2000 Federal Register; 6114; Centralized Library: U.S. Fish and Wildlife Service

[Federal Register: February 8, 2000 (Volume 65, Number 26)]
[Proposed Rules]
[Page 6114-6131]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08fe00-29]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF92

Endangered and Threatened Wildlife and Plants; Proposed
Designation of Critical Habitat for the Spectacled Eider

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for the spectacled eider (Somateria
fischeri), a threatened species listed pursuant to the Endangered
Species Act of 1973, as amended (Act). Proposed designation of critical
habitat for the spectacled eider includes areas on Alaska's North Slope
and adjacent marine waters; the Yukon-Kuskokwim Delta (Y-K Delta) and
adjacent marine waters; and Norton Sound, Ledyard Bay, and the Bering
Sea between St. Lawrence and St. Matthew Islands. These areas total
193,054 square kilometers (km2) (74,539 square miles
(mi2)) or 19,305,400 hectares (ha) (47,704,500 acres).
If this proposal is made final, Federal agencies proposing actions
that may affect the areas designated as critical habitat must consult
with us on the effects of the proposed actions, pursuant to section
7(a)(2) of the Act. Section 4 of the Act requires us to consider
economic and other impacts of specifying any particular area as
critical habitat. We solicit data and comments from the public on all
aspects of this proposal, including data on the economic and other
impacts of the designation. We may revise this proposal to incorporate
or address new information received during the comment period.

DATES: We will accept comments from all interested parties until May
8, 2000. Public hearing requests must be

[[Page 6115]]

received in writing at the address below by March 24, 2000. We will
publish the dates and locations of any public hearings in the Federal
Register and appropriate local newspapers at least 15 days prior to the
first hearing.

ADDRESSES: Send your comments and other materials on this proposal to
Ann G. Rappoport, Field Supervisor, Anchorage Field Office, U.S. Fish
and Wildlife Service, 605 West 4th Avenue, Room G-61, Anchorage, AK
99501. The complete file for this rule is available for inspection, by
appointment, during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Ann G. Rappoport, Field Supervisor,
at the above address (telephone 907/271-2787 or toll-free 800/272-4174;
facsimile 907/271-2786).

SUPPLEMENTARY INFORMATION:

Background

Description

The spectacled eider is a large sea duck, 52-56 centimeters long
(20-22 inches). Sea ducks, waterfowl that spend at least part of their
lives at sea, are a subgroup of the subfamily Anatinae, family
Anatidae. The spectacled eider is one of three species in the genus
Somateria found in the United States. The species was first described
by Brandt in 1847 as Fuligula fischeri, then later placed in the genera
Lampronetta and Arctonetta, and finally under Somateria (American
Ornithologist's Union 1983). Within each subfamily, taxonomists group
the waterfowl species into tribes, but while Delacour and Mayr (1945)
originally placed the eiders (Tribe Somaterini) in a separate tribe
from other sea ducks (Tribe Mergini), Johnsgard (1960) and others have
grouped them together under Tribe Mergini.
In the winter and spring, adult males are in breeding plumage with
a black chest, white back, and pale green head with a long sloping
forehead and black-rimmed white spectacle-like patches around the eyes.
During the late summer and fall, males are mottled brown. Females and
juveniles are mottled brown year-round with pale brown eye patches.
Spectacled eiders are diving ducks that spend most of the year in
marine waters where they primarily feed on bottom-dwelling molluscs and
crustaceans.

Geographic Range

In the United States, spectacled eiders historically nested
discontinuously from the Nushagak Peninsula of southwestern Alaska
north to Barrow and east nearly to the Canadian border. Today two
breeding populations remain in Alaska. The remainder of the species
breeds in Arctic Russia. This entire species, including the Arctic
Russian population, is listed under the Act as threatened wherever it
occurs.
On the Y-K Delta, spectacled eiders breed mostly within 15
kilometers (km) (9.3 miles (mi)) of the coast from Kigigak Island north
to Kokechik Bay (Service 1996), with smaller numbers nesting south of
Kigigak Island to Kwigillingok and north of Kokechik Bay to the mouth
of Uwik Slough. The coastal fringe of the Y-K Delta is the only
subarctic breeding habitat where spectacled eiders occur at high
density (3.0-6.8 birds/km2 (Service 1996). Nesting on the Y-
K Delta is restricted to areas dominated by low wet-sedge and grass
marshes with numerous small shallow water bodies. Nests are rarely more
than 190 meters (m) (680 feet (ft)) from water and are usually within a
few meters of a pond or lake.
On Alaska's North Slope, nearly all spectacled eiders breed north
of 70 deg. latitude between Icy Cape and the Shaviovik River. Within
this region, most spectacled eiders occur between Cape Simpson and the
Sagavanirktok River (Service 1996). Spectacled eiders on the North
Slope occur at low densities (0.03-0.79 birds/km2, Larned
and Balogh 1997) within about 80 km (50 mi) of the coast. During pre-
nesting and early nesting, they occur most commonly on large shallow
productive thaw lakes generally with convoluted shorelines or small
islands (Larned and Balogh 1997). Such shallow water bodies with
emergent vegetation and low islands or ridges appear to be important as
eider nesting and brood-rearing habitat on the arctic coastal plain
(Derksen et al. 1981, Warnock and Troy 1992, Andersen et al. 1998).
Within the United States, spectacled eiders molt in Norton Sound
and Ledyard Bay. There, they congregate in large, dense flocks that are
particularly susceptible to disturbance and contamination. For several
weeks during the molting period (late July through October), each bird
is flightless. However, there is no time in which all birds are
simultaneously flightless (Petersen et al. 1999).
Norton Sound is located along the western coast of Alaska between
the Y-K Delta and the Seward Peninsula. It is the principal molting and
staging area for females nesting on the Y-K Delta (Petersen et al.
1999), probably the most imperiled of the three breeding populations.
Some Y-K Delta male spectacled eiders, presumably subadult males, also
molt in Norton Sound (Petersen et al. 1999). As many as 4,030
spectacled eiders have been observed in Norton Sound at one time
(Larned et al. 1995a). Spectacled eiders molted in the same portion of
eastern Norton Sound each year from 1993 to 1997. Charles Lean (Alaska
Department of Fish and Game (ADFG), Nome, pers. comm. 1999) reported
seeing large flocks in this same area in August and September from 1982
to 1990, suggesting that this area has a history of consistent use by
molting spectacled eiders. Spectacled eiders arrive in eastern Norton
Sound at the end of July and depart in mid-October (Petersen et al.
1999). Although overall benthic biomass (quantity of organisms living
on the sea floor) in this area is thought to be lower than in other
parts of Norton Sound, the abundance of large gastropods (e.g., snails,
which are presumably a spectacled eider food item) is higher in this
area than elsewhere (Springer and Pirtle 1997).
Ledyard Bay is one of the primary molting grounds for female
spectacled eiders breeding on the North Slope, and most female birds
molting here are from the North Slope (Petersen et al. 1999). Satellite
telemetry data suggest that male spectacled eiders from the North Slope
appear to molt and stage in equal numbers in Ledyard Bay and the two
primary molting areas in Russia, Mechigmenskiy Bay and the Indigirka-
Kolyma Delta (Petersen et al. 1999). Aerial surveys in September 1995
found 33,192 spectacled eiders using Ledyard Bay. Most were
concentrated in a 37-km (23-mi) diameter circle with their distribution
centered 67 km (42 mi) southwest of Point Lay and 41 km (25 mi)
offshore (Larned et al. 1995b).
During winter, spectacled eiders congregate in exceedingly large
and dense flocks in openings in the pack ice in the central Bering Sea
between St. Lawrence and St. Matthew Islands (Larned et al. 1995c).
Spectacled eiders from all three known breeding populations use this
wintering area (Service 1999); no other wintering areas are currently
known. Larned and Tiplady (1999) estimated the entire wintering
population, and perhaps the worldwide population, of spectacled eiders
at 374,792 birds (95 percent Confidence Interval = 371,278-378,305).
Because nearly all individuals of this species may spend each winter
occupying an area of ocean less than 50 km (31 mi) in diameter, they
may be particularly vulnerable to chance events during this time.

Population Status

Between the 1970s and 1990s, spectacled eiders on the Y-K Delta
declined by 96 percent, from 48,000 pairs to fewer than 2,500 pairs in
1992

[[Page 6116]]

(Stehn et al. 1993). Based upon surveys conducted during the past few
years, the Y-K Delta breeding population is estimated to be about 4,000
pairs.
The breeding population on the North Slope is currently the largest
breeding population of spectacled eiders in North America. The most
recent population estimate, uncorrected for aerial detection bias, is
9,488 (<plus-minus> 1,814 birds) (Larned et al. 1999). However, because
this breeding area is so much larger than that on the Y-K Delta, the
density of spectacled eiders on the North Slope is markedly lower than
on the Y-K Delta; 0.03-0.79 vs. 3.0-6.8 birds/km2,
respectively (Larned and Balogh 1997, Service 1996). North Slope eiders
have no clear population trend (Larned et al. 1999).
We do not know the size of the nonbreeding segment of any
population. Presumably, nonbreeding birds remain at sea year round
until they attempt to breed at age two or three. We do not know which
areas at sea are important to nonbreeding spectacled eiders.

