[Federal Register Volume 85, Number 39 (Thursday, February 27, 2020)]
[Rules and Regulations]
[Pages 11297-11306]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03545]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2018-0010; 4500030113]
RIN 1018-BD06
Endangered and Threatened Wildlife and Plants; Section 4(d) Rule
for Louisiana Pinesnake
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), adopt a rule
under section 4(d) of the Endangered Species Act for the Louisiana
pinesnake (Pituophis ruthveni), a reptile that is listed under the
statute as threatened. This rule will provide measures to protect the
species, which is from Louisiana and Texas.
DATES: This rule is effective March 30, 2020.
ADDRESSES: This final rule is available on the internet at http://www.regulations.gov in docket number FWS-R4-ES-2018-0010 and at https://www.fws.gov/lafayette/. Comments and materials we received, as well as
supporting documentation we used in preparing this rule, are available
for public inspection at http://www.regulations.gov and will be
available by appointment, during normal business hours at: U.S. Fish
and Wildlife Service, Louisiana Ecological Services Office, 200 Dulles
Drive, Lafayette, LA 70506; 337-291-3100.
FOR FURTHER INFORMATION CONTACT: Joseph Ranson, Field Supervisor, U.S.
Fish and Wildlife Service, Louisiana Ecological Services Office, at the
address above; telephone 337-291-3113. Persons who use a
telecommunications device for the deaf (TDD) may call the Federal Relay
Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Previous Federal Actions
On October 6, 2016, the Service, under the authority of the
Endangered Species Act, as amended (``Act'' or ``ESA''; 16 U.S.C. 1531
et seq.), published in the Federal Register a proposed rule to add the
Louisiana pinesnake (Pituophis ruthveni), a reptile from Louisiana and
Texas, as a threatened species to the List of Endangered and Threatened
Wildlife (81 FR 69454). This List is found in title 50 of the Code of
Federal Regulations in part 17 (50 CFR 17.11(h)). The final listing
rule published on April 6, 2018 (83 FR 14958), and on that same day, we
proposed a rule under section 4(d) of the Act for the Louisiana
pinesnake (83 FR 14836). Please refer to those rulemaking documents for
a detailed description of previous Federal actions concerning this
species.
Background
The primary habitat feature that contributes to the conservation of
the Louisiana pinesnake is open-canopy forest situated on well-drained
sandy soils with an abundant herbaceous plant community that provides
forage for the Baird's pocket gopher (Geomys breviceps), which is the
snake's primary known source of food. In addition, Baird's pocket
gopher burrows are the primary known source of shelter for the
Louisiana pinesnake. As discussed in the proposed listing rule, one of
the primary threats to the Louisiana pinesnake is the continuing loss
and degradation of the open pine forest habitat that supports the
Baird's pocket gopher. In the types of sandy soil in which the
Louisiana pinesnake and pocket gopher are found (Wagner et al. 2014, p.
152 ; Duran 2010, p. 11; Davis et al. 1938, p. 414), the pocket gopher
creates burrows at an average depth of about 18 centimeters (cm) (7
inches (in)) (Wagner et al. 2015, p. 54).
One of the primary features of suitable pocket gopher habitat is a
diverse herbaceous (non-woody) plant community with an adequate amount
of forbs (non-grass herbaceous vegetation) that provide forage for the
pocket gopher. Louisiana pinesnakes and pocket gophers are highly
associated (Ealy et al. 2004, p. 389) and occur together in areas with
herbaceous vegetation, a nonexistent or sparse midstory, and a low pine
basal area (Rudolph and Burgdorf 1997, p. 117; Himes et al. 2006, pp.
110, 112; Wagner et al. 2017, p. 22). In a Louisiana forest system
managed according to guidelines for red-cockaded woodpecker (Picoides
borealis) habitat, pocket gopher selection of habitat increased with
increasing forb cover and decreased with increasing midstory stem
density and midstory pine basal area (Wagner et al. 2017, p. 11). Few
(less than 25 percent) sites used by pocket gophers had less than 18
percent coverage by forbs alone (Wagner et al. 2017, p. 22). Use by
pocket gophers is also inhibited by increased midstory stem density and
midstory pine basal area even when herbaceous vegetation is present
(Wagner et al. 2017, pp. 20, 22, 25). Pocket gophers use areas with
higher densities of trees much less frequently than areas with fewer
stems, presumably because of greater root mass, which reduces burrowing
efficiency (Wagner et al. 2017, pp. 11, 22).
One of the main causes of the degradation of this habitat is the
decline in or absence of fire. Fire was the primary source of
historical disturbance and maintenance, and prescribed fire reduces
midstory and understory hardwoods and promotes abundant herbaceous
groundcover in the natural communities of the longleaf-dominant pine
ecosystem where the Louisiana pinesnake most often occurs. In the
absence of regularly recurring, unsuppressed fires, open pine forest
habitat requires active management activities essentially the same as
those required to produce and maintain red-cockaded woodpecker foraging
habitat. Those activities, such as thinning, prescribed burning,
reforestation and afforestation, midstory woody vegetation control,
herbaceous vegetation (especially forbs) enhancement, and harvest
(particularly in stands that require substantial
[[Page 11298]]
improvement) are necessary to maintain or restore forests to the
conditions that are suitable (as described in the preceding paragraph)
for pocket gophers and Louisiana pinesnakes.
Establishment and management of open pine forests beneficial to the
Louisiana pinesnake has been occurring on some privately owned land in
Louisiana and Texas. Additionally, throughout the range of the
Louisiana pinesnake, Federal and State agencies have developed
conservation efforts, which have provided a conservation benefit to the
species. Increased efforts, however, are necessary on both public and
private lands to address continued habitat loss, degradation, and
fragmentation, one of the species' primary threats across its entire
range, and it is the intent of this final rule to encourage these
increased efforts.
In the proposed listing rule (81 FR 69454, October 6, 2016), we
solicited public comments as to which prohibitions, and exceptions to
those prohibitions, are necessary and advisable to provide for the
conservation of the Louisiana pinesnake. During the public comment
periods on the proposed listing rule (81 FR 69454, October 6, 2016; 82
FR 46748, October 6, 2017), we received comments expressing concern
that when the species is listed under the Act, certain beneficial
forest management activities on private land could be considered
takings in violation of section 9(a)(1) of the Act or its implementing
regulations, and would thus be regulated.
The Service intends to strongly encourage the continuation and
increased implementation of forest management activities--thinning,
prescribed fire, and mid- and understory woody vegetation control in
particular--that promote open-canopy forest and herbaceous vegetation
growth, which are beneficial to the Louisiana pinesnake. In recognition
of efforts that provide for conservation and management of the
Louisiana pinesnake and its habitat in a manner consistent with the
purposes of the Act, as discussed in more detail below, we are now
finalizing a rule under section 4(d) of the Act that prohibits take of
the species except for take that results from actions providing for
conservation and management of the Louisiana pinesnake. Information
about section 4(d) of the Act is set forth below in Provisions of
Section 4(d) of the Act.
