[Federal Register: January 14, 2004 (Volume 69, Number 9)]
[Proposed Rules]               
[Page 2100-2108]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Reexamination of 
Regulatory Mechanisms in Relation to the 1998 Florida Black Bear 
Petition Finding

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; notice of petition finding.


SUMMARY: We, the Fish and Wildlife Service (Service), announce a 
reexamination of regulatory mechanisms in relation to the 1998 finding 
for a petition to list the Florida black bear (Ursus americanus 
floridanus), under the Endangered Species Act (ESA) of 1973, as 
amended. Pursuant to a court order, we have reexamined only one factor, 
the inadequacy of existing regulatory mechanisms in effect at the time 
of our previous 1998 12-month finding.

DATES: The finding announced in this document was made on December 24, 

ADDRESSES: The complete file for this finding is available for public 
inspection, by appointment, during normal business hours at the U.S. 
Fish and Wildlife Service, Jacksonville Ecological Services Field 
Office, 6620 Southpoint Drive South, Jacksonville, FL 32216-0958.

section), telephone (904) 232-2580; facsimile (904) 232-2404.



    The Florida black bear (Ursus americanus floridanus) is a 
subspecies of the black bear (Ursus americanus), which ranges from 
northern Alaska and Canada south to northern Mexico. According to Hall 
(1981), the Florida black bear was primarily restricted to Florida, but 
also occurred in coastal plain areas of Georgia, Alabama, and extreme 
southeastern Mississippi. Following extensive human development, the 
distribution of the Florida black bear has become fragmented and 
reduced. Population sizes and densities prior to the arrival of the 
first European colonists are not known; but, the Florida Game and Fresh 
Water Fish Commission (Commission 1993; now the Florida Fish and 
Wildlife Conservation Commission) estimated that possibly 11,500 bears 
once inhabited Florida.
    Our involvement with the Florida black bear began with the species' 
inclusion as a category 2 species in notices of review published on 
December 30, 1982 (47 FR 58454), September 18, 1985 (50 FR 37958), 
January 6, 1989 (54 FR 554), and November 21, 1991 (56 FR 53804). At 
that time, category 2 species were defined as those for which 
information in our possession indicated that listing was possibly 
appropriate, but for which sufficient data on biological vulnerability 
and threat were not currently available to support proposed

[[Page 2101]]

rules. On May 20, 1990, we received a petition from Ms. Inge Hutchison 
of Lake Geneva, Florida, to list the Florida black bear as a threatened 
species. The petition cited the following threats: (1) Illegal hunting 
by beekeepers, gallbladder poachers, and others, (2) loss and 
fragmentation of critical habitat, (3) hunting pressure, and (4) road 
mortality. We made a 90-day petition finding on October 18, 1990 (55 FR 
42223), that substantial information was presented. Based on the 
information received and information in our files, a 12-month finding 
was made on January 7, 1992 (57 FR 596), indicating that the Service 
believed that the petitioned action was warranted but precluded by 
higher priority listing actions.
    At the time of the finding, we assigned the species a level 9 
priority based on our listing priority system that had been published 
on September 21, 1983 (48 FR 43098). ``Level 9'' meant that the species 
was subject to imminent but moderate-to-low threats throughout its 
range. The species was included as a category 1 candidate in the 
November 15, 1994, animal review notice (59 FR 58982). At that time, a 
category 1 candidate (now referred to as a ``candidate'') was one for 
which we had on file sufficient information to support issuance of a 
proposed rule. Following the 1992 12-month finding, the Service's 
Southeast Region used its listing resources to process higher priority 
listing actions. Furthermore, designation of candidates by category was 
discontinued in the February 28, 1996, notice of review (61 FR 7956). 
In that notice, the Florida black bear was included as a candidate with 
a priority number of 12, indicating a species under non-imminent 
moderate-to-low threat.
    On January 21, 1997, the Service entered into an agreement in the 
Fund for Animals et al. v. Babbitt case (Civil No. 92-0800 SS, U.S. 
District Court for the District of Columbia). Among other things, we 
agreed that we would resolve the conservation status of the Florida 
black bear by December 31, 1998. In 1998, we updated the status review 
for this species (Kasbohm and Bentzien 1998) to include significant 
additional information that had become available since the 1992 
assessment. Based on this review, on December 8, 1998, we published a 
new 12-month finding (63 FR 67613) that listing was not warranted, and 
removed the species from candidate status.
    In 1999, Defenders of Wildlife and others filed suit challenging 
the Service's finding (Defenders of Wildlife et al. v. Norton, Civil 
Action 99-02072 HHK, U.S. District Court for the District of Columbia) 
claiming our decision was arbitrary, capricious, and an abuse of 
discretion, violating the Administrative Procedure Act (5 U.S.C. 551 et 
seq.) and the ESA. First, plaintiffs alleged that our determination 
that listing was not warranted, based on the existence of four larger 
secure populations distributed throughout the bear's historic range, 
was inconsistent with the ESA because we erroneously interpreted the 
phrase ``all or a significant portion of its range.'' Plaintiffs argued 
that our projection of the likely loss of a large percentage 
(approximately 40%) of existing bear habitat over the foreseeable 
future obligated us to list the species because this amount constituted 
a significant portion of the species' range. Second, plaintiffs argued 
that our decision not to list was arbitrary and capricious based on our 
1992 ``warranted but precluded'' finding, and on the combined effects 
of habitat destruction, habitat isolation, roadkill, and hunting. 
Third, plaintiffs asserted that our determination that existing 
regulatory mechanisms were adequate to protect the bear was incorrect 
because it relied on possible future regulations rather than those that 
were both authorized and implemented at the time of our finding.
    On December 13, 2001, the District Court issued a decision in the 
case. On the first issue, the Court found that our interpretation of 
``significant portion of the range'' was reasonable. On the second 
issue, the Court found that biological data presented in the 
administrative record, especially the 1998 status review, supported our 
determinations that positive changes in the bear's situation from 1992 
to 1998 supported a ``not warranted'' finding, and that the overall 
effects of habitat loss and isolation, roadkill, and hunting would not 
likely result in the bear becoming endangered in the foreseeable 
future. However, on the third issue, the Court concluded that it was 
unclear from the record whether the regulations upon which we relied 
were currently being implemented, to what extent we relied on the 
possibility of future regulatory actions, and whether we would have 
found that the bear was threatened if we had not considered the 
possibility of future actions. As a result, the Court remanded the case 
to the Service, ordering us to examine only regulatory mechanisms that 
are currently being undertaken and enforced, clarify our finding 
regarding the regulations upon which we based our decision, and to 
determine whether the inadequacy of existing regulatory mechanisms 
warranted listing the black bear as a threatened species.
    Pursuant to the Court's order, we are providing our reexamination 
of the regulatory mechanisms being undertaken and enforced at the time 
of our 1998 finding. Regulatory mechanisms that are mentioned in the 
``Summary of Factors'' section below as part of our reexamination were 
in effect in 1998. However, we describe the regulatory mechanisms in 
the present tense because we have been asked by the court to make a 
current reexamination. We have also included as footnotes, separate 
from our court-ordered reexamination, updates on several regulatory 
mechanisms that have been revised since 1998 in an effort to provide 
the best available information regarding protections for the Florida 
black bear. Based upon this review, we have determined that the 
existing regulatory mechanisms are not inadequate so as to warrant 
listing the Florida black bear under the ESA.