Previous Federal Action

On December 10, 1990, we received a petition from James G. King,
dated December 1, 1990, to list the spectacled eider as an endangered
species and to designate critical habitat on the Yukon Delta National
Wildlife Refuge (YDNWR) and the National Petroleum Reserve-Alaska (NPR-
A). We convened a workshop on February 6 and 7, 1991, to review
existing information and develop priorities and recommendations for
future studies of both spectacled and Steller's eiders. We published a
90-day finding on April 25, 1991, that the petition had presented
substantial information indicating that the requested action may be
warranted (56 FR 19073).
On February 12, 1992, a 12-month finding was signed, determining
that listing was warranted. On May 8, 1992, we published a proposed
rule to list the spectacled eider as a threatened species throughout
its range (57 FR 19852). Section 4(a)(3) of the Act requires that, to
the maximum extent prudent and determinable, the Secretary designate
critical habitat at the time a species is determined to be endangered
or threatened. We proposed that it was not prudent to designate
critical habitat for the spectacled eider because there was no
demonstrable benefit that could be shown at that time (50 CFR 424.12).
We solicited comments from all interested parties during an extended
comment period (160 days). This extended comment period was intended to
accommodate foreign scientists, whose comments may not have been
received during the normal 90-day period, and Alaskan Natives, who
spend substantial portions of each year away from their homes engaged
in subsistence activities. We particularly sought comments concerning
threats to spectacled eiders, their distribution and range, whether
critical habitat should be designated, and activities that might impact
spectacled eiders. Notice of the proposed rule was sent to appropriate
State agencies, Alaska Native regional corporations, borough and local
governments, Federal agencies, foreign countries, scientific
organizations, and other interested parties with a request for
information that might contribute to the development of a final rule.
After a review of all comments received in response to the proposed
rule, we published the final rule to list the spectacled eider as
threatened without critical habitat on May 10, 1993 (58 FR 27474). Only
5 of the 24 comments received specifically addressed critical habitat
designation. Of these, one supported and four opposed the ``not
prudent'' determination. Those that opposed the ``not prudent'' finding
recommended that critical habitat be designated, at least for nesting
areas. They also felt that we should have considered and provided
information on possible marine critical habitat. In our final rule to
list the spectacled eider as threatened, we maintained that designation
of critical habitat was not prudent because no demonstrable overall
benefit could be shown at that time (50 CFR 424.12).
We initiated recovery planning for the spectacled eider in 1993.
The Spectacled Eider Recovery Team was formed, consisting of seven
members and four consultants with a variety of expertise in spectacled
eider biology, conservation biology, population biology, marine
ecology, Native Alaskan culture, and wildlife management. The Recovery
Team and its consultants developed the Spectacled Eider Recovery Plan,
which we approved on August 12, 1996. The Recovery Plan established the
recovery criteria that must be met prior to the delisting of spectacled
eiders. The plan also identified the actions that are needed to assist
in the recovery of spectacled eiders. Additionally, since this species
was listed as threatened, new information has become available
concerning the spectacled eiders' wintering habitat, and we also now
have a better delineation of its breeding habitat.
On March 10, 1999, the Southwest Center for Biological Diversity
and the Christians Caring for Creation filed a lawsuit in Federal
District Court in the Northern District of California against the
Secretary of the Department of the Interior for failure to designate
critical habitat for five species in California and two in Alaska.
These species include the Alameda whipsnake (Masticophis lateralis
euryxanthus), the zayante band-winged grasshopper (Trimerotropis
infantilis), the Morro shoulderband snail (Helmintholglypta
walkeriana), the arroyo southwestern toad (Bufo microscaphus
californicus), the San Bernardino kangaroo rat (Dipodomys merriami
parvus), the spectacled eider, and the Steller's eider (Polysticta
stelleri). Subsequently, the Federal Government entered into a
settlement agreement with the plaintiffs whereby we agreed to readdress
the prudency of designating critical habitat for spectacled eiders. If,
upon consideration of existing data and public comments we determine
that designating critical habitat is prudent, we agreed to submit a
proposed rule to the Federal Register for publication by February 1,
2000, and a final rule by December 1, 2000. If we determine that
designation of critical habitat is not prudent, we have agreed to
submit a notice of this finding to the Federal Register for publication
by August 1, 2000.
In the last few years, a series of court decisions have overturned
Service determinations regarding a variety of species that designation
of critical habitat would not be prudent (e.g., Natural Resources
Defense Council v. U.S. Department of the Interior, 113 F. 3d 1121 (9th
Cir. 1997); Conservation Council for Hawaii v. Babbitt, 2 F. Supp. 2d
1280 (D. Hawaii 1998)). Based on the standards applied in those
judicial opinions and the availability of new information concerning
the species' recovery and habitat needs, we recognized the value in
reexamining the question of whether critical habitat for the spectacled
eider would be prudent.
Due to the vast and remote nature of this species' distribution, we
are making our initial critical habitat delineations with the best
available scientific and commercial information available, but we also
recognize that we do not have complete information on the distribution
of this species at all times of the year. Thus, if additional
information becomes available on the biology and distribution of the
species, we may reevaluate our critical habitat designation, including
proposing additional critical habitat or proposing deletion or boundary
refinement of existing critical habitat.

[[Page 6117]]

Critical Habitat

Critical habitat is defined in section 3 of the Act as (i) the
specific areas within the geographic area occupied by a species, at the
time it is listed in accordance with the Act, on which are found those
physical or biological features (I) essential to the conservation of
the species and (II) that may require special management consideration
or protection, and (ii) specific areas outside the geographic area
occupied by a species at the time it is listed, upon determination that
such areas are essential for the conservation of the species.
``Conservation'' is defined in section 3(3) of the Act as all methods
and procedures that are necessary to bring an endangered or threatened
species to the point at which listing under the Act is no longer
necessary.
Section 4(b)(2) of the Act requires that we base critical habitat
proposals upon the best scientific and commercial data available, after
taking into consideration the economic impact, and any other relevant
impact, of specifying any particular area as critical habitat. We may
exclude any area from critical habitat designation if the benefits of
such exclusion outweigh the benefits of including such area as part of
the critical habitat, provided the exclusion will not result in the
extinction of the species (section 4(b)(2) of the Act).
Critical habitat receives protection under section 7 of the Act
with regard to actions carried out, funded, or authorized by Federal
agencies. Section 7 requires conferences on Federal actions that are
likely to result in the adverse modification or destruction of proposed
critical habitat. Once finalized, Federal agencies must ensure that any
action they carry out, fund, or authorize will not result in
destruction or adverse modification of the critical habitat. Aside from
the added protection that may be provided under section 7, the Act does
not provide other forms of legal protection to lands designated as
critical habitat. Because consultation under section 7 of the Act does
not apply to activities on private or other non-Federal lands that do
not involve a Federal action, critical habitat designation has no
regulatory implications for actions conducted on non-Federal lands that
lack a Federal nexus.
Section 7(a)(2) of the Act requires Federal agencies to consult
with us to ensure that any action authorized, funded, or carried out is
not likely to jeopardize the continued existence of a threatened or
endangered species, or result in the destruction or adverse
modification of critical habitat. ``Jeopardize the continued
existence'' (of a species) is defined as an appreciable reduction in
the likelihood of survival and recovery of a listed species.
``Destruction or adverse modification'' (of critical habitat) is
defined as a direct or indirect alteration that appreciably diminishes
the value of critical habitat for the survival and recovery of the
listed species for which critical habitat was designated. Thus, the
definitions of ``jeopardy'' to the species and ``adverse modification''
of critical habitat are nearly identical (50 CFR 402.02). Therefore, a
critical habitat designation for habitat currently occupied by this
species would not be likely to change the section 7 consultation
outcome because an action that destroys or adversely modifies such
critical habitat would also be likely to result in jeopardy to the
species.
Designating critical habitat does not, in itself, lead to recovery
of a listed species. Designation does not create a management plan,
establish numerical population goals, prescribe specific management
actions (inside or outside of critical habitat), set aside areas as
preserves, or directly affect areas not designated as critical habitat.
Specific management recommendations for critical habitat are most
appropriately addressed in section 7 consultations for specific
projects, or through recovery planning.
Designation of critical habitat can help focus conservation
activities for a listed species by identifying areas, both occupied and
unoccupied, that contain or could contain the habitat features (primary
constituent elements described below) that are essential for the
conservation of that species. Designation of critical habitat alerts
the public as well as land-managing agencies to the importance of these
areas.