Our goal is to strongly encourage continuation and increased
implementation of these beneficial practices. Nevertheless, if
activities (with exceptions noted in the 4(d) rule provisions) could
cause subsurface ground disturbance that can directly harm or kill
Louisiana pinesnakes inhabiting pocket gopher burrows, or inhibit the
persistence of suitable pocket gopher and Louisiana pinesnake habitat,
as described above, they would be subject to the section 9 take
prohibitions in certain occupied habitat areas, specifically areas
known as Louisiana pinesnake EOHAs (for estimated occupied habitat
areas). These areas have recorded occurrences of Louisiana pinesnakes,
and they are considered by the Service to be occupied by the species
(see the proposed listing rule). This regulation would also apply to
any EOHAs that are identified in the future, because activities in such
areas could be detrimental to maintenance and development of suitable
habitat conditions critical to this species and are more likely to
affect the Louisiana pinesnake directly.
Summary of Comments and Recommendations
(1) Comment: Several commenters encouraged the Service not to
restrict its broad discretion in designing the 4(d) rule through
limiting language in the rule's preamble, because the Service has the
discretion to regulate take independently of whether doing so will
promote conservation. The commenters suggest that the Service's
decision to allow incidental take of a threatened species should be
flexible enough to maximize the agency's discretion to consider both
the conservation of the Louisiana pinesnake and the overall public
interest regarding the importance of maintaining land in forest use
within the broader context of the multiple benefits that those forests
provide. The commenters recommend that if the Service chooses to retain
a ``conservation'' reference in the rule's preamble, the language
should be revised to clarify whether incidental take authorized under
the 4(d) rule will be allowed where it does not materially detract from
the species' conservation.
Our response: Under section 4(d) of the Act, the Secretary may
issue regulations that he deems necessary and advisable to provide for
the conservation of threatened species. Also under section 4(d)
(specifically, the second sentence), the Secretary may, with respect to
any threatened species of fish or wildlife, prohibit by regulation any
act that is prohibited under section 9(a)(1) of the Act for endangered
wildlife, without necessarily making a finding that each prohibition or
exception is necessary or advisable. We are not obligated to make a
finding that the specific contours of the prohibitions under section
9(a)(1) that the Service adopts are necessary or advisable for the
conservation of the Louisiana pinesnake. The Secretary is also not
obligated to make a finding that adoption of a prohibition against
incidental take under section 9(a)(1) that contains exceptions, or that
applies to only some categories of incidental take, is in the overall
public interest. The Secretary can invoke the general provisions under
section 9(a)(1) or in 50 CFR 17.21, or set prohibitions less or more
restrictive than the general provisions under section 9(a)(1) or 50 CFR
17.21.
For this final 4(d) rule, the Secretary has used his discretion to
apply the general prohibitions in 50 CFR 17.21, with exceptions
identified in the 4(d) rule itself, because these provisions provide
for the conservation of the Louisiana pinesnake. The exceptions to the
prohibitions that we have included in this final 4(d) rule consider the
overall public interest in the importance of maintaining land in forest
use as well. Exceptions from incidental take prohibitions for game
animal food plots, maintenance of roads, and adherence to forestry best
management practices (BMPs), for instance, do not directly address the
threats to the Louisiana pinesnake, but they do promote the
continuation of forest land use. On the other hand, we have determined
that activities that do not provide any conservation benefit, but could
result in incidental take of the Louisiana pinesnake, would materially
detract from the species' conservation, and, therefore, those
activities will be subject to the incidental take prohibitions in the
final 4(d) rule.
(2) Comment: The Louisiana Department of Wildlife and Fisheries
(LDWF) expressed concern that the cooperative agreement between the
Service and LDWF, which allows any employee or agent of LDWF when
acting in the course of his/her official duties to take a threatened
species to carry out conservation programs, would no longer remain in
effect due to the 4(d) rule. The commenter requested an exemption be
made to allow the cooperative agreement to remain in effect in order
for LDWF to provide conservation programs for the Louisiana pinesnake.
Our response: We received this comment as well as others below
asking for exemptions from prohibitions. Throughout this 4(d) rule, we
will refer to these as ``exceptions'' to the prohibitions and not
exemptions. In this final 4(d) rule, we have chosen to apply to the
Louisiana pinesnake the prohibitions and provisions of 50 CFR 17.21,
17.31(b), and 17.32, with the exception of specific activities and
[[Page 11299]]
conditions. In doing so, the provisions of 50 CFR 17.31(b) remain
applicable, which is the authority for the cooperative agreement
referenced in the comment. Accordingly, no special exemption is
necessary for State agencies such as the LDWF or Texas Parks and
Wildlife to retain that authority. Thus, employees or agents of LDWF
and Texas Parks and Wildlife, when acting in the course of their
official duties, may take the Louisiana pinesnake when the species is
covered by an approved cooperative agreement for conservation programs
in accordance with the cooperative agreement.
(3) Comment: Several commenters stated that Louisiana and
neighboring States have adopted published BMPs for the sustainable
management of forest resources and protection of soils and that the
BMPs are an integral part of forest certification programs. Several
BMPs, including construction and maintenance of turnouts, water bars
along roads, and wing ditches from the road into the forest to drain
water off roads, are designed to prevent soil erosion and sediment
delivery to streams. Such BMPs are prudent on highly erodible soils and
minimize future road maintenance problems. Those commenters recommended
that foresters implementing BMPs be specifically exempted from the
prohibitions in the 4(d) rule because the overall impact on Louisiana
pinesnake habitat is minor in comparison to the BMPs' importance to
environmental quality. Several commenters stated that adherence to
Louisiana BMPs, and logging decks to load trucks and skid trails,
should be exempted. Some commenters also stated that practices used to
manage vegetative competition that are temporary in nature and help
open the forest canopy allow the development of more herbaceous ground
cover that enhances habitat for pocket gophers and the Louisiana
pinesnake. The commenters also stated that leaving small debris piles
at final harvest provide temporary refugia to rodents and other small
wildlife that may be prey for the Louisiana pinesnake. Those commenters
suggest adding language to reference critical support activities for
implementing forest management.
Our response: The Service does not intend to prevent through the
4(d) rule the implementation of protective measures that minimize
impacts to fish and wildlife. The BMPs recommended by Louisiana and
Texas Forestry are generally used to avoid or minimize environmental
impacts, especially to streams, wetlands, and highly erodible land,
while conducting forestry activities. While most BMPs are not designed
to directly protect or benefit the Louisiana pinesnake, we agree that
conservation measures with small footprints, such as water bars, wing
ditches, etc., for existing roads that prevent sediment delivery to
streams are an important part of protection for fish and wildlife. Some
BMPs, especially the following recommendations, would lessen impact to
the Louisiana pinesnake: Use the smallest number, width, and length of
skid trails; use no more landings, log decks, and sets than necessary;
seed and fertilize bare areas that would erode before natural
vegetation is established; hand-plant steep erodible sites; avoid
intensive mechanical preparation on steep slopes; and minimize moving
soil into windrows and piles. The Service encouraged the use of
forestry BMPs in the proposed 4(d) rule, and we have revised the
provisions of the final 4(d) rule to include their implementation, as
well as the use of skidding logs and loading decks, in the list of
activities excepted from incidental take prohibitions.
