 2.7 percent increase per year (Service,unpubl. data).

We do not know the size of thenonbreeding segment of any population.Presumably, nonbreeding birds remainat sea year-round until they attempt tobreed at age two or three. We do notknow which areas at sea are importantto nonbreeding spectacled eiders.

Previous Federal ActionOn December 10, 1990, we received a

petition from James G. King, datedDecember 1, 1990, to list the spectacledeider as an endangered species and todesignate critical habitat on the YukonDelta National Wildlife Refuge and theNational Petroleum Reserve-Alaska. Weconvened a workshop on February 6and 7, 1991, to review existinginformation and develop priorities andrecommendations for future studies ofboth spectacled and Steller’s eiders. OnApril 25, 1991, we published a 90-dayfinding that the petition had presentedsubstantial information indicating that

the requested action may be warranted(56 FR 19073).

On February 12, 1992, a 12-monthfinding was signed, determining thatlisting was warranted. On May 8, 1992,we published a proposed rule to list thespectacled eider as a threatened speciesthroughout its range (57 FR 19852).Section 4(a)(3) of the Act requires that,to the maximum extent prudent anddeterminable, the Secretary designatecritical habitat at the time a species isdetermined to be endangered orthreatened. We proposed that it was notprudent to designate critical habitat forthe spectacled eider because there wasno demonstrable benefit that could beshown at that time (50 CFR 424.12). Wesolicited comments from all interestedparties during an extended commentperiod (160 days). This extendedcomment period was intended toaccommodate Alaskan Natives, whospend substantial portions of each yearaway from their homes engaged insubsistence activities, and foreignscientists, whose comments may nothave been received during the normal90-day period. We particularly soughtcomments concerning threats tospectacled eiders, their distribution andrange, whether critical habitat should bedesignated, and activities that mightimpact spectacled eiders. Notice of theproposed rule was sent to appropriateFederal agencies, State agencies, AlaskaNative regional corporations, boroughand local governments, scientificorganizations, foreign countries, andother interested parties along with arequest for information that mightcontribute to the development of a finalrule.

After a review of all commentsreceived in response to the proposedrule, we published the final rule to listthe spectacled eider as threatenedwithout critical habitat on May 10, 1993(58 FR 27474). Only 5 of the 24comments received specificallyaddressed critical habitat designation.Of these, one supported and fouropposed the ‘‘not prudent’’determination. Those that opposed the‘‘not prudent’’ finding recommendedthat critical habitat be designated, atleast for nesting areas. They also feltthat we should have considered andprovided information on possiblemarine critical habitat. In our final ruleto list the spectacled eider asthreatened, we maintained thatdesignation of critical habitat was notprudent because no demonstrableoverall benefit could be shown at thattime (50 CFR 424.12).

We initiated recovery planning for thespectacled eider in 1993. TheSpectacled Eider Recovery Team was



formed, consisting of ten members andfour consultants with a variety ofexpertise in spectacled eider biology,conservation biology, populationbiology, marine ecology, Native Alaskanculture, and wildlife management. TheRecovery Team and its consultantsdeveloped the Spectacled EiderRecovery Plan, which we approved onAugust 12, 1996. The Recovery Planestablished the recovery criteria thatmust be met prior to the delisting ofspectacled eiders. The plan alsoidentified the actions that are needed toassist in the recovery of spectacledeiders. Additionally, subsequent to thespecies listing, new information hasbecome available concerning thespectacled eiders’ molting andwintering habitat. We also now have amore precise delineation of its breedinghabitat.

On March 10, 1999, the SouthwestCenter for Biological Diversity and theChristians Caring for Creation filed alawsuit in Federal District Court in theNorthern District of California againstthe Secretary of the Department of theInterior for failure to designate criticalhabitat for five species in California andtwo in Alaska. These species includethe Alameda whipsnake (Masticophislateralis euryxanthus), the zayanteband-winged grasshopper(Trimerotropis infantilis), the Morroshoulderband snail (Helmintholglyptawalkeriana), the arroyo southwesterntoad (Bufo microscaphus californicus),the San Bernardino kangaroo rat(Dipodomys merriami parvus), thespectacled eider, and the Steller’s eider(Polysticta stelleri).

In the last few years, several courtdecisions have overturned Servicedeterminations for a variety of speciesfor which we believed designation ofcritical habitat was not prudent (e.g.,Natural Resources Defense Council v.U.S. Department of the Interior, 113 F.3d 1121 (9th Cir. 1997); ConservationCouncil for Hawaii v. Babbitt, 2 F. Supp.2d 1280 (D. Hawaii 1998)). Based on thestandards applied in those judicialopinions and the availability of newinformation concerning the species’recovery and habitat needs, werecognized the value of reexamining thequestion of whether critical habitat forthe spectacled eider is prudent.Accordingly, the Federal Governmententered into a settlement agreementwhereby we agreed to readdress theprudency of designating critical habitatfor spectacled eiders.

In another case, Wilderness Society, etal. v. Babbitt, Civ. No. 98–02395(D.D.C.), filed on behalf of theWilderness Society and seven othernational and regional environmental

organizations in October 1998,objections were raised to theDepartment of the Interior’s decision toundertake oil and gas leasing in theNPR–A. One of the plaintiffs’ claims inthis litigation is that our failure todesignate critical habitat (i.e., our notprudent determination) for spectacledand Steller’s eiders was arbitrary andcapricious and in violation of the Act.This claim is currently being litigated.

After reviewing the best scientific andcommercial data available, we proposedto withdraw our previous finding thatthe designation of critical habitat for thespectacled eider was not prudent. OnFebruary 8, 2000, we proposed thedesignation of nine areas in northernand western Alaska as critical habitatfor the spectacled eider (65 FR 6114).

We requested that all interestedparties submit comments during thepublic comment period on the specificsof the proposal including information,policy, and proposed critical habitatboundaries as provided in the proposedrule. The comment period was initiallyopen from February 8, 2000, until May8, 2000. On April 19, 2000, wepublished a notice in the FederalRegister extending the closing date forthe open public comment period fromMay 8, 2000, to June 30, 2000 (65 FR20938). On July 5, 2000, we publisheda notice in the Federal Register againextending the closing date for the openpublic comment period from June 30,2000, to August 31, 2000 (65 FR 41404).On July 31, 2000, we published a noticein the Federal Register announcing apublic hearing on critical habitat forspectacled and Steller’s eiders inBarrow, Alaska (65 FR 46684). OnAugust 24, 2000, we published a noticein the Federal Register announcing theavailability of our draft economicanalysis and extending the closing datefor the open public comment periodfrom August 31, 2000, to September 25,2000 (65 FR 51577). The resultingcomment period lasted from February 8,2000, to September 25, 2000 (231 days).

We have made our critical habitatdelineations based upon the bestscientific and commercial informationavailable. However, we recognize thatwe do not have complete information onthe distribution of this species at alltimes of the year. Thus, if informationbecomes available indicating thatadditional or fewer areas are essentialfor the conservation of the species, andmay need special managementconsiderations and protections, we mayreevaluate our critical habitatdesignation, including proposingadditional critical habitat or proposingdeletion or boundary refinement ofexisting critical habitat.

State of Knowledge of the SpectacledEider

Few species make themselves lessavailable for study than the spectacledeider. It spends most of the year in theBering Sea, far from shore and humansettlements. Summers are spent widelydispersed across the vast and nearlyinaccessible arctic and subarctic tundra.Twenty-five years ago, we knewspectacled eiders were commonbreeders on the Y–K Delta, but we knewonly a little about their breedingbiology. Ten years ago, we knew theywere declining in abundance on the Y–K Delta, but we did not know why. Wealso did not know much about wherethey spent three-quarters of each yearduring the non-breeding season. Sincethe species was listed in 1993, we havelearned, among other things—(1) wheremost, if not all spectacled eiders spendthe winter; (2) the locations of majormolting areas at sea for each breedingpopulation; (3) the size of the breedingpopulations for each of the three majorbreeding areas; (4) that consumption ofspent lead shot is a problem for eidersbreeding on the Y–K Delta; (5) thatsubsistence hunting probably did notcause the observed decline of eiders onthe Y–K Delta, but it might be hinderingor preventing recovery; (6) that directinteractions with commercial fisheriesdoes not seem to be a problem for thisspecies; and (7) that we will probablynever know why this species declined96 percent on the Y–K Delta since the1970’s, or whether its North Slopebreeding population is at, below, orabove historical population levels.

We note that the recovery plan for thisspecies contains valuable biologicalinformation, and is cited throughoutthis document. However, the state of ourknowledge regarding eider biology anddistribution has changed markedly sincepublication of the spectacled eiderrecovery plan. The recovery criteria putforth in this recovery plan representcareful consideration on the part of apanel of highly qualified scientists. Thespectacled eider recovery plan sets forthseveral criteria, any of which, if met,would allow us to consider delistingspecific populations (North Slope, Y–KDelta, Arctic Russia breedingpopulations). One such recovery goal isthat three annual surveys yield aminimum population estimate of at least10,000 breeding pairs. An alternative tothe first goal is that a population couldbe delisted if a single survey resulted ina minimum population estimate of over25,000 breeding pairs. There is a thirdrecovery goal, that is based upon a fairlycomplex statistical measure thatconsiders population trend data and



over- and under-protection lossfunctions combined with a minimumbreeding population estimate; however,it is sufficiently complex that it isbeyond the scope of this document toexplain.

The recovery criteria put forth in theplan may warrant revision in light ofnew information. As a result of notableresearch and survey efforts directedtowards this species, substantialportions of the biological informationpresented in the recovery plan is nowdated or obsolete. Thus, although therecovery plan is a valuable source ofinformation, it cannot always beconsidered the final authority on thenatural history and distribution of thisspecies. Finally, we note that therecovery plan did not discuss criticalhabitat. However, we do not interpretthe plan’s silence on the topic to be animplicit endorsement that criticalhabitat is or is not warranted.

We do not know what critical factoror factors are limiting the recovery ofthis species, but we suspect that thesefactors are affecting survival of breedingadults. Hypotheses that continue to beimplicated in the decline of the eidersinclude—(1) lead poisoning on the Y–KDelta; (2) changes in food supply at sea;(3) excessive subsistence take; (4)changes in predator pressure on the Y–K Delta breeding ground; and (5)disturbance of nesting birds byresearchers.

Data indicate that lead poisoning is aserious problem on at least someportions of the Y–K Delta.Approximately one third of adultbreeding females near the lowerKashunuk River exhibited elevated leadlevels in blood, suggesting consumptionof at least one lead pellet during thebreeding season (Flint et al. 1997). Inaddition, nine of 43 broods sampledcontained one or more ducklings thathad consumed lead within 30 days ofhatching (Flint et al. 1997). Although wehave seen elevated levels of lead inlong-tailed ducks (oldsquaw) (Clangulahyemalis) from the North Slope, we donot know if lead poisoning is a problemfor spectacled eiders there.

Information is just beginning to comein suggesting a deterioration of habitatconditions favorable to spectacledeiders on their wintering grounds in theBering Sea. South of St. LawrenceIsland, a number of factors suggest thatthe eider’s preferred food resources arein decline. Organic deposition andbenthic biomass in this area havedeclined steadily since the late 1980s.Oceanographic studies during latewinter (March–April 1999) found thatparticulate organic carbonconcentrations in the water column

were too low to support significantpopulations of large zooplankton orkrill, indicating that spectacled eidersmust be feeding on the bottom.However, a long-term trend in benthiccommunities continues: The formerlyabundant bivalve Macoma calcarea hasdeclined relative to another clamNuculana radiata, which has 76 percentlower lipid content and 26 percentlower energy density (J.R. Lovvorn,Univ. Wyoming, pers. comm. 2000). Theaverage length and mass of bivalves hasalso declined in the long term (J.M.Grebmeier and B.I. Sirenko, unpubl.data). Because nearly all individuals ofthis species may spend each winteroccupying an area of ocean less than 50km (27.0 nm) in diameter, they may beparticularly vulnerable toenvironmental changes of limitedgeographic extent during this time.

We have estimated that at least 3.75percent of the breeding adult spectacledeiders on the Y–K Delta are taken bysubsistence hunters each year, but thepopulation-level effects of this harvestare not clear. We note, however, that aspectacled eider population model(currently available to the public overthe Internet at http://abscweb.wr.usgs.gov/research/speimod/index.htm) suggests that a harvest of thissize may slow or prevent recovery ofthis species. We have thus far beenunsuccessful in establishing asubsistence harvest survey for villageson the North Slope, and therefore, wehave no estimates of the take from thatbreeding population.

We will probably never know whatrole predators played in the decline ofeiders on the Y–K Delta, but as Y–KDelta goose populations rebound, anynegative affect of predators on eiderpopulations is, hopefully, diminishing.There is no reason to suspect thatpredator pressure on eiders hasincreased over historical levels on theNorth Slope, except perhaps locallynear human habitations and oilproduction facilities.

Our preliminary information indicatesthat researchers are not having a notableeffect on nesting spectacled eiders(Service 1999b), but it neverthelessremains a concern of Natives residingon the Y–K Delta. Ground-based studiesfor spectacled eiders on the North Slopeare mostly restricted to a very smallportion of their range around developedoil fields or incidental to other birdstudies around Barrow.

Critical HabitatCritical habitat is defined in section 3

of the Act as—(i) the specific areaswithin the geographic area occupied bya species, at the time it is listed in

accordance with the Act, on which arefound those physical or biologicalfeatures (I) essential to the conservationof the species and (II) that may requirespecial management considerations orprotection; and (ii) specific areasoutside the geographic area occupied bya species at the time it is listed, upona determination that such areas areessential for the conservation of thespecies. ‘‘Conservation’’ means the useof all methods and procedures that arenecessary to bring an endangered or athreatened species to the point at whichlisting under the Act is no longernecessary.

Section 4(b)(2) of the Act requires thatwe base critical habitat proposals uponthe best scientific and commercial dataavailable, after taking into considerationthe economic impact, and any otherrelevant impact, of specifying anyparticular area as critical habitat. Wemay exclude any area from criticalhabitat designation if the benefits ofsuch exclusion outweigh the benefits ofincluding such area as part of thecritical habitat, provided the exclusionwill not result in the extinction of thespecies (section 4(b)(2) of the Act).

Critical habitat receives protectionunder section 7 of the Act through theprohibition against destruction oradverse modification of critical habitatwith regard to actions carried out,funded, or authorized by a Federalagency. Section 7 also requiresconferences on Federal actions that arelikely to result in the destruction oradverse modification of proposedcritical habitat. In our regulations at 50CFR 402.02, we define destruction oradverse modification as ‘‘* * * thedirect or indirect alteration thatappreciably diminishes the value ofcritical habitat for both the survival andrecovery of a listed species. Suchalterations include, but are not limitedto, alterations adversely modifying anyof those physical or biological featuresthat were the basis for determining thehabitat to be critical.’’ Aside from theadded protection that may be providedunder section 7, the Act does notprovide other forms of protection tolands designated as critical habitat.Because consultation under section 7 ofthe Act does not apply to activities onprivate or other non-Federal lands thatdo not involve a Federal nexus, criticalhabitat designation does not afford anyadditional protections under the Actagainst such activities.

Section 4 of the Act requires that wedesignate critical habitat at the time oflisting and based on what we know atthe time of the designation. When wedesignate critical habitat at the time oflisting or under short court-ordered



deadlines, we will often not havesufficient information to identify allareas of critical habitat. We are required,nevertheless, to make a decision andthus must base our designations onwhat, at the time of designation, weknow to be critical habitat.

In order to be included in a criticalhabitat designation, the habitat mustfirst be ‘‘essential to the conservation ofthe species’’. Within the geographicrange occupied by the species criticalhabitat designations identify, to theextent known using the best scientificand commercial data available, habitatareas that provide essential life cycleneeds of the species (i.e., areas on whichare found the primary constituentelements, as defined at 50 CFR424.12(b)) and may require specialmanagement consideration orprotection.

Within the geographic area occupiedby the species, we will designate onlyareas currently known to be essentialand that may require specialmanagement consideration orprotection. Essential areas shouldalready have the features and habitatcharacteristics that are necessary tosustain the species. It should be noted,however, that not all areas within theoccupied geographic range of thespecies that contain the features andhabitats that supports the species areessential and they may or may notrequire special management orprotection. We will not speculate aboutwhat areas might be found to beessential if better information becameavailable, or what areas may becomeessential over time. If the informationavailable at the time of designation doesnot show that an area provides essentiallife cycle needs of the species, then thearea should not be included in thecritical habitat designation. Within thegeographic area occupied by the species,we will not designate areas that do notnow have the primary constituentelements, as defined at 50 CFR424.12(b), that provide essential lifecycle needs of the species.

Our regulations state that, ‘‘TheSecretary shall designate as criticalhabitat areas outside the geographic areapresently occupied by the species onlywhen a designation limited to itspresent range would be inadequate toensure the conservation of the species.’’(50 CFR 424.12(e)). Accordingly, whenthe best available scientific andcommercial data do not demonstratethat the conservation needs of thespecies require designation of criticalhabitat outside of occupied areas, wewill not designate critical habitat inareas outside the geographic areaoccupied by the species.

Our Policy on Information StandardsUnder the Endangered Species Act,published in the Federal Register onJuly 1, 1994 (59 FR 34271), providescriteria, establishes procedures, andprovides guidance to ensure thatdecisions made by us represent the bestscientific and commercial dataavailable. It requires our biologists, tothe extent consistent with the Act andwith the use of the best scientific andcommercial data available, to useprimary and original sources ofinformation as the basis forrecommendations to designate criticalhabitat. When determining which areasare critical habitat, a primary source ofinformation should be the listingpackage for the species. Additionalinformation may be obtained from arecovery plan, articles in peer-reviewedjournals, conservation plans developedby states and counties, scientific statussurveys and studies, and biologicalassessments or other unpublishedmaterials (i.e., gray literature). Our peerreview policy requires that we seekinput from at least three scientists whoare knowledgeable in subject matterrelevant to each rule.

Critical habitat designations do notsignal that habitat outside thedesignation is unimportant or may notbe required for recovery. Areas outsidethe critical habitat designation willcontinue to be subject to conservationactions that may be implemented undersection 7(a)(1) and to the regulatoryprotections afforded by the section7(a)(2) jeopardy standard and thesection 9 take prohibition, asdetermined on the basis of the bestavailable information at the time of theaction. We specifically anticipate thatfederally funded or assisted projectsaffecting listed species outside theirdesignated critical habitat areas maystill result in jeopardy findings in somecases. Similarly, critical habitatdesignations made on the basis of thebest available information at the time ofdesignation will not control thedirection and substance of futurerecovery plans, habitat conservationplans, or other species conservationplanning efforts if new informationavailable to these planning efforts callsfor a different outcome.

Designating critical habitat does not,in itself, lead to recovery of a listedspecies. Designation does not create amanagement plan, establish numericalpopulation goals, prescribe specificmanagement actions (inside or outsideof critical habitat), set aside areas aspreserves, or directly affect areas notdesignated as critical habitat. Specificmanagement recommendations forcritical habitat are most appropriately

addressed in section 7 consultations forspecific projects, or through recoveryplanning.

Designation of critical habitat canhelp focus conservation activities for alisted species by identifying areas, bothoccupied and unoccupied, whichcontain or could contain the habitatfeatures (primary constituent elementsdescribed below) that are essential forthe conservation of that species.Designation of critical habitat alerts thepublic as well as land-managingagencies to the importance of theseareas.

Our decision to not designate criticalhabitat throughout all of our proposedcritical habitat units does not imply thatthese non-designated areas areunimportant to spectacled eiders.Projects with a Federal nexus that occurin these areas, or anywhere within therange of spectacled eiders, which mayaffect spectacled eiders must stillundergo section 7 consultation.

MethodsIn determining which areas are

essential to the conservation ofspectacled eiders and may requirespecial management consideration orprotection, we used the best scientificand commercial information available.Our information sources included1:250,000 and 1:63,360 scale U.S.Geological Survey topographic maps,satellite imagery, geographiccoordinates and duration-of-useinformation from satellite tagged birds,geographic coordinates and dates ofaerial observations of birds, ground plotsurveys, ground-based biologicalinvestigations, digital bathymetryinformation, digital coastlineinformation, other GeographicInformation System (GIS) data,traditional Native knowledge and area-specific historic trend data, informationreceived from the public during thepublic comment period, and site-specific species information andobservations.

We discussed or presented our criticalhabitat proposal at 19 meetings and onehearing. We convened a meeting ofexperts in the field of eider biology toprovide us with information useful insetting criteria and boundaries forhabitats essential to the conservation ofthe spectacled eider. We considered theinformation gathered at our meeting ofeider experts, and information that wesolicited from eider experts who wereunable to attend this meeting. Expertsfrom whom we sought informationincluded representatives of State andFederal agencies, the University ofAlaska, a private environmentalconsulting firm, and Native governing



bodies. We considered all commentsreceived during the open commentperiod, including both written and oralcomments received during meetings andone public hearing, and commentsreceived by E-mail, regular mail,facsimile, and telephone.

We made a concerted effort to solicittraditional ecological knowledgeregarding habitats that are important tospectacled eiders. To this end, wecontacted representatives of regionalgovernmental and non-profit Nativeorganizations and asked them torecommend individuals who may havetraditional ecological knowledge ofeiders and their habitats and who maybe willing to review the spectacled eidercritical habitat proposal. We attemptedto contact all individuals identified bythe regional representatives, andprovided those individuals who agreedto review the proposal with copies ofthe proposed rule and additionalinformational materials. Commentssubmitted by these and otherindividuals with traditional ecologicalknowledge, transmitted either in writtenform or orally during the course ofpublic meetings, have been consideredduring the development of the finalrule.

We reviewed available informationthat pertains to the habitat requirementsand preferences of this species. Wereviewed the approach of theappropriate local, State, Native, andFederal agencies in managing for theconservation of spectacled eiders aswell as the recovery tasks outlined inthe Spectacled Eider Recovery Plan.Comments received through the publicreview process provided us withvaluable additional information to usein decision making, and in assessing thepotential economic impact ofdesignating critical habitat for thespecies.

We sought peer review of ourspectacled eider critical habitat proposalfrom three scientists with expertise ineider biology. All three peer reviewersprovided us with comments, which weconsidered in developing our finaldesignations and in drafting this rule.