Summary of Factors Affecting the Species

    Section 4(a)(1) of the ESA and its implementing regulations (50 CFR 
Part 424) set forth the procedures for listing species as endangered or 
threatened. They provide that a species may be determined to be 
endangered or threatened if one or more of the following five factors 
is met:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range.
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes.
    C. Disease or predation.
    D. The inadequacy of existing regulatory mechanisms.
    E. Other natural or manmade factors affecting its continued 
    As stated above, the Court upheld the analyses and conclusions from 
our 1998 12-month finding regarding factors A, B, C, and E. (See 63 FR 
67613 for our discussion of factors A, B, C, and E and their 
application to the Florida black bear).
    Factor D. The inadequacy of existing regulatory mechanisms. As 
directed by the Court, the sole purpose of this reexamination is to 
clarify our previous discussion of the applicability of factor D to the 
Florida black bear. Specifically, we were directed to explain the 
regulations upon which we based our decision and to reexamine whether 
the inadequacy of existing regulatory mechanisms--i.e., those being 
implemented and enforced at the time of the 1998 finding--warrants 
listing the bear as a threatened species.

[[Page 2102]]

    In order to conclude that the bear warrants listing under factor D, 
we have to find that existing regulatory mechanisms that relate to, or 
otherwise affect, the protection and management of bears and bear 
habitat are inadequate because they actively allow or encourage, or at 
minimum do not prevent, levels of direct take (i.e., mortality rates), 
habitat loss, and/or habitat degradation from reaching a point that the 
bear would be in danger of extinction or likely would become in danger 
of extinction within the foreseeable future throughout all or a 
significant portion of its range. In other words, we would need to 
document that existing core bear populations at Okefenokee National 
Wildlife Refuge (NWR)--Osceola National Forest (NF), Apalachicola NF, 
Ocala NF, and Big Cypress NF, in the States of Florida and Georgia, 
either are not viable or likely would become so over the foreseeable 
future because of the inadequacy of existing regulatory mechanisms. 
With this in mind, it also is important to recognize that it would not 
be appropriate for us to list the species merely because existing 
regulatory mechanisms either do not actively improve the bear's status 
(either by increasing the number of bears, the acreage of bear habitat 
or by improving habitat quality) or do not prevent all negative effects 
of human activities.
    Existing regulatory mechanisms that relate to the direct take of 
the Florida black bear include those that prohibit the taking of 
wildlife, provide specific protection to the bear, and regulate legal 
hunting. The States of Georgia and Florida, the Service, U.S. Forest 
Service (USFS), and National Park Service (NPS) all prohibit the taking 
of wildlife, game species, and their dens on lands under their 
jurisdictions unless a specific permit is issued allowing such take, or 
an open season, bag limit and methods of take are designated by 
regulation (16 U.S.C. 668dd, 36 CFR 2.2, 36 CFR 261.8, 50 CFR 27.21, 50 
CFR 27.51, Fla. Admin. Code [FAC] 62D-2.014(10), FAC 68A-4.001, 
Official Code of Georgia [OCG] 27-1-3, OCG 27-1-30). Law enforcement 
officers from each of these agencies are authorized to regulate take 
and regularly enforce all laws and regulations relating to wildlife (16 
U.S.C. 668dd(g), 32 CFR 190, 36 CFR 241.1, Fla. Statutes [FS] 372.07, 
FS 372.9906, FAC 68A.3.002, OCG 27-1-18, OCG 27-1-20). In both Florida 
and Georgia, the sale, purchase, or transportation of bears or bear 
parts are prohibited (FAC 68A-4.004, FAC 68A-12.004(12), OCG 27-3-26). 
These State laws and regulations, along with all others regulating the 
taking of bears, complement the Lacey Act (16 U.S.C. 3372), which 
prohibits the import, export, transport, sale, or purchase in 
interstate commerce of any wildlife taken, possessed, transported, or 
sold in violation of any State law or regulation; thus, Federal law 
protects against the illegal trade of bears or bear parts (e.g., gall 
bladders and claws) that cross State lines. Moreover, we again point 
out that illegal take is currently not believed to be a significant 
problem affecting any Florida black bear population (63 FR 67617, 
Kasbohm and Bentzien 1998).
    Additional protection is provided to bears under specific State 
laws. In Georgia, OCG 27-3-26 prohibits the killing of a bear except 
during an open hunting season (maximum authorized open season is 
defined as September 15 to January 15, OCG 27-3-15) or by authorization 
of the Georgia Department of Natural Resources (Ga. DNR). The Florida 
Administrative Code lists the bear as threatened (FAC 68A-27.004) 
except in Baker and Columbia counties and in the Apalachicola NF; this 
designation prohibits the intentional killing, wounding, taking, 
possession, transportation, molestation, harassment, or sale of the 
species unless specifically authorized by a permit issued by the 
Commission (FS 372.0725, FAC 68A-27.004). By regulation (FAC 68A-
27.004), Commission permits allowing the taking of a threatened species 
or their nests/dens are issued only for scientific or conservation 
purposes and only if the permitted activity will not have a negative 
impact on the survival potential of the species. Enforcement of these 
protections is aided in Florida by the establishment and implementation 
of the Commission's Endangered and Threatened Species Reward Program 
that continues to provide incentives for individuals to report the 
illegal killing, wounding, or possession of bears (FS 372.073, FAC 68A-
27.006). Despite lack of threatened designation, bears in Baker and 
Columbia counties and in the Apalachicola NF remain protected by 
general State and Federal laws and regulations noted above that 
prohibit the taking of wildlife.
    Florida and Georgia also regulate the ability of landowners to 
remove nuisance bears or bears damaging private property. In Florida, a 
landowner cannot remove a bear damaging personal property until a 
permit has been issued by the Commission (FAC 68A-12.009(2)). 
Landowners in Georgia must petition the Ga. DNR to remove bears 
threatening property (OCG 27-3-21). The DNR must investigate such 
claims and cannot remove the animal unless it finds the removal is 
justified. In both States, nuisance bear policies have been developed 
and implemented to deal with a wide variety of bear-human interactions 
including property damage complaints (Commission 1990 \1\, Ga. DNR 
1996). Both States mandate that wildlife personnel first provide 
technical assistance to allow effective preventative measures (such as 
electric fences around apiaries, i.e., bee yards) to be put in place. 
Only if problems continue after preventative measures are employed will 
the State capture and relocate the offending bear. Only on rare 
occasions are these nuisance animals destroyed, and neither State 
allows the public to remove or kill these animals directly (Commission 
1990; OCG 27-3-21; W. Abler, Ga. DNR, pers. comm.). It also should be 
noted that, on many public lands within the occupied habitat of the 
Florida black bear, policies have been adopted that minimize the 
likelihood of conflicts between bears and beekeepers; for example, the 
Florida Division of Forestry prohibits apiaries on Seminole State 
Forest because of its large bear population and requires the use of 
electric fences to bear proof apiaries on all State forests that have 
bears (State Forest Handbook [SFH] 6.6.1). These regulations and 
policies help prevent bear-human conflict and ultimately the 
indiscriminate killing of bears, either illegally or by the States.