(4) Comment: Several commenters stated that regular forestry and
associated activities should be exempted by the 4(d) rule, including
periodic thinning; fertilization; herbicide treatment and prescribed
burning to control woody competition; wildfire control activities;
supplemental planting; bedding; thinning; ATV use; hunting; recreation;
mechanical site preparation; one-pass shearing; shear and pile;
mulching; ripping; roller chopping; and creation, use, and maintenance
of trail and forest roads. Several commenters stated that many of these
forestry practices are beneficial to the Louisiana pinesnake and cause
only minimal disturbance to its habitat, and that grasses and
herbaceous vegetation quickly reestablish following treatments. They
said some forestry activities would increase sunlight on the forest
floor and increase herbaceous cover while maintaining a forested
condition and help establishment of the targeted forest stand
conditions. Two commenters stated that some intensive mechanical
practices are needed for conversion and restoration to longleaf pine,
especially in areas that are heavily infested with species such as
yaupon (Ilex vomitoria), and that limiting options to control yaupon is
an obstacle to creating habitat conditions for pocket gophers and the
Louisiana pinesnake.
Our response: The Service agrees that some forestry activities that
help to control native shrub and invading species and restore
historical longleaf pine forest would be beneficial to the Louisiana
pinesnake and should not be subject to the prohibitions in the 4(d)
rule. Some of the activities that commenters requested not be subject
to the prohibitions in the 4(d) rule were excepted from the proposed
prohibitions and continue to be excepted in the final 4(d) rule--
including: Wildfire control, firebreak establishment, clearcut
harvesting, prescribed burning, herbicide application, thinning, and
disking for firebreak establishment. We have revised the list of
activities excepted from prohibitions in the final 4(d) rule to also
include machine-planting, skidding logs and use of loading decks,
maintenance of existing roads, State BMPs, and food plot establishment.
We also added exceptions for some activities that are generally
prohibited within Louisiana pinesnake EOHAs under specific
circumstances (see Summary of Changes from the Proposed Rule).
(5) Comment: Several commenters stated that many landowners allow
recreational hunting on their forested lands and establishment of food
plots for wild game requires tilling the soil greater than 4 inches in
depth. Food plots are often 1 to 3 acres in size and can be shaped to
avoid visible pocket gopher mounds. Several commenters stated that food
plots are beneficial because they increase vegetative cover for pocket
gophers, the Louisiana pinesnake, and other wildlife.
Our response: Pocket gophers appear to forage on several different
species of grasses and forbs. While we know that forbs are important to
pocket gophers, we do not know which specific herbaceous plant species
are preferred by them. Native plants would likely be the best choice,
but herbaceous species typically planted in food plots may also be used
by pocket gophers. We have revised the 4(d) rule provisions to except
food plots under certain circumstances.
(6) Comment: One commenter stated that conversion of loblolly pine
stands to longleaf pine stands is being done by willing landowners and
that landowners may choose not to convert pine stands from loblolly to
longleaf if they believe that silvicultural choices are not available,
including the choice to change pine species later in time. The
commenter indicated that longleaf restoration cannot occur on private
lands without incentives and asked that the Service avoid creating
disincentives through regulations or restricting a landowner's timber
type through rulemaking. Another commenter specifically questioned
whether landowners would be required to
[[Page 11300]]
maintain pine forests within the Louisiana pinesnake's range, or if
non-pine species could be used in reforestation as long as they still
provide for open-canopy conditions with a diverse herbaceous
understory.
Our response: While the Service encourages longleaf pine
restoration within the historical range of longleaf pine, the proposed
4(d) rule did not include language that restricted a landowner's choice
of tree species to plant and grow. The historical habitat of the
Louisiana pinesnake was dominated by longleaf pine but also included
shortleaf and loblolly pines. Some hardwoods also inhabit the well-
drained sandy soils where the Louisiana pinesnake is found, but the
vast majority of trees planted commercially or for restoration in that
range are pine species. We encourage landowners to maintain forests
with trees native to their area. In the final 4(d) rule, we revised the
exception regarding ``maintenance of open pine canopy conditions'' to
``maintenance of open-canopy pine-dominated forest stands.''
(7) Comment: Because suitable habitat for the Baird's pocket gopher
and the Louisiana pinesnake is unlikely to occur on sites without
preferred or suitable soils, several commenters recommended that the
4(d) rule should clearly state that incidental take from forestry
activities will not be considered a violation of section 9 of the Act
if take occurs on sites without preferred or suitable soils, regardless
of whether those sites are inside or outside of EOHAs. The commenters
request that language be added to paragraphs 3(i) and (ii) to clarify
such an exemption.
Our response: The 4(d) rule exceptions to incidental take
prohibitions for forestry activities conducted outside of EOHAs apply
to all land, including those with preferred or suitable soils. To
clarify this provision, we have removed the conditional requirement of
``resulting in the establishment and maintenance of open-canopy pine-
dominated forest stands that are interconnected with at least some
other open-canopy stands'' for lands other than those with preferred or
suitable soils. The additional conditions required to be met for land
within EOHAs and where Baird's pocket gopher are present apply only to
land meeting certain criteria, one of which is that it contains
preferable or suitable soils.
(8) Comment: One commenter recommended revising the phrase in
paragraph (3)(i)(A) ``open canopy conditions through time across the
landscape'' to state ``open canopy conditions over time across the
landscape.''
Our response: In recognition that, during periods of establishment
of open canopy pine-dominated forest stands, there may be time prior to
thinning where the canopy is closed, we have changed ``through'' to
``over'' time across the landscape.
(9) Comment: Several commenters stated various objections to the
following language in the proposed 4(d) rule: ``Activities do not
inhibit the persistence of suitable pocket gopher and Louisiana
pinesnake habitat.'' Commenters believe that this language requires
clarification, introduces unnecessary uncertainty into the rule,
appears to be subjective and dependent upon individual interpretation,
and is an unnecessary qualification on silvicultural practices.
Our response: We describe in detail the components of suitable
pocket gopher habitat in the preamble. We also describe suitable pocket
gopher habitat in paragraph (i)(3)(v)(B)(2) of this final 4(d) rule. We
do not detail all activities that could inhibit the persistence of the
habitat, but instead rely on landowners' unique knowledge of their
property and management practices to determine how best to curtail
activities that would prevent them from being covered by the take
exceptions of the 4(d) rule. Paragraph (i)(3)(v)(B)(2) is necessary
because not all silvicultural management practices further the
persistence of suitable habitat for pocket gophers and the Louisiana
pinesnake.