Primary Constituent ElementsIn accordance with section 3(5)(A)(i)

of the Act and regulations at 50 CFR424.12 in determining which areas topropose as critical habitat, we arerequired to base critical habitatdeterminations on the best scientificand commercial data available and toconsider those physical and biologicalfeatures that are essential to theconservation of the species and that mayrequire special managementconsiderations and protection. Such

requirements include but are not limitedto: space for individual and populationgrowth, and for normal behavior; food,water, air, light, minerals, or othernutritional or physiologicalrequirements; cover or shelter; sites forbreeding, reproduction, rearing ofoffspring; and habitats that are protectedfrom disturbance or are representative ofthe historic geographical and ecologicaldistributions of a species.

All areas designated as critical habitatfor the spectacled eider contain one ormore of these physical or biologicalfeatures, also called primary constituentelements. These areas constitute ourbest assessment of the areas needed forthe species’ conservation using the bestavailable scientific and commercial dataavailable. We put forward thisdesignation acknowledging that we haveincomplete information regardingbreeding ground habitat preferences,distribution of preferred breedingground habitats, migration corridors,offshore staging areas, marine habitatsused by nonbreeders, marine diet, anddistribution of preferred prey items atsea. As new information accrues, wemay reevaluate our critical habitatboundaries.

Primary constituent elements forUnits 1 and 2 (the Central Y–K DeltaUnit and South Y–K Delta Unit,respectively) include all portions of thevegetated intertidal zone, and all openwater inclusions within that zone. Theintertidal zone includes all landsinundated by seawater often enough toaffect plant growth, habit, or communitycomposition. Plant communities withinthis zone include, but are not limited to:low wet sedge tundra; grass marsh;dwarf shrub/graminoid (consisting ofgrasses and sedges) meadow; high andintermediate graminoid meadow; mixedhigh graminoid meadow/dwarf shrubuplands.

Primary constituent elements forUnits 3 and 4 (the Norton Sound Unitand the Ledyard Bay Unit, respectively)include all marine waters greater than 5m (16.4 ft) and less than or equal to 25m (82.0 ft) in depth at mean lower lowwater (MLLW), along with associatedmarine aquatic flora and fauna in thewater column, and the underlyingmarine benthic community.

Primary constituent elements for Unit5 (the Wintering Unit) include allmarine waters less than or equal to 75m (246.1 ft) in depth at MLLW, alongwith associated marine aquatic flora andfauna in the water column, and theunderlying marine benthic community.

Criteria Used To Identify CriticalHabitat

We considered several qualitativecriteria in the selection of specific areasor units for spectacled eider criticalhabitat. Such criteria focused onidentifying—(1) areas where eiders havebeen documented as consistentlyoccurring at relatively high densities; (2)areas where eiders are especiallyvulnerable to disturbance andcontamination during breeding, molting,or wintering; (3) our knowledge of thehabitat’s carrying capacity, whichallows us to determine how muchhabitat is needed for the species toachieve recovery; (4) our certainty indelineating the areas essential tosurvival and recovery given our bestavailable data; and (5) whether anyareas were the subject of habitatconservation planning efforts that haveresulted in the preparation of biologicalanalyses that identify habitat importantfor the conservation of the eider.

We used available mappingconventions to define specific map units(i.e., Critical Habitat Units). For thepurpose of this final determination,terrestrial Critical Habitat Units havebeen described using state-planetownship grids with resolution to theSection level. Maritime Critical HabitatUnits have been described usingprominent geographic features,shorelines, buffer distances, andgeographic coordinates reported indegrees, minutes, and seconds to enablemariners to easily determine whetherthey are within critical habitat areas.

In defining critical habitat boundaries,we made an effort to avoid developedareas, such as towns and other similarlands, which do not contain the primaryconstituent elements of spectacled eidercritical habitat. Existing man-madefeatures and structures within theboundaries of the mapped units, such asbuildings, roads, pipelines, utilitycorridors, airports, other paved areas,and other developed areas do notcontain one or more of the primaryconstituent elements and are thereforenot critical habitat. Federal actionslimited to those areas, therefore, wouldnot trigger a section 7 consultation,unless they may affect the species and/or primary constituent elements inadjacent critical habitat.

Critical Habitat Designation

The designated critical habitatdescribed below constitutes our bestassessment of areas needed for theconservation of spectacled eiders and isbased on the best scientific andcommercial information available. Theessential features found on the



designated areas may require specialmanagement consideration or protectionto ensure their contribution to thespecies’ recovery. Area of designatedcritical habitat by land ownership isshown in Table 1. The areas of proposed

and final critical habitat units are shownin Table 2, along with the percentagechange in size for each of these areasbetween the proposed and final rules.

Table 1. Critical habitat designationsin each land-ownership category. Unitsare hectares, and are rounded to the

nearest hectare. To convert fromhectares to km2, multiply hectares by0.01. To convert hectares to acres,multiply hectares by 2.471. To converthectares to mi2, multiply hectares by0.00386.

Location Federal State Native Private Total

Central Y–K Delta .................................................................................... 190,758 0 65,283 0 256,041Southern Y–K Delta ................................................................................. 4,509 0 18,734 0 23,243Y–K Delta Coastal Waters ....................................................................... 0 0 0 0 0North Slope (land) .................................................................................... 0 0 0 0 0North Slope (marine) ............................................................................... 0 0 0 0 0Norton Sound (marine) ............................................................................ 837,641 220,984 0 0 1,058,625Ledyard Bay (marine) .............................................................................. 1,298,074 97,889 0 0 1,395,963Wintering Area (marine) ........................................................................... 7,238,306 126,649 0 0 7,364,955

Total .............................................................................................. 9,569,288 445,522 84,017 0 10,098,827

Table 2. Area of land included inproposal vs. final rule for spectacledeider critical habitat, rounded to the

nearest km2. Areas may not match thosein our proposal (65 FR 6114). Numbers

in this table reflect refined areaestimates.

LocationArea (km2) Percent

reductionProposed Final

Y–K Delta (land) ...................................................................................................................................... 4,618 2,793 39Y–K Delta (marine) .................................................................................................................................. 16,885 0 100North Slope (land) ................................................................................................................................... 32,336 0 100North Slope (marine) ............................................................................................................................... 26,088 0 100Norton Sound (marine) ............................................................................................................................ 17,502 10,586 40Ledyard Bay (marine) .............................................................................................................................. 21,688 13,960 35Wintering Area (marine) .......................................................................................................................... 73,650 73,650 0

Total .............................................................................................................................................. 192,767 100,989 48

Unit 1: Central Yukon-Kuskokwim Delta(Proposed Unit 3)

Unit 1 is comprised of 15 entiretownships and 564 sections within 27additional townships. Our finaldesignation encompasses 2,560.4 km2

(256,041 ha) (988.6 mi2) (Table 2), a 16percent reduction of what we proposedfor this unit (3,037.6 km2 or 1,172.8mi2). Unit 1 is comprised of thevegetated intertidal zone between theAskinuk Mountains and Nelson Island.The primary constituent elements ofspectacled eider critical habitat in thisunit include all land within thevegetated intertidal zone, along with allopen-water inclusions within that zone.The vegetated intertidal zone includesall lands inundated by tidallyinfluenced water often enough to affectplant growth, habit, or communitycomposition. Waters within this zoneare usually brackish. Vegetativecommunities within this zone include,but are not limited to, low wet sedgetundra, grass marsh, dwarf shrub/graminoid (consisting of grasses andsedges) meadow, high and intermediategraminoid meadow, mixed high

graminoid meadow/dwarf shrubuplands, and areas adjacent to openwater, low wet sedge and grass marshhabitats. Areas within our indicatedborder that are not within the vegetatedintertidal zone (e.g., barren mudflatsand lands that are above the highesthigh tide line) are not consideredcritical habitat. In addition, areas ofexisting human development within ourindicated border are not consideredcritical habitat.

Unit 2: Southern Yukon-KuskokwimDelta (Proposed Unit 4)

Unit 2 is comprised of 103 sectionswithin 8 townships. Our finaldesignation encompasses 232.4 km2

(23,243 ha) (89.7 mi2) (Table 2), a 65percent reduction of what we proposedfor this unit (665.3 km2 or 256.9 mi2).This unit is comprised of the vegetatedintertidal zone along the coast fromNelson Island south to Chefornak,Alaska. The primary constituentelements of spectacled eider criticalhabitat in this unit include all landwithin the vegetated intertidal zone,along with all open-water inclusionswithin that zone. This vegetated

intertidal zone includes all landsinundated by tidally influenced wateroften enough to affect plant growth,habit, or community composition.Waters within this zone are usuallybrackish. Vegetative communitieswithin this zone include, but are notlimited to, low wet sedge tundra, grassmarsh, dwarf shrub/graminoid(consisting of grasses and sedges)meadow, high and intermediategraminoid meadow, mixed highgraminoid meadow/dwarf shrubuplands, and areas adjacent to openwater, low wet sedge and grass marshhabitats. Areas within our indicatedborder that are not within the vegetatedintertidal zone (e.g., barren mudflatsand lands that are above the highesthigh tide line) are not consideredcritical habitat. In addition, areas ofexisting human development within ourindicated border are not consideredcritical habitat.

Unit 3: Norton Sound (Proposed Unit 6)Unit 3 includes the waters of Norton

Sound east of 162° 47′, excluding theindicated waters within Norton Bay.Our final designation encompasses



10,586 km2 (4087.3 mi2) (Table 2), a 40percent reduction of what we proposed(17,502 km2 (6,757.5 mi2)). The primaryconstituent elements of spectacled eidercritical habitat in this unit include themarine waters greater than 5 m (16.4 ft)and less than or equal to 25 m (82.0 ft)in depth at MLLW, along withassociated marine aquatic flora andfauna in the water column, and theunderlying marine benthic community.

Unit 4: Ledyard Bay (Proposed Unit 7)Unit 4 includes the waters of Ledyard

Bay within about 74 km (40 nm) ofshore, excluding waters less than 1.85km (1 nm) from shore. Our finaldesignation encompasses 13,960 km2

(5,390.0 mi2), a 35 percent reduction ofwhat we proposed (21,688 km2 (8,373.7mi2)) (Table 2). The primary constituentelements of spectacled eider criticalhabitat in this unit include marinewaters greater than 5 m (16.4 ft) and lessthan or equal to 25 m (82.0 ft) in depth,along with the associated marineaquatic flora and fauna in the watercolumn, and the underlying marinebenthic community.

Unit 5: Wintering Area (Proposed Unit8)

Unit 5 includes the U.S. waters southof St. Lawrence Island between thelatitudes 61° N and 63° 30′ N, andbetween the longitudes 169° W and 174°30′ W. No portion of St. Lawrence Islandor Russia is included in Unit 5. Ourfinal designation encompasses 73,650km2 (28,436.3 mi2), the same as what weproposed. The primary constituentelements of spectacled eider criticalhabitat in this unit include marinewaters less than or equal to 75 m (246.1ft) in depth, along with the associatedmarine aquatic flora and fauna in thewater column, and the underlyingmarine benthic community.

Rationale for the Final DesignationThis final rulemaking reflects

significant changes to critical habitatareas from the proposed rulemaking. Wehave substantially reduced the area ofsome critical habitat units, andcompletely eliminated others. Our finalrule represents a 48 percent reduction intotal area over what we proposed ascritical habitat (Table 2). We have notadded area to existing critical habitatunits, or added new critical habitatunits. The proposed rule was based onthe best scientific and commercialinformation then available. Thesettlement agreement mandated a shorttime line for our evaluation of criticalhabitat. Consequently, when wedeveloped the proposed rule weincluded all areas that we thought might

be essential to the conservation of thespecies, based on the best availablecommercial and scientific information.

Following publication of the proposedrule we undertook an exhaustive effortto gather additional information thatwould help us identify more preciselythose areas essential to the conservationof the species (see methods). Specificrationale for retention, modification, orexclusion of the proposed criticalhabitat in this final rulemaking areexplained in detail below.

North Yukon-Kuskokwim Delta(Proposed Unit 1)

We excluded proposed Unit 1, theNorth Y–K Delta Unit, from our finaldesignation because we determined thatmost of the habitat within the narrowband of coastal fringe was not suitablefor spectacled eiders. We are uncertainwhat features of this habitat make it lesssuitable to eiders, but eider experts whoare familiar with this area indicate thatit is physiographically distinct from theportions of the vegetated intertidal zoneused by eiders elsewhere on the delta.Our inspection of large scale (1:63,360)topographic maps leads us to the sameconclusion. The complete lack of eiderobservations throughout most of thisregion also supports this contention. Werecognize that there may be a very smallinclusion of habitat within this area thatis suitable for breeding spectacledeiders, but we have been unable to visitthe site during the breeding season todetermine its suitability due to landownership issues and logisticaldifficulties. Very few spectacled eiderobservations have been made bybiologists flying annual systematicaerial surveys in this proposed unitbetween 1993–1999 (5 of 916observations delta-wide or 0.5 percentof sightings on 19 percent of proposedterrestrial CH on the Y–K Delta),suggesting that while some suitablenesting habitat may be found in thisarea, its contribution to the conservationof this species at this time is low. Basedupon the apparent lack of suitablenesting habitat for spectacled eiders inthis unit, we have concluded that thisarea does not now, and may not ever,have contributed significantly to themaintenance of the bird’s population inthe Y–K Delta. In evaluating the currentand potential contribution of this unit tothe recovery of the species and meetingthe recovery goals identified in thespecies’ recovery plan, we haveconcluded that this unit’s contributionis currently low and its contribution tothe future recovery of the species islimited. Consequently, we believe thatthis area is not essential to theconservation of the species.

Proposed Unit 2

We note that our proposed criticalhabitat designation did not contain aUnit 2. Our non-sequential numberingof proposed units resulted from a last-minute consolidation of what were oncenumbered Proposed Units 1 and 2 intoone unit, and a failure on our part to re-number the remaining proposed units.We note that our draft economicanalysis contained maps that did notexactly match the numericaldesignations in our critical habitatproposal, although the areas includedwithin the aggregate proposed borderswere identical.

Unit 1: Central Yukon-Kuskokwim Delta(Proposed Unit 3)

We reduced the size of Unit 1(proposed Unit 3), the Central Y–K DeltaUnit, based upon topographyinformation from large scale (1:63,360scale) maps, additional analysis of aerialsurvey data, information from biologistswith extensive field experience in thearea and the advice of eider experts. Weexcluded land that appeared to be over7.6 m (25.0 ft) in elevation, and areasunder 7.6 m (25 ft) in elevation thatfield biologists described as not suitablefor eiders. Field reconnaissanceindicates that the plant communitiesfound on areas above 7.6 m in elevationdo not provide the habitat andconstituent elements characteristicallyused by spectacled eiders for nesting.The excluded areas under 7.6 m (25 ft)in elevation appear to be outside of thevegetated intertidal zone used byspectacled eiders. Furthermore, aerialsurvey data indicated that no eiderswere observed in the excluded portions(both greater than and less than 7.6 m(25 ft) in elevation) of this proposed unitfrom 1993–1999. Consequently, we havedetermined that the excluded areas arenot essential to the conservation of thespecies because these areas do notcontain the primary constituentelements that we believe are importantin successful nesting or brood-rearing.

The Y–K Delta breeding population ofspectacled eiders cannot reasonably beexpected to reach established any of thespecies’ recovery goals (Service 1996) inthe absence of Units 1 and 2, where over95 percent of documented observationsfrom aerial surveys have occurred. Webelieve that the entire area beingdesignated is critical to the survival andrecovery of the species because thecurrently occupied area represents whatbiologists often refer to as the ‘‘corebreeding area’’ for this species followingthe 96 percent population decline onthe Y–K Delta since the 1970s. Furtherrestriction of their breeding range may



preclude the species ability to achieverecovery thresholds. Indeed, adversemodification of these units wouldprobably result in the eventual loss ofthis population, which would representa loss of a significant portion of thespecies’ range, thus precluding eventualrecovery of the species. Therefore, wehave determined that the area we havedesignated as critical habitat is essentialto the conservation of the species.Furthermore, we have determined that ifthis species achieves historical nestingdensities in Units 1 and 2 then thespecies will exceed the recoverythresholds set forth in the spectacledeider recovery plan for a population.

We believe that special managementconsiderations and protections may beneeded for the essential features(constituent elements) found withinUnit 1, primarily because lead shotpresent in the environment poses acontinuing threat to the species.

Unit 2: South Yukon-Kuskokwim Delta(Proposed Unit 4)

We reduced the size of proposed Unit4, the South Y–K Delta Unit, based upontopography information from large scale(1:63,360 scale) maps, additionalanalysis of aerial survey data, and theadvice of eider experts. We excludedland that appeared to be over 7.6 m(25.0 ft) in elevation and areas under 7.6m (25 ft) in elevation that are not coastalvegetated intertidal zone in nature, butrather occur somewhat inland withinthe flood basin of the Kolavinarak River,which connects Baird Inlet to the BeringSea. We have been unable in the past toplace field crews on the ground in thisUnit due to land ownership issues andlogistical difficulties. Doing so is a highpriority. Few spectacled eiderobservations have been made bybiologists flying annual systematicaerial surveys in the excluded portion ofthis proposed unit from 1993–1999 (2 of916 observations delta-wide).Consequently, we have determined thatthe excluded portions of this proposedunit that are over 7.6 m in elevation arenot essential to the conservation of thespecies because they do not contain theprimary constituent elements that webelieve are important in successfulnesting or brood-rearing. Although wehave not made site visits to theexcluded areas that are not over 7.6 min elevation, we feel safe in assumingthat they are not essential to spectacledeiders because we have observed a totalof only 0 to 2 eiders each year there inseven years of aerial surveys, andbecause we suspect that the area differsphysiographically from the coastalvegetated intertidal zone used by eidersin this area because, while at similar

elevations to the coastal intertidal zone,it occurs somewhat inland within theflood basin of the Kolavinarak River,which connects Baird Inlet to the BeringSea. Our aerial survey data indicatesthat, for reasons unknown to us, thisarea is either very rarely used by eiders,or is not used by eiders at all.

As noted above, the Y–K Deltabreeding population of spectacled eiderscannot reasonably be expected to reachestablished recovery goals (Service1996) in the absence of Units 1 and 2,where over 95 percent of documentedobservations from aerial surveys haveoccurred. Therefore, we havedetermined that the area we havedesignated as critical habitat is essentialto the conservation of the species. Webelieve that special managementconsiderations and protections may beneeded for the essential features(constituent elements) found withinUnit 2, primarily because lead shotpresent in the environment poses acontinuing threat to the species.

Y–K Delta Marine Unit (Part of ProposedUnits 1, 3, and 4)

Although we proposed to designate ascritical habitat the marine waters within40 km (21.6 nm) of our proposedterrestrial critical habitat on the Y–KDelta, we have not designated thesewaters as critical habitat in our finalrule. Nearly all of our information aboutthe use of this area derives from 43 birdsmarked with satellite transmitters.Although satellite telemetry confirmsthe use of these offshore waters by manyof the post-breeding spectacled eiders(Petersen et al. 1999), the duration ofuse is best described in terms of daysrather than weeks or months. We do notknow if birds are feeding in thesewaters, are loafing, or are acclimatingfrom a freshwater environment to one ofsaltwater. Without better informationexplaining how the spectacled eidersuse this marine area, we are unable todetermine which, if any, physical orbiological features within the areacontribute towards the conservation ofthe species (e.g. the primary constituentelements would likely differ if the birdsuse the area primarily for loafing oracclimating to saltwater versus if theyare feeding in the area). We do knowthat the spectacled eiders do not nest,molt, or winter in this marine area. Wealso know that they do not concentratein the area or appear to use it for anygreat length of time. Furthermore, wehave no reason to believe that this area,or any portion thereof, is necessary forsuccess in nesting, molting or wintering,all critical life stages for this species.Therefore, based upon our knowledge atthis time, we do not believe that this

marine area is essential to theconservation of the species.

North Slope (Proposed Unit 5)

Although we proposed to designate ascritical habitat 402 townships on theNorth Slope and all marine waterswithin 40 km (21.6 nm) of thesetownships, we have not designated thisarea as critical habitat in our final rule.In our proposed rule we stated: ‘‘Absenttrend information, it is impossible toknow how much land on the NorthSlope is essential for conservation of thespecies. Erring in favor of conservationof the species, we believe that, witheight exceptions, those townships inwhich spectacled eider observationswere made during annual systematicaerial surveys of breeding eiders from1992 to 1998 are essential to the species’conservation.’’ When we published ourproposal to designate critical habitat webelieved that the critical habitatdesignation should broadly identifythose areas that we believe are essentialto the conservation of the species. Thecomments we received in response tothe proposal suggested that we shoulddefine critical habitat in a more specificand precise manner. Further, some ofthe commenters believed that ourproposed designation was not consistentwith the Act’s definition of criticalhabitat (see Summary of Comments andRecommendations section). Therefore,we carefully reviewed the best availableinformation to ensure that our approachand the designation itself provided thegreatest benefit to the eider and met therequirements of the Act.

The specificity with which we candesignate critical habitat is constrainedby the limited information currentlyavailable (see State of Knowledge of theSpectacled Eider section). We arecurrently working to increase ourknowledge of the breeding habitat needsof the spectacled eider on the NorthSlope and to improve our ability todelineate any areas essential to theconservation of the species. Our FY2001 budget included $600,000specifically earmarked by Congress tofund work by the Alaska Sea Life Center(ASLC) and the Service on recoveryactions for the spectacled and Steller’seiders, including the development ofbetter information upon which to basecritical habitat delineations. We willwork closely with the ASLC to identifythe studies that would be most helpful.In particular, we will seek studies thatwould provide information that willhelp us to identify the habitat needs ofboth eider species, and we will seek theassistance of our partners in carryingout such studies.