    \1\ The Commission's nuisance bear policy was revised April 30, 
2001. The revised policy provides similar guidance as that given in 
1990, but specifies in more detail the responses of the Commission 
to nuisance complaints including providing procedures for the 
euthanasia of bears that have been captured at least twice following 
serious conflicts with humans (e.g., killing of livestock or a 
threat to human safety).

    To date, we consider the legal hunting of bears not to be a threat 
to the Florida black bear (57 FR 598, 63 FR 67616). Nevertheless, 
hunting can affect bear populations, and adequate regulation of the 
activity is essential to ensure that it does not lead to population 
declines that could threaten the species in the future. In Florida, the 
Commission regulates hunting under authority of Article IV, Section 9 
of the Florida Constitution and FAC 68A-1.002. In 1993, the Commission 
removed the species from the list of game animals (FAC 68A-1.004), 
ending all legal bear hunting. Likewise, because the Federal agencies 
that manage Federal lands in Florida are required to allow hunting only 
in accordance with State laws and regulations (10 U.S.C. 2671, 16 
U.S.C. 668dd, 16 U.S.C. 670h, 16 U.S.C. 698j, 32 CFR 190, 36 CFR 2.2, 
36 CFR 7.86(e), 36 CFR 241.2, 50 CFR 32.2, 50 CFR

[[Page 2103]]

32.3), hunting is prohibited on these lands as well. Because four 
healthy and secure Florida bear populations (including a significant 
portion of the Okefenokee NWR--Osceola NF population that extends into 
south Georgia) occur under the jurisdiction of the Commission and these 
Federal lands, and because no biological evidence exists that 
demonstrates that hunting is either a threat to the bear or that it is 
being inappropriately managed by the State, no additional regulation is 
warranted regarding take associated with hunting in Florida.
    In Georgia, as regulated by the DNR under OCG 27-1-3(a) and OCG 27-
1-4, bears remain designated a game species (OCG 27-1-2(34)) and are 
hunted in a 3-day season in Dixon Memorial Wildlife Management Area 
(Ga. Comp. R. & reg. [GCRR] 391-4-2-.70) and a six-day season in a 
five-county area (GCRR 391-4-2-.64(2)) surrounding, but not in, 
Okefenokee NWR where bear hunting is prohibited (50 CFR 32.29). Georgia 
laws and regulations allow a bag limit of one bear per hunter per year 
(GCRR 391-4-2-.10(4)) and prohibit the killing of females with cubs or 
cubs weighing less than 75 pounds (OCG 27-3.1.1 and GCRR 391-4-
2-.64(3)). Georgia DNR manages the hunt under a bear management plan 
(Ga. DNR 1984); goals in the plan include maintaining a harvest rate of 
less than 15% with a sex ratio being equal or primarily composed of 
males, holding ages of harvested females to 3.5 years or older, 
requiring the checking of killed bears at DNR check stations, and the 
collection of a variety of biological data from killed bears needed to 
make these determinations.\2\ Pursuant to the management plan, Georgia 
DNR actively monitors the hunt; requires all killed bears to be 
reported to a check station where basic biological information 
including sex, age, and body condition are recorded (OCG 27-3.1.1, GCRR 
391-4-2-.10(5), and GCRR 391-4-2-.64(2)); and has adjusted the season 
to meet harvest goals and ensure population viability. Bear hunting in 
Dixon Memorial Wildlife Management Area was closed in 1990 after 
monitoring indicated that females were being harvested above management 
plan goals (Ga. DNR 1990, Carlock 1992). Bear hunting in Dixon Memorial 
Wildlife Management Area was reopened in 1998. No detrimental effects 
to the bear population are evident. The Ga. DNR continues to monitor 
and regulate bear hunting in this area as per its bear management plan. 
These actions establish that Ga. DNR's approach to managing the bear 
hunt provides effective regulatory means to prevent hunting from 
becoming a threat to the Okefenokee population in the future.

    \2\ The Georgia DNR approved a revised bear management plan on 
April 8, 1999. The plan specifies similar harvest goals including a 
maximum harvest rate of 20%, no more than 50% of the harvest 
composed of females, and an average age of harvested females held at 
or above 3.75 years. The plan continues to provide for close 
monitoring and accurate data collection to insure goals are met 
without detrimental impacts to the Okefenokee bear population.