(10) Comment: One commenter suggested that, while pipeline
construction and installation activities disturb the soil greater than
4 inches in depth, long-term maintenance of pipeline rights-of-way
provide habitat for the Baird's pocket gopher and, therefore, can
provide habitat for the Louisiana pinesnake. That commenter recommended
including pipeline rights-of-way in the 4(d) rule.
Our response: Though we have no information showing that pipeline
rights-of-way are inhabited by the Louisiana pinesnake, rights-of-way
often host herbaceous vegetation, and pocket gopher mounds have been
sighted within them. However, the nature and amount of potential impact
to the Louisiana pinesnake of a major construction project such as
pipeline installation could vary based on the exact location of the
project and the extent of the resulting disturbance. Because of the
potential variability of impacts to the species for projects of this
type, a general exception is not provided in the final 4(d) rule.
Landowners wishing to install pipelines on their properties should
contact the Service for further guidance to avoid potential violations
of section 9 of the Act.
(11) Comment: One commenter discussed the historical records of
pocket gophers as a nuisance species that causes immense damage to
agricultural and forestry crops both inside and outside of the
Louisiana pinesnake's range and on erodible soils other than sandy
soils. That commenter suggested that there was a need for a rule to
control pocket gophers in unsustainable habitats or within forest
stands, especially longleaf pine stands age 5 years and younger,
without the need to consult with the Service.
Our response: The Service notes the 1974 U.S. Forest Service
Environmental Statement (marked as ``Draft''), referenced by the
commenter, which discusses the poisoning of pocket gophers. The Service
is also aware of anecdotal reports of seedling damage presumably caused
by pocket gophers. The Service is not aware of documented instances of
widespread damages to tree seedlings due to pocket gophers in the range
of the Louisiana pinesnake in recent decades. The habitat needs for
pocket gophers and Louisiana pinesnakes are very similar, although the
pocket gopher has a much larger range than the Louisiana pinesnake, and
pocket gopher density can be locally variable. Baird's pocket gophers
are the primary prey and microhabitat provider for the Louisiana
pinesnake, which is nearly always found in or near pocket gopher
burrows. Reduction or elimination of Baird's pocket gophers in the
range of the Louisiana pinesnake could significantly reduce food and
shelter for the already threatened species, potentially reducing its
abundance. Furthermore, using poison to control pocket gophers, as
described in the 1974 Environmental Statement, could have even greater
negative effects on the Louisiana pinesnake if the species consumed the
poisoned pocket gophers. Because of the potential significant negative
impacts to the species via population control of pocket gophers, and
the apparent lack of widespread damage events, a general 4(d) exception
for control of pocket gophers would not be prudent. If landowners
decide that pocket gophers have become a pest that affects the human
environment or causes economic loss, they may consult with the Service
to determine the best course of action for their specific situation.
Nothing in this rule would limit pocket gopher control methods outside
the historical range of the Louisiana pinesnake.
[[Page 11301]]
(12) Comment: One commenter recommended that the Service prohibit
the use of erosion control netting, and other plastic netting known to
entangle snakes, in areas where Louisiana pinesnake may occur.
Our response: The Service has recognized the detrimental effect of
erosion control netting, especially long-lasting polypropylene mesh, on
snakes, and in the final listing rule we determined that the use of
erosion control netting was currently a potential threat to the
Louisiana pinesnake. On the other hand, while other snake species have
been killed by the netting, the Service is unaware of any records of
the Louisiana pinesnake being entangled or killed. Because the
potential threat of erosion control netting to the Louisiana pinesnake
is greatest in the areas occupied by the species, we have added
activities that do not involve ``the use of plastic mesh in erosion
control and stabilization devices, mats, blankets, or channel
protection'' to the list of additional conditions for the areas
specified within the EOHAs.
(13) Comment: One commenter stated that the 4(d) rule should not
exempt intensive, short-rotation pine plantations.
Our response: The 4(d) rule does not specifically except
``intensive, short-rotation pine plantations'' from the prohibitions
against take. The Service has determined through its final listing rule
and the 4(d) rule what type of habitat is suitable for the Louisiana
pinesnake. We have developed the 4(d) rule provisions to protect
habitat for the species regardless of the terminology commonly used to
describe certain management scenarios. ``Intensive, short-rotation pine
plantations'' does not necessarily describe habitat conditions. Some
management activities that may be considered intensive, such as
mechanical site preparation that significantly disturbs the soil, are
excepted under certain conditions even within the EOHAs. Some
``intensive'' management may be necessary to restore degraded habitat.
Additionally, stand rotation length is not specifically addressed in
the 4(d) rule because that metric does not necessarily dictate canopy
cover and the potential effects on herbaceous vegetation abundance,
which is an important factor of habitat suitability for the pocket
gopher and thus the Louisiana pinesnake.
(14) Comment: Several commenters recommended that the Service not
attempt to limit the planting density of longleaf pine. The commenters
explained that higher density planting generates pine straw fuel to
carry fire, and many establishment projects do not have adequate warm-
season grasses to carry fire for the first 4 to 5 years. Without the
pine straw to fuel prescribed burns, establishment stands quickly
revert back to yaupon and sweetgum species. Young longleaf with the
appropriate density can create enough pine straw to carry a burn in
years 2 through 5. Planting an adequate number of seedlings is also
needed to ensure a high survival success and low mortality rates due to
drought, feral hogs, competition with invasive species, and from
prescribed burning. Another commenter stated that the 4(d) rule should
exempt thinning to 40-60 square feet per acre basal area.
Our response: As discussed in the 4(d) rule preamble, low tree
density is beneficial to the pocket gopher. The proposed 4(d) rule
provisions did not specifically address planting density of longleaf
pine or any other tree species and do not except or require a specific
tree basal area. To attain an open-canopy forest condition, some
consideration of planting density and basal area would be required.
Both the proposed and final 4(d) rules do not restrict individuals from
determining how to create open-canopy conditions and herbaceous
vegetation cover.
(15) Comment: One commenter recommended that the term ``below-
ground shearing'' be removed or replaced with a less confusing term.
The commenter expressed that normal shearing operations, which are
critical to preparing sites for reforestation (especially longleaf),
are conducted above the soil level and have minimal soil disturbance.
Our response: In recognition that normal shearing operations are
conducted above ground, but may cause subsurface disturbance when not
properly performed, we have changed ``below-ground shearing'' to
``shearing that penetrates the soil surface.''
(16) Comment: Two commenters stated their support for the creation
of a safe harbor agreement program for the Louisiana pinesnake similar
to the one established for the endangered red-cockaded woodpecker.
Our response: The Service plans to develop and implement one or
more safe harbor agreements to increase conservation opportunities for
the Louisiana pinesnake in Louisiana and Texas.
(17) Comment: One commenter recommended that a 4(d) rule exemption
from take prohibitions should apply to private landowners enrolled in a
Working Lands for Wildlife agreement with the National Resources
Conservation Service (NRCS), and one commenter recommended that the
4(d) rule should consider excluding from the prohibitions conservation
practices found in the Louisiana pinesnake biological opinion/
conference opinion for the NRCS's Working Lands for Wildlife program to
allow for consistency and continuity across NRCS programs.