However, we must make ourdesignation based on the bestinformation currently available, and inthat context we sought to determinewhether, at this time, it would beappropriate for our final designation toinclude the entire area on the NorthSlope as proposed. The spectacled eiderwas listed primarily due to its drasticdecline on the Y–K Delta. Although atthe time of listing, Warnock and Troy(1992) noted preliminary data thatsuggested at least a local decline ofspectacled eiders in the Prudhoe Bayarea, subsequent analyses of data nolonger support that conclusion (DeclanTroy, pers. comm, 1999). There is noother systematic data suggesting ahistoric decline in spectacled eidernumbers on the North Slope prior tolisting. In addition, there has not beena statistically significant trend in thepopulation during the nine years wehave been monitoring it. However, wenote that we were able to determine thateven the Y–K Delta population, whichunderwent a 96 percent decline, canachieve recovery on a subset of itscurrently occupied territory byachieving something approximatinghistorical densities on that subset area(i.e., within our designated criticalhabitat borders). If the North Slopepopulation has undergone a decline, weand the eider experts believe it isreasonable to assume that the NorthSlope population could also achieverecovery on a subset of its currentlyoccupied breeding territory throughincreases in density to historic levels. Inshort, even if this species has declineddrastically, we do not believe that itwould require all of its currentlyoccupied breeding range on the NorthSlope to reach recovery thresholds, andtherefore a final designation includingthe entire area proposed on the NorthSlope is not appropriate at this time.

While the entire North Slope is notrequired for spectacled eiders to reachrecovery thresholds, this populationcannot reasonably be expected to reachestablished recovery goals (Service1996) in the complete absence ofbreeding habitat on the North Slope.Therefore, we believe that some subsetof the North Slope breeding habitat isessential to the conservation of thespecies. Moreover, we believe that theselands may require special managementconsiderations and protections given theextent of oil and gas exploration anddevelopment has occurred in the areaand may reasonably be anticipated inthe future.

We sought to determine which subsetof the area proposed should be includedin the final designation. However, welack reliable scientific data about the

habitat preferences of nesting femalesand females with broods. Therefore, weare currently unable to ascertain whyfemales nest in one area, but not inanother that appears to provide similarhabitat conditions. However, we can usethe actual distribution of a species asevidence of which areas have the habitatfeatures essential to the conservation ofthe species, even if we do not havesufficient information to describeprecisely what discriminates thosefeatures from other similar, but non-essential features.

We thoroughly examined availablebird distribution data in a number ofways to ascertain which portion of theentire breeding area was needed toconserve the species (i.e., reach therecovery thresholds set forth in thespectacled eider recovery plan). Weused a number of different techniques toevaluate the observation data. Thisincluded geographical analysis of theobservation data, including densityisopleths, minimum convex polygonsaround aerial observations at 10 percentintervals, eider density kernels at 10percent intervals, and eider densities ona township by township basis. Thesecomplex GIS-based spatial analyses canhelp us answer questions such as (1)How much area is encompassed by 20,40, 60, or 80 percent of the birds? (2)Which townships have the highestdensity of eiders? (3) Which townshipswould we choose if we wanted toencompass 30, 50, 70, or 90 percent ofthe best habitat (as indicated by birddensity)? and (4) How many townshipswould we need to achieve recoverythresholds if every township were toeventually support eider populations asdense as the current most denselypopulated township? These analysesoffered methods that can be used toidentify areas that can be includedwithin critical habitat borders, and sincethe entire area incorporated into theseanalyses is utilized for nesting by thespecies at varying densities, it wasassumed that they contained thephysical and biological featuresnecessary for successful breeding andbrood rearing and thus may be essentialto the conservation of the species.Unfortunately, none of the analyseshelped us in determining which specificareas were essential to the conservationof spectacled eiders because each wasbased on a statistical threshold that mayor may not be confirmed in futurescientific studies.

Nonetheless, the designation ofcritical habitat on a subset of the areaproposed based on such methods wouldbe consistent with the Act’s requirementto use the best available information.However, the relative benefits to the

species of such a designation must alsobe weighed in our decision as to whereto designate critical habitat. Subsection4(b)(2) of the Act allows us to excludeareas from critical habitat designationwhere the benefits of exclusionoutweigh the benefits of designation,provided the exclusion will not result inthe extinction of the species.

The benefits of including lands incritical habitat are often relatively small.The principal benefit of any designatedcritical habitat is that activities in suchhabitat that may affect it requireconsultation under section 7 of the Act.Such consultation would ensure thatadequate protection is provided to avoidadverse modification of critical habitat.However, it is important to note that, asresult of the spectacled eider beinglisted as a threatened species, wealready consult on activities on theNorth Slope that may affect the species.While these consultations do notspecifically consider the issue ofadverse modification of critical habitat,they address the very similar concept ofjeopardy to the species. Under mostcircumstances, consultations under thejeopardy standard will reach the sameresult as consultations under theadverse modification standard.Implementing regulations (50 CFR Part402) define ‘‘jeopardize the continuedexistence of’’ and ‘‘destruction oradverse modification of’’ in virtuallyidentical terms. Jeopardize thecontinued existence of means to engagein an action ‘‘that reasonably would beexpected * * * to reduce appreciablythe likelihood of both the survival andrecovery of a listed species.’’Destruction or adverse modificationmeans an ‘‘alteration that appreciablydiminishes the value of critical habitatfor both the survival and recovery of alisted species.’’ Common to bothdefinitions is an appreciable detrimentaleffect on both survival and recovery ofa listed species, in the case of criticalhabitat by reducing the value of thehabitat so designated. Thus, actionssatisfying the standard for adversemodification are nearly always found toalso jeopardize the species concerned,and the existence of a critical habitatdesignation does not materially affectthe outcome of consultation. Additionalmeasures to protect the habitat fromadverse modification are not likely to berequired.

Since the spectacled eider was listedin 1993, we have consulted with Federalagencies on a variety of actions toevaluate impacts to the species on theNorth Slope. In most cases, theconsultations have determined that theactions would not adversely affectspectacled eiders because the projects



occurred during seasons when theeiders are absent and no permanentimpact to habitat would result orbecause only a minimal amount ofhabitat would be affected or wouldoccur in areas where the species occursat low densities. In only a few caseshave we determined that a proposedproject included habitat alterations thatmight adversely affect spectacled eiders.Our biological opinions on theseconsultations provided reasonable andprudent measures designed to minimizethe incidental take of the proposedprojects on spectacled eiders. Whenapplicable, the reasonable and prudentmeasures included provisions tominimize the proposed project’s impactto habitat. Therefore, because of thespecies’ abundant habitat on the NorthSlope and the protections providedthough the current consultation process,we can envision no benefit that criticalhabitat designation would haveimparted in the consultations conductedto date. Furthermore, we haveconsidered the spectacled eidersconservation needs, and we believe thatfuture section 7 consultations on anyproposed action on the North Slope thatwould result in an adverse modificationconclusion would also result in ajeopardy conclusion. Thus, theprincipal regulatory benefit from acritical designation for the spectacledeider on the North Slope is expected tobe small.

There are also educational benefitsassociated with designation as criticalhabitat, such as informing the publicwhich areas are important for the long-term survival and conservation of thespecies. Critical habitat could alsopotentially foster a sense of ownershipfor the resource, encouraging concernedindividuals to act as caretakers ofimportant habitat. However, suchbenefits are largely negated by ourinability to identify specific areas on theNorth Slope that are essential toconservation of the species (i.e.,providing meaningful educationalinformation is dependent upon theability to provide meaningfulinformation on the conservation needsof the species). Furthermore, we havebeen working closely with North Sloperesidents for years in order to engendersupport for eider conservation. We haveworked to eliminate use of lead shot andto minimize subsistence harvest.Because of these continuing cooperativeefforts, we are confident North Sloperesidents and their local governmentbodies are well aware of the species’plight and the need to address threatsand protect habitat. Likewise,presumably because the North Slope is

sparsely populated by humans,relatively few Federal projects occur onthe North Slope that requireconsultation under section 7 and mostare conducted, funded, or permitted byrelatively few Federal agencies. As aresult, the Federal agencies involvedwith activities on the North Slope areaware of the spectacled eider’sthreatened status and the need toconsult, and additional educationalbenefits would be very limited. For allthese reasons, then, we believe thatdesignation of critical habitat has littleeducational benefit on the North Slope.

In contrast, the benefits of excludingthe North Slope from our critical habitatdesignation appear to be greater than thebenefits of including it. Weacknowledge that some portion of theproposed North Slope unit is essentialto the recovery of the species. However,as discussed above, there is insufficientinformation available today with whichto delineate with confidence specificareas essential to the recovery of thespecies. To designate an area at thistime, without a more reliable biologicalbasis, would likely convey an inaccuratemessage about the size and location ofthe area needed for recovery. We believethere are strong implications regardinghabitat importance that are associatedwith critical habitat designation. Webelieve that we have this level ofreliable information for the otherimportant spectacled eider habitats, butwe do not believe that we haveinformation that is equally reliable forthe North Slope breeding area.Delineating critical habitat on the NorthSlope at this time may mislead Federalagencies and others wishing to carry outactivities on the North Slope about theareas that are truly essential to therecovery of the species.

In summary, at this time the benefitsof including the North Slope in criticalhabitat for the spectacled eider includeminor, if any, additional protection forthe eider and would serve little or noeducational functions. The benefits ofexcluding the North Slope from beingdesignated as critical habitat for thespectacled eider include thepreservation of partnerships that maylead to future conservation actions, andeliminating the negative effects that webelieve would result from a designationbased on limited, unpersuasivebiological information currentlyavailable to us. We have determinedthat the benefits of exclusion of theNorth Slope from critical habitatdesignation outweigh the benefits ofdelineating critical habitat on the NorthSlope. Furthermore, we havedetermined that this exclusion will notresult in the extinction of the species.

Consequently, in accordance withsubsection 4(b)(2) of the Act, these landshave not been designated as criticalhabitat for the spectacled eider.

We will continue to protect occupiedbreeding habitat on the North Slope asappropriate through section 7consultations, the section 9 prohibitionon unauthorized take, and othermechanisms. We will expand ourconservation efforts with the Nativecommunity, industry, localgovernments, and other agencies andorganizations on the North Slope toaddress the recovery needs of the eider.Additionally, we will soon embark upona complete revision of the spectacledeider recovery plan, and will addressour recovery goals for each population.We will continue to closely monitor thecurrent population trend of North Slopespectacled eiders. We will continue ourefforts to develop a visibility correctionfactor (survey information that wouldallows us to refine our populationestimates) for this species on the NorthSlope. This is particularly important asthe preliminary information suggests thevery real possibility that the NorthSlope population may be large enoughto warrant delisting (see our response toComment 3), but that our currentsurveys are simply not detecting a highenough proportion of birds to indicatethat this is the case. We hope to initiateground-based studies outside ofcurrently developed areas to get anindication of true breeding density andnesting success for this species on theNorth Slope.

Should additional informationbecome available that changes ouranalysis of the benefits of excluding anyof these (or other) areas compared to thebenefits of including them in the criticalhabitat designation, we may revise thisfinal designation accordingly. Similarly,if new information indicates any ofthese areas should not be included inthe critical habitat designation, we mayrevise this final critical habitatdesignation. If, consistent with availablefunding and program priorities, we electto revise this designation, we will do sothrough a subsequent rulemaking.

Although we also proposed todesignate as critical habitat all marinewaters within 40 km (21.6 nm) of theterrestrial portion of our proposed NorthSlope Unit, we have not designatedthese waters as critical habitat in ourfinal rule. Our information on theimportance of the Beaufort Sea tomigrating spectacled eiders, in bothspring and fall, does not currentlysupport designation of critical habitat.

Only one spectacled eider wasobserved among 420,000 eidersmigrating past point Barrow during



spring (Woodby and Divoky 1982),suggesting that either the timing of thissurvey was not concurrent withspectacled eider spring migration, orspectacled eiders do not migrate alongthe Beaufort Sea coast in spring. Littleelse is known of North Slope spectacledeider spring migration routes.

During Beaufort Sea sea duck andwaterbird surveys flown from shore to81 km (43.7 nm) offshore during June,July, August, and September 1999,biologists observed only two flocks ofeiders, both with four or fewer birds pergroup. (Bill Larned, Service, MBM, pers.comm. 1999; TERA 1999). Nospectacled eiders were observed onthese offshore surveys during June andJuly, nor were spectacled eiders seen onsurveys of the near shore lagoon areasand within bays. However, eider speciesin summer plumage are exceedinglydifficult to distinguish from one anotheron aerial surveys. Nine groups ofunknown eiders were observed in thevicinity of Harrison Bay between August31 and September 2, 1999. Aerialobservers hypothesize that spectacledeider family groups use the watersoffshore of the Colville River Delta andwest, and within Harrison Bay duringthe summer (Bill Larned, Service, MBM,pers. comm. 1999). Satellite telemetrysupports this hypothesis. Most satellite-tagged post-nesting female spectacledeiders from Prudhoe Bay used HarrisonBay briefly (5 of 13 tagged birds weredetected there once from satellitetelemetry data that is acquired every 3days, another 5 of 13 were detectedthere twice, resulting in a meanresidence time of at least 4 days) (TERA1999). Satellite telemetry data from 2000did not indicate that Harrison Bayreceived much use by eiders. However,none of the birds that were implantedwith transmitters during the summer of2000 were successful breeders (i.e., ifHarrison Bay is used during broodrearing, birds without broods may nothave reason to go there) (Declan Troy,TERA, pers. comm. 2000). Satellitetelemetry indicates that molt migrationand fall migration of North Slopespectacled eiders from Prudhoe Bay andpoints east takes place in the offshorewaters of the Beaufort and Chukchi Seas(Peterson et al. 1999). We believe thatthe Beaufort and Chukchi seas maycontain important habitat for eiders thatnest west of Prudhoe Bay as well.

Although satellite telemetry confirmsthe use of these offshore waters by manyof the post-breeding spectacled eidersfrom Prudhoe Bay (Petersen et al. 1999,TERA 1999), the duration of use is bestdescribed in terms of days rather thanweeks or months. We do not know ifbirds are feeding in these waters, are

loafing, or are acclimating from afreshwater environment to one ofsaltwater. Without better informationexplaining how the spectacled eidersuse this marine area, we are unable todetermine which, if any, physical orbiological features within the areacontribute towards the conservation ofthe species (e.g. the primary constituentelements would likely differ if the birdsuse the area primarily for loafing oracclimating to saltwater versus if theyare feeding in the area). We do knowthat the spectacled eiders do not nest,molt, or winter in this marine area. Wealso know that they do not concentratein the area or appear to use it for anygreat length of time. Use of the area isperhaps best described as a migrationcorridor, and perhaps as a brood stagingarea prior to migration. We do not haveenough information to conclude thatthis area, or any portion thereof, isnecessary for successful nesting,molting or wintering, all critical lifestages for this species. Therefore, basedupon our knowledge at this time, we donot believe that this marine area isessential to the conservation of thespecies.

Unit 3: Norton Sound (Proposed Unit 6)We reduced the size of proposed Unit

6, the Norton Sound Unit, from 17,502km2 (6757.5 mi2) to 10,586 km2 (4087.3mi2), a 40 percent reduction in size(Table 2). This modification was basedupon information gained fromoverlaying our eider observations andsatellite telemetry locations upon digitalbathymetry data from the NationalOceanic and AtmosphericAdministration (NOAA) andinformation obtained from eider experts.Only one spectacled eider observationand three satellite derived locationshave occurred in the excluded portionsof this proposed area from 1993–1999.None of these observations occurred inNorton Bay, one of the excludedportions of this unit. We do not knowwhether any of the observations withinthe excluded area along the westernedge of this unit represent moltingbirds. We are fairly certain, however,that birds do not congregate in thisexcluded area to molt, and suspect thatour sparse observations of birds in theexcluded portion of this unit representbirds on their way from the breedinggrounds to the molting grounds or fromthe molting grounds to the winteringgrounds. Consequently, we havedetermined, based upon the likelihoodthat birds do not normally molt in theexcluded area, and the low level of eideruse received by the excluded area, thatthe excluded areas are not essential tothe conservation of the species.

While the recovery plan for thespectacled eider does not identifyrecovery goals specifically for moltinghabitat, it is clear that if the NortonSound molting area were destroyed ordegraded so that it was no longer ableto be utilized by the species, therecovery and the conservation of the Y–K Delta population of the species wouldbe imperiled. We believe that the entirearea within our modified border isessential to the conservation of thespecies due to—(1) the extremely highand regular use of the area for anextended period of time by birds thatare known to be undergoing a flightlessmolt; (2) the high biomass of gastropodsin the area; (3) the energetic demandsplaced upon the birds while they aremolting; and (4) the assertion byPetersen et al. (1999), that it is the onlydocumented molting area for breedingfemale spectacled eiders from the Y–KDelta (the area where eiders havedeclined by 96 percent). As many as4,030 spectacled eiders have beenobserved in one portion of easternNorton Sound at one time (Larned et al.1995a). Use of this area by moltingeiders has been documented regularlyfrom 1982 to 1999 (Charles Lean, ADFG,pers. comm. 1999; Bill Larned, Service,MBM, pers. comm. 1999; Petersen et al.1999). The area is used by spectacledeiders from mid-July until the end ofOctober (Petersen et al. 1999). Forseveral weeks during this time, eachbird experiences a period offlightlessness during molt, followed bythe energetic demands incurred byfeather growth. Energy needs ofwaterfowl during molt are high(Hohman et al. 1992). The benthicbiomass in the portion of Norton Soundthat spectacled eiders inhabitapparently meets the high metabolicneeds for the many birds that moltthere. Indeed, the abundance of largegastropods is higher in this area thanelsewhere in Norton Sound (Springerand Pirtle 1997).

We believe that special managementconsiderations and protections may beneeded for these essential features(constituent elements) found withinUnit 3, because a fuel distribution hubfor western Alaska exists in NortonSound and large volumes of heating oil,diesel fuel, and gasoline are transportedthrough this area each year. If a releaseof these materials occurs at any time ofyear such that it affects the benthiccommunity used by eiders for food or ifa release occurs such that it affects theeiders directly, the consequences to theY–K Delta breeding population couldprove catastrophic for the species. Inaddition, we understand that a



commercially viable snail fishery mayexist in the vicinity, and futureoverexploitation of the snail resourcecould result in adverse modification ofcritical habitat and subsequent harm tothe most imperiled spectacled eiderbreeding population.

Unit 4: Ledyard Bay (Proposed Unit 7)We reduced the size of proposed Unit

7, the Ledyard Bay Unit, from 21,688km2 (8,373.7 mi2) to 12,369 km2 (4775.7mi2), a 43 percent reduction in size(Table 2). We modified the borders ofthis unit based upon traditional Nativeenvironmental knowledge, informationgained from overlaying our observationsupon NOAA digital bathymetry data,and advice from eider experts.

Local Natives have observed thatspectacled eiders do not venture nearshore in Ledyard Bay, stating that theyare exploiting krill populations whichremain at least several miles offshore.Although we do not know anythingabout the dietary preferences of eidersin this area, satellite telemetry andaerial survey data confirm theobservation that the birds congregatemore than 1 nm offshore. Therefore, weconcluded that waters in the eastern andsouthern portions of this unit within 1nm of the shore do not contain thephysical or biological features essentialto the conservation of the species andhave excluded them from our finaldesignation.

Digital bathymetry data from NOAAindicates that spectacled eiders inLedyard Bay make almost exclusive useof waters between 5 and 25 m (16.4 to82.0 ft) in depth. We have modified thedescription of primary constituentelements to reflect the informationgained from our bathymetric overlay.This change in description of theprimary constituent elements leads us toconclude that the western portion ofthis unit does not contain the physicalor biological features essential to theconservation of the species. The westernportion of the area that we excludedfrom final critical habitat designationexceeds 25 m (82.0 ft) in depth, exceptfor two small disjunct areas that arebetween 20–25 m in depth where noeiders have been documented. Onlythree satellite-derived locations havebeen recorded in the western excludedportions of this proposed area from1993–1999. These satellite fixes couldeasily be from birds that were on theirway from the molting area to theirwintering area south of St. LawrenceIsland. We have never made directobservations of spectacled eiders inthese excluded waters.

While the recovery plan for thespectacled eider does not identify

recovery goals specifically for moltinghabitat, it is clear that if the LedyardBay molting area were destroyed ordegraded so that it was no longer ableto be utilized by the species, therecovery and the conservation of theNorth Slope population of the specieswould be imperiled. We believe that theentire area within our modified borderis essential to the conservation of thespecies due to—(1) the extremely highuse of the area by birds that are knownto be undergoing a flightless molt; (2)the energetic demands placed upon thebirds while they are molting; and (3) theassertion by Petersen et al. (1999) thatit is the principle molting area forbreeding female spectacled eiders fromthe North Slope, and most female birdsmolting here are from the North Slope(Petersen et al. 1999).

Male spectacled eiders from the NorthSlope appear to molt and stage in equalnumbers in Ledyard Bay and the twoprimary molting areas in Russia:Mechigmenskiy Bay and off the coast ofthe Indigirka and Kolyma River Deltas(Petersen et al. 1999). Ledyard Bay isused by eiders from late June throughmid-October (Petersen et al. 1999). Asstated earlier, the energy needs of birdsduring molt is high. Given the largeconcentrations of eiders in Ledyard Bayand the ability of the benthos in thisarea to meet the energy requirements ofspectacled eiders during molt, webelieve that Ledyard Bay is essential tothe conservation of the species.

Spectacled eiders molting in LedyardBay may be particularly susceptible todisturbance because they occur in denseconcentrations and are flightless forseveral weeks. Aerial surveys inSeptember 1995 found 33,192spectacled eiders primarilyconcentrated in a 37 km (20.0 nm)diameter circle in Ledyard Bay (Larnedet al. 1995b). This set of observationsrepresents eider use during a snapshotof time. Satellite telemetry informationindicates that other portions of LedyardBay are used as well. We are unawareof the volume of shipping traffic thatoccurs in this area. However, we notethat a single ill-timed fuel or oil-spill inthis area could potentially harmthousands of eiders. If a release of thesematerials occurs at any time of yearsuch that it affects the benthiccommunity used by eiders for food or ifa release occurs such that it affects theeiders directly, the consequences to theNorth Slope breeding population couldprove catastrophic for the species.Therefore, we believe specialmanagement considerations orprotections may be required.