Prudency Finding

In the absence of a finding that critical habitat would increase
threats to a species, if critical habitat designation would provide any
benefits, then a prudent finding is warranted. In the case of this
species, designation of critical habitat may provide some benefits.
While a critical habitat designation for habitat currently occupied by
this species would not be likely to change the section 7 consultation
outcome because an action that destroys or adversely modifies such
critical habitat would also be likely to result in jeopardy to the
species, there may be instances where section 7 consultation would be
triggered only if critical habitat is designated. Examples could
include unoccupied habitat or occupied habitat that may become
unoccupied in the future. Raising the profile of the lands and waters
within our proposed critical habitat boundary may also be beneficial to
the species because it may increase the degree to which Federal
agencies fulfill their responsibilities under section 7(a)(1) of the
Act (to use their authorities to carry out programs for the
conservation of listed species). Designating critical habitat may also
provide some educational or informational benefits.
We do not have specific evidence of taking, vandalism, collection,
or trade in this species that might be exacerbated by the publication
of critical habitat maps and further dissemination of locational
information. Consequently, consistent with applicable regulations (50
CFR 424.12(a)(1)(i)) and recent case law, we do not expect that the
identification of critical habitat will increase the degree of threat
to this species of taking or other human activity. Therefore, we
propose that critical habitat is prudent for the spectacled eider.
After reviewing the best scientific and commercial data available,
we propose to withdraw the previous finding that designation of
critical habitat for the spectacled eider is not prudent, and we
propose to designate critical habitat on the Y-K Delta and adjacent
marine waters, on the North Slope of Alaska and adjacent marine waters,
in eastern Norton Sound and Ledyard Bay, and in the Bering Sea between
St. Lawrence and St. Matthew Islands.

Primary Constituent Elements

In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, when we determined which areas to propose as critical
habitat, we considered those physical and biological features that are
essential to the conservation of the species (primary constituent
elements) and that may require special management considerations or
protection. These include, but are not limited to, the following: space
for individual and population growth, and for normal behavior; food,
water, air, light, minerals or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing of offspring, germination, or seed dispersal; and habitats that
are protected from disturbance or are representative of the historic
geographical and ecological distributions of a species.

[[Page 6118]]

Selection of Areas for the Critical Habitat Designation

Areas meeting the definition of critical habitat for spectacled
eiders are those areas that contain or could contain the primary
constituent elements and that may require special management
considerations or protection.
Section 3(5)(C) of the Act generally requires that not all areas
that can be occupied by a species be designated as critical habitat.
Therefore, not all areas containing the primary constituent elements
are necessarily essential to the conservation of the species. However,
unless we have information to support designating only a subset of that
habitat, we may designate all or most of the areas occupied by the
species. Geographic areas that contain one or more of the primary
constituent elements, but that are not included within critical habitat
boundaries, may still be important to a species' conservation and may
be considered under other parts of the Act or other conservation laws
and regulations, such as the Migratory Bird Treaty Act, Clean Water
Act, and Fish and Wildlife Coordination Act.
As required by the Act and regulations (section 4(b)(2) and 50 CFR
424.12), we used the best scientific information available to determine
areas that are essential for the survival and recovery of the species.
This information included data from radio telemetry, satellite
telemetry, satellite imagery, aerial surveys, ground plot surveys,
ground-based biological investigations, and site-specific species
information. We have reviewed available information that pertains to
the habitat requirements and preferences of this species. We have
reviewed the approach of the appropriate local, State, Native, and
Federal agencies in managing for the conservation of spectacled eiders
and have reviewed the recovery tasks outlined in the Spectacled Eider
Recovery Plan. We will initiate public meetings in representative
communities adjacent to and within the areas proposed as critical
habitat. We anticipate that these meetings and comments received
through the public review process will provide us with additional
information to use in our decision making process, and in assessing the
potential economic impact of designating critical habitat for the
species.
The regulations for designating critical habitat require that
designations include areas outside the geographical area presently
occupied by the species only when a designation limited to its current
range would be inadequate to ensure the conservation of the species (50
CFR 424.12 (e)). The regulations further specify that critical habitat
cannot be designated within foreign countries or in other areas outside
of United States jurisdiction (50 CFR 424.12(h)).
In summary, the proposed critical habitat areas described below
constitute our best assessment of the areas needed for the species'
conservation using the best available scientific and commercial data
available. We put forward this proposal acknowledging that we have
incomplete information regarding breeding ground habitat preferences,
distribution of preferred breeding ground habitats, migration
corridors, offshore staging areas, marine habitats used by nonbreeding

birds during the breeding season, the extent of the Ledyard Bay molting
area, marine diet, and distribution of preferred prey items at sea. As
new information accrues, we may reevaluate which areas warrant critical
habitat designation.

Proposed Critical Habitat

The approximate area of proposed critical habitat by land ownership
is shown in Table 1. Proposed critical habitat includes spectacled
eider habitat throughout the species' range in the United States. Lands
proposed are under private, State, Native, and Federal ownership. Lands
proposed as critical habitat have been divided into eight Critical
Habitat Units, which are part of larger areas described below.

Table 1.--Hectares of Land and Marine Waters Proposed as Critical Habitat, Which Are Occupied by the Spectacled Eider, Summarized by Private, State,
Federal and Native Government Ownership.
[Hectare figures and percentages are preliminary estimates only. Hectare figures are rounded to the nearest 100. Subsequent information gathering and
analysis may result in substantial changes to the data in this table.]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Federal State Native Private non-native
Location ---------------------------------------------------------------------------------------------------- Total
Hectares Percent Hectares Percent Hectares Percent Hectares Percent
--------------------------------------------------------------------------------------------------------------------------------------------------------
Y-K Delta (land)...................... 225,200 48.8 0.0 0.0 234,300 50.7 2,300 0.5 461,800
Y-K Delta (marine).................... 1,496,400 88.6 192,100 11.4 0.0 0.0 0.0 0.0 1,688,500
North Slope (land).................... 2,467,300 76.3 472,100 14.6 291,000 9.0 3,200 0.1 3,233,600
North Slope (marine).................. 2,170,500 83.2 438,300 16.8 0.0 0.0 0.0 0.0 2,608,800
Norton Sound (marine)................. 1,491,200 85.2 259,000 14.8 0.0 0.0 0.0 0.0 1,750,200
Ledyard Bay (marine).................. 2,043,000 94.2 125,800 5.8 0.0 0.0 0.0 0.0 2,168,800
Wintering Area (marine)............... 7,290,200 98.6 103,500 1.4 0.0 0.0 0.0 0.0 7,393,700
¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬¬
Total........................... 17,183,800 89.0 1,590,800 8.2 525,300 2.7 5,500 .1 19,305,400
--------------------------------------------------------------------------------------------------------------------------------------------------------

Yukon-Kuskokwim Delta

The Y-K Delta areas proposed as critical habitat comprise 75
townships and adjacent marine waters within 40 km (25 mi) of the coast,
for a combined area of 21,503 km\2\ (8,302 mi\2\) or 2,150,300 ha
(5,313,500 acres). The known primary constituent elements of spectacled
eider critical habitat on the Y-K Delta include open water, low wet
sedge, grass marsh, dwarf shrub/graminoid (consisting of grasses and
sedges) meadow, high and intermediate graminoid meadow, mixed high
graminoid meadow/dwarf shrub uplands, and areas adjacent to open water,
low wet sedge and grass marsh

[[Page 6119]]

habitats. The habitat also includes all marine waters, its associated
aquatic flora and fauna in the water column, and the underlying benthic
community (the organisms living on the sea floor).
The Y-K Delta breeding population declined 96 percent between the
1970s and 1992 (Stehn et al. 1993). To what extent the breeding range
of the birds has been constricted is unknown. Therefore, we have
included as proposed critical habitat, with few exceptions, all
townships within which observations of spectacled eiders were made
during annual aerial surveys of breeding waterfowl from 1993 to 1999.
We also included a few adjacent townships that shared physiographic
characteristics of those townships containing eiders. These surveys
were designed primarily to detect changes in goose populations, and may
not have been designed optimally for documenting eider distribution;
some townships were inadequately surveyed for the presence of eiders.
Transect spacing throughout the survey area ranged from 1 to 16 miles.
Approximately 60 percent of the townships included in our proposed
critical habitat for the Y-K Delta fall within the YDNWR boundaries.
The remaining 40 percent is primarily Native-owned land, but is not
considered under the Alaska National Interest Lands Conservation Act to
be a reservation. Lastly, we have also included marine waters within 40
km (25 mi) of those areas we have proposed on land.
We excluded townships near Uwik Slough on the northern edge of the
Yukon River Delta. Although a few eider sightings have been made there
during the past 7 years, habitat preference analysis indicates these
areas are less favored by the species (as eiders occurred there in much
lower densities than we would have expected had the birds been randomly
distributed across the coastal zone). We therefore believe that this
portion of the Y-K Delta is not essential for the species'
conservation.
The spectacled eider recovery plan sets forth several recovery
goals that, if met, would allow us to consider delisting the species.
An example recovery goal is that three annual surveys indicate at least
10,000 breeding pairs are present on a breeding area. The Y-K Delta
breeding population of spectacled eiders cannot reasonably be expected
to reach established recovery goals (Service 1996) in the absence of
the area on the Y-K Delta within which the current remnant population
occurs. Indeed, adverse modification of this habitat would probably
result in the loss of this population, which would represent a loss of
a significant portion of the species' range, thus precluding eventual
recovery of the species. Therefore, we believe that the entire area
under consideration meets the definition of critical habitat as being
essential to the conservation of the species.
At least a portion of the spectacled eiders breeding on the Y-K
Delta migrate south along the coast from somewhere north of Cape
Romanzoff (Brian McCaffery, YDNWR, pers. comm. 1998). Little else is
known of Y-K Delta spectacled eider spring migration routes or habitat
use. Aerial surveys off the coast of the Y-K Delta suggest use of the
area by spectacled eiders, primarily adult males, during late June and
early July (Dau 1987). Satellite telemetry confirms the use of these
offshore waters by post-breeding spectacled eiders (Petersen et al.
1999). Therefore, we believe that marine waters within 40 km (25 mi) of
the proposed Y-K Delta terrestrial critical habitat areas are essential
to the conservation of the species.