Our response: Participants in NRCS's Working Lands for Wildlife
program are allowed incidental take according to the approved
biological opinion for that program, and thus do not need an exception
in the 4(d) rule for the program activities considered in the
biological opinion. The exceptions in the 4(d) rule are not an
exhaustive list of all NRCS conservation practices considered in the
biological opinion. The conservation practices, their expected results,
participant responsibilities, and the consideration of incidental take
were carefully discussed during close collaboration between Service and
NRCS biologists. Excepting all NRCS Working Lands for Wildlife
conservation practices from the take prohibitions in the 4(d) rule is
not necessary and would not be prudent. The Service encourages
interested parties to contact the Service or NRCS about the possibility
of enrolling in the Working Lands for Wildlife program. Additionally,
it should be noted that the conservation practices in the Working Lands
for Wildlife program and the forestry activities that the 4(d)
provisions except from the stay prohibitions overlap significantly.
Conservation activities that are not specifically excepted in the 4(d)
rule could possibly be exempted from the section 9 prohibitions of the
ESA through a section 7 consultation with issuance of an incidental
take statement.
(18) Comment: One commenter recommended that the 4(d) rule should
include a detailed description and listing of the preferred soil series
and specific soil mapping units (in consultation with NRCS) for the
Louisiana pinesnake and Baird's pocket gopher.
Our response: Soil maps at the scale that could be included in the
Federal Register would not be useful. Maps delineating the preferred
and suitable soils for the Louisiana pinesnake as described by Wagner
et al. 2014 are publicly available at https://gcpolcc.databasin.org/datasets/a2a0ace6964942b98f0514b84dfa9fb8. NRCS soil survey maps of
hydrologic group Categories A (preferred) and B (suitable), are
available publicly on the NRCS soil mapping website: https://websoilsurvey.sc.egov.usda.gov/App/HomePage.htm, or by contacting NRCS
[[Page 11302]]
or the U.S. Fish and Wildlife Service, Louisiana Ecological Services
Office, 200 Dulles Drive, Lafayette, LA 70506; 337-291-3101; 337-291-
3139.
(19) Comment: One commenter requested that captive-bred Louisiana
pinesnake be exempted from take prohibitions in the 4(d) rule to allow
unfettered continuation of captive breeding, pet ownership, and trade.
Our response: Louisiana pinesnakes acquired before May 7, 2018, the
effective date of the final listing rule for this species, may be
legally held and bred in captivity as long as laws regarding this
activity within the State in which they are held are not violated. This
would include snakes acquired pre-listing by pet owners, researchers,
and zoological institutions. Future sale of captive-bred Louisiana
pinesnakes borne from pre-listing-acquired parents within the State of
their origin would be regulated by applicable laws of that State. If
individuals wish to purchase captive-bred snakes outside the snake's
State of origin, they would first have to acquire a section 10(a)(1)(A)
interstate commerce permit from the Service (website: http://www.fws.gov/forms/3-200-55.pdf). Information about the purpose for
purchasing a Louisiana pinesnake is required because using federally
threatened species as pets is not consistent with the purposes of the
Act, which is intended to support the conservation of species and
recovery of wild populations. However, an animal with threatened-
species status may be legally kept in captivity if it is captive-bred
and used for educational or breeding purposes consistent with this
intent. Through the permit process, we are able to track and monitor
the trade in captive-bred listed species. For this reason, excepting
this activity from the take prohibition in the 4(d) rule would not be
appropriate, as it would not meet the standard of providing for the
conservation of the species.
(20) Comment: One commenter stated that the 4(d) rule should
incentivize management of open-canopy forest in order to get people to
participate in conservation of the species.
Our response: This 4(d) rule offers incentives for conservation by
providing exceptions from the incidental take prohibitions. We
encourage any landowners that may have a listed species on their
properties, and who think they may conduct activities that negatively
affect that species, to work with the Service to find ways to avoid
impacts. The Service's Partners for Fish and Wildlife Program and
various programs administered by the NRCS may provide financial
assistance to eligible landowners who implement management activities
that benefit the habitat for a listed species, including the Louisiana
pinesnake. Private landowners may contact their local Service field
office to obtain information about these programs and permits.
Summary of Changes From the Proposed Rule
After reviewing the information provided during the public comment
period, we have made the following changes to the rule language in this
final rule:
With respect to comments requesting either the exemption
of specific forestry-related activities or further explanation of our
intended exempted activities, we added maintenance of existing forest
roads, skidding logs and use of loading decks, and adherence to BMPs
recommended by State forestry agencies to the list of excepted
activities. These activities were implicitly included in the proposed
rule as excepted forestry activities especially as they relate to
harvesting, and we had already recommended in the proposed rule that
landowners follow BMPs of certification programs or from State
agencies.
With respect to comments that roller chopping and ripping
are sometimes necessary to control midstory shrub species such as
yaupon holly (Ilex vomitoria) that inhibit pine seedling growth, and to
prepare former pastures for planting, we added language indicating that
limited take due to use of those techniques is not prohibited.
With respect to comments that food plot establishment
requires relatively little area and can avoid gopher mound complexes,
and that the vegetation commonly used are herbaceous plants that could
be used as forage by pocket gophers, we added limited size food plot
establishment to the list of excepted activities.
With respect to comments requesting further explanation of
exempted activities, we specified that hand- and machine-planting were
forestry activities conducted in areas outside of the EOHAs that were
excepted when we used the terms ``planting'' and ``replanting.'' We
also added language to the additional conditions for areas meeting the
criteria that would indicate that the take prohibition would not apply
to machine-planting under specific circumstances.
With respect to comments that stated that the 4-inch limit
of subsurface disturbance could prohibit machine- and hand-planting and
other forestry activities, even for forest restoration efforts, we
removed the 4-inch limitation for subsurface disturbance in the
additional conditions of the exceptions for activities within EOHAs.
With respect to comments that stated that exemptions
should be more broad in areas that do not contain preferable or
suitable soils, and comments that we should clarify the phrase ``and
that result in the establishment and maintenance of open canopy
conditions through time across the landscape,'' we changed the language
pertaining to activities that, when conducted in areas within the range
of the Louisiana pinesnake, on preferred or suitable soils, result in
the establishment and maintenance of open-canopy pine-dominated forest
stands ``over'' time across the landscape.
The Louisiana pinesnake is highly associated with pocket
gophers and their burrows. Research shows that Louisiana pinesnakes are
most often found in pocket gopher burrow systems, and, therefore, in
areas where Louisiana pinesnakes are known to occur, these burrows,
indicated by dirt mounds, are in need of greater protections.
Accordingly, we added, ``where Baird's pocket gopher mounds are present
or'' after ``Within any known EOHAs'' and before ``on lands with
suitable or preferable soils'' in the paragraph preceding the
additional conditions for lands within EOHAs.