Unit 5: Wintering Area (Proposed Unit8)

We did not alter the boundary of Unit5 (proposed Unit 8), the Wintering AreaUnit. However, we did modify ourdefinition of primary constituentelements for this unit to include onlythose marine waters less than or equalto 75 m (246.1 ft) in depth (the proposalincluded all waters, regardless ofdepth), along with the associated marineaquatic flora and fauna in the watercolumn, and the underlying marinebenthic community. Information gainedfrom overlaying our observations uponNOAA digital bathymetry data indicatedthat wintering eiders do not make use ofwaters over 75 m (246.1 ft) deep.Therefore, waters within Unit 8 that aregreater than or equal to 75 m (246.1 ft)do not appear to contain the physical orbiological features that are essential tothe conservation of the species.

Prior to the formation of sea ice in thearea, spectacled eiders inhabit watersdirectly south of Powooiliak Bay, St.Lawrence Island, moving farther offshore as winter progresses. Once iceforms, spectacled eiders from all threemain breeding populations (Y–K Delta,North Slope, and Arctic Russia)concentrate within a 50-km (27.0 nm)diameter circle in small openings in thesea ice (Service 1999a). The location ofthis area changes between and withinyears, often just slightly, but sometimesdramatically. The distribution ofwintering eiders overlapped for thesurveys conducted in late winter of1996–1999, but was far removed fromthat area in 1995 (Larned and Tiplady1999). The most recent estimate of thenumber of spectacled eiders winteringin this area is 374,792 ± 3,514 birds (x̄± 2SE) (Larned and Tiplady 1999). Most,perhaps all, of the worldwidepopulation of spectacled eiderscongregates for several months in thissmall portion of the central Bering Sea.

Spectacled eiders typically wintersouth and southwest of St. LawrenceIsland in the central Bering Sea; theywintered in the same place in 4 of the5 years since the discovery of theirwintering area. In the year when theyare known to have wintered elsewhere,they were found further south and eastbetween St. Lawrence and St. MatthewIslands. Our critical habitat boundaryincludes both areas. We do not believethat our best scientific informationwarrants restricting the borders we havedrawn around this species’ winteringarea. Our observations of winteringeiders made thus far have occurredduring relatively mild winters. It islikely that spectacled eiders will usedifferent locations within this critical



habitat area depending on iceconditions, which are variablethroughout time. Ice conditions in thisarea are a function of manyunpredictable environmental variables,including atmospheric temperature,wind direction and velocity, oceaniccurrents and temperature of surfacewaters. It is true that during mostwinters, the birds make use of arelatively small portion of this area.However, during periods of extremeweather, they may be precluded fromusing this favored area by heavy iceconditions, such as occurred duringMarch 1995. During such times, otherportions of the wintering area that areseldom used may become criticallyimportant to the survival of the species.

While the recovery plan for thespectacled eider does not identifyrecovery goals specifically for winteringhabitat, since the entire worldwidepopulation of the species appears tocongregate in this area for months at atime, if the area were destroyed ordegraded so that it was no longer ableto be utilized by the species, therecovery and the conservation of thespecies would be jeopardized.Consequently, we consider the entirearea within our designated borders to beessential to the conservation of thespecies.

The ecosystem of the Bering Seaseems to be in flux, as indicated bypopulation declines in many of itsresident species (e.g., harbor seal (Phocavitulina richardsi), northern fur seal(Callorhinus ursinus), Steller’s sea lion(Eumetopias jubatus), Aleutianpopulation of the sea otter (Enhydralutris), Steller’s eider, spectacled eider,scoters (Melanitta spp.), and long-tailedduck (Clangula hyemalis)) (NationalResearch Council 1996). We do notknow what is causing these declines orif these apparent changes are human-caused or influenced. However, becausethe worldwide population iscongregated in this one location, webelieve that special managementconsiderations and protections may beneeded to conserve the essential habitatfeatures (constituent elements) foundthere.

Elsewhere in the Species RangeWe have a recent record of a single

spectacled eider nest on St. LawrenceIsland (Shawn Stephensen, Service,pers. comm. 1998). We are unaware ofany reports suggesting that this area isessential to the conservation of thespecies, and we have no other recentbreeding records outside of thepreviously discussed breeding areas. Weoccasionally receive reports ofspectacled eiders wintering near the

Pribilof Islands, or occurring duringspring, summer, or autumn inKuskokwim Bay in low numbers. Weconsider the occurrences of birds inthese locations to be accidental oroccasional in nature. We are unaware ofany information that indicates that thereare other waters within the UnitedStates, other than those that we havedesignated as critical habitat, that areessential to the conservation of thespecies. We are aware of a report ofspectacled eiders nesting at locally highdensities southeast of Kipnuk, Alaska(Brian McCaffery, Service, 2000 pers.comm). This area is of unknown sizeand is outside of our aerial surveyboundary. We have been unable to placecrews on the ground in this location togather subsequent data, but we expect todo so in the 2001 field season.

Summary of Critical HabitatDesignation

We have designated critical habitat onthe Y–K Delta, in Norton Sound,Ledyard Bay, and the waters between St.Lawrence and St. Matthew Islands. Webelieve all of these areas meet thedefinition of critical habitat in that theycontain physical or biological elementsessential for the conservation of thespecies and may require specialmanagement considerations orprotection. Designation of these areaswill highlight the conservation needs ofthe species, and perhaps increase thedegree to which Federal agencies fulfilltheir responsibilities under section7(a)(1) of the Act.

In accordance with the regulationsimplementing the listing provisions ofthe Act (50 CFR 424.12(h)), we have notproposed any areas outside thejurisdiction of the United States (e.g.,within Russian waters).

In addition to the areas that we havedesignated as critical habitat, other areascurrently used by spectacled eidersinclude Alaska’s North Slope and itscoastal waters, portions of the Y–K Deltaoutside of our critical habitat border,coastal waters of the Y–K Delta, theSeward Peninsula, St. Lawrence Island,elsewhere between the Y–K Delta andNorth Slope, and migratory corridors. Inaddition, there may be other areasimportant to this species that areunknown to us. Our best availableinformation did not suggest that there isany currently unoccupied habitat that isessential to the conservation of thisspecies, therefore none was designated.

The areas we have designated ascritical habitat are those areas that wedetermined, based on the best availablecommercial and scientific information,are essential to the conservation ofspectacled eiders. Should additional

information on the value of any area tospectacled eiders become available, wewill consider that information in futurecritical habitat decision makingprocesses.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a) of the Act requiresFederal agencies, including the Service,to ensure that actions they fund,authorize, or carry out do not destroy oradversely modify critical habitat to theextent that the action appreciablydiminishes the value of the criticalhabitat for the survival and recovery ofthe species. Individuals, organizations,states, local governments, and othernon-Federal entities are affected by thedesignation of critical habitat only iftheir actions occur on Federal lands,require a Federal permit, license, orother authorization, or involve Federalfunding.

Section 7(a) of the Act requiresFederal agencies to evaluate theiractions with respect to any species thatis proposed or listed as endangered orthreatened and with respect to itscritical habitat, if any is designated orproposed. Regulations implementingthis interagency cooperation provisionof the Act are codified at 50 CFR part402. Section 7(a)(4) requires Federalagencies to confer with us on any actionthat is likely to jeopardize the continuedexistence of a proposed species or resultin destruction or adverse modificationof proposed critical habitat. Conferencereports provide conservationrecommendations to assist the agency ineliminating conflicts that may be causedby the proposed action. Theconservation recommendations in aconference report are advisory. If aspecies is listed or critical habitat isdesignated, section 7(a)(2) requiresFederal agencies to ensure that actionsthey authorize, fund, or carry out are notlikely to jeopardize the continuedexistence of such a species or to destroyor adversely modify its critical habitat.If a Federal action may affect a listedspecies or its critical habitat, theresponsible Federal agency (actionagency) must enter into consultationwith us. Through this consultation wewould ensure that the permitted actionsdo not destroy or adversely modifycritical habitat.

When we issue a biological opinionconcluding that a project is likely toresult in the destruction or adversemodification of critical habitat, we alsoprovide reasonable and prudentalternatives to the project, if any areidentifiable. Reasonable and prudentalternatives are defined at 50 CFR



402.02 as alternative actions identifiedduring consultation that can beimplemented in a manner consistentwith the intended purpose of the action,that are consistent with the scope of theFederal agency’s legal authority andjurisdiction, that are economically andtechnologically feasible, and that theDirector believes would avoiddestruction or adverse modification ofcritical habitat. Reasonable and prudentalternatives can vary from slight projectmodifications to extensive redesign orrelocation of the project. Costsassociated with implementing areasonable and prudent alternative aresimilarly variable.

Regulations at 50 CFR 402.16 requireFederal agencies to reinitiateconsultation on previously reviewedactions in instances where criticalhabitat is subsequently designated andthe Federal agency has retaineddiscretionary involvement or controlover the action or such discretionaryinvolvement or control is authorized bylaw. Consequently, some Federalagencies may request reinitiation ofconsultation with us on actions forwhich formal consultation has beencompleted if those actions may affectdesignated critical habitat. Further,some Federal agencies may haveconferenced with us on proposedcritical habitat. We may adopt theformal conference report as thebiological opinion when critical habitatis designated, if no significant newinformation or changes in the actionalter the content of the opinion (see 50CFR 402.10(d)).

Activities on Federal lands that mayaffect the spectacled eider or its criticalhabitat will require section 7consultation. Activities on private orstate lands requiring a permit from aFederal agency, such as a permit fromthe U.S. Army Corps of Engineers (ArmyCorps) under section 404 of the CleanWater Act, or some other Federal action,including funding (e.g., from the FederalHighway Administration, FederalAviation Administration, or FederalEmergency Management Agency) willalso continue to be subject to the section7 consultation process. Federal actionsnot affecting listed species or criticalhabitat and actions on non-Federallands that are not federally funded orpermitted do not require section 7consultation.

Section 4(b)(8) of the Act requires usto evaluate briefly in any proposed orfinal regulation that designates criticalhabitat those activities involving aFederal action that may adverselymodify such habitat or that may beaffected by such designation. Activitiesthat may result in the destruction or

adverse modification of critical habitatinclude those that alter the primaryconstituent elements to an extent thatthe value of critical habitat for both thesurvival and recovery of the spectacledeider is appreciably reduced. We notethat such activities may also jeopardizethe continued existence of the species.Activities that, when carried out,funded, or authorized by a Federalagency, may directly or indirectlyadversely affect critical habitat include,but are not limited to:

(1) Removing, disturbing, ordestroying spectacled eider habitat (asdefined in the primary constituentelements discussion), whether bypaving, covering, draining, impounding,hydrologically altering, contaminating,or otherwise altering throughmechanical means or through ecologicaldisruption (e.g., gravel pad construction,travel by motorized vehicle acrossunfrozen tundra, overharvest of marineorganisms, fuel transport and relatedfueling operations, introduction ofcontaminants, operation of openlandfills, use of lead shot whilehunting); and

(2) Appreciably decreasing habitatvalue or quality through indirect effects(e.g., noise, operation of open landfillsand other activities that may enhancepredator populations or concentratethem near eider habitat, disturbance ofbenthic communities through trawling,offal discharge, and harvest of benthicorganisms).

To properly portray the effects ofcritical habitat designation, we mustfirst compare the section 7 requirementsfor actions that may affect criticalhabitat with the requirements foractions that may affect a listed species.Section 7 prohibits actions funded,authorized, or carried out by Federalagencies from jeopardizing thecontinued existence of a listed speciesor destroying or adversely modifying thelisted species’ critical habitat. Actionslikely to ‘‘jeopardize the continuedexistence’’ of a species are those thatwould appreciably reduce thelikelihood of both the survival andrecovery of a listed species. Actionslikely to result in the destruction oradverse modification of critical habitatare those that would appreciably reducethe value of critical habitat for both thesurvival and recovery of the listedspecies.

Common to both definitions is anappreciable detrimental effect on bothsurvival and recovery of a listed species.Given the similarity of these definitions,actions likely to result in the destructionor adverse modification of criticalhabitat would almost always result injeopardy to the species concerned,

particularly when the area of theproposed action is occupied by thespecies concerned. In those cases,critical habitat provides little additionalprotection to a species, and theramifications of its designation are fewor none. However, if occupied habitatbecomes unoccupied in the future, thereis a potential benefit from criticalhabitat in such areas.

Federal agencies already consult withus on activities in areas currentlyoccupied by the species to ensure thattheir actions do not jeopardize thecontinued existence of the species.These actions include, but are notlimited to:

(1) Regulation of activities affectingwaters of the United States by the ArmyCorps under section 404 of the CleanWater Act;

(2) Regulation of water flows,damming, diversion, and channelizationby Federal agencies;

(3) Regulation of commercial fisheriesby the National Marine FisheriesService;

(4) Law enforcement in United StatesCoastal Waters by the U.S. Coast Guard;

(5) Road construction andmaintenance by the Federal HighwayAdministration;

(6) Regulation of airport improvementactivities by the Federal AviationAdministration jurisdiction;

(7) Military training and maneuverson applicable DOD lands;

(8) Regulation of subsistence harvestactivities on Federal lands by the U.S.Fish and Wildlife Service;

(9) Regulation of mining and oildevelopment activities by the MineralsManagement Service;

(10) Regulation of home constructionand alteration by the Federal HousingAuthority;

(11) Hazard mitigation and post-disaster repairs funded by the FederalEmergency Management Agency;

(12) Construction of communicationsites licensed by the FederalCommunications Commission;

(13) Wastewater discharge fromcommunities and oil developmentfacilities permitted by theEnvironmental Protection Agency; and

(14) Other activities funded by the U.S. Environmental Protection Agency,Department of Energy, or any otherFederal agency.

All areas designated as critical habitatare within the geographical areaoccupied by the species, and contain thephysical or biological features that arelikely to be used by spectacled eidersduring portions of the year, or undercertain environmental and climaticconditions during some years. Thus, weconsider all critical habitat to be



occupied by the species. Federalagencies already consult with us onactivities in areas currently occupied bythe species or if the species may be

affected by the action to ensure thattheir actions do not jeopardize thecontinued existence of the species.Thus, we do not anticipate additional

regulatory protection will result fromcritical habitat designation.

TABLE 3.—ACTIVITIES POTENTIALLY AFFECTED BY SPECTACLED EIDER LISTING AND CRITICAL HABITAT DESIGNATION

Categories of activities Activities involving a federal action potentially affectedby species listing only 1

Additional activities involving afederal action potentiallyaffected by critical habitat

designation 2

Federal activities potentially affected 3 ................ Activities that the Federal Government carries out such asscientific research, land surveys, law enforcement, oil spillresponse, resource management, regulation of commerce,and construction/expansion of physical facilities.

None.

Private activities Potentially Affected 4 ................ Activities that also require a Federal action (permit, author-ization, or funding) such as scientific research, commercialfishing, sport and subsistence hunting, shipping and trans-port of fuel oil and, and village maintenance, constructionand village expansion.

None.

1 This column represents impacts of the final rule listing the spectacled eider (May 10, 1993) (58 FR 27474) under the Endangered SpeciesAct.

2 This column represents the impacts of the critical habitat designation above and beyond those impacts resulting from listing the species.3 Activities initiated by a Federal agency.4 Activities initiated by a private entity that may need Federal authorization or funding.

We recognize that designation ofcritical habitat may not include all ofthe habitat areas that may eventually bedetermined to be necessary for therecovery of the species. For thesereasons, all should understand thatcritical habitat designations do notsignal that habitat outside thedesignation is unimportant or may notbe required for recovery. Areas outsidethe critical habitat designation willcontinue to be subject to conservationactions that may be implemented undersection 7(a)(1) and to the regulatoryprotections afforded by the section7(a)(2) jeopardy standard and thesection 9 take prohibition, asdetermined on the basis of the bestavailable information at the time of theaction. We specifically anticipate thatfederally funded or assisted projectsaffecting listed species outside theirdesignated critical habitat areas maystill result in jeopardy findings in somecases. Similarly, critical habitatdesignations made on the basis of thebest available information at the time ofdesignation will not control thedirection and substance of futurerecovery plans, habitat conservationplans, or other species conservationplanning efforts if new informationavailable to these planning efforts callsfor a different outcome.

Summary of Comments andRecommendations

Our critical habitat proposal wassubmitted to the Federal Register onFebruary 1, 2000, and was published inthe Federal Register on February 8,2000 (65 FR 6114). In it, we requestedthat all interested parties submit

comments during the public commentperiod on the specifics of the proposalincluding information, policy, andproposed critical habitat boundaries asprovided in the proposed rule. Thecomment period was initially open fromFebruary 8, 2000, until May 8, 2000. OnApril 19, 2000 (65 FR 20938), wepublished a notice in the FederalRegister extending the closing date forthe open public comment period fromMay 8, 2000, to June 30, 2000. On July5, 2000 (65 FR 41404), we published anotice in the Federal Register againextending the closing date for the openpublic comment period from June 30,2000, to August 31, 2000. On August 24,2000 (65 FR 91577), we published anotice in the Federal Registerannouncing the availability of our drafteconomic analysis and extending theclosing date for the open publiccomment period; from August 31, 2000,to September 25, 2000. The resultingcomment period lasted from February 8,2000, to September 25, 2000 (231 days).

We extended the comment period onthese three occasions to accommodateAlaska Natives, who spend considerabletime away from their homes engaged insubsistence activities. The thirdextension also allowed for publiccomment on our draft economicanalysis.

We solicited comments from allinterested parties, and we particularlysought comments concerning spectacledeider distribution and range, whethercritical habitat should be designated,and activities that might impactspectacled eiders. Notice of theproposed rule was sent to appropriateState agencies, Alaska Native regional

corporations, borough and localgovernments, Federal agencies,scientific and environmentalorganizations, fishing and oil industryrepresentatives, and other interestedparties. In total, we sent copies of ourproposal and a request for input to over300 entities.

We discussed our spectacled eidercritical habitat proposal at the followingvenues throughout Alaska: eider criticalhabitat public meetings for agency,industry, Native, and environmentalorganization representatives at ourRegion 7 Regional Office, Anchorage onFebruary 1 and 2, 2000; briefing of theAssociation of Village CouncilPresidents staff in Bethel on February 7,2000; Alaska Forum on the Environmentin Anchorage on February 9, 2000; eidercritical habitat public meeting in Barrowon February 16, 2000; WaterfowlConservation Committee meeting inBethel from February 22–24, 2000; eidercritical habitat public meeting inToksook Bay on February 25, 2000;eider critical habitat public meeting inChevak on March 1, 2000; Nome EskimoCommunity IRA Tribal Council meetingin Nome on May 5, 2000; eider criticalhabitat public meeting in Nuiqsut onAugust 21, 2000; eider critical habitatpublic meeting in Wainwright onAugust 23, 2000; eider critical habitatpublic meeting in Point Lay on August24, 2000; eider critical habitat publicmeeting in Atqasuk on August 25, 2000;eider critical habitat public hearing inBarrow on August 28, 2000 (65 FR46684); eider critical habitat publicmeeting in Sand Point on September 18,2000; eider critical habitat meeting withSand Point local tribal council in Sand



Point on September 19, 2000; eiderexperts meeting at the Campbell CreekScience Center in Anchorage onSeptember 21–22, 2000; eider criticalhabitat meeting with Kodiak RegionalAdvisory Council in Cold Bay onSeptember 27, 2000; and an eidercritical habitat meeting for the BristolBay Regional Council in Naknek onOctober 13, 2000. At those meetingsheld outside of the public commentperiod, we presented information only;public comment was not sought oraccepted. When possible andappropriate, we publicized our publicmeetings through newspaper and radioadvertisements.

The required legal notices announcingpublication of our critical habitatproposal appeared in the AnchorageDaily News on February 10, 13, and 16,2000, in the Bristol Bay Times onFebruary 10, 2000, and in the TundraDrums on February 17, 2000.

We entered comments received afterFebruary 8, 2000, and postmarked orreceived by September 25, 2000, intothe administrative record. Allcomments, notes from public meetings,and the transcript for the public hearingheld in Barrow are available forinspection (see ADDRESSES section).

We requested three scientists withexpertise in eider biology to peer reviewthe proposed critical habitatdesignation. All three submittedcomments and these comments havebeen taken into consideration in thefinal rule.

We received a total of 327 oral andwritten comments during the commentperiod. Oral comments received duringpublic meetings were recorded by topic;we did not record how manyindividuals made the same comment ateach meeting. During our publichearing, eight of the commenterssubmitted oral testimony only, andseven submitted both oral and writtentestimony. In total we receivedcomments as follows: Ten from officialsrepresenting Federal Agencies, two fromelected Federal officials, three fromState agencies, three from elected Stateofficials, nine from local governments,23 from Native organizations, and 277from individuals, private companies,and non-Native organizations. Wereviewed all comments received forsubstantive issues and new dataregarding spectacled eiders and criticalhabitat. We grouped comments of asimilar nature into four general issuesrelating specifically to the proposedcritical habitat determination and drafteconomic analysis on the proposeddetermination: Biological Justificationand Methodology, Policy andRegulations, Economic Issues, and

Other Relevant Issues. These areaddressed in the following summary.

Issue 1: Biological Justification andMethodology

Comment 1: Many respondents hadcomments concerning habitat as a factorin the species conservation, includingstatements indicating that habitat is notlimiting the species population size,habitat loss was not a threat to thespecies, loss of breeding habitat did notcause the decline and was not limitingrecovery of this species, and criticalhabitat was not needed for survival andrecovery.

Our response: The informationavailable when the species was listed in1993 did not indicate that habitat lossor degradation was considered to be athreat to the species. However, we havegathered a considerable amount ofinformation in the past seven years.Among other things, we have learnedthat habitat degradation on the Y–KDelta resulting from deposition of leadshot is probably limiting recovery of thisspecies, and may have contributed tothe observed 96 percent decline. Inaddition, organic deposition andbenthic biomass in the wintering areasouth of St. Lawrence Island havedeclined steadily since the late 1980s.Oceanographic studies during latewinter (March-April 1999) found thatparticulate organic carbonconcentrations in the water columnwere too low to support significantpopulations of large zooplankton orkrill, indicating that spectacled eidersmust be feeding on the bottom.Moreover, a long-term trend in benthiccommunities continues: the formerlyabundant bivalve Macoma calcarea hasdeclined relative to another clamNuculana radiata, which has 76 percentlower lipid content and 26 percentlower energy density (J.R. Lovvorn,Univ. Wyoming, pers. comm. 2000). Theaverage length and mass of bivalvespresumably preferred as food byspectacled eiders has also declined inthe long term (J.M. Grebmeier and B.I.Sirenko, unpubl. data). Taken together,these factors suggest a deterioration ofhabitat conditions favorable tospectacled eiders on their Y–K Deltabreeding grounds and Bering Seawintering area. We do not know to whatextent contaminants, increasedpredation, and increased humandisturbance are degrading the quality ofeider habitats. However, we note that aill-timed fuel or oil-spill in wintering ormolting areas could potentially harmthousands of eiders.