    Because of the significant protections provided by, and the level 
of enforcement of, the existing laws, regulations, and policies 
described above, and considering the current low levels of threat as 
demonstrated by a lack of significant take of bears from sources 
including hunting and illegal kill, we concluded in 1998, and conclude 
again now, that existing regulatory mechanisms are adequate to protect 
the bear from direct take.
    In addition to having adequate protections from take, in order to 
conclude that the species is not and will not become threatened, 
sufficient quantity and quality of bear habitat also must remain 
available to the four core bear populations at Okefenokee NWR--Osceola 
NF, Big Cypress National Park, Ocala NF, and Apalachicola NF, and to a 
lesser extent, at Eglin Air Force Base. Existing regulatory mechanisms 
that are relevant to habitat include laws, regulations, and agency 
policies that lessen or prevent the development of bear habitat on 
private lands, and that ensure the management of public lands is at a 
minimum compatible with, although not necessarily actively directed at, 
maintaining viable bear populations. These must be considered in the 
context of the bear's current widespread distribution across its 
historic range, its large population size, and the large quantity of 
protected habitat available to the species in each of the four core 
populations, as well as current levels of habitat loss on private lands 
that we do not believe will cause the species to become endangered in 
the foreseeable future (63 FR 67614-16, Kasbohm and Bentzien 1998).
    Provisions of section 404 of the Clean Water Act (33 U.S.C. 1344) 
and its implementing regulations (33 CFR 320.4, 40 CFR 230.10), which 
require the Army Corps of Engineers (Corps) and the Environmental 
Protection Agency (EPA) to regulate activities affecting the ``waters 
of the United States,'' protect wetland habitats important to the bear 
throughout its range. Although the Corps is not specifically required 
to consult with the Service regarding the species as it would if the 
bear were federally listed, adverse effects of wetland dredge and fill 
proposals are evaluated through a public interest test that includes a 
determination of the impacts of permit issuance to wildlife and 
wildlife habitat generally. Such permits cannot be issued if the 
activities would cause a significant degradation to the waters of the 
United States, including significant adverse effects to wildlife, and 
may be vetoed by the EPA (40 CFR 230.10). Both the Service and State 
wildlife agencies must be consulted regarding the effects of projects 
and retain the opportunity to review and provide comments on the 
effects on wildlife, including the bear (16 U.S.C. 662, 33 CFR 320.4). 
These coordination requirements are especially relevant to private 
lands in Florida (except those in Baker and Columbia counties) because 
the species is listed as threatened by the Commission.
    Permit reviews have resulted in modifications to projects, habitat 
protection, and compensatory mitigation to offset project impacts to 
wetlands. Fifteen wetland mitigation banks were active by 1998 in 
Florida that help compensate development impacts to wetlands.\3\ 
Further, FS 373.4137 requires the Florida Department of Transportation 
(DOT) to mitigate for each acre of wetlands impacted by transportation 
projects and to provide $75,000 per acre (adjusted annually by the 
percentage change in the Consumer Price Index) to the Florida 
Department of Environmental Protection (DEP) to pay for these 
activities. The Florida legislature mandated the transfer of $12 
million to initiate this program in 1996 (FS 373.4173(4)(d)).

    \3\ As of October, 2002, 27 mitigation banks had been permitted 
in the State of Florida; several of these including the Panther 
Island, Big Cypress and Treyburn/Collier banks provide habitat that 
benefits bears.

    In areas where federally listed species also depend on habitats 
used by bears and that may be affected by the issuance of section 404 
permits, review and consultation requirements of the ESA provide 
additional scrutiny of 404 permit applications that can result in 
indirect habitat protection for the bear through development of habitat 
mitigation measures or project modifications. For example, permit 
reviews within the range of the endangered Florida panther in and 
around Big Cypress NP have resulted in benefits to bears. The 
installation of 24 wildlife crossings/underpasses during the 
construction of I-75 through the habitat of the Big Cypress bear 
population not only prevented vehicle-caused panther deaths, they also 

[[Page 2104]]