With respect to a comment about the entanglement hazard of
erosion control netting and its potential effects on the Louisiana
pinesnake, which we had identified as a potential threat in the final
listing rule, we added, ``Those activities do not involve the use of
plastic mesh in erosion control and stabilization devices, mats,
blankets, or channel protection'' to the list of additional conditions
for lands within the EOHAs.
Provisions of Section 4(d) of the Act
Section 4(d) of the Act contains two sentences. The first sentence
states that the ``Secretary shall issue such regulations as he deems
necessary and advisable to provide for the conservation'' of species
listed as threatened. The U.S. Supreme Court has noted that very
similar statutory language like ``necessary and advisable''
demonstrates a large degree of deference to the agency (see Webster v.
Doe, 486 U.S. 592 (1988)). Conservation is defined in the Act to mean
``the use of all methods and procedures which are necessary to bring
any endangered species or threatened species to the point at which the
measures provided pursuant to [the Act] are no longer necessary.''
Additionally, the second
[[Page 11303]]
sentence of section 4(d) of the Act states that the Secretary ``may by
regulation prohibit with respect to any threatened species any act
prohibited under section 9(a)(1), in the case of fish or wildlife, or
9(a)(2), in the case of plants.'' Thus, regulations promulgated under
section 4(d) of the Act provide the Secretary with wide latitude of
discretion to select appropriate provisions tailored to the specific
conservation needs of the threatened species. The statute grants
particularly broad discretion to the Service when adopting the
prohibitions under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld rules
developed under section 4(d) as a valid exercise of agency authority
where they prohibited take of threatened wildlife, or include a limited
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D.
Wash. 2002)). Courts have also approved 4(d) rules that do not address
all of the threats a species faces (see State of Louisiana v. Verity,
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when
the Act was initially enacted, ``once an animal is on the threatened
list, the Secretary has an almost infinite number of options available
to him with regard to the permitted activities for those species. He
may, for example, permit taking, but not importation of such species,
or he may choose to forbid both taking and importation but allow the
transportation of such species'' (H.R. Rep. No. 412, 93rd Cong., 1st
Sess. 1973).
Exercising its authority under section 4(d) of the Act, the Service
has developed a final rule for the Louisiana pinesnake that is designed
to address the species' specific threats and conservation needs.
Although the statute does not require the Service to make a ``necessary
and advisable'' finding with respect to the adoption of specific
prohibitions under section 9, we find that this final 4(d) rule as a
whole satisfies the requirement in section 4(d) of the Act to issue
regulations deemed necessary and advisable to provide for the
conservation of the Louisiana pinesnake. As discussed above, the
Service has concluded that the Louisiana pinesnake is in danger of
becoming an endangered species within the foreseeable future primarily
due to the continuing loss and degradation of the open pine forest
habitat that supports the Baird's pocket gopher. The provisions of this
final 4(d) rule would promote conservation of the Louisiana pinesnake
by encouraging management of the landscape in ways that meet land
management considerations while meeting the conservation needs of the
Louisiana pinesnake. The provisions of this final 4(d) rule are one of
many tools that the Service will use to promote the conservation of the
Louisiana pinesnake.
Final 4(d) Rule for the Louisiana Pinesnake
This final 4(d) rule would provide for the conservation of the
Louisiana pinesnake by prohibiting the following activities, except as
otherwise authorized or permitted: Importing or exporting; take;
possession and other acts with unlawfully taken specimens; delivering,
receiving, transporting, or shipping in interstate or foreign commerce
in the course of commercial activity; and selling or offering for sale
in interstate or foreign commerce. We also include several standard
exceptions to these prohibitions, which are set forth under Final
Regulation Promulgation, below.
Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct. Some of these provisions have been further defined in
regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally. Regulating
intentional and incidental take under this final 4(d) rule would help
preserve the species' remaining populations; enable beneficial
management actions to occur; and decrease synergistic, negative effects
from other stressors.
Under this final 4(d) rule, the following exceptions from
prohibitions will apply to the Louisiana pinesnake:
Outside of any known EOHAs, the following activities will not be
subject to the section 9 prohibitions:
Activities that maintain existing forest lands in forest land use,
and that when conducted in areas within the range of the Louisiana
pinesnake, on preferred or suitable soils, result in the establishment
and maintenance of open-canopy pine-dominated forest stands over time
across the landscape. These activities include:
(a) Tree thinning, harvest (including clearcutting), planting and
replanting pines (by hand or by machine).
(b) Prescribed burning, including all firebreak establishment and
maintenance actions, as well as actions taken to control wildfires.
(c) Herbicide application that is generally targeted for invasive
plant species control and midstory and understory woody vegetation
control, but is also used for site preparation when applied in a manner
that minimizes long-term impact to noninvasive herbaceous vegetation.
These provisions include only herbicide applications conducted in a
manner consistent with Federal and applicable State laws, including
Environmental Protection Agency label restrictions and herbicide
application guidelines as prescribed by manufacturers.
(d) Skidding logs and use of loading decks that avoid gopher mound
complexes.
(e) Maintenance of existing substandard (dirt, unsurfaced) forest
roads and trails used for access to timber being managed.
(f) Implementation of mandated and State-recommended forestry BMPs,
including but not limited to, those necessary to protect riparian
(e.g., streamside management zone) and other habitats from erosional
sediment deposition, prevent washout of forest roads, and impacts to
vegetation.
(g) Food plot establishment for game animals, when it does not
destroy existing native herbaceous vegetation, avoids gopher mound
complexes, and does not exceed 1 acre in size.
Although these management activities may result in some minimal
level of harm or temporary disturbance to the Louisiana pinesnake,
overall these activities benefit the pinesnake by contributing to
conservation and recovery. With adherence to the limitations described
in the preceding paragraph, these activities will have a net beneficial
effect on the species by encouraging active forest management that
creates and maintains the herbaceous plant conditions needed to support
the persistence of Baird's pocket gopher populations, which is
essential to the long-term viability and conservation of the Louisiana
pinesnake.
Applying the prohibitions will minimize threats that could cause
further declines in the status of the species. Additionally, the
species needs active conservation to improve the quality of its
habitat. By excepting from prohibitions incidental take resulting from
certain activities, these provisions can encourage cooperation by
landowners and other affected parties in implementing conservation
measures. This cooperation will allow for use of the land while at the
same time ensuring the preservation of suitable
[[Page 11304]]
habitat and minimizing impacts on the species.
When practicable and to the extent possible, the Service encourages
managers to conduct such activities in a manner to maintain suitable
Louisiana pinesnake habitat in large tracts; minimize ground and
subsurface disturbance; and promote a diverse, abundant herbaceous
groundcover. Prescribed fire is an important tool to effectively manage
open-canopy pine habitats to establish and maintain suitable conditions
for the Louisiana pinesnake, and the Service strongly encourages its
use over other methods (mechanical or chemical) wherever practicable.