An examination of threats that arelimiting a species survival and recoveryand to what degree the threats are

limiting are key components of ourdecision of whether a species warrantslisting as threatened or endangered. Forthe spectacled eider, that determinationwas made in 1993 when the species waslisted.

After we decide that a specieswarrants listing, the Act directs us toidentify and designate critical habitat.For those areas within the current rangeof the species, critical habitat can be anyarea that contains physical or biologicalfeatures that are essential to theconservation of the species and that mayrequire special managementconsideration or protection. For areasoutside the current range of the species,critical habitat can be any area that isconsidered essential for theconservation of the species; we need notconsider whether special managementconsideration or protection is needed.Based upon what we have learned aboutlead shot in the environment on the Y–K Delta, and what we are learning aboutclam population changes on thespectacled eider wintering grounds, wecannot conclude that habitatdegradation is not a factor adverselyimpacting the species (i.e., these areasmay require special management). Ourevaluation of the available informationshows that the areas we have designatedare essential to the species and mayrequire special managementconsideration or protection.

As for whether critical habitat isneeded for survival and recovery, theAct obligates us to designate, to themaximum extent prudent, those areasthat meet the definition of criticalhabitat. It does not require us todetermine that the act of designatingland as critical habitat is a necessarystep in ensuring the survival orachieving the recovery of the species.

Comment 2: Many respondents statedthat they thought there was no new dataor insufficient data to warrant a reversalof our previous ‘‘not prudent’’ finding,or to support designation of criticalhabitat as proposed; the reasons for thebirds decline are unknown.

Our response: We invite interestedparties to inspect the volumes of newscientific information gathered since thelisting of this species in 1993. As aresult of this new information, we nowhave a much better idea of whichhabitats are essential to spectacled eiderconservation.

Additionally, several of our pastdeterminations that critical habitatdesignation would not be prudent havebeen overturned by courts in recentyears (e.g., Natural Resources DefenseCouncil v. U.S. Department of theInterior, 113 F. 3d 1121 (9th Cir. 1997);Conservation Council for Hawaii v.



Babbitt, 2 F. Supp. 2nd 1280 (D. Hawaii1998)). Although this information is notbiological in nature, we reassessed thepotential benefits from a critical habitatdesignation in light of these decisions.

We believe that new biologicalinformation, and the recent courtrulings, support our conclusion that thedesignation of critical habitat isprudent. Should credible, newinformation suggest that our designationshould be modified, we will reevaluateour analysis and, if appropriate, proposeto modify this critical habitatdesignation. In reaching our currentdecision, we have considered the bestscientific and commercial informationavailable to us at this time, as requiredby the Act.

Comment 3: Several respondentsstated that because the species was notdeclining on the North Slope, it madeno sense to designate critical habitatthere. Several respondents alsosuggested that the North Slopepopulation of spectacled eiders maywarrant delisting.

Our response: It is true that there isno historical trend data on nestingabundance or distribution for spectacledeiders on the North Slope. However,recent trend data for the North Slopeportion of the spectacled eider breedingarea indicate that the North Slopepopulation may be in decline over theperiod 1993–2000, although the trend isnot statistically significant. Thedownward trend of 2.6 percent per yearis bounded by a 90 percent confidenceinterval ranging from a 7.7 percentdecline per year to a 2.7 percentincrease per year (Service, unpubl.data). Furthermore, we note that sinceour spectacled eider surveys began in1992, the minimum population estimatehas never approached the delistingthreshold of 10,000 pairs. In fact, for 6of the 8 years, the population meets oneof the criteria for reclassification toendangered (‘‘minimum estimatedpopulation size is <3000 breeding pairsfor ≥ year’’). However, the preliminaryinformation (albeit limited) alsosuggests the very real possibility that theNorth Slope population may be largeenough to warrant delisting, but that ourcurrent surveys are simply not detectinga high enough proportion of birds toindicate that this is the case. If futuredata indicate that this species, or anydistinct vertebrate population segmentno longer warrants protection under theAct, we will propose removing thespecies or that segment from the list ofthreatened and endangered species. Asdiscussed above, however, we have notdesignated critical habitat on the NorthSlope in accordance with section 4(b)(2)of the Act.

Comment 4: Several respondentscommented extensively on the finalrecovery plan for the spectacled eider,noting, among other things, that thedelisting thresholds are exceedinglyconservative.

Our response: As to the recovery plan,we are unable to incorporate thecommenters suggestions into thisalready-approved recovery plan, as thepublic comment period has long-sinceclosed (February 23, 1995; 59 FR53660). We will, however, keep thesecomments on file and consider themwhen this approved recovery plan isrevised. Until such a revision isapproved, we are adhering to therecovery criteria in the approvedrecovery plan.

The delisting criteria cited by thecommenters from the spectacled eiderrecovery plan states that ‘‘* * * theminimum estimated population size is≥10,000 breeding pairs over ≥ 3 surveys(1 survey/year, with surveys preferablybeing consecutive) or the minimumestimate of abundance exceeds 25,000breeding pairs in any one survey.’’ Thecommenters state that minimumpopulation estimates have exceeded thisthreshold twice, and suggest that the1999 survey data may result in thispopulation meeting the delistingthreshold for a third time.

We note that the commenters aremistaken in the interpretation of oursurvey data on several counts. Thesurvey estimates they cite as exceeding10,000 pairs are not minimumpopulation estimates, they are pointestimates. Minimum populationestimates, as defined in the recoveryplan, are the lower 95 percentconfidence limits of the survey or theactual number of birds seen on thesurvey. In addition, they mistakenly citean estimate of the number of breedingbirds as an estimate for the number ofbreeding pairs. To get the minimumpopulation estimate for the number ofbreeding pairs, one must divide theminimum population estimate of thenumber of breeding birds in half. Thus,recent minimum population estimatesfor the number of pairs of spectacledeiders comprising the North Slopebreeding population are as follows: for1993: 3,669; for 1994: 2,828; for 1995:2,803; for 1996: 2,179; for 1997: 2,107;for 1998: 3,800; for 1999: 2,679; and for2000: 2,567. In none of the years doesthe minimum population estimate evenapproach the delisting threshold of10,000 pairs. In fact, for 6 of the 8 years,the population meets one of the criteriafor reclassification to endangered(‘‘minimum estimated population size is<3000 breeding pairs for ≥ year’’).However, the preliminary information

(albeit limited) also suggests the veryreal possibility that the North Slopepopulation may be large enough towarrant delisting, but that our currentsurveys are simply not detecting a highenough proportion of birds to indicatethat this is the case.

The commenters suggest that, withthe application of a visibility correctionfactor, the minimum populationestimate for delisting may be reached.We note that to validly apply a visibilitycorrection factor to achieve a minimumpopulation estimate, as suggested by thecommenters, we must also incorporatethe variance of the visibility correctionfactor into the final minimumpopulation estimate. At present, we donot have a usable visibility correctionfactor for spectacled eiders due to thewide confidence limits around thecorrection factor thus far derived. Wenote that development of a usefulvisibility correction factor is a highpriority for future work.

Comment 5: Several respondentsstated that we need to base ourdecisions on objective studies based onscience.

Our response: We believe that all ofthe studies that we used as a basis forour decisions were scientifically soundand objective. The respondents were notspecific in saying which documents orstudies they felt were non-objective orunscientific. All of the studies that weused in our decision-making process arepart of our administrative record.

Comment 6: Several respondentsstated that they thought our criticalhabitat proposal included areas not usedby the species, specifically, that theLedyard Bay molting area was extendedtoo far west, and contained nearshorewaters not used by spectacled eiders.They also believed the proposedwintering area was too large given theareas that the birds have been observedusing.

Our response: We have adjusted theboundary of the Ledyard Bay winteringarea unit to better reflect patterns of useduring the time in which this speciesmolts and stages there during fall. Thischange is based upon aerialobservations, satellite transmitter data,bathymetry data and traditional Nativeknowledge regarding eider use of thesewaters obtained during the publiccomment period. Waters within 1 nm ofshore between Cape Lisburne north toIcy Cape are not within our finaldesignation. Our data does indicatenearly exclusive and repeated use ofLedyard Bay waters between 5 and 25meters in depth across years. As such,these waters remain part of our finaldesignation. We note that theobservation by local Natives that



spectacled eiders use waters 15–75 nmfrom shore is largely supported by thescientific data available to us. However,all of the Ledyard Bay critical habitatunit (Unit 4) is within 75 nm of shore.

We do not believe that our bestscientific information warrantsrestricting the borders we have drawnaround this species’ wintering area. It istrue that during most winters, the birdsmake use of a relatively small portion ofthis area. However, during periods ofextreme weather, they may be precludedfrom using this favored area by heavyice conditions, such as occurred duringMarch 1995. During such times, otherportions of the wintering area that areseldom used may become criticallyimportant to the survival of the species.We believe that the borders we havedrawn, coupled with our description ofthe primary constituent elements forthat location, are the best representationof the area that is essential to theconservation of the species, and forwhich we have the authority todesignate critical habitat. Shouldadditional survey data generated over aspectrum of winters of varying severityindicate that the borders of the criticalhabitat warrant amending, we willconsider such information and takeappropriate action.

Comment 7: A few respondents statedthat there was insufficient data todescribe primary constituent elements.

Our response: We disagree. Inaccordance with the regulations,primary constituent elements mayinclude, but are not limited to, thefollowing: Roost sites, nesting grounds,spawning sites, feeding sites, seasonalwetland or dryland, water quality orquantity, host species or plantpollinator, geologic formation,vegetation type, tide, and specific soiltypes (50 CFR 424.12). In addition, theregulations state that we are to make ourdeterminations based upon the bestscientific data available (50 CFR424.12). We believe that we havedescribed the primary constituentelements of the different habitats usedby this species using the best scientificdata available. Additional data mayhave allowed us to describe primaryconstituent elements in more detail, butthe lack of this additional data does notpreclude us from describing the primaryconstituent elements using theinformation that we have.

Comment 8: A few respondents askedwhether it is possible that the eidershave simply relocated.

Our response: Sea ducks in general,and spectacled eiders in particular,exhibit breeding site fidelity. That is,female waterfowl tend to return to thearea where they hatched for their first

nesting effort, and subsequently returnto this same area year after year(Anderson et al. 1992). Genetics studiesindicate that there are differences inmitochondrial DNA between femalesthat breed on the Y–K Delta, NorthSlope, and Arctic Russia. This is anindication that there is limited exchangeof females between breeding areas.Although males that lose a mate maysubsequently pair with a female from adifferent breeding area, andconsequently may breed in differentareas, we do not believe that femaleeiders regularly change breeding areas,or that there was a mass movement ofbirds from one breeding area to another.There is no evidence to support thistype of movement in sea ducks, norreason to believe that it may havehappened with spectacled eiders.

Comment 9: A few respondents statedthat our proposed North Slope Unit istoo big for Spectacled eiders, noting thatthis species only occur 1–2 milesinland.

Our response: Although we are notdesignating critical habitat on the NorthSlope at this time, we strongly disagreewith the observation that this speciesonly occurs within 2 miles of the coast.There are hundreds of confirmedsightings of spectacled eiders as far as60 mi from the coast made byprofessional biologists with years ofaerial survey experience. Perhaps thecommenters may be confusingspectacled eiders with the more coastaleider species, the common eider(Somateria mollissima).

Comment 10: Several commentersnoted that critical habitat designationcould hamper recovery by suggestingthat threats to the bird are located in oneplace when they are actually locatedelsewhere.

Our response: As we have previouslystated, we recognize that designation ofcritical habitat may not include all ofthe habitat areas that may eventually bedetermined to be necessary for therecovery of the species. Therefore, allshould understand that critical habitatdesignations do not signal that habitatoutside the designation is unimportantor may not be required for recovery.However, even given that limitation, wedo not believe that our final criticalhabitat designation will hamper therecovery of the spectacled eider.

Comment 11: Two respondents statedthat 5 percent annual harvest ofspectacled eiders on the YukonKuskokwim Delta during spring hasminimal impact on the population.

Our response: Subsistence harvestsurvey information estimates a slightlylower harvest rate from 1993–1999 (3.75percent), but that survey cannot account

for the under-reporting of the number ofanimals harvested for which harvest isprohibited. For many species, a 5percent annual harvest rate would beinconsequential, but for a long livedspecies with relatively low annualreproductive output, and an alreadydepressed population level such as thespectacled eider, such harvest can havenotable effects on the population. Wesimulated the Y–K Delta spectacledeider population using both adeterministic model (one that does notaccount for uncertainty) and a stochasticmodel (one that incorporates effects ofchance events) developed for thisspecies, with starting conditions thatapproximate observed reproductiveparameters and that result in the stableto slightly increasing population ofeiders, such as that which has beenoccurring over recent years (Paul Flint,BRD, pers. comm. 2000). When wereleased the modeled population fromhunting pressure, the deterministicmodel predicted that the populationwould grow about 20 percent in 10years. We ran 100 iterations of thestochastic model and observed that thepopulation change for this population,upon release from hunting pressure for10 years, ranged from a 13 percentdecline to a 50 percent increase (averagepopulation change was about a 20percent increase). This informationsuggests that while hunting may notcurrently be driving the populationfurther towards extinction, it ishindering, and may be preventing,recovery of the species.

Comment 12: Two respondentsthought we should have included thearea south and east of Teshekpuk Lakein our proposal.

Our response: We consideredincluding this area in our proposal, butaerial survey data indicated that thisarea is not used by spectacled eiders. Ineight years of aerial surveys, we haveonly encountered spectacled eiders inthis area twice.

Comment 13: A few respondents notethat eiders are tolerant of development,implying that designation of criticalhabitat in these areas is thereforeunnecessary.

Our response: We agree thatspectacled eiders occur in developedareas. Spectacled eiders regularly occurin ponds within developed oil fields atPrudhoe Bay. However, we also notethat spectacled eiders do not occur athigh densities near any of the Nativevillages on the North Slope or Y–KDelta. We do not know whether thisreflects intolerance for development,local extirpation due to hunting, orsimply that villages are located on landsunsuitable as eider habitat.



Development may affect species in anumber of ways, such as alteringdistribution or decreasing productivityor survival rates. At this time, the effectsof development on spectacled eiders areunknown.

Comment 14: One respondent statedthat our data were not very compellingfor including the marine waters off theNorth Slope and the North Y–K Deltaunit as critical habitat.

Our response: Our initialinterpretation of satellite transmitterdata from the Beaufort and Chukchi seasand aerial survey data from the Y–KDelta compelled us to include theseareas in our proposal. Subsequenttransmitter data from the summer of2000 caused us to reconsider ourinclusion of the coastal waters of theBeaufort and Chukchi seas within 40 kmof shore. The data did not clearlyindicate that these waters are essentialto the conservation of the species. Manyindividuals use this area for less than afew days, and some of them appear tofly across it nearly nonstop on their wayto Ledyard Bay.

Upon closer scrutiny of habitat withinthe northern portion of our Y–K Deltaunit, we believe that most of the habitatthere is unsuitable for spectacled eiders.However, we note that there may be oneor two small pockets of habitat in thisunit that are suitable, and that appear onmaps to be distinctly different from thesurrounding area. We have not yetconducted ground-based surveys inthese areas. If future data indicates thatthese areas are suitable habitat forspectacled eiders, and are essential forthe conservation of the species and mayrequire special managementconsiderations or protection, we willconsider designating them as criticalhabitat at a future date.

Comment 15: One respondentsuggested that our aerial surveys may beill-timed to detect spectacled eiders.

Our response: Ground data from thePrudhoe Bay area indicate that, whileour eider aerial surveys are not alwaysperfectly timed to detect the maximumnumber of spectacled eiders, in general,they do a good job of surveying a verylarge area during the short window oftime in which a high proportion ofhighly-visible males are present on thebreeding grounds. In some years, oursurvey timing is nearly perfect; in otheryears, weather delays have impinged onour ability to optimally time our surveyefforts.

Comment 16: One respondent pointedout that we should explicitly state thatLedyard Bay is essential to theconservation of the species.

Our response: We have modified ourfinal rule to explicitly state that Ledyard

Bay is essential to the conservation ofthe species.

Comment 17: One respondent statedthat our proposals did not encompassenough of the species range to ensurerecovery, and that areas proposed mayactually be population sinks.

Our response: Our proposalencompassed nearly all of the speciescurrently occupied range (excludingmigratory corridors). We do not believethat areas outside of the proposedborders would have contributedmarkedly to the species survival andrecovery. Our final rule excludes largeportions of the proposal. However, thisis not meant to imply that habitatoutside the designation is unimportantor may not be required for recovery.

We have preliminary data on localpopulation sinks (areas where mortalityexceeds production, but wherepopulations are maintained throughimmigration from other areas) andsources on the Y–K Delta only. Theseareas have been included in the finaldesignation. Furthermore, we believethat areas that are currently populationsinks need not remain population sinksindefinitely. We hope that withadditional management measures, wecan turn many local population sinksinto population sources.

Comment 18: One respondent statedthat commercial fishing operations werenot responsible for the decline in eiderpopulations, and therefore criticalhabitat should not restrict commercialfishing. The respondent also disagreedwith a statement in the proposal thatsuggested trawl fishing may be apotential threat to spectacled eiders onthe wintering grounds.

Our response: We made no mention oftrawl fisheries in our critical habitatproposal nor are we aware of dataindicating that commercial fisheries areor are not responsible for declines ineider populations. We did state that‘‘* * * activities that may have thepotential to destroy or adversely modifycritical habitat for spectacled eidersinclude, but are not limited to: (1)Commercial fisheries, (2) oil explorationand development, and (3) petroleumproduct transport.’’ We did not intendto imply that commercial fisheries hadcaused the observed population declineof spectacled eiders, but rather thatcommercial fisheries, as well as theother factors mentioned, may have thepotential to be a threat to the species orits habitat. We note that, with respect tocommercial fisheries, possible ways inwhich eiders or their habitat may beaffected now or in the future include—(1) large numbers of small fuel and oilspills, including the practice ofdischarging oily bilge water; (2)

fundamental changes in the marineecosystem brought about by harvest oroverharvest of fish and shellfish; (3)vessel strikes in which eiders collidewith fishing vessels that are using brightlights during inclement weather; and (4)the alteration of the benthicenvironment by trawling gear. Again,we do not mean to imply that thecommercial fishing industry is currentlyaffecting the species in these ways. Wecurrently lack the information we needto determine whether, and to whatdegree, fisheries are affecting spectacledeiders. Further analysis of potentialaffects of the fishing industry onspectacled eiders will be considered infuture section 7 consultations with theNational Marine Fisheries Service(NMFS) on the fisheries.

We note that the commenter statedthat, due to ice, it was theoreticallyimpossible to conduct trawl fishingoperations in the spectacled eiderwintering area during the time of yearthat the birds are present. We agree withthis assessment, but note that eiders arepresent at high densities on theirwintering grounds prior to the formationof sea ice and also note that bottomtrawl fisheries conducted in this area atany time of year could potentiallyadversely modify spectacled eidercritical habitat; the birds need not bepresent during fishing operations forharm to occur. We acknowledge,however, that according to the dataprovided by the commenter, trawlfisheries did not occur within theborders of the spectacled eiderwintering area critical habitat between1995–1999. We appreciate receiving thisdata.

Issue 2. Policy and RegulationsComment 19: Many respondents

stated that they thought critical habitatwould create a need for section 7consultations on projects with a federalnexus, and that consultation would becostly, cause permitting delays,potentially preclude some development,or cause widespread unemployment.

Our response: The designation ofcritical habitat for the spectacled eiderdoes not impose any additionalrequirements or conditions on propertyowners or the public beyond thoseimposed by the listing of the eider in1993 as a threatened species. Alllandowners, public and private, areresponsible for making sure theiractions do not result in theunauthorized taking of a listed species,regardless of whether or not the activityoccurs within designated criticalhabitat. Take is defined as ‘‘harass,harm, pursue, hunt, shoot, wound,capture, collect, or attempt to engage in



any such conduct.’’ Take is furtherdefined by regulation to include‘‘significant habitat modification ordegradation that actually kills or injureswildlife,’’ which was upheld by the U.S.Supreme Court in Sweet Home Chapterof Communities for a Great Oregon et al.v. Babbitt, 515 U.S. 687 (1995).

Furthermore, all Federal agencies areresponsible to ensure that the actionsthey fund, permit, or carry out do notresult in jeopardizing the continuedexistence of a listed species, regardlessof critical habitat designation.‘‘Jeopardize the continued existence of’’means to engage in an action thatreasonably would be expected, directlyor indirectly, to reduce appreciably thelikelihood of both the survival andrecovery of a listed species in the wildby reducing the reproduction, numbers,or distribution of that species (50 CFR402.02). Because we designated onlyareas within the geographic rangeoccupied by the spectacled eider, anyactivity that would result in an adversemodification of the eider’s criticalhabitat would virtually always alsojeopardize the continued existence ofthe species. Federal agencies mustconsult pursuant to section 7 of the Acton all activities that will adversely affectthe eider taking place both within andoutside designated critical habitat.

The consultation process will changeonly to the extent that EnvironmentalImpact Statements, EnvironmentalAssessments, Biological Assessments,and other National EnvironmentalPolicy Act documents must consider theeffect of the project on critical habitat.However, these documents already needto consider the effects of the project onhabitat (in the absence of critical habitatdesignation). Therefore, we anticipatethat the additional workload burdencreated by critical habitat will amountto changes in terminology andorganization of these documents. Anymarginal increase in consultation costswill ultimately be borne by the leadFederal agency in the consultationprocess or its designated representative.