North Slope

The 402 proposed townships and proposed marine areas on the North
Slope total approximately 58,424 km\2\ (22,558 mi\2\) or 5,842,400 ha
(14,436,800 acres) in area. The primary constituent elements within
this area include all deep water bodies, all water bodies that are part
of basin wetland complexes; all permanently flooded wetlands and water
bodies containing either Carex aquatilis, Arctophila fulva, or both;
all habitat immediately adjacent to these habitat types; and all marine
waters, the associated marine aquatic flora and fauna in the water
column, and the underlying marine benthic community.
Unlike on the Y-K Delta, we have no evidence that a population
decline has occurred on the North Slope due to our complete lack of
historical data. The North Slope contains the largest breeding
population of spectacled eiders in North America. Therefore, this
geographic area is essential to the conservation of the species. Absent
trend information, it is impossible to know how much land on the North
Slope is essential for conservation of the species. Erring in favor of
conservation of the species, we believe that, with eight exceptions,
those townships in which spectacled eider observations were made during
annual systematic aerial surveys of breeding eiders from 1992 to 1998
are essential to the species' conservation. We also chose to include as
critical habitat several townships that were near to and within the
same physiographic strata as townships with spectacled eiders
observations. We believe that the entire area under consideration meets
the definition of critical habitat as being essential to the
conservation of the species.
We have excluded from this group eight townships at which eiders
that we considered to be outliers were observed (one observation at
each township). In all cases, these observations were on the periphery
of the species occupied breeding range, and were disjunct from the
contiguous breeding area used by the vast majority of North Slope
eiders.
The aerial surveys that we relied upon in establishing critical
habitat boundaries were flown during early to mid-June, when spectacled
eiders were about to nest or had recently initiated nesting. Transect
lines were flown at 5-mile intervals, covered a 400-m (1,312-ft) swath,
and sampled about 4 percent of suitable spectacled eider breeding
habitat. The survey repeats the same complete set of survey lines every
4 years.
About 75 percent of the terrestrial portion of the North Slope
proposed critical habitat unit is managed by the Bureau of Land
Management (BLM) as the NPR-A. BLM recently conducted an oil and gas
lease sale for the Northeast Planning Area of the NPR-A. Approximately
18 percent of the Northeast Planning Area that is currently available
for lease is within the boundary of proposed spectacled eider critical
habitat. The Teshekpuk Lake Surface Protection Area is a portion of the
Northeast Planning Area within the NPR-A that is unavailable for
leasing for a period of at least 10 years. This entire surface
protection area is within the boundary of the proposed spectacled eider
critical habitat.
Also part of the North Slope designation are marine areas in the
Beaufort sea. Our information on the importance of the Beaufort Sea to
migrating spectacled eiders, in both spring and fall, is very limited.
Only one spectacled eider was observed among 420,000 eiders migrating
past point Barrow during spring (Woodby and Divoky 1982) suggesting
that either the timing of this survey was not concurrent with
spectacled eider spring migration, or spectacled eiders do not migrate
along the Beaufort Sea coast in spring. Little else is known of North
Slope spectacled eider spring migration routes.
Beaufort Sea seaduck and waterbird surveys flown from shore to 81
km (50 mi) offshore during June, July, August, and September 1999,
resulted in the sighting of only two groups of fewer than four
spectacled eiders (Bill Larned, Service, MBM, pers. comm. 1999; TERA

[[Page 6120]]

1999). No spectacled eiders were observed on these offshore surveys
during June and July, nor were spectacled eiders sighted on surveys of
the near shore lagoon areas and within bays. However, aerial survey
biologists concede that eider species in summer plumage are exceedingly
difficult to discern from one another on aerial surveys. Nine groups of
unknown eiders were observed in the vicinity of Harrison Bay between
August 31 and September 2, 1999. Aerial observers suspect that
spectacled eider family groups use the waters offshore of the Colville
River Delta and west, and within Harrison Bay during the summer (Bill
Larned, Service, MBM, pers. comm. 1999). Satellite telemetry supports
this belief. Most satellite-tagged post-nesting female spectacled
eiders from Prudhoe Bay used Harrison Bay briefly (5 of 13 tagged birds
were detected there once from satellite telemetry data that is acquired
every 3 days, another 5 of 13 were detected there twice, resulting in a
mean residence time of at least 4 days) (TERA 1999). Thus, it seems
that spectacled eiders nesting near to or, presumably, east of Prudhoe
Bay make use of the Beaufort Sea, especially those waters near Harrison
Bay. Satellite telemetry indicates that molt migration and fall
migration of North Slope eiders takes place in the offshore waters of
the Beaufort and Chukchi Seas (Peterson et al. 1999). We believe that
the Beaufort and Chukchi Seas is probably important habitat to eiders
that nest west of Prudhoe Bay, as well. Satellite telemetry indicates
post-breeding spectacled eiders use the Beaufort and Chukchi Seas out
to 40 km (25 mi) (Peterson et al. 1999). Therefore, we believe that
waters of the Beaufort and Chukchi Seas within 40 km (25 mi) of the
mainland are essential to the conservation of the species.

Norton Sound

The area of this proposed parcel in eastern Norton Sound east of
the line connecting Uwik Slough on the northern edge of the Yukon River
Delta to Priest Rock on the northern shore of Norton Sound is
approximately 17,502 km\2\ (6,758 mi\2\) or 1,750,200 ha (4,324,800
acres). As stated earlier, Norton Sound is the principal, and perhaps
only, molting area for breeding female spectacled eiders from the Y-K
Delta (Petersen et al. 1999). As many as 4,030 spectacled eiders have
been observed in one portion of eastern Norton Sound at one time
(Larned et al. 1995a). Use of this area by molting eiders has been
documented regularly from 1982 to 1999 (Charles Lean, Alaska Department
of Fish and Game, Nome, pers. comm. 1999; Bill Larned, Service, MBM,
pers. comm. 1999; Petersen et al. 1999). The area is used by spectacled
eiders from mid-July until the end of October (Petersen et al. 1999).
Primary constituent elements of this habitat include the marine
waters, associated marine aquatic flora and fauna in the water column,
and the underlying marine benthic community. Energy needs of waterfowl
during molt are high (Hohman et al. 1992). The benthic biomass in the
portion of Norton Sound that spectacled eiders inhabit apparently meets
the high metabolic needs for the many birds that molt there. Indeed,
the abundance of large gastropods is higher in this area than elsewhere
in Norton Sound (Springer and Pirtle 1997). Therefore, we consider this
habitat to be essential to the conservation of the species.

Ledyard Bay

We propose to designate as critical habitat for spectacled eiders
waters within Ledyard Bay between Cape Lisburne and Icy Cape west to
167 deg.00'W. The area of this parcel totals approximately 21,688 km\2\
(8,374 mi\2\) or 2,168,800 ha (5,359,200 acres). Ledyard Bay is located
along the western coast of Alaska between Cape Lisburne and Point Lay.
It is one of the primary molting grounds for female spectacled eiders
breeding on the North Slope, and most female birds molting here are
from the North Slope (Petersen et al. 1999). Male spectacled eiders
from the North Slope appear to molt and stage in equal numbers in
Ledyard Bay and the two primary molting areas in Russia: Mechigmenskiy
Bay and the Indigirka-Kolyma Delta (Petersen et al. 1999). The area is
used by eiders from early July through mid-October (Petersen et al.
1999).
Primary constituent elements of the Ledyard Bay molting area
include the marine waters, associated aquatic flora and fauna in the
water column, and the underlying benthic community. As stated earlier,
the energy needs of birds during molt is high. Due to the importance of
the benthic biomass in this area to spectacled eiders during molt, we
believe that Ledyard Bay is essential to the conservation of the
species. Spectacled eiders molting in Ledyard Bay may be particularly
susceptible to disturbance because they occur in dense concentrations
and are flightless for several weeks. Aerial surveys in September 1995,
found 33,192 spectacled eiders primarily concentrated in a 37 km (23
mi) diameter circle in Ledyard Bay (Larned et al. 1995b). A single ill-
timed oil-spill in this area could harm thousands of eiders.