The Service also encourages managers, when practicable and to the
extent possible, to (1) enroll their lands into third-party forest
certification programs such as the Sustainable Forest Initiative,
Forest Stewardship Council, and American Tree Farm System; and (2)
conduct any activities under such programs using BMPs as described and
implemented through the respective programs, or by others such as State
forestry agencies, the U.S. Department of Agriculture (the Forest
Service's Forest Stewardship Program or the Natural Resources
Conservation Service's Conservation Practices Manual), or the U.S. Fish
and Wildlife Service's Partners for Fish and Wildlife Program.
As noted above, the management activities discussed above are
excepted from the incidental take prohibition outside of known EOHAs.
Within any known EOHAs, where Baird's pocket gopher mounds are present
or on lands with suitable or preferable soils, that are forested,
undeveloped, or non-farmed (i.e., not cultivated on an annual basis)
and adjacent to forested lands, the management activities discussed
above would also be excepted from the incidental take prohibitions, but
only if the following additional conditions are met:
(h) Those activities do not cause subsurface disturbance, including
but not limited to subsurface disturbance caused by: Wind-rowing,
stumping, disking (except during firebreak creation or maintenance),
root-raking, drum chopping (except for single pass with the lightest
possible weighted drums and only when the soil is not wet, when used to
control hardwoods and woody shrub species detrimental to establishment
of pine-forested land), shearing that penetrates the soil surface,
ripping (except when restoring pine forest in compacted soil areas such
as former pastures), bedding, new road construction, and commercial or
residential development. Machine-planting, using the shallowest depth
possible, would be allowed in areas where pocket gophers are not
present and only for planting pine tree species. In former pastures or
highly degraded areas with no herbaceous vegetation and poor planting
conditions, subsurface disturbance shall be allowed only for activities
that contribute to reforestation that is consistent with the
conservation of the species.
(i) Those activities do not inhibit the persistence of suitable
pocket gopher and Louisiana pinesnake habitat (described previously in
the Background section).
(j) Those activities do not involve the use of plastic mesh in
erosion control and stabilization devices, mats, blankets, or channel
protection.
These additional conditions on when the prohibitions would not
apply within known EOHAs are reasonable because the actual likelihood
of encountering individuals of the species is higher within the EOHAs.
We may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened wildlife under
certain circumstances. Regulations governing permits are codified at 50
CFR 17.32. With regard to threatened wildlife, a permit may be issued
for the following purposes: Scientific purposes, to enhance propagation
or survival, for economic hardship, for zoological exhibition, for
educational purposes, for incidental taking, or for special purposes
consistent with the purposes of the Act. There are also certain
statutory exemptions from the prohibitions, which are found in sections
9 and 10 of the Act.
The Service recognizes the special and unique relationship with our
State natural resource agency partners in contributing to conservation
of listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist the Services in implementing all aspects of the Act.
In this regard, section 6 of the Act provides that the Services shall
cooperate to the maximum extent practicable with the States in carrying
out programs authorized by the Act. Therefore, any qualified employee
or agent of a State conservation agency that is a party to a
cooperative agreement with the Service in accordance with section 6(c)
of the Act, who is designated by his or her agency for such purposes,
will be able to conduct activities designed to conserve Louisiana
pinesnake that may result in otherwise prohibited take without
additional authorization.
Nothing in this final 4(d) rule would change in any way the
recovery planning provisions of section 4(f) of the Act, the
consultation requirements under section 7 of the Act, or the ability of
the Service to enter into partnerships for the management and
protection of the Louisiana pinesnake. However, interagency cooperation
may be further streamlined through planned programmatic consultations
for the species between Federal agencies and the Service.
Anyone undertaking activities that are not covered by the
provisions, including the additional conditions, and that may result in
take would need to ensure, in consultation with the Service, that those
activities are not likely to jeopardize the continued existence of the
species where the entity is a Federal agency or there is a Federal
nexus, or consider applying for a permit before proceeding with the
activity (if there is no Federal nexus). A map of the currently known
EOHAs is found in the proposed listing rule (81 FR 69461, October 6,
2016). The Service intends to update maps identifying the locations of
Louisiana pinesnake EOHAs and make them available to the public in the
docket on www.regulations.gov as new information becomes available.
Alternatively, you may contact the Louisiana Ecological Services Field
Office (see ADDRESSES).
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition of a species through listing it results in
public awareness, and leads Federal, State, Tribal, and local agencies,
private organizations, and individuals to undertake conservation. The
Act encourages cooperation with the States and other countries and
calls for recovery actions to be carried out for listed species.
Information about the protection required by Federal agencies, and the
prohibitions against certain activities, and recovery planning and
implementation and interagency consultation, are discussed in the final
listing rule.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered wildlife.
The prohibitions of section 9(a)(1) of the Act, codified at
[[Page 11305]]
50 CFR 17.21, make it illegal for any person subject to the
jurisdiction of the United States to take (which includes harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to
attempt any of these) endangered wildlife within the United States or
on the high seas. In addition, it is unlawful to import; export;
deliver, receive, carry, transport, or ship in interstate or foreign
commerce in the course of commercial activity; or sell or offer for
sale in interstate or foreign commerce any endangered species. It is
also illegal to possess, sell, deliver, carry, transport, or ship any
such wildlife that has been taken illegally. The Act authorizes the
Secretary to apply any of the prohibitions of section 9(a)(1) of the
Act to threatened wildlife. This rulemaking applies the prohibitions
under section 9(a)(1) to the threatened Louisiana pinesnake, with
specified exceptions.
As described in the final listing rule, it is our policy to
identify, to the maximum extent practicable at the time a species is
listed, those activities that would or would not constitute a violation
of section 9 of the Act. The intent of this policy is to increase
public awareness of the effect of a listing on proposed and ongoing
activities within the range of the listed species. Since the Louisiana
pinesnake is a threatened species and this final rule applies the
protections outlined in section 9(a)(1) of the Act to the Louisiana
pinesnake, we are identifying those activities that would or would not
constitute a violation of either section 9(a)(1) or this final 4(d)
rule. Based on the best available information, the following activities
may potentially result in a violation of section 9 of the Act or this
final rule; this list is not comprehensive:
(1) Unauthorized collecting, handling, possessing, selling,
delivering, carrying, or transporting of the Louisiana pinesnake,
including interstate transportation across State lines and import or
export across international boundaries, except for properly documented
antique specimens at least 100 years old, as defined by section
10(h)(1) of the Act.
(2) Introduction of nonnative animal species that compete with or
prey upon the Louisiana pinesnake.
(3) Introduction of invasive plant species that contribute to the
degradation of the natural habitat of the Louisiana pinesnake.
(4) Unauthorized destruction or modification of suitable occupied
Louisiana pinesnake habitat that results in damage to or alteration of
desirable herbaceous (non-woody) vegetation or the destruction of
Baird's pocket gopher burrow systems used as refugia by the Louisiana
pinesnake, or that impairs in other ways the species' essential
behaviors such as breeding, feeding, or sheltering.
(5) Unauthorized use of insecticides and rodenticides that could
impact small mammal prey populations, through either unintended or
direct impacts within habitat occupied by Louisiana pinesnakes.