We disagree with those commenterswho believe that the consultationworkload that is due to critical habitatis 30 percent, 50 percent, or 90 percentof the total consultation workload. Sinceour consultation process, regardless ofthe designation of critical habitat, wouldinclude an evaluation of the proposedaction in terms of the habitat effects onthe species, we do not anticipate thatour portion of the section 7 consultationprocess will take any longer to completedue to the presence of critical habitat.Therefore, we do not believe that anypermitting delays will result from thisdesignation. Similarly, we do not

believe that critical habitat designationwill, by itself, preclude development.The Act authorizes us to require onlyminor changes to projects that are likelyto adversely affect listed species. Onlywhen a project will jeopardize thecontinued existence of a listed species,or will destroy or adversely modifycritical habitat can we require more thanminor changes (called ‘‘reasonable andprudent alternatives’’). We believe thatthe threshold for reaching ‘‘adversemodification’’ is equal to that of‘‘jeopardy’’. Consequently, we cannotenvision how an action could causeadverse modification of occupied eidercritical habitat without also jeopardizingthe species. As a result, any reasonableand prudent alternatives that we mayrequire would have come about due tothe listing of the species, with orwithout critical habitat. Therefore, webelieve that the existence of criticalhabitat alone will not preclude anydevelopment.

Finally, we stand by thedetermination in our economic analysisthat critical habitat will not have anotable economic impact. Consequently,we do not believe that it will create jobsor cause jobs to be lost.

Comment 20: Many respondentsstated that they thought critical habitatafforded no additional benefits beyondthose already provided by listing, andthat critical habitat offers no netbenefits.

Our response: It has long been ourposition that the benefits afforded bycritical habitat were small relative to thebenefits provided by listing. As such,we chose to focus scarce resourcestowards the listing of additional species.Our position should not bemisinterpreted to mean that we believecritical habitat affords no additionalbenefits. To the contrary, we believecritical habitat may enhancemanagement on Federal lands, and mayhelp prevent adverse impacts on privatelands resulting from Federal actions.The courts have repeatedly asserted thatwe have an obligation to designatecritical habitat under the Act, and anydecision not to do so should be theexception rather than the rule. Webelieve that the designation of criticalhabitat serves to educate and informagencies, organizations, and the publicthat the survival of the species isdependent upon the availability ofhealthy habitats. However, in somecircumstances the benefits of excludingan area from the critical habitatdesignation will be greater thanincluding the area in the designation. Ifsuch an exclusion will not result in theextinction of the species, subsection4(b)(2) the Act allows us to exclude the

area from the critical habitatdesignation. The circumstances on theNorth Slope currently warrant such anexclusion (see Rationale for the FinalDesignation section).

Comment 21: Many respondentspointed out that the Act indicates thatwe are not to designate critical habitatthroughout a species range.

Our response: Section 3(5)(C) of theAct states that, except in thosecircumstances determined by theSecretary, critical habitat shall notinclude the entire geographical areawhich can be occupied by anendangered or threatened species. Wehave designated critical habitat in lessthan 50 percent of the spectacled eider’shistorical range within the UnitedStates. The Secretary of the Interior hasdetermined that the areas designated areessential to conserve this species andmay require special managementconsiderations or protection.

Comment 22: Several respondentsstated that we need to balanceprotection and development.

Our response: There are provisions forbalancing protection and developmentin sections 6, 7, and 10 of the Act. Inaddition, we provide the opportunity forbalancing protection and developmentin our critical habitat designationprocess by undertaking an economicanalysis. Our analysis concluded thatthe economic effects on developmentwould be minimal or nonexistent.Therefore, we believe that we havebalanced and continue to balanceprotection and development.

Comment 23: Several commentersexpressed concern that designation ofcritical habitat will result in restrictionson development, subsistence huntingand fishing, commercial fishing, andtransportation.

Our response: We are unaware of anyinformation indicating any new State orlocal laws, restrictions, or procedureswill result from critical habitatdesignation. Should any State or localregulation be promulgated as a result ofthis rule, this would be outside ourauthority under the Act. The commentis correct in that projects funded,authorized, or carried out by Federalagencies, and that may affect criticalhabitat, must undergo consultationunder section 7 of the Act on the effectsof the action on critical habitat.However, as stated elsewhere in thisfinal rule, we do not expect the resultof those consultations to result in anyrestrictions that would not be requiredas a result of listing the spectacled eideras a threatened species.

Comment 24: One commenter statedthat village residents do not believe us



when we say that designating criticalhabitat will not noticeably affect them.

Our response: We understand thecommenter’s reservations; however, wecontinue to maintain that thedesignation of critical habitat does notimpose any additional requirements orconditions on the public beyond thosethat are imposed by the listing of thespectacled eider in 1993 as a threatenedspecies.

Comment 25: Several respondentspointed out that critical habitat is notcalled for in the recovery plan.

Our response: The recovery plan forthe spectacled eider was finalized in1996. This plan neither endorses theneed for, nor states that there is no needfor, designation of critical habitat forthis species. There is not a requirementthat a recovery plan call for criticalhabitat before we designate criticalhabitat. The Act mandates that criticalhabitat be designated at the time aspecies is listed, to the maximum extentprudent, which is well before thedevelopment and finalization ofrecovery plans.

Comment 26: Two respondents statedthat we should have consulted therecovery team in our decision-makingprocess.

Our response: We did not ask theRecovery Team to makerecommendations or provide formalcomments on the critical habitatproposal. That is not the role of theRecovery Team provided for in the Act.However, we did consider commentsfrom individual members of theRecovery Team as part of the publicreview and comment process. OnSeptember 21–22, 2000, in Anchorage,Alaska, we convened a meeting ofexperts in the field of spectacled eiderbiology. We invited all members of therecovery team in addition to other eiderexperts who are not on the team. At thismeeting, we sought input from theexperts on what habitats they believedto be essential to the recovery of thespecies. A transcript of this meeting ispart of our administrative record, and itwas considered in our decision makingprocess, as were comments received bymail, fax, phone, e-mail, and in publicmeetings and at our public hearing inBarrow, Alaska.

Comment 27: One respondent saidthat designating such a huge area ascritical habitat may trivialize theconcept of critical habitat.

Our response: The Act requires thatwe designate critical habitat to themaximum extent prudent. For wide-ranging species, this may result in largeexpanses of land and water fallingwithin critical habitat borders.

Comment 28: One respondentcompares the listing of the short-tailedalbatross with that of the spectacledeider, and asked why it is prudent todesignate critical habitat for the eider,but not for the albatross when thecriteria for determination are nearlyidentical.

Our response: The decline inabundance of short-tailed albatrosseswas notable in that it was directlyattributable to one cause; directpersecution of the birds by humans suchthat the species was driven to the brinkof extinction (and in fact, for manyyears, the short-tailed albatross wasthought to be extinct). Whencommercial harvest of this speciesdiscontinued, the species populationbegan to grow at near its maximumbiological potential. There is nothingabout the short-tailed albatross’ habitatthat is preventing it from growing at ornear its biological maximum capacityfor growth. The current population isbut a very small fraction of the numberof birds that the habitat once supported.In short, we know what caused thisspecies to decline, and its decline wascompletely unrelated to anything in itshabitat. We also know that there is noaspect of short-tailed albatross habitat inthe U.S. that is preventing it fromrecovering nearly as fast as it is capableof doing (65 FR 46643). This is not thecase for the spectacled eider.

We do not know why the spectacledeider has declined, but lacking evidenceof excessive direct take by humans, webelieve that we can conclude that thedecline can be attributed to some factorassociated with the species habitat.Furthermore, certain aspects of itshabitat (e.g., lead shot on the breedinggrounds, and shifting preydistributions), may be slowing orpreventing recovery. As such, specialmanagement protections andconsiderations may be needed, and thedesignation of critical habitat isappropriate.

Comment 29: Several commentersstated that we did not consult withAlaska Native communities or local/tribal governments regarding our criticalhabitat proposals.

Our response: Due to the shortdeadline we were working under, whichresulted from a settlement agreement,we did not consult with the AlaskaNative community prior to proposing todesignate critical habitat. However, weattempted to notify all potentiallyaffected communities, local and regionalgovernments regarding the proposeddesignation after it was published in theFederal Register on February 8, 2000(65 FR 6114). As noted earlier, wepublished notices in the Federal

Register announcing the proposeddesignation of critical habitat, and theavailability of the draft economicanalysis. We extended our publiccomment period three times at therequest of Alaska Natives. We sentletters and informational materialspertaining to the proposal, drafteconomic analysis and notices of theextensions of the comment period toover 300 individuals, communities, andlocal and regional Native governmentspotentially affected by the proposedcritical habitat. We provided a briefingopportunity on the proposal for AlaskaNative representatives at the beginningof the comment period. We contactedspecific individuals with traditionalecological knowledge of spectacledeiders and solicited their comments onthe proposal. We discussed our criticalhabitat proposal at 19 meetings (13 ofwhich were public meetings and 16 ofwhich had Natives in attendance). Weheld meetings in the Native/ruralvillages and towns of Chevak, ToksookBay, Bethel, Barrow, Point Lay,Wainwright, Nuiqsut, Atqasuk, SandPoint, and Nome. At those meetings thatwere held during the public commentperiod, meeting attendees were giventhe opportunity to comment on theproposal. We gave equal weight to oraland written comments on the proposal,and we incorporated traditionalenvironmental knowledge obtained atthese meetings into our final decision.

Comment 30: Two respondents statedthat we are not in compliance with theNational Environmental Policy Act andthat an Environmental Impact Statementshould be completed.

Our response: We have determinedthat we do not need to prepareEnvironmental Impact Statements orEnvironmental Assessments, as definedunder the authority of the NationalEnvironmental Policy Act of 1979(NEPA), in connection with regulationsadopted pursuant to section 4(a) of theAct. The Ninth Circuit Courtdetermined that NEPA does not apply toour decision to designate critical habitatfor an endangered or threatened speciesunder the Act because (1) Congressintended that the critical habitatprocedures of the Act displace theNEPA requirements, (2) NEPA does notapply to actions that do not change thephysical environment, and (3) to applyNEPA to the Act would further thepurposes of neither statute, DouglasCounty v. Babbitt, 48 F.3d 1495, 1507–0 (9th Cir. 1995). Alaska is within thejurisdiction of the ninth Circuit Court ofAppeals.

Comment 31: Several commenterssaid that we should explain in detailwhy the proposed critical habitat is



essential to the species’ survival andrecovery. Commenters also stated thatwe should identify more explicitly thecriteria used to determine what areas areconsidered essential and what specialmanagement or protections are needed.

Our response: We believe that wehave addressed these concernsthroughout the final rule. Please see the‘‘Critical Habitat’’ and ‘‘rationale forfinal designation’’ sections of this FinalRule. As described in the section titled‘‘Primary Constituent Elements’’ weidentified the habitat features (primaryconstituent elements) that provide forthe physiological, behavioral, andecological requirements essential for theconservation of spectacled eiders.Within the historical range of thespectacled eider we identified areaswhich provide the primary constituentelements and which met the criteriadiscussed under ‘‘Critical HabitatDesignation’’ in this rule. Then, based inpart on information from eider experts,we selected qualifying portions of theseareas necessary for the conservation ofthe spectacled eider and thendetermined whether those areas mightrequire special managementconsiderations or protection.

Comment 32: Some commentersstated that ‘‘adverse modification’’ and‘‘jeopardy’’ are two different standardsand thus disagreed with our positionthat critical habitat will impose noaddition regulatory burden.

Our response: Section 7 prohibitsactions funded, authorized, or carriedout by Federal agencies fromjeopardizing the continued existence ofa listed species or destroying oradversely modifying the listed species’critical habitat. Actions likely to‘‘jeopardize the continued existence’’ ofa species are those that wouldappreciably reduce the likelihood ofboth the survival and recovery of alisted species. Actions likely to result inthe destruction or adverse modificationof critical habitat are those that wouldappreciably reduce the value of criticalhabitat for both the survival andrecovery of the listed species. Commonto both definitions is an appreciabledetrimental effect on both survival andrecovery of a listed species. Given thesimilarity of these definitions, actionslikely to result in the destruction oradverse modification of critical habitatwould almost always result in jeopardyto the species concerned, particularlywhere, as here, only habitat within thegeographic range occupied by thespectacled eider is designated as criticalhabitat. The designation of criticalhabitat for the spectacled eider does notadd any new requirements to thecurrent regulatory process. Since the

adverse modification standard forcritical habitat and the jeopardystandard are, for this species,indistinguishable, the listing of thespectacled eider initiated therequirement for consultation. Thiscritical habitat designation adds noadditional requirements not already inplace due to the species’ listing.

Comment 33: Some commentersstated that the proposed critical habitatdesignation was inconsistent with theguidelines set forth in the Act becauseit encompassed more habitat than isnecessary for the conservation of thespecies.

Our response: The critical habitatareas identified in the proposed ruleconstituted our best assessment of theareas needed for the species’conservation using the best availablescientific and commercial data that wasavailable to us at the time. During thepublic comment period for the proposedrule we received additional informationand recommendations from eiderexperts, individuals with traditionalenvironmental knowledge of thespecies’ habitat needs and patterns ofuse, and other individuals andorganizations that enabled us to refineour assessment of the areas needed toensure survival and recovery of thespecies. The critical habitat designatedin this rule reflects our assessment ofthe areas needed for the conservation ofspectacled eiders in accordance with theparameters set forth in the Act’s sections3(5)(A) and 4(b)(2) and as described inthe section of this rule titled ‘‘CriticalHabitat.’’ We will continue to monitorand collect new information and mayrevise the critical habitat designation inthe future if new information supportsa change.

Comment 34: Several commentersstated that our previous determinationthat designation of critical habitat was‘‘not prudent’’ was the appropriatedecision for this species. Thesecommenters criticized us for agreeing toreevaluate critical habitat for thespectacled eider in response tolitigation, and stated that additionalbiological information is necessarybefore critical habitat for spectacledeiders can be reevaluated.

Our response: At the time the initial‘‘not prudent’’ determination was madefor this species, we believed thatdesignation afforded few, if any,benefits to the species beyond thoseconferred by listing. In general, FederalCourts have not agreed with ouranalysis of the benefits of critical habitatand during the last several years haveoverwhelmingly ruled that the Servicemust in almost all cases designatecritical habitat for listed species. In

March 1999, a lawsuit challenging ourdecision to not designate critical habitatfor the spectacled eider was filed. Inlight of recent court rulings, we opted toreconsider our earlier prudencydecision, as stipulated in the terms of asettlement agreement, rather thanexpend our limited resources onprotracted litigation.

We recognize that there may beinformational or educational benefitsassociated with critical habitatdesignation. Furthermore, we havegathered a tremendous amount ofadditional biological information on thisspecies since the time of its listing,making our reevaluation of criticalhabitat both necessary and timely. Thisadditional information concerning thebiology and ecology of this species hashelped us identify more specifically thetypes and locations of habitat that areessential to its conservation. While thereis still much to be learned about thisspecies, the information currentlyavailable to us supports ourdetermination that designation ofcritical habitat is prudent, and that theareas we are designating as criticalhabitat are essential to the conservationof the species and may require specialmanagement considerations orprotections.

Comment 35: One commenter statedthe designation of critical habitat shouldnot occur until discussions had beenheld to ensure that the designation isconsistent with internationalmanagement regimes, such as thoseunder the auspices of the Migratory BirdTreaty Act and the Arctic Council’sworking group for the Conservation ofArctic Flora and Fauna.

Our response: We agree thatcollaboration and consistency withinternational efforts to conserve theeider are very important. We have aworking relationship with eider expertsin Russia, and our research andmanagement efforts are complimentaryto those conducted under otherconservation programs. We willcontinue to coordinate with otherresearch and conservation entities. Theparameters set forth in the Act and thesettlement agreement preclude deferralof designation of critical habitat for thisspecies pending discussions of the typesuggested by the commenter.

Comment 36: One respondent pointedout that critical habitat designation willresult in the need to reinitiate section 7consultation on projects on whichconsultation has previously beencompleted.

Our response: We agree. Regulationsat 50 CFR 402.16 require Federalagencies to reinitiate consultation onpreviously reviewed actions when



critical habitat is designated subsequentto consultation. However, thisreinitiation need be undertaken only ifthe action is ongoing. We are in theprocess of contacting Federal agenciesto inform them that they should reviewtheir ongoing actions that have beenpreviously consulted upon to determineif the reinitiation of consultation iswarranted.

Comment 37: There are no benefits ofdesignating critical habitat.

Our response: We disagree. Webelieve that critical habitat designationcontributes to species conservation byidentifying important habitat for thespecies and by describing habitatfeatures that are thought to be essentialfor the species. This can alert public andprivate entities to the area’s importanceand result in cooperative strategies forhabitat conservation. In particular,critical habitat designation makes itclear to Federal agencies thatconsultation under section 7 of the Actis required for all actions that may affectthe species or its habitat.

Comment 38: One commenter askedwhether critical habitat designationwould shorten the permitting processfor the oil industry or reduce theobligation of the oil industry to seekNative concurrence.

Our response: We believe thatdesignating critical habitat will neithersimplify nor complicate the Federalpermitting process for any actions,including oil exploration ordevelopment. Because the onlyregulatory affect of critical habitatdesignation is through section 7 of theAct, which only affects Federal actionsand permitting, it should not affectinteractions between Alaska Natives andthe oil industry.

Issue 3: Economic IssuesComment 39: Many commenters

disagreed with our assessment that thedesignation of critical habitat for thespectacled eider would not lead to anynew section 7 consultations and ourconclusion, as a result, that economicimpacts of the proposed designationwould be minimal.

Our response: Because the spectacledeider is a federally protected speciesunder the Act, Federal agencies arealready required to consult with us onany actions they authorize, fund, orcarry out that may affect this species.For Federal actions that may adverselyaffect spectacled eiders, Federalagencies need to enter into a formalsection 7 consultation process with usto avoid violating section 9 of the Act,which makes it unlawful for any personto ‘‘take’’ a listed species. The term‘‘take’’ is defined by the Act (section

3(18)) to mean ‘‘to harass, harm, pursue,hunt, shoot, wound, kill, trap, capture,or collect, or to attempt to engage in anysuch conduct.’’ The U.S. Supreme Courtclarified the definition of harm toinclude adverse modification of habitat(Sweet Home Chapter of Communitiesfor a Great Oregon, et al. v. Babbitt, 515U.S. 687 (1995).

We are only designating criticalhabitat that is occupied by the eiders,essential to the conservation of thespecies, and may require specialmanagement considerations orprotections. While this designation willrequire Federal agencies to furtherconsider whether the actions theyauthorize, fund, or carry out withindesignated critical habitat boundariesmay affect the habitat, it is unlikely thatan agency could conclude that an actionmay affect designated critical habitatwithout simultaneously concluding thatthe action may also affect the eidersgiven the presence of eiders withindesignated critical habitat.

To properly portray the effects ofcritical habitat designation, we mustfirst compare the section 7 requirementsfor actions that may affect criticalhabitat with the requirements foractions that may affect a listed species.Section 7 prohibits actions funded,authorized, or carried out by Federalagencies from jeopardizing thecontinued existence of a listed speciesor destroying or adversely modifying thelisted species’ critical habitat. Actionslikely to ‘‘jeopardize the continuedexistence’’ of a species are those thatwould appreciably reduce thelikelihood of both the survival andrecovery of a listed species. Actionslikely to result in the destruction oradverse modification of critical habitatare those that would appreciably reducethe value of critical habitat for both thesurvival and recovery of the listedspecies. Common to both definitions isan appreciable detrimental effect onboth survival and recovery of a listedspecies. Given the similarity of thesedefinitions, actions likely to result inthe destruction or adverse modificationof critical habitat would almost alwaysresult in jeopardy when the area of theproposed action is occupied byspectacled eiders.

While Federal agencies will berequired to consider the effect of theiractions on critical habitat indetermining whether or not to consultwith us under section 7 of the Act, thedesignation of critical habitat forspectacled eiders will not affectactivities undertaken within criticalhabitat boundaries that do not involve aFederal nexus. While any person, publicor private, is required to ensure that

their actions do not result in the takingof a federally listed species, onlyFederal agencies are required to consultwith us about their action’s effect ondesignated critical habitat under section7 of the Act. Persons undertakingactivities within critical habitatboundaries that do not have a Federalnexus (i.e., Federal funds or permits)and that do not result in either thedirect or indirect taking of a federallyprotected species are not required toconsult with us concerning the effecttheir activities may have on designatedcritical habitat.

Comment 40: Many commentersstated that by designating critical habitatfor spectacled eiders, section 7consultation costs would likely increasedue to the extra resources needed todetermine whether a proposedgovernment action could result in thedestruction or adverse modification ofdesignated critical habitat.

Our response: We disagree that thedesignation of critical habitat forspectacled eiders would significantlyincrease the costs associated withconducting a section 7 consultation.First, as previously described, we haveonly proposed to designate occupiedhabitat as critical habitat and as a resultthe designation would not result in anincrease in section 7 consultationsbecause any Federal action that mayaffect a species’ designated criticalhabitat, which would trigger a section 7consultation, would also affect the listedspecies itself due to its presence in thearea. For those Federal actions that wefind may likely adversely affect aspecies or its critical habitat, we alreadyconsider habitat impacts of theproposed action along with whether ornot an action is likely to jeopardize alisted species or constitute ‘‘take’’pursuant to section 9 of the Act duringthe formal section 7 consultationprocess. As a result, the designation ofcritical habitat in the areas alreadyoccupied by spectacled eiders will notadd any appreciable time or effortrequired by an action agency, thirdparty applicant, or by our personnel toconduct a section 7 consultation.

Comment 41: Some comments statedthat the economic analyses failed toconsider the effect of reinitiatingpreviously conducted consultations toconsider an action’s effect on designatedcritical habitat.

Our response: Regulations at 50 CFR402.16 require Federal agencies toreinitiate consultation on previouslyreviewed actions in instances wherecritical habitat is subsequentlydesignated. Because we have alreadyconsidered the habitat impacts of theaction during the consultation process,



we do not believe that any significantresources would be expended by eitherthe action agency or by our personnel tocomply with the reinitiationrequirement. We anticipate fulfilling therequirements of 50 CFR 402.16 bysending a letter to an action agencyundertaking activities on which we havealready consulted, and requesting thatthey make a determination as towhether the ongoing action may affectdesignated critical habitat. Becausehabitat impacts were already consideredas part of the initial consultation, webelieve that most, if not all non-jeopardyactivities already consulted upon willlikely not adversely modify or destroycritical habitat. We are committed toworking with all Federal agencies thatmay be affected by the designation ofcritical habitat to expedite anyconsultations that require reinitiation.