Wintering Area

We are proposing to designate as critical habitat those waters
between St. Lawrence and St. Matthew Islands that are used by
spectacled eiders during late fall, winter, and early spring. No
portion of St. Lawrence Island or Russia is included in this parcel.
The area of this parcel is approximately 73,937 km\2\ (28,547 mi\2\) or
7,393,700 ha (18,270,200 acres). Spectacled eiders typically winter
south and southwest of St. Lawrence Island in the central Bering Sea;
they wintered in the same place in 4 of 5 years since the discovery of
their wintering area. In the 1 year when they are known to have
wintered elsewhere, they were found further south and east between St.
Lawrence and St. Matthew Islands. Prior to the formation of sea ice in
the area, spectacled eiders inhabit waters directly south of Powooiliak
Bay, St. Lawrence Island, moving farther off shore as winter
progresses. Spectacled eiders from all three main breeding populations
(Y-K Delta, North Slope, and Arctic Russia) concentrate within a 50-km
(31-mi) diameter circle in small openings in the sea ice (Service
1999). The location of this area changes slightly among years and
perhaps within years. Distribution of wintering eiders overlapped for
the surveys conducted in late winter of 1996-1999, but was far removed
from that area in 1995 (Larned and Tiplady 1999). The most recent
estimate of the number of spectacled eiders wintering in this area is
374,792 (<plus-minus>3,514) birds (Larned and Tiplady 1999). Most,
perhaps all, of the worldwide population of spectacled eiders
congregates for several months in this small portion of the central
Bering Sea. The primary constituent elements of this habitat include
the marine waters, associated aquatic flora and fauna in the water
column, and underlying benthic community. Because this area receives
such intensive use by the species, and because wintering spectacled
eiders are not known to use any other habitat, we believe that this
area is essential to the conservation of this species.

Summary

We propose designation of critical habitat on the North Slope and
marine waters within 40 km (25 mi) of the coast; on the Y-K Delta and
marine waters within 40 km (25 mi) of the coast; in Norton Sound,
Ledyard Bay, and the waters between St. Lawrence and St. Matthew
Islands. We believe all of these areas meet the definition of critical
habitat in that they contain

[[Page 6121]]

physical or biological elements essential for the conservation of the
species and may require special management considerations or
protection. Designation of these areas will highlight the conservation
needs of the species, and perhaps increase the degree to which Federal
agencies fulfill their responsibilities under section 7(a)(1) of the
Act.
In accordance with the regulations implementing the listing
provisions of the Act (50 CFR 424.12(h)), we have not proposed any
areas outside the jurisdiction of the United States (e.g., within
Russian jurisdiction or international waters).
Spectacled eiders formerly bred on the Seward Peninsula, St.
Lawrence Island, and elsewhere between the Y-K Delta and North Slope.
We have a recent record of a single spectacled eider nest on St.
Lawrence Island (Shawn Stephensen, Service, pers. comm. 1998). We have
no other recent breeding records outside of the previously discussed
breeding areas. In addition, we are unaware of any reports suggesting
that these formerly occupied habitats are essential to the conservation
of the species. Because we believe the areas within our proposed
critical habitat boundaries encompass all of the existing eider
breeding range in Alaska that is essential to the conservation of the
species, we therefore believe that the breeding areas we have proposed
are sufficient to support the recovery of these populations of
spectacled eiders. Consequently, we have not proposed as critical
habitat areas on St. Lawrence Island or outside of the species' current
breeding range.
We are unaware of other parts of the United States within the range
of the spectacled eider that are essential to the conservation of the
species. We believe currently available information supports
designating critical habitat only in those areas that we have proposed.
Should additional information on the value of any marine area to
spectacled eiders become available, we will consider that information
in our critical habitat decision making process.

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing encourages and results in
conservation actions by Federal, State, and private agencies, groups,
and individuals. The Act provides for possible land acquisition and
cooperation with the States and requires that recovery actions be
carried out for all listed species. The protections required by Federal
agencies and the prohibitions against certain activities involving
listed species are discussed, in part, below.
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as
endangered or threatened and with respect to its critical habitat, if
any is designated or proposed. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) requires Federal agencies to confer with us
on any action that is likely to jeopardize the continued existence of a
proposed species or result in destruction or adverse modification of
proposed critical habitat. If a species is listed or critical habitat
is subsequently designated, section 7(a)(2) requires Federal agencies
to ensure that activities they authorize, fund, or carry out are not
likely to jeopardize the continued existence of such a species or to
destroy or adversely modify its critical habitat. If a Federal action
may affect a listed species or its critical habitat, the responsible
Federal agency must enter into consultation with us.
Section 7(a)(4) of the Act and regulations at 50 CFR 402.10 require
Federal agencies to confer with us on any action that is likely to
result in destruction or adverse modification of proposed critical
habitat. Regulations at 50 CFR 402.16 require Federal agencies to
reinitiate consultation on previously reviewed actions in instances
where critical habitat is subsequently designated. Consequently, as a
result of this proposal, some Federal agencies may wish to request
conferencing with us on actions for which formal consultation has been
completed. Conference reports provide conservation recommendations to
assist the agency in eliminating conflicts that may be caused by the
proposed action. The conservation recommendations in a conference
report are advisory.
We may issue a formal conference report if requested by a Federal
agency. Formal conference reports on proposed critical habitat contain
a biological opinion that is prepared according to 50 CFR 402.14, as if
critical habitat were designated. We may adopt the formal conference
report as the biological opinion when the critical habitat is
designated, if no significant new information or changes in the action
alter the content of the opinion (see 50 CFR 402.10(d)). We may also
prepare a formal conference report to address the effects on proposed
critical habitat from issuance of an incidental take permit, under
section 10(a)(1)(B) of the Act.
Activities on Federal lands that may affect the spectacled eider or
its critical habitat will require section 7 consultation. Activities on
private or State lands requiring a permit or license from a Federal
agency (e.g., a permit from the U.S. Army Corps of Engineers under
section 404 of the Clean Water Act for wetland fill), would also be
subject to the section 7 consultation process. Federal actions not
affecting the species, as well as actions on non-Federal lands that are
not federally funded, permitted, or licensed would not require section
7 consultation.
Section 4(b)(8) of the Act requires us to describe in any proposed
or final regulation that designates critical habitat those activities
involving a Federal action that may adversely modify such habitat or
that may be affected by such designation. Activities that may destroy
or adversely modify critical habitat include those that alter the
primary constituent elements to an extent that the value of critical
habitat for both the survival and recovery of the spectacled eider is
appreciably reduced. We note that such activities are also likely to
jeopardize the continued existence of the species. Such activities that
may have the potential to destroy or adversely modify critical habitat
for spectacled eiders include, but are not limited to: (1) Commercial
fisheries, (2) oil exploration and development, and (3) petroleum
product transport.
The specific types of activities that have required section 7
consultation include but are not limited to: (1) Construction and
installation of facilities and roads associated with oil and gas
development; (2) village growth and upkeep, such as housing
developments, road building and maintenance, and airport improvements;
(3) wastewater discharge from communities and oil development
facilities; and (4) commercial fisheries. Designation of critical
habitat for spectacled eiders notifies the Army Corps of Engineers,
other permitting agencies, and the public that Clean Water Act section
404 nationwide permits and other authorizations for activities with
these designated critical habitat areas must comply with section 7
consultation requirements. For each section 7 consultation, we review
the direct and indirect effects of the proposed projects on spectacled
eiders.

[[Page 6122]]

Table 2.--Activities Potentially Affected by Spectacled Eider Listing and Critical Habitat Designation
----------------------------------------------------------------------------------------------------------------
Additional activities
Activities involving a Federal action involving a Federal action
Categories of activities potentially affected by species listing potentially affected by
only \1\ critical habitat
designation \2\
----------------------------------------------------------------------------------------------------------------
Federal Activities Potentially Affected Activities that the Federal Government None.
\3\. carries out such as scientific research,
land surveys, law enforcement, oil spill
response, resource management, and
construction/expansion of physical
facilities.
Private Activities Potentially Affected Activities that also require a Federal None.
\4\. action (permit, authorization, or
funding) such as scientific research,
commercial fishing, sport and subsistence
hunting, shipping and transport of fuel
oil and gasoline to villages, and village
maintenance, construction and expansion.
----------------------------------------------------------------------------------------------------------------
\1\ This column represents impacts of the final rule listing the spectacled eider (May 10, 1993) (58 FR 27474)
under the Endangered Species Act.
\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.