had the benefit of preventing road mortalities and maintaining 
population connectivity for this bear population as well (Foster and 
Humphrey 1995, Gilbert and Wooding 1996, Lotz et al. 1996).
    Threatened status under Florida law provides additional 
protections; because the bear is State-listed, its needs must be 
considered in several types of State regulatory decisions regarding 
development. Two applicable regulatory programs provide direct habitat 
protections for bears. The most important of these are the 
Environmental Resource Permitting (ERP) program and, to a lesser 
extent, the required State review of Developments of Regional Impact 
(DRI) proposals. Through the ERP program, the Water Management 
Districts (Districts) and DEP regulate developments and projects that 
impact water resources of the State, including wetlands. Florida law 
requires all activities resulting in dredge and fill of wetlands 
(including isolated wetlands) to be reviewed and permitted by the 
Districts or DEP (FS 373.118, 373.413, 373.416, 373.426, 373.414). 
Permits cannot be issued if the activity is determined to adversely 
impact the value and functions of wetlands or to be contrary to the 
public interest; impacts to State-listed species, including impacts to 
their abundance, diversity, or habitat, are specifically evaluated in 
both standards (FAC 40B-400.103, 40B-400.104, 40C-4.301, 40C-4.302, 
40D-4.301, 40D-4.302, 40E-4.301, 40E-4.302, 62-330.200). Furthermore, 
secondary impacts also must not affect the ecological value of uplands 
to wetland-dependent listed species (including the bear) for enabling 
existing denning of the species (FAC 40B-400.103, 40C-4.301, 40D-4.301, 
40E-4.301, 62-330.200). To be permitted, impacts must either be avoided 
or offset through appropriate mitigation (FS 373.414). The Commission, 
through the Office of Environmental Services, is provided the 
opportunity to submit comments and recommendations to the District and 
DEP regarding the impacts of wetland permit proposals on wildlife and 
State-listed species. As noted above, at least 15 wetland mitigation 
banks, several located in bear habitat, were available in Florida by 
1998 to help offset development impacts to wetlands. The legal 
requirement for the DOT to provide funding for wetland mitigation per 
acre of impact applies to the ERP permitting program as well (FS 
    Development proposals in Florida that will affect more than one 
county and that meet certain threshold standards are required to 
undergo a DRI review by the Department of Community Affairs (DCA) to 
determine their impacts (FS 380.06). DCA guidelines and criteria for 
DRI reviews specifically require a determination as to whether a 
significant impact to State-listed species will result from the project 
and the identification of appropriate mitigation for any unavoidable 
impacts (FAC 9J-2.041). A significant impact and appropriate mitigation 
to a listed species are specified in a written recommendation from the 
Commission's Office of Environmental Services (FS 380.06, FAC 9J-
2.041). These recommendations regarding listed species must be included 
in a report to the local government responsible for deciding whether 
such projects will be approved (FS 380.06, FAC 9J-2.041). While the 
local government and DCA ultimately can decide to ignore in whole or in 
part the recommendations made by the Commission (FS 380.06), the 
recommendations ensure that the needs of the bear are considered in 
large-scale developments and therefore can result in preservation and 
mitigation of at least some bear habitat that otherwise might be lost. 
Furthermore, lack of implementation of Commission recommendations in 
the DRI review does not circumvent any other required State or Federal 
authorizations, including ERP or section 404 wetland permits, which 
still must be acquired before a development occurs.
    In certain areas of Florida, special provisions have been enacted 
to provide additional habitat protection for State-listed species. 
Florida Statute sections 369.305 and 369.307 established the Wekiva 
River Protection Area south of the Ocala NF in an area of important 
bear habitat. This designation, coupled with a mandate to the St. 
John's River Water Management District to promulgate rules establishing 
a protection zone adjacent to the watercourses in the Wekiva River 
system (FS 373.415), have resulted in specific regulatory guidelines 
and restrictions that provide an additional level of protection for 
wetlands and wetland-dependent species, including the bear. Regulations 
provide for strategic local and regional planning, development 
restrictions intended to retain a rural setting, and land acquisition 
(FS 369.305, 369.307, FAC 40C-41.063). Specifically, the District has 
designated a Riparian Habitat Protection Zone consisting of wetlands 
and uplands that can benefit bears (up to 550 feet landward of forested 
wetlands) abutting the Wekiva River, Little Wekiva River, Rock Springs 
Run, Black Water Creek, Sulphur Run, and Seminole Creek (FAC 40C-
41.063). Permit applicants must provide assurances that developments 
will not adversely affect the abundance, food sources, or habitat of 
wetland-dependent species provided by the zone. Within the zone, 
construction of buildings, golf courses, impoundments, roads, canals, 
ditches, swales and land clearing are presumed to have adverse effects 
(FAC 40C-41.063).
    Since the 1970s, several Florida statutes have provided 
authorization and funding to various State agencies to acquire land for 
the protection of wildlife habitat and listed species. These programs, 
especially the Conservation and Recreation Lands Trust Fund enacted in 
1979 (FS 259.032) and the Florida Preservation 2000 Trust Fund enacted 
in 1990 (FS 259.101, 375.045) have benefited bears and may have been 
the most valuable means of ensuring the protection and preservation of 
bear habitat on private lands in Florida. From 1992 to 1998, publicly 
protected bear habitat increased by an estimated 1,500 km\2\ (374,000 
ac) as a direct result of deliberate attempts within these Florida land 
acquisition programs to secure wildlife habitat across the State. Much 
of this area was adjacent to core bear populations at Apalachicola NF, 
Ocala NF, Big Cypress NP, and Okefenokee NWR--Osceola NF, and has been 
identified by the Commission (Cox et al. 1994) as black bear strategic 
habitat conservation areas. In fact, the identification of bear habitat 
by the Commission often has been used to elevate the priority of 
acquisition projects (FL DEP 1997). Florida continues to emphasize land 
acquisition to meet a variety of environmental and wildlife related 
objectives.\4\ The currently available acreage of public lands, coupled 
with the private lands that will remain as bear habitat, are sufficient 
to provide for viable bear populations in the four core areas as noted 
in our 1998 finding (63 FR 67613-18).

    \4\ The Florida Forever Act (FS 259.105) and the Florida Forever 
Trust Fund (FS 259.1051) were enacted in 1999, continuing funding 
for land acquisition similar to Preservation 2000. Since 1998, at 
least 320,000 acres of additional bear habitat have been acquired in 
Florida. Considering the effective record of purchases over the last 
decade, and continued statutory appropriations for funding for these 
programs, it is reasonable to conclude that future acquisitions will 
continue to expand public lands and provide additional security to 
bear populations in Florida.

    Nevertheless, bear habitat protection cannot be assured if public 
lands under

[[Page 2105]]