Comment 42: The draft economicanalysis failed to consider thatNationwide permits under section 404of the Clean Water Act will no longer beallowed without a section 7consultation.

Our response: The conditions,limitations, and restrictions of the ArmyCorps Nationwide permit program statein 33 CFR 330.4 that no activity isauthorized by any nationwide permit ifthat activity is likely to jeopardize thecontinued existence of a threatened orendangered species as listed orproposed for listing under the Act or todestroy or adversely modify the criticalhabitat of such species. Federal agenciesare required to follow their ownprocedures for complying with the Actwhile non-federal permittees arerequired to notify the District Engineer(DE) if any federally listed (or proposedfor listing) endangered or threatenedspecies or critical habitat might beaffected or is in the vicinity of theproject. In such cases, the prospectivepermittee may not begin work underauthority of the nationwide wetlandpermit until notified by the DE that therequirements of the Act have beensatisfied and that the activity isauthorized. If the DE determines that theactivity may affect any federally listedspecies or critical habitat, the DE mustinitiate section 7 consultation inaccordance with the Act. Because weare only designating occupied habitat ascritical habitat for spectacled eiders,prospective permittees already arerequired to notify the Army Corps oftheir activities within these areas. As aresult, we do not anticipate that criticalhabitat designation for spectacled eiderswould result in any additional section 7consultations with the Army Corpsconcerning activities needing a generalpermit to proceed.

Comment 43: Some commentersstated that minor permitting delays,resulting from an increase in section 7consultations, can result in a year-longdelay given the limited operationwindows due to climate conditions inAlaska. As a result, these commentersbelieved that marginal projects may facefunding losses as financing capital iswithdrawn due to increased uncertaintyassociated with such a project.

Our response: We disagree that therewill be an increase in section 7consultations that will be attributable tocritical habitat designation forspectacled eiders. Federal agencies arealready required to consult with us insituations where actions they undertake,fund, or permit may adversely affect theeiders. We do not believe that thedesignation of critical habitat willlengthen the section 7 process becausewe already consider habitat impacts aspart of the consultation process.Because we are only designating criticalhabitat in areas that are occupied by theeiders, we do not believe that there willbe an increase in section 7 consultationsdue to the designation.

Comment 44: Several commentersstated that the draft economic analysesfailed to adequately address criticalhabitat effects on the North Slopepetroleum economy, including the costsassociated with section 7 consultationsand project modifications, which mayresult in project delays and reduceddevelopment, associated effects on theregional and State economy, and landvalue impacts in areas whereproduction may be curtailed.

Our response: Our draft economicanalyses for the proposed critical habitatrule discussed the potential economicimpacts to the oil and gas industryoperating on the North Slope.Specifically, we discussed theresponsibilities of the Bureau of LandManagement and the MineralsManagement Service in managing oiland gas exploration and productiondrilling in this area and their currentresponsibility to consult with us onactivities they authorize, fund, or carryout that may affect spectacled eiders.The analyses discussed previousconsultations with these Federalagencies concerning oil and gasactivities and concluded that for section7 consultations for which a ‘‘not likelyto adversely affect’’ determination wasmade by the agency, and for which weconcurred, we fully expect to concurwith a corresponding determination thatsuch an action is not likely to result inthe destruction or adverse modificationof critical habitat. Only for those actionsresulting in jeopardy to spectacledeiders would we expect to meet the

threshold for destruction or adversemodification of critical habitat duringthe section 7 process. Similarly, webelieved that property value decreases,to the extent that they can be attributedto spectacled eiders and result in actualrestrictions in land use, would be aresult of the listing of the species as afederally protected species and notbecause of critical habitat designation.Consequently, we do not believe thatcritical habitat designation, as proposed,would have an adverse effect on oil andgas industry operations on the NorthSlope nor have any indirect effects onthe regional or State economy. In thisfinal rule, however, we have withdrawnthe North Slope unit from criticalhabitat designation. As a result, theconcerns expressed in this comment areno longer an issue relevant to the finaldesignation.

We recognize that designation ofcritical habitat may not include all ofthe habitat areas that may eventually bedetermined to be necessary for therecovery of the species. For thesereasons, all should understand thatcritical habitat designations do notsignal that habitat outside thedesignation is unimportant or may notbe required for recovery. Areas outsidethe critical habitat designation willcontinue to be subject to conservationactions that may be implemented undersection 7(a)(1) and to the regulatoryprotections afforded by the section7(a)(2) jeopardy standard and thesection 9 take prohibition, asdetermined on the basis of the bestavailable information at the time of theaction. We specifically anticipate thatfederally funded or assisted projectsaffecting listed species outside theirdesignated critical habitat areas maystill result in jeopardy findings in somecases. Similarly, critical habitatdesignations made on the basis of thebest available information at the time ofdesignation will not control thedirection and substance of futurerecovery plans, habitat conservationplans, or other species conservationplanning efforts if new informationavailable to these planning efforts callsfor a different outcome.

Comment 45: One commenterbelieved that the economic analysesfailed to adequately address potentialbenefits associated with critical habitatdesignation.

Our response: We believe that manyof the benefits to the species that resultfrom critical habitat will be non-economic in nature. Critical habitatdesignation for spectacled eiders mayhave some educational benefit toAlaskans. Other benefits may resultfrom Federal agencies becoming more



aware of their obligation to consult ontheir activities as per section 7 of theAct. However, because we aredesignating only occupied habitat ascritical habitat for spectacled eiders, webelieve that the economic consequences(both positive and negative) associatedwith the designation are limited. Wearrive at this conclusion because thedesignation of critical habitat is unlikelyto have any significant effect on bothcurrent and planned economic activitieswithin the designated areas. For reasonspreviously stated, Federal agencies arealready required to consult with us onactivities that may affect spectacledeiders.

Comment 46: The analysis ignores theeffect that critical habitat designationmay have on commercial fisheries, suchas those occurring in the Bering Sea,along the Alaska Peninsula, and in Cookinlet based on judicial rulings on thefisheries impact on critical habitat forthe Steller sea lions.

Our response: On July 20, 2000, U.S.District Court Judge Thomas S. Zillyissued an injunction on all groundfishtrawl fishing within federally regulatedwaters of the Bering Sea/AleutianIslands and the Gulf of Alaska withinSteller sea lion critical habitat. Thejudge issued this injunction because hefound that the NMFS failed to issue alegally adequate biological opinionaddressing the combined, overall effectsof the North Pacific groundfish trawlfisheries on Steller sea lions and theircritical habitat pursuant to the Act. It isimportant to note that while the judgelimited fishing within Steller sea lioncritical habitat, he issued the injunctionprimarily out of concern that NMFSfailed to comply with section 7 of theAct. Consequently, we do not believethat critical habitat designation for theSteller sea lion played a significant rolein the judge’s decision to issue theinjunction but rather was simply usedby the judge to determine theboundaries of the injunction.

Our analyses did not address thepotential effects of third-party lawsuitsdirectly due to the limited informationand experience that critical habitatdesignation could have on such alawsuit. However, we recognize that itis possible that some third parties mayelect to sue us over future decisions wemay make about whether an activityadversely modifies critical habitat. As ofyet, we have not faced any suchlawsuits and because we are onlydesignating occupied eider habitat ascritical habitat, we find it highlyunlikely that we would ever determinethat a Federal action could adverselymodify critical habitat withoutsimultaneously jeopardizing the

continued existence of spectacled eidersdue to the similarity between the twodefinitions.

Our economic analyses did addressthe potential for impacts to commercialfisheries resulting from proposedcritical habitat designation. In theseanalyses we described how we haveconducted semi-annual formalconsultations on fisheries managementwith NMFS on the Bearing Sea fisheries.To date, we are unaware of anyspectacled eiders having been taken bythese fisheries. As a result, wediscontinued formal consultations onthis fishery and began conducting onlyinformal consultations. We do notanticipate that the designation of criticalhabitat will change our approach toconsultations. As a result, we do notexpect any adverse economic impacts tooccur in the Ledyard Bay, NortonSound, and St. Lawrence/St. MatthewIslands spectacled eider critical habitatareas as a result of this final rule. As aresult, we believe the potential for athird-party lawsuit that could affect thecommercial fishing industry as a resultof critical habitat designation isminimal.

Comment 47: Several commentersstated that the economic analysis isflawed because it does not quantify anyof the expected impacts that may resultfrom critical habitat designation.

Our response: The draft economicanalyses did not identify any potentialimpacts associated with critical habitatdesignation for spectacled eiders. As aresult, the analysis was unable toquantify any effects. Although theanalyses acknowledged the possibilityof impacts associated with projectdelays and other activities due tosection 7 consultations (the Act onlyrequires Federal agencies to consultwith us concerning the effect theiractions may have in critical habitatareas), we are only designating occupiedhabitat as critical habitat for spectacledeiders. Because Federal agencies arealready required to consult with usconcerning the effect their activitiesmay have on spectacled eiders in theseareas, we do not believe that thedesignation will result in any additionalimpacts. While the Act requires Federalagencies to consult with us on activitiesthat adversely modify critical habitat,we do not believe that within areasbeing designated as critical habitat forspectacled eiders there will be anyFederal government actions that willadversely modify critical habitatwithout also jeopardizing spectacledeiders due to their presence indesignated critical habitat areas.

We have also recognized that in someinstances, the designation of critical

habitat could result in a distorted realestate market because participants mayincorrectly perceive that land withincritical habitat designation is subject toadditional constraints. However, we donot believe that this effect will resultfrom the designation of critical habitatfor spectacled eiders. We arrived at thisdetermination based on the fact that webelieve that critical habitat designationfor spectacled eiders will not add anyadditional protection, beyond thatassociated with the addition of thespecies to the list of federally protectedspecies. As a result, we believe that anyresulting real estate market distortionwould be temporary and have arelatively insignificant effect as itshould become readily apparent tomarket participants that critical habitatfor spectacled eiders is not imposingany additional constraints on landowneractivities beyond any currentlyassociated with the listing of spectacledeiders.

Comment 48: Some commentersstated that the analysis does notconsider the cumulative impact ofadded uncertainty for projects.

Our response: While our economicanalyses identified some of the concernsstakeholders may have regarding ourconcern over current or anticipatedactivities on eider critical habitat, we donot believe that the designation ofcritical habitat for spectacled eiders willimpose any additional restrictions orconsiderations on projects having aFederal nexus. While section 7consultations could lead to projectdelays if they are not properlyanticipated for by project planners, wedo not believe that the designation ofcritical habitat will result in any new oradditional section 7 consultations aboveand beyond those that would berequired due to an activity’s potential toaffect spectacled eiders. We alreadyconsider the impact that an action hason the eider’s habitat as part of ourcurrent section 7 process so we do notbelieve that the section 7 process willtake any longer than it currently doesonce critical habitat is designated.

Comment 49: Some commenters feltthat the economic analysis is flawedbecause it is based on the premise thatwe have proposed designating onlyoccupied habitat as critical habitat andthat the economic analysis was wrong toassume that all future section 7consultations within designated criticalhabitat would occur regardless ofcritical habitat designation due to thepresence of spectacled eiders.

Our response: The determination ofwhether or not designated criticalhabitat is occupied by spectacled eidersis part of a biological decision-making



process and lies beyond the scope of aneconomic analysis. The Act requires allFederal agencies to consult with us ongovernment actions that may eitherdirectly or indirectly affect a listedspecies. Even without critical habitatdesignation, Federal agencies would berequired to consult with us on actionsthat could adversely modify eiderhabitat because such actions could alsoaffect spectacled eiders for reasonspreviously explained. Consequently, wedo not believe that the designation ofcritical habitat for spectacled eiders inoccupied habitat areas will lead to anyeconomic impacts beyond thosecurrently imposed as a result of thelisting.

Comment 50: Some commentersbelieved that we failed to adequatelyaddress the requirements of the SmallBusiness Regulatory EnforcementFairness Act in our draft economicanalysis.

Our response: The RegulatoryFlexibility Act, as amended by theSmall Business Regulatory EnforcementFairness Act, generally requires anagency to prepare a regulatory flexibilityanalysis of any rule subject to noticeand comment rulemaking requirementsunder the Administrative Procedure Actor any other statute unless the agencycertifies that the rule will not have asignificant economic impact on asubstantial number of small entities. Weare certifying that this rule will not havea significant economic impact on asubstantial number of small entities andas a result we do not need to prepareeither an initial or final regulatoryflexibility analysis.

We have based our finding on the factthat this rule will not result in anysignificant additional burden to theregulated community, regardless of thesize of the entity. Our economic analysisidentified several potential impactsassociated with critical habitatdesignation, including increasedconsultation costs, project modificationcosts, and potential temporary decreasesin property values. However, becausewe have only designated property thatis within the geographic range occupiedby spectacled eiders and becausespectacled eiders are already federallyprotected species, other Federalagencies are already required to consultwith us on activities that they authorize,fund, or carry out that have the potentialto jeopardize spectacled eiders. Anyassociated costs related to these section7 consultations, including projectmodifications, will therefore beattributable to the listing of the speciesand not to designation of critical habitatdue to the similarity in the definition ofjeopardy and adverse modification. In

other words, Federal actions that couldappreciably reduce the value of criticalhabitat for both the survival andrecovery of spectacled eiders wouldalso, by default, ‘‘jeopardize thecontinued existence’’ of spectacledeiders due to the action’s ability toappreciably reduce the likelihood ofboth the survival and recovery of thespecies due to its presence in criticalhabitat areas.

Issue 4: Other Relevant IssuesComment 51: Many respondents were

concerned that designating criticalhabitat will invite lawsuits by thoseaiming to obstruct oil development onthe North Slope.

Our response: We cannot predict whatfuture litigation may be brought underthe Act, nor can we use the threat oflitigation as an excuse for notdesignating critical habitat. The Act andregulations at 50 CFR 424.12 require usto designate critical habitat to themaximum extent prudent, and requirethat we base critical habitatdeterminations on the best scientificand commercial data available and thatwe consider those physical andbiological features that are essential tothe conservation of the species and thatmay require special managementconsiderations and protection.

Comment 52: A few respondentsasked whether it is possible that therewill be additional time in which tosubmit comments and whether anotherdraft will be presented for publiccomment before the final rule.

Our response: Our public commentperiod of 231 days (February 8, 2000—September 25, 2000) was nearly fourtimes the length of public commentperiod required by regulation. Weextended the open comment period onthree separate occasions toaccommodate interested parties. Webelieve that we allowed ample time forcomments. Our proposed rule publishedon February 8, 2000, and the drafteconomic analysis represent the onlydocuments for which public commentwill be sought relative to thisrulemaking. However, we welcome atany time new information on the lifehistory, distribution, and status of thespectacled eider, as well as informationon the quality, quantity, and viability ofthe habitats it uses.

Comment 53: A few respondentsasked whether critical habitat could bethe first step towards making the area arefuge.

Our response: Critical habitatdesignation is completely unrelated tothe formation of wildlife refuges, and inno way affects or is a precursor toestablishment of a wildlife refuge.

Critical habitat can be designated onexisting parks and refuges, state, andprivate lands. Such designation carrieswith it no implication of future landownership change, nor does it allow forpublic access to private land.

Comment 54: One respondent statedthat our proposal resulted from apolitically motivated decision.

Our response: Our proposal resultedfrom an out-of-court settlement inwhich we agreed to reexamine ourinitial decision that designation ofcritical habitat for this species was notprudent. We objectively reexamined thebest scientific and commercial dataavailable to us at the time, determinedthat designation of critical habitat wasprudent, and developed the proposalupon which this final rule is based.

Comment 55: One respondent statedthat designating critical habitat ensurescollaboration between Federal, State,and Private agencies and industries, andthat it would foster comprehensiveplanning and wise management.

Our response: We pursuecomprehensive planning andmanagement opportunities regardless ofthe presence of critical habitat.However, we note that the heightenedawareness surrounding conservationissues and the delineation of criticalhabitat areas on maps has resulted inagencies becoming more fully aware ofthe need to consult with us undersection 7 of the Act. In addition, webelieve that the critical habitat mapsand description make it easier for allinvolved to know whether anyparticular activity is located in an areaimportant to threatened and endangeredspecies.

Comment 56: One respondent statedthat designating as critical habitat thelarge area proposed on the North Slopewould harm listed eiders by irreparablydamaging cooperative and collaborativeworking relationships between theService and local and Nativegovernments.

Our response: We regard workingrelationships with local and Nativegovernments to be essential for effectingthe recovery of spectacled eiders on theNorth Slope. We note numerouscooperative conservation actions thatare in progress, including jointlyconducted or funded research andmonitoring projects, efforts to eliminatethe use of lead shot by waterfowlhunters, and public education projects.We agree that any action that damagesthese cooperative efforts will harmlisted eiders. It should be noted that inthis final rule, we have withdrawn theNorth Slope unit from critical habitatdesignation primarily for the reasoncited by this respondent. Section 4(b)(2)



of the Act says that we may choose tonot designate critical habitat on an areaif the relevant impacts of suchdesignation outweigh the benefits ofsuch a designation. We determined that,on the North Slope, this would be thecase (see Rationale for the FinalDesignation section).

Comment 57: One respondentchallenged our metric/Englishconversions (40 km = 25 nm) used todescribe critical habitat units,contending the imprecision in thisconversion could cause ambiguity inunit boundaries.

Our response: We believe that our useof significant digits in our metric toEnglish conversion factors wascommensurate with the accuracy of ourinformation regarding the locations ofbirds on the ground or water. There isa discrepancy of approximately 820 feet(250 m) between the two distances fromshore that we cited (40 km and 25 nm).This difference amounts toapproximately one half of 1 percent ofthe width of the proposed area.Nevertheless, we recognize that thisdiscrepancy has the potential to causefuture confusion. The critical habitatunits to which this comment applies arethe coastal waters of the Y–K Delta andNorth Slope. We note that futureconfusion over the precise location ofthese boundaries has been mootedbecause these marine areas have beeneliminated from our final critical habitatdesignation.

Comment 58: The risks of notdesignating or designating too small anarea appear greater than the risks ofdesignating too large an area.

Our response: We believe that anyrisks associated with the designation ofcritical habitat derive frommisperceptions surrounding criticalhabitat, and the way in which thesemisperceptions may affect workingrelationships between parties withconflicting interests or goals.Conversely, we do not believe that thereare notable risks to the listed speciesthat would result from a failure todesignate critical habitat.

Comment 59: One respondent askedwhether critical habitat remains foreveror is eliminated if the species isdelisted.

Our response: The critical habitatdesignation is removed at the time thespecies is delisted.

Comment 60: The oil industrycommented that the original listing ofeiders and subsequent critical habitatdesignation may have indirect negativeeffects on eiders by stimulating moreintrusive research on the North Slopeand elsewhere, resulting in increaseddisturbance during nesting.

Our response: The only effect ofcritical habitat designation is throughsection 7 of the Act, which requiresFederal agencies to consult with theService on actions they permit, fund, orconduct that may adversely affect listedspecies or adversely modify or destroycritical habitat. We believe that neitherthe need to consult or outcome ofconsultations will be affected by criticalhabitat designation because wecurrently consider the potential habitatimpacts of proposed projects duringconsultation. Any research on the NorthSlope or anywhere else in the occupiedrange of the spectacled eider that mightresult in ‘‘take’’ occurring would requirea section 10(a)(1)(A) permit from theService. If the authorization of such apermit may affect a listed species, anintra-agency section 7 consultation mustbe initiated. Any such consultation willconsider any direct, indirect,interrelated, or interdependent effects ofthe action. No permits would be issuedif significant adverse impacts wereanticipated.

Comment 61: Preventative measureslike critical habitat designation arecheaper and more productive andefficient than piecemeal restoration afterenvironmental damage is done.

Our response: We view critical habitatas more of an educational tool than asa preventive measure. Critical habitatdesignation adds few, if any, regulatoryrequirements, and it is difficult toenvision a scenario in which criticalhabitat may prevent any action fromoccurring that would not already beprevented by virtue of the presence ofthe listed species itself. An exception tothis would be if a project were toadversely modify or destroy criticalhabitat that had been designated inunoccupied habitat. However, we havenot designated any unoccupied habitatas critical habitat for the spectacledeider.

Summary of Changes From theProposed Rule

Based on a review of publiccomments received on the proposeddetermination of critical habitat for thespectacled eider, we reevaluate ourproposed designation of critical habitatfor the species. This resulted in eightsignificant changes that are reflected inthis final rule. These are—(1) thereduction in size of the minimummapping unit from township to sectionfor terrestrial critical habitat; (2) theelimination of Proposed Unit 1 (NorthY–K Delta Unit); (3) exclusion of landswithin Proposed Units 3 and 4 (Centraland South Y–K Delta Units,respectively) that are not within thevegetated intertidal zone; (4) the

elimination of marine waters associatedwith Units 1, 3, and 4; (5) theelimination of Proposed Unit 5 (NorthSlope Unit); (6) the reduction in size ofProposed Unit 6 (Norton Sound Unit);(7) the reduction in size of ProposedUnit 7 (Ledyard Bay Unit); and (8)refinement in the definition of primaryconstituent elements for all units. Adetailed discussion of the basis forchanges from the proposed rule can befound under the Rationale for the FinalDesignation section.

We changed our level of resolutionfrom townships to sections in an effortto minimize inclusion of nonessentialand unsuitable habitats within ourcritical habitat border. Although doingso resulted in a reduction of total areaincluded as critical habitat, we do notbelieve that it resulted in any exclusionof habitat that contained the primaryconstituent elements found in thevegetated intertidal zone.

Economic AnalysisSection 4(b)(2) of the Act requires us

to designate critical habitat on the basisof the best scientific and commercialdata available and to consider theeconomic and other relevant impacts ofdesignating a particular area as criticalhabitat. We may exclude areas fromcritical habitat upon a determinationthat the benefits of such exclusionsoutweigh the benefits of specifying suchareas as critical habitat. We cannotexclude such areas from critical habitatwhen such exclusion will result in theextinction of the species.