In instances where we have consulted on projects and a Federal
action agency has retained discretionary authority over the action, we
will notify the agency of this proposal and will, when requested,
render a conference opinion on their action as it relates to spectacled
eider critical habitat prior to publication of a final critical habitat
determination.
If you have questions regarding whether specific activities will
constitute adverse modification of critical habitat, contact the Field
Supervisor, Ecological Services Anchorage Field Office (see ADDRESSES
section). Requests for copies of the regulations on listed wildlife and
inquiries about prohibitions and permits may be addressed to the U.S.
Fish and Wildlife Service, Branch of Endangered Species/Permits, 405
West 4th Street, Room G-62, Anchorage, AK 99501 (telephone 907-271-
2888, facsimile 907-271-2786).
Although we are proposing critical habitat throughout much of the
North American portion of the spectacled eider's range and anticipate
that doing so will be beneficial to the species, this action is not
meant to imply that little is currently being done to ensure the
species' survival. On the contrary, tremendous strides have been made
in recent years in our understanding of the species and in ways to
assist it in its recovery.
For example, shortly after we learned that spent lead shot was
affecting birds, we launched a public relations campaign throughout
remote bush communities where lead shot was often not recognized to be
a hazard. We later offered to swap boxes of steel shot for subsistence
hunters' existing stores of lead shot in an effort to reduce future
lead deposition. We designed field projects to minimize disturbance of
the birds, and enforced the laws prohibiting harvest of this species.
Posters, flyers, and fact sheets have been distributed throughout rural
Alaska, and we regularly air radio spots reminding hunters that
spectacled eiders need their help and that they are not legal quarry.
We also attend meetings of the Waterfowl Conservation Committee, a
committee comprising elders from Native communities throughout the
region that cooperatively manage subsistence waterfowl harvest on the
Y-K Delta.

Economic Analysis

Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific and commercial data
available and to consider the economic and other relevant impacts of
designating a particular area as critical habitat. We may exclude areas
from critical habitat upon a determination that the benefits of such
exclusions outweigh the benefits of specifying such areas as critical
habitat. We cannot exclude such areas from critical habitat when such
exclusion will result in the extinction of the species. Although we
could not identify any incremental effects of this proposed critical
habitat designation above those impacts of listing, we will conduct an
economic analysis to further evaluate this finding. We will conduct the
economic analysis for this proposal prior to a final determination.
When the draft economic analysis is completed, we will announce its
availability with a notice in the Federal Register, and we will reopen
the comment period for 30 days at that time to accept comments on the
economic analysis or further comment on the proposed rule.

Public Comments Solicited

We intend that any final action resulting from this proposal will
be as accurate and as effective as possible. Therefore, we solicit
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning this proposed rule. We particularly seek comments
concerning:
(1) The reasons why any habitat should or should not be determined
to be critical habitat as provided by section 4 of the Act, including
whether the benefits of designation will outweigh any threats to the
species due to designation;
(2) Specific information on the amount and distribution of
spectacled eiders and habitat, and what habitat is essential to the
conservation of the species and why;
(3) Current or planned activities in the subject areas and their
possible impacts on proposed critical habitat;
(4) Information on threats of take of spectacled eiders by humans
that may result from critical habitat designation; and
(5) Any foreseeable economic or other impacts resulting from the
proposed designation of critical habitat, in particular, any impacts on
native villages.
(6) Economic and other potential values associated with designating
critical habitat for the spectacled eider such as those derived from
non-consumptive uses (e.g., hiking, camping, bird-watching, ``existence
values,'' and reductions in administrative costs).
Executive Order 12866 requires each agency to write regulations and
notices that are easy to understand. We invite your comments on how to
make this proposed rule easier to understand including answers to
questions such as the following: (1) Are the requirements in the
document clearly stated? (2) Does the proposed rule contain technical
language or jargon that interferes with the clarity? (3) Does the
format of the proposed rule (grouping and order of sections, use of
headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the

[[Page 6123]]

description of the proposed rule in the ``Supplementary Information''
section of the preamble helpful in understanding the document? (5) What
else could we do to make the proposed rule easier to understand?
Our practice is to make comments, including names and home
addresses of respondents, available for public review during regular
business hours. Individual respondents may request that we withhold
their home address from the rulemaking record, which we will honor to
the extent allowable by law. In certain circumstances, we would
withhold from the rulemaking record a respondent's identity, as
allowable by law. If you wish us to withhold your name and/or address,
you must state this request prominently at the beginning of your
comment. However, we will not consider anonymous comments. We will make
all submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public inspection in their entirety.

Peer Review

In accordance with our policy published on July 1, 1994 (59 FR
34270), we will seek the expert opinions of at least three appropriate
and independent specialists regarding this proposed rule. The purpose
of such review is to ensure listing decisions are based on
scientifically sound data, assumptions, and analyses. We will send
copies of this proposed rule immediately following publication in the
Federal Register to these peer reviewers. We will invite these peer
reviewers to comment, during the public comment period, on the specific
assumptions and conclusions regarding the proposed designation of
critical habitat.
We will consider all comments and information received during the
90-day comment period on this proposed rule during preparation of a
final rulemaking. Accordingly, the final decision may differ from this
proposal.

Public Hearings

The Act provides for one or more public hearings on this proposal,
if requested. We intend to schedule three public hearings on this
proposal. We will announce the dates, times, and places of those
hearings in local newspapers at least 15 days prior to the first
hearing.

Required Determinations

1. Regulatory Planning and Review

In accordance with Executive Order 12866, this action was submitted
for review by the Office of Management and Budget.
a. This rule will not have an annual economic effect of $100
million or adversely affect an economic sector, productivity, jobs, the
environment, or other units of government. A cost-benefit and economic
analysis is not required. The Spectacled eider was listed as a
threatened species in 1993. Between the Fiscal Years 1997-2000 we have
conducted 108 section 7 consultations with other Federal agencies to
ensure that their actions would not jeopardize the continued existence
of the spectacled eider. The areas proposed for critical habitat are
currently occupied by the spectacled eider. Under the Endangered
Species Act, critical habitat may not be adversely modified by a
Federal agency action; it does not impose any restrictions on non-
Federal entities unless they are conducting activities funded or
otherwise sponsored or permitted by a Federal agency. Section 7
requires Federal agencies to ensure that they do not jeopardize the
continued existence of the species. Based upon our experience with the
species and its needs, we conclude that any Federal action or
authorized action that could potentially cause an adverse modification
of the proposed critical habitat would currently be considered as
``jeopardy'' under Act. Accordingly, the designation of currently
occupied areas as critical habitat does not have any incremental
impacts on what actions may or may not be conducted by Federal agencies
or non-Federal persons that receive Federal authorization or funding.
Non-Federal persons that do not have a Federal ``sponsorship'' of their
actions are not restricted by the designation of critical habitat (they
continue to be bound by the provisions of the Act concerning ``take''
of the species).
b. This rule will not create inconsistencies with other agencies'
actions. As discussed above, Federal agencies have been required to
ensure that their actions do not jeopardize the continued existence of
the spectacled eider since the listing in 1993. The prohibition against
adverse modification of critical habitat is not expected to impose any
additional restrictions to those that currently exist because all
proposed critical habitat is occupied. Because of the potential for
impacts on other Federal agency actions, we will continue to review
this proposed action for any inconsistencies with other Federal agency
actions.
c. This rule will not materially affect entitlements, grants, user
fees, loan programs, or the rights and obligations of their recipients.
Federal agencies are currently required to ensure that their activities
do not jeopardize the continued existence of the species, and as
discussed above we do not anticipate that the adverse modification
prohibition (from critical habitat determination) will have any
incremental effects because all proposed critical habitat is occupied.
d. The proposed rule follows the requirements for determining
critical habitat contained in the Endangered Species Act.

2. Regulatory Flexibility Act

In the economic analysis, we will determine whether designation of
critical habitat will have a significant effect on a substantial number
of small entities. As discussed under Regulatory Planning and Review
above, this rule is not expected to result in any restrictions in
addition to those currently in existence. As indicated on Table 1 (see
Proposed Critical Habitat Designation section) we have proposed land
and marine waters, which are occupied by the spectacled eider, and
summarized by Private, State, Federal and Native government ownership.
Within these areas, activities that may destroy or adversely modify
critical habitat include those that alter the primary constituent
elements to an extent that the value of critical habitat for both the
survival and recovery of the spectacled eider is appreciably reduced.
We note that such activities are also likely to jeopardize the
continued existence of the species. Such activities that may have the
potential to destroy or adversely modify critical habitat for
spectacled eiders include, but are not limited to: (1) Commercial
fisheries, (2) oil exploration and development, and (3) petroleum
product transport. Many of these activities sponsored by Federal
agencies within the proposed critical habitat areas are carried out by
small entities (as defined by the Regulatory Flexibility Act) through
contract, grant, permit, or other Federal authorization. As discussed
under Regulatory Planning and Review above, these actions are currently
required to comply with the listing protections of the Act, and the
designation of critical habitat is not anticipated to have any
additional effects on these activities. For actions on non-Federal
property that do not have a Federal connection (such as funding or
authorization), the current restrictions concerning take of the species
remain in

[[Page 6124]]

effect and this rule has no additional restrictions (See Table 2 under
Available Conservation Measures above).

3. Small Business Regulatory Enforcement Fairness Act

In the economic analysis, we will determine whether designation of
critical habitat will cause (a) any effect on the economy of $100
million or more, (b) any increases in costs or prices for consumers,
individual industries, Federal, State, or local government agencies, or
geographic regions in the economic analysis, or any significant adverse
effects on competition, employment, investment, productivity,
innovation, or the ability of U.S.-based enterprises to compete with
foreign-based enterprises.