State and Federal ownership are not managed in a manner compatible with 
maintaining a viable bear population. In order to appropriately 
consider public land management and its impacts to bears, the habitat 
requirements of the bear must be considered. The Florida black bear is 
a habitat generalist; although it depends on forested habitats, it 
prospers in a variety of forest types including forested wetlands, 
bottomland hardwoods, pine flatwoods, and other habitats typically 
found on public lands throughout their occupied range. Key habitat 
features are tied more to maintaining large, relatively undeveloped 
forest communities with a juxtaposition of a variety of habitat types 
that provide a diverse seasonal food base and sufficient cover, rather 
than habitat management practices or strategies directed specifically 
at bears or one habitat component (Maehr and Wooding 1992). Hence, 
appropriate management of public lands relative to black bears includes 
land management practices that ensure long-term maintenance of a 
variety of forest cover types and successional stages and, most 
importantly, that prevent conversion of these habitat types to 
nonforest uses through development and urbanization.
    Key regulatory mechanisms that provide for continued forested 
habitat types for bears are Federal and State laws, regulations, and 
policies that govern the management and management planning on public 
lands. The important public lands providing for viable populations 
include 4,668 km\2\ (1,153,583 ac) in the National Forests in Florida 
(Apalachicola, Ocala, and Osceola NFs) administered by the USFS, 1,967 
km\2\ (486,079 ac) in National Wildlife Refuges (Okefenokee, Florida 
Panther, and St. Marks NWRs) administered by the Service, a 2,916 km\2\ 
(720,440 ac) NPS unit (Big Cypress NP), a 1,878 km\2\ (464,000 ac) 
Department of Defense installation (Eglin AFB), and about 3,850 km\2\ 
(950,000 ac) distributed among numerous State lands owned and 
administered by the Florida Board of Trustees of the Internal 
Improvement Trust Fund, the Florida Division of Forestry, the Florida 
Division of Parks and Recreation, and Florida's Water Management 
Districts (primarily the St. Johns River WMD, South Florida WMD and the 
Suwannee River WMD). Each of these agencies is required by statute to 
conserve wildlife species and their habitats as important uses or 
components of resource management programs (16 U.S.C. 1, 528 et seq., 
668dd(a), 670 et seq., 1601(d); FS 253.034, 253.036, 258.037). 
Furthermore, to assure that these mandates are carried out, Congress 
and the Florida legislature have enacted specific natural resource 
planning requirements that direct the management and uses of these 
public lands. In many cases such requirements are not explicitly 
directed at protection of Florida black bear habitat; however, in order 
for the Service to conclude that such requirements are adequate 
regulatory mechanisms compatible with and beneficial to the species, 
agency plans and active land management programs do not need to 
specifically address the needs of or impacts to the bear as long as the 
resultant management does not threaten the species with extinction. 
Furthermore, as long as these agencies follow existing mandates 
required by law, appropriate forested habitats will be maintained for 
bears throughout the foreseeable future. Regulatory mechanisms, 
including laws, regulations and policies, in effect at the time of our 
1998 finding pertaining to the agencies responsible for the management 
of public lands supporting the core Florida black bear populations are 
discussed below.
    1. The Department of the Interior, through the NPS, must promote 
and regulate the use of national parks and preserves to conserve the 
scenery and the natural and historic objects and the wildlife therein 
in an unimpaired state (16 U.S.C. 1) and must administer Big Cypress NP 
to assure the natural and ecological integrity of the Big Cypress 
watershed (16 U.S.C. 698f, 698i). The General Management Plan (GMP) for 
Big Cypress NP was approved in 1991 (NPS 1991). Although the GMP does 
not specifically address black bears in terms of direct management, its 
goals included the preservation of the watershed and its natural flora 
and fauna through prescribed burning, the control of exotic plants, and 
the restoration of hydrology. These habitat goals and the results of 
the implementation of the GMP since 1991 have been consistent with the 
overall purposes of a unit of the National Park System and the 
legislative mandate behind the creation of Big Cypress NP and, thus, 
have maintained and will continue to maintain appropriate forested 
habitats for bears that will help ensure the species' perpetuation in 
south Florida.
    2. The Department of the Interior, through the Service, administers 
the National Wildlife Refuge (NWR) system. The system is a national 
network of lands and waters for the conservation, management, and, 
where appropriate, restoration of the fish, wildlife, and plant 
resources and their habitats within the United States (16 U.S.C. 
668dd(a)). Individual NWRs are established with a mandate to restore, 
preserve, develop, and manage wildlife and habitat (50 CFR 25.11) to 
perpetuate a diversity of viable wildlife populations including big 
game such as bears (Fish and Wildlife Service Manual [FWM] 6 RM 3.3, 
FWM 7 RM 7). The National Wildlife Refuge Improvement Act of 1997 
(NWRIA, 16 U.S.C. 668 et seq.) requires a comprehensive conservation 
plan (CCP) be developed for each NWR. The CCP must identify and 
describe the wildlife and related habitats in the refuge and the 
actions needed to correct significant problems that may adversely 
affect wildlife populations and habitat (16 U.S.C. 668dd(e)). Planning 
also must consider alternatives and the impacts each has to wildlife 
(FWM 620 FW 1). Forest management on each NWR must be consistent with 
approved plans and cannot occur until planning is complete and 
management prescriptions are approved (FWM 6 RM 3.4). Because the NWRIA 
was not enacted until 1997, the NWRs providing habitat for the Florida 
black bear had not completed the CCP planning process by the time of 
our 1998 finding. However, Okefenokee, Florida Panther, and St. Marks 
NWRs had at that time approved habitat and/or fire management plans 
(U.S. Fish and Wildlife Service 1987, 1989, 1998) that remain valid 
until completion of their CCPs.\5\ These approved plans in existence in 
1998 required active prescribed burning and forestry programs 
beneficial to native species including bears. Management of these 
refuges adheres to national legal and policy mandates and, hence, have 
maintained and will continue to help maintain viable bear populations 
at Okefenokee NWR-Osceola NF, Apalachicola NF, and Big Cypress NP.

    \5\ The Comprehensive Conservation Plan for Florida Panther NWR 
was completed in March 2000. Overall goals include restoration, 
conservation, and monitoring of native flora and fauna, especially 
for providing habitat for the Florida panther. These goals continue 
to require the use of active prescribed fire and timber/habitat 
management programs that are beneficial to the bear.

    3. National Forests are to be administered by the Department of 
Agriculture through the USFS for a number of equally important 
purposes, including fish and wildlife, in a manner that does not impair 
the land's productivity (16 U.S.C. 528 et seq.) and that maintains 
forest cover characteristics to secure the maximum benefits of these 
uses (16 U.S.C. 1601(d)). In addition, the USFS has the specific 
mandate to maintain viable populations of native species (36 CFR 
219.19, Forest Service Manual [FSM]

[[Page 2106]]

2672.32). The National Forest Management Act (NFMA, 16 U.S.C. 1600 et 
seq.) fosters compliance with these directives by requiring the 
development and implementation of resource management plans for each 
unit of the National Forest system. Such plans provide for multiple use 
and sustained yield of products and services, but also must include 
coordination of wildlife with other forest uses that will ensure a 
diversity of plant and animal communities, wildlife protection, and 
monitoring and assessment of the effects of management (16 U.S.C. 
1604). USFS regulations and policies implementing the NFMA further 
require national forests to be managed to ensure the viability of 
populations of native species (36 CFR 219.19). Plans must identify, 
evaluate the effects of proposed management on, and provide for the 
monitoring of indicator species and their habitats (36 CFR 219.19; FSM 
2620.3, 2621.4, 2621.5). Goals, standards, prescriptions, and 
appropriate mitigation needed to meet goals for indicator species must 
be specified (FSM 2621.4). Following completion of the plan, proposed 
actions and site-specific management prescriptions cannot be conducted 
until a biological evaluation is completed that documents and 
determines the effects of proposed activities on listed and sensitive 
species and that will ensure that no loss in viability will occur (FSM 
2670.32, 2672.4, 2672.32).
    A management plan for the National Forests in Florida was completed 
in 1985 meeting the requirements of the NFMA and its implementing 
regulations and policies as described above (U.S. Forest Service 
1985a). This plan was the basis for forest management at the time of 
our 1998 finding. Revision of the plan was underway at that time as 
well, and was setting the direction for future management of these 
national forests. In both the 1985 plan and draft revised plan (U.S. 
Forest Service 1997a) \6\, the USFS detailed its management goals and 
prescriptions. The Florida black bear was identified as both a 
management indicator species and a sensitive species, ensuring that 
evaluations of the impacts of site-specific actions and prescriptions 
to this species would be conducted. During the planning process, 
evaluations of the impacts of the plans to bears and bear habitat were 
considered (U.S. Forest Service 1985b, 1997b, 1998a, 1998b). The USFS 
has conducted over the years, and continues to implement: (1) 
Prescribed burning practices that have shifted to a preference for 
growing-season fires beneficial to native species, (2) timber 
management including thinning of pine plantations, (3) uneven-age 
timber management, (4) retention of hardwoods for mast production, (5) 
the protection of wetland habitats to provide escape cover and travel 
corridors for bears, (6) road closures, (7) land acquisition, and (8) 
restrictions on visitor uses including a reduction in motorized vehicle 
access. These management actions are not only compatible with bears but 
also directly improve conditions for the species by ensuring a 
diversity of habitats that provide sufficient cover and a diverse 
seasonal food supply.