(6) Unauthorized actions that would result in the destruction of
eggs or cause mortality or injury to hatchling, juvenile, or adult
Louisiana pinesnakes.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Louisiana
Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).
Required Determinations
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We completed an environmental assessment of this action under the
authority of the National Environmental Policy Act of 1969. We notified
the public of the availability of the draft environmental assessment on
the internet at https://www.fws.gov/lafayette/. We have carefully
considered all comments received and addressed them in this rule. The
environmental assessment is available in the docket for this rulemaking
action at http://www.regulations.gov.
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), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes. There are no tribal lands located
within the range of the Louisiana pinesnake.
References Cited
A list of the references cited in this final rule may be found in
the docket in www.regulations.gov.
Authors
The primary authors of this final rule are the staff members of the
Louisiana Ecological Services Office (see FOR FURTHER INFORMATION
CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Final Regulation Promulgation
Accordingly, for the reasons just described, we hereby amend part
17, subchapter B of chapter I, title 50 of the Code of Federal
Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. Amend Sec. 17.11 in paragraph (h) by revising the entry for
``Pinesnake, Louisiana'' in the List of Endangered and Threatened
Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Reptiles
* * * * * * *
Pinesnake, Louisiana............ Pituophis ruthveni. Wherever found.... T 83 FR 14958, April 6,
2018; 50 CFR
17.42(i).\4d\
[[Page 11306]]
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.42 by adding paragraph (i) to read as follows:
Sec. 17.42 Special rules--reptiles.
* * * * *
(i) Louisiana pinesnake (Pituophuis ruthveni)--(1) Definitions. The
following definitions apply only to terms used in this paragraph (i)
for activities affecting the Louisiana pinesnake.
(i) Estimated occupied habitat area (EOHA). Areas of land where
occurrences of Louisiana pinesnakes have been recorded and that are
considered by the Service to be occupied by the species. For current
information regarding the EOHAs, contact your local Service Ecological
Services office. Field office contact information may be obtained from
the Service regional offices, the addresses of which are listed in 50
CFR 2.2.
(ii) Suitable or preferable soils. Those soils in Louisiana and
Texas that generally have high sand content and a low water table and
that have been shown to be selected by Louisiana pinesnakes (Natural
Resources Conservation Service soil survey hydrologic group, Categories
A and B).
(2) Prohibitions. The following prohibitions that apply to
endangered wildlife also apply to the Louisiana pinesnake. Except as
provided at paragraph (i)(3) of this section and Sec. 17.4, it is
unlawful for any person subject to the jurisdiction of the United
States to commit, to attempt to commit, to solicit another to commit,
or cause to be committed, any of the following acts in regard to this
species:
(i) Import or export, as set forth for endangered wildlife at Sec.
17.21(b).
(ii) Take, as set forth for endangered wildlife at Sec.
17.21(c)(1).
(iii) Possession and other acts with unlawfully taken specimens, as
set forth for endangered wildlife at Sec. 17.21(d)(1).
(iv) Interstate or foreign commerce in the course of commercial
activity, as set forth for endangered wildlife at Sec. 17.21(e).
(v) Sale or offer for sale, as set forth for endangered wildlife at
Sec. 17.21(f).
(3) Exceptions from the prohibitions. In regard to this species,
you may:
(i) Conduct activities as authorized by a permit issued under Sec.
17.32.
(ii) Take, as set forth for endangered wildlife at Sec.
17.21(c)(2) through (c)(4).
(iii) Take, as set forth at Sec. 17.31(b).
(iv) Possess and engage in other acts with unlawfully taken
Louisiana pinesnakes, as set forth for endangered wildlife at Sec.
17.21(d)(2).
(v) Take incidental to an otherwise lawful activity caused by:
(A) Outside any known EOHAs--Activities that maintain existing
forest lands in forest land use and that, when conducted in areas
within the range of the Louisiana pinesnake, on preferred or suitable
soils, result in the establishment and maintenance of open-canopy pine-
dominated forest stands over time across the landscape. These
activities include:
(1) Tree thinning, tree harvest (including clearcutting), and
planting and replanting pines (by hand or by machine).
(2) Prescribed burning, including all firebreak establishment and
maintenance actions, as well as actions taken to control wildfires.
(3) Herbicide application that is generally targeted for invasive
plant species control and midstory and understory woody vegetation
control, but is also used for site preparation when applied in a manner
that minimizes long-term impact to noninvasive herbaceous vegetation.
These provisions include only herbicide applications conducted in a
manner consistent with Federal and applicable State laws, including
Environmental Protection Agency label restrictions and herbicide
application guidelines as prescribed by manufacturers.
(4) Skidding logs and use of loading decks that avoid mound
complexes of Baird's pocket gophers (Geomys breviceps).
(5) Maintenance of existing substandard (dirt, unsurfaced) forest
roads and trails used for access to timber being managed.
(6) Implementation of mandated and State-recommended forestry best
management practices, including, but not limited to, those necessary to
protect riparian (e.g., streamside management zone) and other habitats
from erosional sediment deposition, and prevent washout of forest roads
and impacts to vegetation.
(7) Food plot establishment for game animals, when it does not
destroy existing native herbaceous vegetation, avoids Baird's pocket
gopher mound complexes, and does not exceed 1 acre in size.
(B) Within any known EOHAs where Baird's pocket gopher mounds are
present or on lands that have suitable or preferable soils and that are
forested, undeveloped, or non-farmed (i.e., not cultivated on an annual
basis) and adjacent to forested lands--Activities described in
paragraphs (i)(3)(v)(A)(1) through (7) of this section provided that
those activities do not:
(1) Cause subsurface disturbance, including, but not limited to,
wind-rowing, stumping, disking (except during firebreak creation or
maintenance), root-raking, drum chopping (except for single pass with
the lightest possible weighted drums and only when the soil is not wet,
when used to control hardwoods and woody shrub species detrimental to
establishment of pine-forested land), shearing that penetrates the soil
surface, ripping (except when restoring pine forest in compacted soil
areas such as former pastures), bedding, new road construction, and
commercial or residential development. Machine-planting, using the
shallowest depth possible, would be allowed in areas where pocket
gophers are not present and only for planting pine tree species. In
former pastures or highly degraded areas with no herbaceous vegetation
and poor planting conditions, subsurface disturbance will be allowed
only for activities that contribute to reforestation that is consistent
with the conservation of the species.
(2) Inhibit the persistence of suitable Baird's pocket gopher and
Louisiana pinesnake habitat, which consists of open-canopy forest
situated on well-drained sandy soils with an abundant herbaceous plant
community, a nonexistent or sparse midstory, and a low pine basal area.
(3) Involve the use of plastic mesh in erosion control and
stabilization devices, mats, blankets, or channel protection.
Dated: January 30, 2020.
Aurelia Skipwith,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2020-03545 Filed 2-26-20; 8:45 am]
BILLING CODE 4333-15-P