4. Unfunded Mandates Reform Act

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
a. This rule will not ``significantly or uniquely'' affect small
governments. A Small Government Agency Plan is not required. Small
governments will only be affected to the extent that any Federal funds,
permits or other authorized activities must ensure that their actions
will not adversely affect the critical habitat. However, as discussed
in section 1, these actions are currently subject to equivalent
restrictions through the listing protections of the species, and no
further restrictions are anticipated.
b. This rule will not produce a Federal mandate of $100 million or
greater in any year, i.e., it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act. The designation of
critical habitat imposes no obligations on State or local governments.

5. Takings

In accordance with Executive Order 12630, the rule does not have
significant takings implications. A takings implication assessment is
not required. As discussed above, the designation of critical habitat
affects only Federal agency actions. The rule will not increase or
decrease the current restrictions on private property concerning take
of the spectacled eider. Due to the prohibition against take of the
species both within and outside of the designated areas, and the fact
that critical habitat provides no incremental restrictions, we do not
anticipate that property values should be affected by the critical
habitat designation. Additionally, critical habitat designation does
not preclude development of habitat conservation plans and issuance of
incidental take permits. Landowners in areas that are included in the
designated critical habitat will continue to have opportunity to
utilize their property in ways consistent with the survival of the
spectacled eider.

6. Federalism

In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. The designation of critical habitat in areas currently
occupied by the spectacled eider imposes no additional restrictions to
those currently in place, and therefore has little incremental impact
on State and local governments and their activities. The designation
may have some benefit to these governments in that the areas protected
are more clearly defined, and the primary constituent elements of the
habitat necessary to the survival of the species specifically
identified. While this definition and identification does not alter
where and what federally sponsored activities may occur, it may assist
these local governments in long range planning (rather than waiting for
case by case section 7 consultations to occur).

7. Civil Justice Reform

In accordance with Executive Order 12988, the Office of the
Solicitor has determined that the rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order. We designate critical habitat in accordance with the
provisions of the Endangered Species Act and plan public hearings on
the proposed designation during the comment period. The rule uses
standard property descriptions and identifies the primary constituent
elements within the designated areas to assist the public in
understanding the habitat needs of the spectacled eider.

8. Paperwork Reduction Act

This rule does not contain any information collection requirements
for which Office of Management and Budget approval under the Paperwork
Reduction Act is required.

9. National Environmental Policy Act

We have determined that we do not need to prepare Environmental
Assessments and Environmental Impact Statements, as defined under the
authority of the National Environmental Policy Act of 1969 (NEPA), in
connection with regulations adopted pursuant to section 4(a) of the
Act. We published a notice outlining our reasons for this determination
in the Federal Register in October 1983 (48 FR 49244).

10. Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951) and 512 DM 2:
We understand that we must relate to federally recognized Tribes on
a Government-to-Government basis. Secretarial Order 3206 American
Indian Tribal Rights, Federal-Tribal Trust Responsibilities and the
Endangered Species Act states that ``Critical habitat shall not be
designated in such areas [an area that may impact Tribal trust
resources] unless it is determined essential to conserve a listed
species. In designating critical habitat, the Service shall evaluate
and document the extent to which the conservation needs of a listed
species can be achieved by limiting the designation to other lands.''
While this Order does not apply to the State of Alaska, we recognize
our responsibility to inform affected Native Corporations, and regional
Native governments of this proposal. Subsequent to this proposal, we
will coordinate with the Native communities and analyze the need to
designate critical habitat on Native lands; and consult with other
bureaus and offices of the Department about the potential effects of
this rule on Indian tribes.

References Cited

A complete list of all references cited in this proposed rule is
available upon request from the Ecological Services Anchorage Field
Office (see ADDRESSES section).

Author

The primary authors of this document are Greg Balogh and Terry
Antrobus (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

For the reasons given in the preamble, we propose to amend 50 CFR
part 17 as set forth below:

PART 17--[AMENDED]

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

[[Page 6125]]

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 Sec. 17.11 (h) revise the entry for spectacled eider under
``BIRDS'' to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
Birds

* * * * * * *
Eider, spectacled................ Somateria........... USA (AK); Russia... Entire............. T 503 17.95(b) NA
(=Arctonetta,
=Lampronetta,)
fischeri.

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

3. In Sec. 17.95 add critical habitat for the spectacled eider
(Somateria fischeri) under paragraph (b) in the same alphabetical order
as this species occurs in Sec. 17.11 (h) to read as follows:

Sec. 17.95 Critical habitat--Fish and wildlife.

* * * * *
(b) Birds.
* * * * *

Spectacled Eider (Somateria fischeri)

1. Critical habitat units are depicted for the Yukon-Kuskokwim
Delta and adjacent marine waters, North Slope and adjacent marine
waters, Ledyard Bay, Norton Sound, and the Bering Sea between St.
Lawrence and St. Matthew Islands for reference only. The areas in
critical habitat are described below.
2. Within these areas, the primary constituent elements are
those habitat components that are essential for the primary
biological needs of feeding, nesting, brood rearing, roosting,
molting, migrating and wintering. The primary constituent elements
on the Y-K Delta include open water; low wet sedge; grass marsh;
dwarf shrub/graminoid meadow; high and intermediate graminoid
meadow; mixed high graminoid meadow/dwarf shrub uplands; areas
adjacent to open water, low wet sedge and grass marsh; and all
marine waters, associated marine aquatic flora and fauna in the
water column, and the underlying marine benthic community. Primary
constituent elements on the North Slope include all marine waters,
associated marine aquatic flora and fauna in the water column, and
the underlying marine benthic community; all deep water bodies; all
water bodies that are part of basin wetland complexes; all
permanently flooded wetlands and water bodies containing either
Carex aquatilis, Arctophila fulva, or both; and all habitat
immediately adjacent to these habitat types. Primary constituent
elements for the Norton Sound Unit, the Ledyard Bay Unit and the
Wintering Unit include all marine waters, associated marine aquatic
flora and fauna in the water column, and the underlying marine
benthic community.
3. Critical habitat does not include existing human structures.

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Unit 1. North Y-K Delta Unit

Seward Meridian: T28N, R86W; T28N, R85W; T27N, R86W; T27N, R85W;
T26N, R87W; T26N, R86W; T25N, R88W; T25N, R87W; T24N, R90W; T24N,
R89W; T23N, R90W; T23N, R89W; T22N, R90W; T21N, R90W; T21N, R89W;
T21N, R88W; and all marine waters of the Bering Sea within 40
kilometers (25 miles) of the above area.

Unit 3. Central Y-K Delta Unit

Seward Meridian: T19N, R91W; T19N, R90W; T18N, R93W; T18N, R92W;
T18N, R91W; T18N, R90W; T17N, R93W; T17N, R92W; T17N, R91W; T17N,
R90W; T16N, R94W; T16N, R93W; T16N, R92W; T16N, R91W; T15N, R93W;
T15N, R92W; T15N, R91W; T15N, R90W; T15N, R89W; T14N, R93W; T14N,
R92W; T14N, R91W; T14N, R90W; T14N, R89W; T13N, R91W; T13N, R90W;
T13N, R89W; T13N, R88W; T13N, R87W; T12N, R92W; T12N, R91W; T12N,
R90W; T12N, R89W; T12N, R88W; T12N, R87W; T11N, R91W; T11N, R90W;
T11N, R89W; T11N, R88W; T11N, R87W; T10N, R90W; T10N, R89W; T10N,
R88W; T9N, R89W; T9N, R88W; T9N, R87W; T8N, R90W; T8N, R89W; and all
marine waters of the Bering Sea within 40 kilometers (25 miles) of
the above area.

Unit 4. South Y-K Delta Unit

Seward Meridian: T4N, R91W; T4N, R90W; T4N, R89W; T4N, R88W;
T3N, R91W; T3N, R90W; T3N, R89W; T3N, R88W; T2N, R89W; T2N, R88W;
T1N, R88W; and all marine waters of the Bering Sea within 40
kilometers (25 miles) of the above area.