    \6\ The final Revised Land and Resource Management Plan for the 
National Forests in Florida and its EIS were approved in February 
1999. The plan continues to identify the bear as a management 
indicator species. Its approval finalized the USFS approach to 
management and monitoring of these forests as specified in the draft 
plan and as noted above.

    USFS' annual monitoring of its adherence to the 1985 plan 
demonstrates achievement of planned management actions that provide for 
the needs of bears. In 1998, the USFS estimated that actions planned to 
improve wildlife habitat, implement road closures, conduct prescribed 
burns, and complete land acquisition projects had achieved 116%, 197%, 
145% and 8,583%, respectively, of the levels directed in the 1985 plan 
(U.S. Forest Service 1998c). Considering past stewardship of the 
National Forests in Florida under the direction of the 1985 plan and 
the positive status bears have achieved on these forests since that 
time (Kasbohm and Bentzien 1998), we had in 1998, and still have, every 
reason to believe that the revised plan will be carried out in a 
similar manner pursuant to the legal mandates of the NFMA and Forest 
Service policies. Furthermore, national forest management as identified 
in the revised plan should continue to maintain quality forested 
habitats that will directly ensure viability for three of the four core 
Florida black bear populations through the foreseeable future.
    4. The Department of Defense (DOD), including the Air Force, must 
conserve and maintain native ecosystems, viable wildlife populations, 
Federal and State listed species, and habitats as vital elements of its 
natural resources management programs on military installations, to the 
extent that these requirements are consistent with the military mission 
(32 CFR 190.4; Dept. of Defense Instruction [DODI] 4715.3 Ch 6.2.2; Air 
Force Instruction [AFI] 32-7064 Ch 2.2, 7). Amendments to the Sikes Act 
(16 U.S.C. 670 et seq.) enacted in 1997 require each military 
department to prepare and implement an integrated natural resource 
management plan (INRMP) for each installation under its jurisdiction. 
The plan must be prepared in cooperation with the Service and the State 
fish and wildlife agency and must reflect the mutual agreement of these 
parties concerning conservation, protection, and management of wildlife 
resources (16 U.S.C. 670a(a)). Each INRMP must provide for wildlife, 
land and forest management, wildlife-oriented recreation, wildlife 
habitat enhancement, wetland protection, sustainable public use of 
natural resources that are not inconsistent with the needs of wildlife 
resources, and enforcement of natural resource laws (16 U.S.C. 
670a(b)). The sale or lease of land, or the sale of forest products, 
are prohibited unless the effects of the sale or lease are compatible 
with the purposes of the INRMP (16 U.S.C. 670a(c)). DOD regulations 
mandate that resources and expertise needed to establish and implement 
an integrated natural resource management program are maintained (32 
CFR 190.5). These regulations further define the IRNMP requirements and 
mandate that plans be revised every five years and that they ensure 
that military lands suitable for management of wildlife are actually 
managed to conserve wildlife resources (32 CFR Part 190, Appendix). 
Proposed activities and projects on installations with approved INRMPs 
cannot begin unless they are determined to be compatible with the plan 
through an environmental impact analysis that considers wildlife 
resources and State and Federally listed species (32 CFR Part 190, 
    To implement these mandates, the DOD and the Air Force have issued 
policies that require installations to maintain an inventory of listed 
species and their habitats, and to coordinate with the State wildlife 
agency to ensure the INRMP agrees with State management of wildlife 
(AFI 32-7064 Ch 7, DODI 4715.3 ch 4.2). The Air Force has specifically 
directed that its facilities provide the same level of protection to 
State-listed species as those with Federal protection under the ESA 
(AFI 32-7064 Ch 7). In addition, forestry and agricultural operations 
must be balanced with and used to achieve or maintain the needs of 
listed species protection and wildlife enhancement (DODI 4715.3 Ch 4.2, 
AFI 32-7064 Ch 8).
    The natural resource management program at Eglin AFB has complied 
with these mandates and directives. The AFB's Natural Resources 
Management Plan (Dept. of the Air Force 1993) was approved in 1993 and 
was under

[[Page 2107]]