Economic effects caused by listing thespectacled eider as a threatened speciesand by other statutes are the baselineagainst which the effects of criticalhabitat designation are evaluated. Theeconomic analysis must then examinethe incremental economic andconservation effects and benefits of thecritical habitat designation. Economiceffects are measured as changes innational income, regional jobs, andhousehold income. A draft analysis ofthe economic effects of spectacled eidercritical habitat designation wasprepared (Industrial Economics,Incorporated, 2000) and made availablefor public review (August 24, 2000; 65FR 51577).

The final analysis, which reviewedand incorporated public comments,concluded that no significant economicimpacts are expected from criticalhabitat designation above and beyondthat already imposed by listing thespectacled eider. The most likelyeconomic effects of critical habitatdesignation are on activities funded,authorized, or carried out by a Federalagency. The analysis examined the



effects of the proposed designation on:(1) Re-initiation of section 7consultations, (2) length of time inwhich section 7 consultations arecompleted, and (3) new consultationsrequired due to critical habitatdesignation. Because areas proposed forcritical habitat are within the geographicrange occupied by the spectacled eider,activities that may affect critical habitatmay also affect the species, and wouldthus be subject to consultation whetheror not critical habitat is designated. Webelieve that any project that wouldadversely modify or destroy criticalhabitat would also jeopardize thecontinued existence of the species, andthat reasonable and prudent alternativesto avoid jeopardizing the species wouldalso avoid adverse modification ofcritical habitat. Thus, no regulatoryburden or associated significantadditional costs would accrue becauseof critical habitat above and beyond thatresulting from listing. Our economicanalysis does recognize that there maybe costs from delays associated withreinitiating completed consultationsafter the critical habitat designation ismade final. There may also be economiceffects due to the reaction of the realestate market to critical habitatdesignation, as real estate values may belowered due to perceived increase in theregulatory burden. We believe thisimpact will be short-term.

A copy of the final economic analysisand description of the exclusion processwith supporting documents areincluded in our administrative recordand may be obtained by contacting ouroffice (see ADDRESSES section).

Required Determinations

Regulatory Planning and ReviewThis document has been reviewed by

the Office of Management and Budget(OMB), in accordance with Executive

Order 12866. OMB makes the finaldetermination under Executive Order12866.

(a) This rule will not have an annualeconomic effect of $100 million oradversely affect an economic sector,productivity, jobs, the environment, orother units of government. A cost-benefit and economic analysis is notrequired.

The spectacled eider was listed as athreatened species in 1993. Since it waslisted, we have conducted 5 formalsection 7 consultations on projects oractions that were likely to adverselyaffect spectacled eiders. In addition,since 1998, we issued 17 section10(a)(1)(A) permits for research projectsthat may have affected or were likely toadversely affect spectacled eiders. Wehave not issued any section 10(a)(1)(B)incidental take permits for this speciesor within the range of this species.

The areas designated as criticalhabitat are currently within thegeographic range occupied by thespectacled eider. Under the Act, criticalhabitat may not be adversely modifiedby a Federal agency action; it does notimpose any restrictions on non-Federalpersons unless they are conductingactivities funded or otherwisesponsored or permitted by a Federalagency (Table 4). Section 7 requiresFederal agencies to ensure that they donot jeopardize the continued existenceof the species. Based upon ourexperience with the species and itsneeds, we conclude that any Federalaction or authorized action that couldpotentially cause adverse modificationof designated critical habitat wouldcurrently be considered as ‘‘jeopardy’’under the Act. Accordingly, thedesignation of areas within thegeographic range occupied by thespectacled eider does not have anyincremental impacts on what actions

may or may not be conducted byFederal agencies or non-Federal personsthat receive Federal authorization orfunding. Non-Federal persons that donot have a Federal ‘‘sponsorship’’ oftheir actions are not restricted by thedesignation of critical habitat althoughthey continue to be bound by theprovisions of the Act concerning ‘‘take’’of the species.

(b) This rule will not createinconsistencies with other agencies’actions. As discussed above, Federalagencies have been required to ensurethat their actions do not jeopardize thecontinued existence of the spectacledeider since the species was listed in1993. The prohibition against adversemodification of critical habitat is notexpected to impose any restrictions inaddition to those that currently existbecause all designated critical habitat iswithin the geographic range occupiedby the spectacled eider. Because of thepotential for impacts on other Federalagency activities, we will continue toreview this action for anyinconsistencies with other Federalagency actions.

(c) This rule will not materially affectentitlements, grants, user fees, loanprograms, or the rights and obligationsof their recipients. Federal agencies arecurrently required to ensure that theiractivities do not jeopardize thecontinued existence of the species, andas discussed above we do not anticipatethat the adverse modificationprohibition (resulting from criticalhabitat designation) will have anysignificant incremental effects.

(d) This rule will not raise novel legalor policy issues. This finaldetermination follows the requirementsfor determining critical habitatcontained in the Endangered SpeciesAct.

TABLE 4.—IMPACTS OF SPECTACLED EIDER LISTING AND CRITICAL HABITAT DESIGNATION

Categories of activities Activities potentially affected by species listing only 1Additional activities potentially

affected by critical habitatdesignation 2

Federal activities potentially affected 3 ................ Removing, disturbing, or destroying spectacled eider habitat(as defined in the primary constituent elements discussion)or appreciably decreasing habitat value or quality throughindirect effects, whether by paving, covering, draining, im-pounding, hydrologically altering, contaminating, or other-wise altering through mechanical means or through eco-logical disruption (e.g., gravel pad construction, travel bymotorized vehicle across unfrozen tundra, fuel transportand related fueling operations, introduction of contami-nants, use of lead shot while hunting, commercial fishing,operation of open landfills and other activities that may en-hance predator populations or concentrate them neareiders, disturbance of benthic communities through trawl-ing, offal discharge, and harvest of benthic organisms).

None.



TABLE 4.—IMPACTS OF SPECTACLED EIDER LISTING AND CRITICAL HABITAT DESIGNATION—Continued

Categories of activities Activities potentially affected by species listing only 1Additional activities potentially

affected by critical habitatdesignation 2

Private activities potentially affected 4 ................. Removing, disturbing, or destroying spectacled eider habitat(as defined in the primary constituent elements discussion)or appreciably decreasing habitat value or quality throughindirect effects, whether by paving, covering, draining, im-pounding, hydrologically altering, contaminating, or other-wise altering through mechanical means or through eco-logical disruption (e.g., gravel pad construction, travel bymotorized vehicle across unfrozen tundra, fuel transportand related fueling operations, introduction of contami-nants, use of lead shot while hunting, commercial fishing,and activities that may enhance predator populations orconcentrate them near eider habitat.

None.

1 This column represents the activities potentially affected by listing the spectacled eider as a threatened species (May 10, 1993, 58 FR 27474)under the Endangered Species Act.

2 This column represents the activities potentially affected by the critical habitat designation in addition to those activities potentially affected bylisting the species.

3 Activities initiated by a Federal agency.4 Activities initiated by a private entity that may need Federal authorization or funding.

Regulatory Flexibility Act (5 U.S.C. 601et seq.)

In the economic analysis, wedetermined that designation of criticalhabitat will not have a significant effecton a substantial number of smallentities. As discussed under RegulatoryPlanning and Review above and in thisfinal determination, this designation ofcritical habitat for the spectacled eideris not expected to result in anyrestrictions in addition to thosecurrently in existence. As indicated onTable 1 (see Critical Habitat Designationsection) we have designated propertyowned by Federal, State and localgovernments, and private property.

Within these areas, the types ofFederal actions or authorized activitiesthat we have identified as potentialconcerns are:

(1) Regulation of activities affectingwaters of the Army Corps under section404 of the Clean Water Act;

(2) Regulation of water flows,damming, diversion, and channelizationby Federal agencies;

(3) Regulation of commercial fisheriesby the National Marine FisheriesService;

(4) Law enforcement in United StatesCoastal Waters by the U.S. Coast Guard;

(5) Road construction andmaintenance by the Federal HighwayAdministration;

(6) Regulation of airport improvementactivities by the Federal AviationAdministration jurisdiction;

(7) Regulation of subsistence harvestactivities on Federal lands by the U.S.Fish and Wildlife Service;

(8) Regulation of mining and oildevelopment activities by the MineralsManagement Service;

(9) Regulation of home constructionand alteration by the Federal HousingAuthority;

(10) Hazard mitigation and post-disaster repairs funded by the FederalEmergency Management Agency;

(11) Construction of communicationsites licensed by the FederalCommunications Commission; and

(12) Wastewater discharge fromcommunities and oil developmentfacilities permitted by theEnvironmental Protection Agency;

(13) Other activities funded by theU.S. Environmental Protection Agency,Department of Energy, or any otherFederal agency.

Many of these activities sponsored byFederal agencies within critical habitatareas are carried out by small entities (asdefined by the Regulatory FlexibilityAct) through contract, grant, permit, orother Federal authorization. Theseactions are currently required to complywith the listing protections of the Act,and the designation of critical habitat isnot anticipated to have any additionaleffects on these activities.

For actions on non-Federal propertythat do not have a Federal connection(such as funding or authorization), thecurrent restrictions concerning take ofthe species remain in effect, and thisfinal determination will have noadditional restrictions.

Small Business Regulatory EnforcementFairness Act (5 U.S.C. 804(2))

In the economic analysis, wedetermined whether designation ofcritical habitat would cause (a) anyeffect on the economy of $100 millionor more, (b) any increases in costs orprices for consumers, individualindustries, Federal, State, or local

government agencies, or geographicregions in the economic analysis, or (c)any significant adverse effects oncompetition, employment, investment,productivity, innovation, or the abilityof U.S.-based enterprises to competewith foreign-based enterprises. Refer tothe final economic analysis for adiscussion of the effects of thisdetermination.

Unfunded Mandates Reform Act (2U.S.C. 1501 et seq.)

In accordance with the UnfundedMandates Reform Act (2 U.S.C. 1501 etseq.):

(a) This rule will not ‘‘significantly oruniquely’’ affect small governments. ASmall Government Agency Plan is notrequired. Small governments will onlybe affected to the extent that any Federalfunds, permits or other authorizedactivities must ensure that their actionswill not adversely affect the criticalhabitat. However, as discussed insection 1, these actions are currentlysubject to equivalent restrictionsthrough the listing protections of thespecies, and no further restrictions areanticipated.

(b) This rule will not produce aFederal mandate of $100 million orgreater in any year, that is, it is not a‘‘significant regulatory action’’ underthe Unfunded Mandates Reform Act.The designation of critical habitatimposes no obligations on State or localgovernments.

Takings

In accordance with Executive Order12630, the rule does not have significanttakings implications. A takingsimplication assessment is not required.As discussed above, the designation of



critical habitat affects only Federalagency actions. The rule will notincrease or decrease the currentrestrictions on private propertyconcerning take of the spectacled eider.Due to current public knowledge of thespecies protection, the prohibitionagainst take of the species both withinand outside of the designated areas, andthe fact that critical habitat provides noincremental restrictions, we do notanticipate that property values will beaffected by the critical habitatdesignation. While real estate marketvalues may temporarily declinefollowing designation, due to theperception that critical habitatdesignation may impose additionalregulatory burdens on land use, weexpect any such impacts to be shortterm. Additionally, critical habitatdesignation does not precludedevelopment of HCPs and issuance ofincidental take permits. Landowners inareas that are included in the designatedcritical habitat will continue to have theopportunity to utilize their property inways consistent with the survival of thespectacled eider.

Federalism

In accordance with Executive Order13132, the rule does not have significantFederalism effects. A Federalismassessment is not required. Thedesignation of critical habitat within thegeographic range occupied by thespectacled eider imposes no additionalrestrictions to those currently in place,and therefore has little incrementalimpact on State and local governmentsand their activities. The designationmay have some benefit to thesegovernments in that the areas essentialto the conservation of the species aremore clearly defined, and the primaryconstituent elements of the habitatnecessary to the survival of the speciesare specifically identified. While thisdefinition and identification does notalter where and what federallysponsored activities may occur, it mayassist these local governments in longrange planning (rather than waiting forcase by case section 7 consultations tooccur).

Civil Justice ReformIn accordance with Executive Order

12988, the Office of the Solicitor hasdetermined that the rule does notunduly burden the judicial system andmeets the requirements of sections 3(a)and 3(b)(2) of the Order. We designatecritical habitat in accordance with theprovisions of the Endangered SpeciesAct. The determination uses standardproperty descriptions and identifies theprimary constituent elements within thedesignated areas to assist the public inunderstanding the habitat needs of thespectacled eider.

Paperwork Reduction Act of 1995 (44U.S.C. 3501)

This rule does not contain anyinformation collection requirements forwhich OMB approval under thePaperwork Reduction Act is required.

National Environmental Policy ActWe have determined that an

Environmental Assessment and/or anEnvironmental Impact Statement asdefined by the National EnvironmentalPolicy Act of 1969 need not be preparedin connection with regulations adoptedpursuant to section 4(a) of theEndangered Species Act as amended. Anotice outlining our reason for thisdetermination was published in theFederal Register on October 25, 1983(48 FR 49244). This final determinationdoes not constitute a major Federalaction significantly affecting the qualityof the human environment.

Government-to-GovernmentRelationship With Tribes

In accordance with the President’smemorandum of April 29, 1994,‘‘Government-to-Government Relationswith Native American TribalGovernments’’ (59 FR 22951) and 512DM 2, we understand that we mustrelate to federally recognized Tribes ona Government-to-Government basis.Secretarial Order 3206 American IndianTribal Rights, Federal-Tribal TrustResponsibilities and the EndangeredSpecies Act states that ‘‘Critical habitatshall not be designated in such areas [anarea that may impact Tribal trustresources] unless it is determinedessential to conserve a listed species. Indesignating critical habitat, we shall

evaluate and document the extent towhich the conservation needs of a listedspecies can be achieved by limiting thedesignation to other lands.’’ While thisOrder does not apply to the State ofAlaska, we recognize our responsibilityto inform affected Native Corporations,and regional and local Nativegovernments of this proposal. Duringthe open comment period, wecoordinated extensively with Nativecommunities, sought traditional Nativeknowledge, extended the open commentperiod on two occasions toaccommodate the traditional AlaskaNative lifestyle, and held 16 meetingswith Native organizations, in ruralAlaska Native communities, or thatwere attended by Alaska Natives.

References Cited

A complete list of all references citedin this rule is available upon requestfrom the Ecological Services AnchorageField Office (see ADDRESSES section).

Author

The primary authors of this documentare Greg Balogh and Terry Antrobus (seeADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,Exports, Imports, Reporting andrecordkeeping requirements,Transportation.

Regulation Promulgation

Accordingly, we amend part 17,subchapter B of chapter I, title 50 of theCode of Federal Regulations as set forthbelow:

PART 17—[AMENDED]

1. The authority citation for part 17continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C.1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–625, 100 Stat. 3500; unless otherwise noted.

2. In § 17.11 (h) revise the entry for‘‘spectacled eider’’ in alphabetical orderunder ‘‘BIRDS’’ to read as follows:

§ 17.11 Endangered and threatenedwildlife.

* * * * *(h) * * *



SpeciesHistoric range

Vertebrate populationwhere endangered or

threatenedStatus When

listedCriticalhabitat

SpecialrulesCommon name Scientific name

* * * * * * *BIRDS

Eider, spectacled ........ Somateria(=Arctonetta,=Lampronetta,)fischeri.

USA (AK); Russia ..... Entire ......................... T 503 17.95 (b) NA

* * * * * * *

3. Amend § 17.95 (b) by addingcritical habitat for the spectacled eider(Somateria fischeri) in the samealphabetical order as this species occursin § 17.11 (h) to read as follows:

§ 17.95 Critical habitat—fish and wildlife.* * * * *

(b) Birds.* * * * *

SPECTACLED EIDER (Somateriafischeri)

1. Critical habitat units are depicted forUnit 1 (Central Yukon-Kuskokwim Delta),Unit 2 (South Y–K Delta Unit), Unit 3(Norton Sound), Unit 4 (Ledyard Bay), andUnit 5 (the Wintering Unit in the Bering Seabetween St. Lawrence and St. Matthew

Islands) for reference only. The areas incritical habitat are described below.

2. Within these areas, the primaryconstituent elements are those habitatcomponents that are essential for the primarybiological needs of feeding, nesting, broodrearing, roosting, molting, migrating andwintering. The primary constituent elementsfor Units 1 and 2 (the Y–K Delta units)include the vegetated intertidal zone and allopen water inclusions within this zone.Primary constituent elements for the NortonSound Unit (Unit 3) and the Ledyard BayUnit (Unit 4) include all marine watersgreater than 5 m (16.4 ft) in depth and lessthan or equal to 25 m (82.0 ft) in depth, alongwith associated marine aquatic flora andfauna in the water column, and theunderlying marine benthic community.Primary constituent elements for the

Wintering Unit (Unit 5) include all marinewaters less than or equal to 75 m (246.1 ft)in depth, along with associated marineaquatic flora and fauna in the water column,and the underlying marine benthiccommunity. Critical habitat does not includethose areas within the boundary of any unitthat do not fit the description of primaryconstituent elements for that unit.

3. Critical habitat does not include existingfeatures and structures, such as buildings,roads, pipelines, utility corridors, airports,other paved areas, and other developed areas.

4. This final rule designating criticalhabitat for the spectacled eider usespublished coordinates of prominentlandmarks, when appropriate, obtained fromthe Dictionary of Alaska Place Names.

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Unit 1. Central Y–K Delta UnitSeward Meridian: T19N, R91W, Sections

24, 25, 26, 33, 34, 35, 36; T19N, R90W,Sections 13, 14, 17, 18, 19–36; T18N, R90W,Sections 1–24, 26–33; T18N, R91W, Sections1–5, 7–28, 33–36; T18N, R92W, Sections 10–30; T18N, R93W, Sections 21–27; T16N,R91W, Sections 1–36; T16N, R92W, Sections1–4, 10–15, 21–36; T16N, R93W, Section36;T15N, R89W, Sections 1–36; T15N, R90W,Sections 1–36; T15N, R91W, Sections 1–36;T15N, R92W, Sections 1–36; T15N, R93W,Sections 1,2, 11–14, 23–26, 36; T14N, R89W,Sections 1–36; T14N, R90W, Sections 1–36;T14N, R91W, Sections 1–29, 32–36; T14N,R92W, Sections 1–18, 24; T14N, R93W,

Sections 1, 12; T13N, R87W, Sections 1–36;T13N, R88W, Sections 1–36; T13N, R89W,Sections 1–36; T13N, R90W, Sections 1–36;T13N, R91W, Sections 1–5, 8–17, 20–29, 32–36; T12N, R87W, Sections 1–36; T12N,R88W, Sections 1–29, 31–36; T12N, R89W,Sections 1–35; T12N, R90W, Sections 1–4, 9–14, 23–25; T12N, R91W, Sections 1–36;T12N, R92W, Sections 1–4, 9–16, 21–28, 34–36; T11N, R87W, Sections 1–36; T11N,R88W, Sections 1–36, T11N, R89W, Sections1–6, 9–12, 25–36; T11N, R91W, Sections 1–6; T10N, R88W, Sections 1–26, 29–33, 35, 36;T10N, R89W, Sections 1–35; T10N, R90W,Sections 1, 2, 11–14, 24, 25; T9N, R87W,Sections 1–35; T9N, R88W, Sections 1, 4–10,

13–36; T9N, R89W, Sections 13, 14, 23–26,35, 36; T8N, R89W, Sections 1–5, 7–24, 26–34; T8N, R90W, Sections 1–2, 11, 13, 14, 23–26, 36;

Unit 2. South Y–K Delta Unit

Seward Meridian: T4N, R90W, Sections30–32; T4N, R91W, Sections 1–3, 8–17, 20–28, 34–36; T3N, R89W, Section 19; T3N,R90W, Sections 4–11, 13–28, 34–36; T3N,R91W, Sections 1–3, 11–13; T2N, R88W,Sections 4–9, 16–22, 26–30, 32–36; T2N,R89W, Sections 1–6, 12, 13, 24; T1N, R88W,Sections 1–4, 11–14, 24–25.BILLING CODE 4310–55–P



Unit 3. Norton Sound UnitThe area bound by the following

description: From Cape Darby (64°19′00″ N x162°47′00″ W) south along the line oflongitude 162°47′00″ W to the opposite shoreof Norton Sound (63°12′51″ N x 162°47′00″

W), thence along the mean low tide line ofthe Alaska coast north and east to PointDexter (64°32′00″ N x 161°23′00″ W), thencealong the great circle route to the southernbank of the mouth of Quiktalik Creek(64°36′00″ N x 162°18′00″ W), and from that

point along the mean low tide line of theAlaska coast south and west to Cape Darby(64°19′00″ N x 162°47′00″ W). The lands ofStuart Island are excluded from Unit 3.




Unit 4. Ledyard Bay UnitThe area bound by the following

description: from the point 1 nm true northof Cape Lisburne (68°54′00″ N x 166°13′00″W), remaining 1.0 nm offshore of the meanlow tide line (maintaining a 1.0 nm buffer

from the mean low tide line) of the Alaskacoast north and east to 70°20′00″ N x161°56′11″ W (1 nm offshore of Icy Cape);thence west along the line of latitude70°20′00″ N to the point 70°20′00″ N x164°00′00″ W; thence along a great circle

route to 69°12′00″ N x 166°13′00″ W; thencedue south to the point of origin1 nm truenorth of Cape Lisburne (68°54′00″ N x166°13′00″ W).




Unit 5. Wintering Area UnitThe area bound by the following

description: from 61°00′00″ N x 174°30′00″ Weast along that latitude to 61°00′00″ N x169°00′00″ W, north along 169°00′00″ Wlongitude to the south shore of St. LawrenceIsland (at 63°10′18″ N x 169°00′00″ W; thencewest and north along the mean low tide line

of the south shore of St. Lawrence Island to63°30′00″ N x 171°50′13″ W, west to the U.S.-Russia border at 63°30′00″ N x 173°22′45″ N,southwest along the U.S.-Russia Border to62°58′10″ N x 174°30′00″ W, south along174°30′00″ W to 61°00′00″ N x 174°30′00″ W.

* * * * *

Dated: January 10, 2001.Kenneth L. Smith,Assistant Secretary for Fish and Wildlife andParks.[FR Doc. 01–1342 Filed 2–5–01; 8:45 am]BILLING CODE 4310–55–P


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