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Unit 5. North Slope Unit

Umiat Meridian: T23N, R18W; T23N, R17W; T22N, R19W; T22N, R18W;
T22N, R17W; T22N, R16W; T22N, R15W; T21N, R20W; T21N, R19W; T21N,
R18W; T21N, R17W; T21N, R16W; T21N, R15W; T21N, R14W; T21N, R13W;
T21N, R12W; T20N, R21W; T20N, R20W; T20N, R19W; T20N, R18W; T20N,
R17W; T20N, R16W; T20N, R15W; T20N, R14W; T20N, R13W; T20N, R12W;
T20N, R11W; T19N, R21W; T19N, R20W; T19N, R19W; T19N, R18W; T19N,
R17W; T19N, R16W; T19N, R15W; T19N, R14W; T19N, R13W; T19N, R12W;
T19N, R11W; T19N, R10W; T18N, R23W; T18N, R22W; T18N, R21W; T18N,
R20W; T18N, R19W; T18N, R18W; T18N, R17W; T18N, R16W; T18N, R15W;
T18N, R14W; T18N, R13W; T18N, R12W; T18N, R11W; T18N, R10W; T18N,
R8W; T18N, R7W; T18N, R6W; T18N, R5W; T18N, R4W; T18N, R3W; T18N,
R2W; T17N, R30W; T17N, R29W; T17N, R28W; T17N, R27W; T17N, R26W;
T17N, R25W; T17N, R24W; T17N, R23W; T17N, R22W; T17N, R21W; T17N,
R20W; T17N, R19W; T17N, R18W; T17N, R17W; T17N, R16W; T17N, R15W;
T17N, R14W; T17N, R13W; T17N, R12W; T17N, R11W; T17N, R10W; T17N,
R9W; T17N, R8W; T17N, R7W; T17N, R6W; T17N, R5W; T17N, R4W; T17N,
R3W; T17N, R2W; T17N, R1W; T16N, R31W; T16N, R30W; T16N, R29W; T16N,
R28W; T16N, R27W; T16N, R26W; T16N, R25W; T16N, R24W; T16N, R23W;
T16N, R22W; T16N, R21W; T16N, R20W; T16N, R19W; T16N, R18W; T16N,
R17W; T16N, R16W; T16N, R15W; T16N, R14W; T16N, R13W; T16N, R12W;
T16N, R11W; T16N, R10W; T16N, R9W; T16N, R8W; T16N, R7W; T16N, R6W;
T16N, R5W; T16N, R4W; T16N, R3W; T16N, R2W;
T15N, R32W; T15N, R31W; T15N, R30W; T15N, R29W; T15N, R28W;
T15N, R27W; T15N, R26W; T15N, R25W; T15N, R24W; T15N, R23W; T15N,
R22W; T15N, R21W; T15N, R20W; T15N, R19W; T15N, R18W; T15N, R17W;
T15N, R16W; T15N, R15W; T15N, R14W; T15N, R13W; T15N, R12W; T15N,
R11W; T15N, R10W; T15N, R9W; T15N, R8W; T15N, R7W; T15N, R6W; T15N,
R5W; T15N, R4W; T15N, R3W; T15N, R2W; T14N, R33W; T14N, R32W; T14N,
R31W; T14N, R30W; T14N, R29W; T14N, R28W; T14N, R27W; T14N, R26W;
T14N, R25W; T14N, R24W; T14N, R23W; T14N, R22W; T14N, R21W; T14N,
R20W; T14N, R19W; T14N, R18W; T14N, R17W; T14N, R16W; T14N, R15W;
T14N, R14W; T14N, R13W; T14N, R12W; T14N, R11W; T14N, R10W; T14N,
R9W; T14N, R8W; T14N, R7W; T14N, R6W; T14N, R5W; T14N, R4W; T14N,
R3W; T14N, R2W; T14N, R1W; T14N, R1E; T14N, R2E; T13N, R34W; T13N,
R33W; T13N, R32W; T13N, R31W; T13N, R30W; T13N, R29W; T13N, R28W;
T13N, R27W; T13N, R26W; T13N, R25W; T13N, R24W; T13N, R23W; T13N,
R22W; T13N, R21W; T13N, R20W; T13N, R19W; T13N, R18W; T13N, R17W;
T13N, R16W; T13N, R15W; T13N, R14W; T13N, R13W; T13N, R12W; T13N,
R11W; T13N, R10W; T13N, R9W; T13N, R8W; T13N, R7W; T13N, R6W; T13N,
R5W; T13N, R4W; T13N, R3W; T13N, R2W; T13N, R1W; T13N, R1E; T13N,
R2E; T13N, R4E; T13N, R5E; T13N, R6E; T13N, R7E; T13N, R8E; T13N,
R9E; T13N, R10E; T13N, R11E; T13N, R12E; T13N, R13E; T12N, R35W;
T12N, R34W; T12N, R33W; T12N, R32W; T12N, R31W; T12N, R30W; T12N,
R29W; T12N, R28W; T12N, R27W; T12N, R26W; T12N, R25W; T12N, R24W;
T12N, R23W; T12N, R22W; T12N, R21W; T12N, R20W; T12N, R19W; T12N,
R18W; T12N, R17W; T12N, R16W; T12N, R15W; T12N, R14W; T12N, R13W;
T12N, R12W; T12N, R11W; T12N, R10W; T12N, R9W; T12N, R8W; T12N, R7W;
T12N, R6W; T12N, R5W; T12N, R3E; T12N, R4E; T12N, R5E; T12N, R6E;
T12N, R7E; T12N, R8E; T12N, R9E; T12N, R10E; T12N, R11E; T12N, R12E;
T12N, R13E; T12N, R14E; T12N, R15E; T12N, R16E; T11N, R40W; T11N,
R39W; T11N, R37W; T11N, R36W; T11N, R35W; T11N, R34W; T11N, R33W;
T11N, R30W; T11N, R29W; T11N, R28W; T11N, R27W; T11N, R26W; T11N,
R25W; T11N, R24W; T11N, R23W; T11N, R22W; T11N, R21W; T11N, R20W;
T11N, R19W; T11N, R18W; T11N, R17W; T11N, R16W; T11N, R15W; T11N,
R14W; T11N, R13W; T11N, R12W; T11N, R3E; T11N, R4E; T11N, R5E; T11N,
R6E; T11N, R7E; T11N, R8E; T11N, R9E; T11N, R10E; T11N, R11E; T11N,
R12E; T11N, R13E; T11N, R14E; T11N, R15E; T11N, R16E; T11N, R17E;
T10N, R40W; T10N, R39W; T10N, R38W; T10N, R37W; T10N, R36W; T10N,
R35W; T10N, R34W; T10N, R30W; T10N, R29W; T10N, R28W; T10N, R27W;
T10N, R26W; T10N, R25W; T10N, R24W; T10N, R23W; T10N, R22W; T10N,
R21W; T10N, R20W; T10N, R19W; T10N, R18W; T10N, R17W; T10N, R16W;
T10N, R15W; T10N, R14W; T10N, R13W; T10N, R12W; T10N, R3E; T10N,
R4E; T10N, R10E; T10N, R11E; T10N, R12E; T10N, R13E; T10N, R14E;
T10N, R15E; T10N, R16E; T10N, R17E; T10N, R18E; T10N, R19E; T9N,
R41W; T9N, R40W; T9N, R39W; T9N, R38W; T9N, R23W; T9N, R22W; T9N,
R21W; T9N, R20W; T9N, R19W; T9N, R18W; T9N, R17W; T9N, R16W; T9N,
R15W; T9N, R14W; T9N, R13W; T9N, R12W; T9N, R11E; T9N, R12E; T9N,
R13E; T9N, R14E; T9N, R15E; T9N, R16E; T9N, R17E; T9N, R18E; T9N,
R19E; T9N, R20E; T8N, R42W; T8N, R41W; T8N, R20W; T8N, R19W; T8N,
R18W; T8N, R17W; T8N, R16W; T8N, R15W; T8N, R14W; T8N, R13W; T8N,
R12W; T8N, R11E; T8N, R12E; T8N, R17E; T8N, R18E; T8N, R19E; T8N,
R20E; T7N, R13W; T7N, R12W; and all marine waters of the Beaufort
and Chukchi Seas within 40 kilometers (25 miles) of the above area.

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Unit 6. Norton Sound Unit

The area east of a great circle route connecting the east bank
of the mouth of Uwik Slough, on the northern edge of the Yukon River
Delta, to Priest Rock, on the northern shore of Norton Sound (a
great circle route connecting the geographic coordinates 63 deg.15'
N x 164 deg.09' W and 64 deg.19' N x 162 deg.47' W).

Unit 7. Ledyard Bay Unit

The area bound by the following description: from Cape Lisburne
(68 deg.5' N x 166 deg.11' W) along the mean low tide line of the
Alaska coast north and east to Icy Cape (70 deg.18' N x
161 deg.54' W); from Icy Cape west along 70 deg.18' N to 70 deg.18'
N x 167 deg.00' W; south from 70 deg.18' N x 167 deg.00' W along
167 deg.00' W to 68 deg.52' N x 167 deg.00' W, and from 68 deg.52'
N x 167 deg.00' W east along 68 deg.52' N back to Cape Lisburne.

Unit 8. Wintering Area Unit

The area bound by the following description: from 61 deg.00' N
x 174 deg.30' W east along that latitude to 61 deg.00' N x
169 deg.00' W, north along 169 deg.00' W longitude to the south
shore of St. Lawrence Island (at approximately 63 deg.12' N x
169 deg.00' W), west and north along the mean low tide line of the
south shore of St. Lawrence Island to 63 deg.30' N x 171 deg.48'
W, west to the U.S.-Russia border at 63 deg.30' N x 173 deg.16.2'
W, southwest along the U.S.-Russia Border to 62 deg.56.4' N x
174 deg.30' W, south along 174 deg.30' W to 61 deg.00' N x
174 deg.30' W.
* * * * *

Dated: January 28, 2000.
Stephen C. Saunders,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-2608 Filed 2-7-00; 8:45 am]
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