revision to meet the 1997 Sikes Act amendments requirements at the time 
of our 1998 finding. We noted in 1998 that ongoing management actions 
included maintenance of habitat diversity, prescribed burning to 
maintain natural conditions, uneven aged forest management, restoration 
of longleaf pine habitat, and maintenance of riparian and forested 
wetlands (63 FR 67617); all of these actions were being implemented 
pursuant to the approved 1993 plan in 1998 when we made our finding and 
are continuing to provide bear habitat on Eglin AFB today. Although 
this population is not one of the four core populations that we 
concluded would maintain the species above a Federal listing threshold 
as dictated by the ESA (63 FR 67616), these actions help protect bears 
and maintain significant forested habitats for bears in the panhandle 
of Florida.
    5. State lands in Florida, although managed by several agencies, 
have similar management responsibilities related to wildlife and 
generally must be managed in an environmentally acceptable and 
sustainable manner to conserve and ensure the protection, survival, and 
viability of plant and animal species, especially native ecosystems and 
State-listed species (FS 253.034, 253.036, 258.037; FAC 62-402.070; SFH 
1.3, 5.3). All State lands must have an individual management plan, 
approved by the Board of Trustees of the Internal Improvement Trust 
Fund, that includes a description of how State-listed species will be 
identified, located, protected, and preserved (FS 253.034, FAC 40B-
9.122, 40C-9.110). These plans must be revised every five years; 
beginning in 1998, plan revisions must include a review of the 
management on the area by a team composed of individuals representing, 
among others, the managing agency, the Commission, and a conservation 
organization (FS 259.036, 373.591). The review team must determine 
whether previous management was in accordance with the existing plan 
and the purposes for which the land was acquired; the review also must 
include an evaluation of the extent to which the existing plan provides 
sufficient protection to State-listed species (FS 259.036). In addition 
to being consistent with management objectives, all uses of uplands on 
State lands cannot be contrary to the public interest and all direct 
and indirect impacts including those to wildlife values must be 
considered before the use can be authorized (FAC 18-2.018).
    By 1998, management plans that conformed to statutory requirements 
had been approved for all State lands important to the Florida black 
bear, including but not limited to: Apalachicola River WEA (Commission 
1997a), Aucilla WMA and Big Bend WMA (Commission 1998), Caravelle Ranch 
WMA (Commission 1997b), Collier-Seminole State Park (FL DEP 1998a), 
Fakahatchee Strand State Preserve (FL DEP 1994), the Wekiva Basin 
GEOpark (including Lower Wekiva River State Reserve and Rock Springs 
Run State Reserve; FL DEP 1998b), Blackwater River State Forest (FL DOF 
1994), Goethe State Forest (FL DOF 1993), Lake George State Forest (FL 
DOF 1998a), Picayune State Forest (FL DOF 1996a), Seminole State Forest 
(FL DOF 1995), Tates Hell State Forest (FL DOF 1998b), Tiger Bay State 
Forest (FL DOF 1998c), Withlacoochee State Forest (FL DOF 1996b), Heart 
Island Conservation Area (SJRWMD 1998), and Haw Creek Conservation Area 
(SJRWMD 1995). These plans acknowledge the presence of the Florida 
black bear and its threatened designation. Management practices 
identified in these plans that are being implemented include prescribed 
burning and forest management programs. Review teams have been convened 
and reviews conducted, including considering the needs of bears, as 
plans are revised.\7\ Consequently, we conclude that the above mandates 
for State land management in Florida, the resultant management plans, 
and the past and continued implementation of those plans were in 1998 
and continue to be compatible with maintaining viable populations of 
Florida black bears. We do not assume, nor do we believe it necessary, 
that every management goal or prescription identified in these plans 
has been or will be conducted. However, because the plans are required 
under State law, they should ensure the preservation of forested bear 
habitats on important State lands supporting the four core bear 

    \7\ Florida's land management agencies continue to meet legal 
requirements to revise and implement land management plans. Since 
1998, revised plans have been approved for Blackwater River State 
Forest (FL DF, December 19, 2000), Goethe State Forest (FL DOF 
August 21, 2000), Seminole State Forest (FL DOF, December 19, 2000), 
and Fakahatchee Strand State Preserve (FL DEP, December 19, 2000).

    6. The Wilderness Act of 1964 (16 U.S.C. 1131 et seq.) is relevant 
to our evaluation of the adequacy of existing regulatory mechanisms 
because it affects the management of federally administered public 
lands. It requires that all lands designated by Congress as Wilderness 
Areas be managed to preserve their wilderness character. Consequently, 
Federal agencies must manage these areas for native habitat types 
primarily through natural processes. Significant amounts of land that 
are important to Florida bear populations are designated wilderness and 
thus receive these protections, including 1,433 km\2\ (353,981 ac) in 
the Okefenokee NWR (with an additional 55 km\2\ (13,660 ac) in Osceola 
NF), 70 km\2\ (17,350 ac) on St. Marks NWR, two areas totaling 132 
km\2\ (32,692 ac) on Apalachicola NF, and four areas totaling 114 km\2\ 
(28,199 ac) on Ocala NF (16 U.S.C. 1132). In the range of the Florida 
black bear, these protections provide additional security for habitat 
on public conservation lands by ensuring that Wilderness Areas are 
maintained in forested and other native habitat types that directly 
support the species.
    We acknowledge that some bear habitat will be lost in the future on 
private lands and that existing wetland regulations and a lack of 
upland protections specific to bears do not provide complete protection 
to all existing habitat. However, because of the significant 
protections provided by, and the level of enforcement of, the existing 
laws, regulations, and policies described above, and considering the 
species widespread distribution on public and private lands at 
Apalachicola NF and Okefenokee NWR-Osceola NF, and public lands at 
Ocala NF, and Big Cypress NP, we concluded in 1998, and conclude again 
now, that existing regulatory mechanisms in 1998 that relate to habitat 
protection and management are adequate to maintain habitat of 
sufficient quantity and quality to ensure viable bear populations.


    In 1998 the Service reviewed the petition, status review, available 
literature, and other information relevant to the conservation status 
of the Florida black bear. After reviewing the best scientific and 
commercial information available, we concluded that the continued 
existence of the Florida black bear was not threatened by any of the 
five listing factors alone or in combination. Following a subsequent 
legal challenge, the U.S. District Court for the District of Columbia 
upheld our conclusions regarding the applicability of four of the five 
listing factors, but ordered the Service to clarify our conclusions 
regarding, and further determine whether, the inadequacy of existing 
regulatory mechanisms in 1998 warrants listing the bear. Pursuant to 
that order, we have reexamined the inadequacy of existing regulatory 
mechanisms being undertaken and enforced at the time of our 1998 
finding considering the laws, regulations, and policies that directly 
or indirectly

[[Page 2108]]

provide protection to the bear or its habitats. Based on this review, 
we conclude that the existing regulatory mechanisms applicable in 1998 
are not inadequate and do not warrant listing the Florida black bear.

References Cited

    A complete list of all references cited in this document is 
available from the Jacksonville Ecological Services Field Office (see 
ADDRESSES section).


    The primary author of this notice is Dr. John W. Kasbohm (see 
ADDRESSES section).


    The authority for this action is the Endangered Species Act (16 
U.S.C. 1531 et seq.).

    Dated: December 24, 2003.
Marshall P. Jones Jr.,
Acting Director, Fish and Wildlife Service.
[FR Doc. 04-690 Filed 1-13-04; 8:45 am]