[Federal Register Volume 86, Number 10 (Friday, January 15, 2021)]
[Proposed Rules]
[Pages 3976-3986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28978]



Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R5-ES-2019-0056; FF09E22000 FXES11130900000 201]
RIN 1018-BD65

Endangered and Threatened Wildlife and Plants; Reclassifying 
Furbish's Lousewort (Pedicularis furbishiae) From Endangered to 
Threatened Status With a Section 4(d) Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
reclassify (downlist) Furbish's lousewort (Pedicularis furbishiae) from 
an endangered species to a threatened species under the Endangered 
Species Act of 1973, as amended (Act), and we propose a rule under 
section 4(d) of the Act to promote the conservation of Furbish's 
lousewort. This information is based on a thorough review of the best 
available scientific and commercial information, which indicates the 
threats to the species have been reduced to the point that the species 
no longer meets the definition of an endangered species under the Act. 
We request information and comments from the public on this proposal.

DATES: We will accept comments received or postmarked on or before 
March 16, 2021. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. Eastern Time on the closing date. We must receive requests for a 
public hearing, in writing, at the address shown in FOR FURTHER 

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R5-ES-2019-0056, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the Search panel on the left 
side of the screen, under the Document Type heading, click on the 
Proposed Rule box to locate this

[[Page 3977]]

document. You may submit a comment by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail: Public Comments Processing, 
Attn: FWS-R5-ES-2019-0056; U.S. Fish and Wildlife Service, MS: PRB/3W, 
5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Public Comments, below, for more information).
    Document availability: This proposed rule and supporting documents 
including the 5-year review, the Recovery Plan, and the species status 
assessment (SSA) report are available at http://www.regulations.gov 
under Docket No. FWS-R5-ES-2019-0056, and at the Maine Ecological 

FOR FURTHER INFORMATION CONTACT: Project Leader, Maine Ecological 
Services Field Office, 306 Hatchery Road, East Orland, ME 04431; 
telephone 207-902-1567. Persons who use a telecommunications device for 
the deaf (TDD) may call the Federal Relay Service at 800-877-8339.


Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other concerned governmental agencies, 
Native American tribes, the scientific community, industry, or any 
other interested parties concerning this proposed rule.
    We particularly seek new information not already included in the 
species status assessment report concerning:
    (1) Reasons we should or should not reclassify Furbish's Lousewort 
(Pedicularis furbishiae) under the Act (16 U.S.C. 1531 et seq.).
    (2) New biological or other relevant data concerning any threat (or 
lack thereof) to this plant and existing regulations that may be 
addressing these or any of the threats described in this proposed rule 
or the species status assessment report.
    (3) New information concerning the population size or trends of 
Furbish's lousewort.
    (4) New information or data on the projected and reasonably likely 
impacts to Furbish's lousewort or its habitat associated with climate 
    (5) New information on planned development activities within the 
range of Furbish's lousewort that may adversely affect or benefit the 
    (6) Information on regulations that are necessary and advisable to 
provide for the conservation of Furbish's lousewort and that the 
Service can consider in developing a 4(d) rule for the species. In 
particular, information concerning the extent to which we should 
include any of the section 9 prohibitions in the 4(d) rule or whether 
any other forms of take should be excepted from the prohibitions in the 
4(d) rule.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is an endangered or threatened 
species must be made ``solely on the basis of the best scientific and 
commercial data available.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hard copy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hard copy submissions at http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection at http://www.regulations.gov.

Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. Requests must be received by the date specified 
in DATES. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this 
proposal, if requested, and announce the date, time, and place of the 
hearing, as well as how to obtain reasonable accommodations, in the 
Federal Register at least 15 days before the hearing. For the immediate 
future, we will provide these public hearings using webinars that will 
be announced on the Service's website, in addition to the Federal 
Register. The use of these virtual public hearings is consistent with 
our regulations at 50 CFR 424.16(c)(3).

Supporting Documents

    A species status assessment (SSA) team prepared an SSA report for 
Furbish's lousewort. The SSA team was composed of biologists from the 
Service and the State of Maine Natural Areas Program. The SSA report 
represents a compilation of the best scientific and commercial data 
available concerning the status of the species, including the impacts 
of past, present, and future factors (both negative and beneficial) 
affecting the species.
    In accordance with our July 1, 1994, peer review policy (59 FR 
34270; July 1, 1994), our August 22, 2016, Director's Memo on the Peer 
Review Process, and the Office of Management and Budget's December 16, 
2004, Final Information Quality Bulletin for Peer Review (revised June 
2012), we solicited independent scientific reviews of the information 
contained in the Furbish's lousewort SSA report. We solicited 
independent peer review of the SSA report by four individuals with 
expertise in Furbish's lousewort, botany, ice scour and flooding 
regimes of the St. John River, and landscape ecology; we received 
comments from three of the four peer reviewers. In addition, we 
received comments from the State of Maine and Canada. The SSA report 
can be found at http://www.regulations.gov under Docket No. FWS-R5-ES-
2019-0056, and on the Maine Ecological Services Field Office website 
at: https://www.fws.gov/mainefieldoffice/Furbish_lousewort.html. In 
preparing this proposed rule, we incorporated the results of these 
reviews, as appropriate, into the final SSA report, which is the 
foundation for this proposed rule.
    Because we will consider all comments and information we receive 
during the comment period, our final determinations may differ from 
this proposal. Based on the new information we receive (and any 
comments on that new information), we may conclude that the species is 
endangered instead of threatened, or we may conclude that the species 
does not warrant listing as either an endangered species or a 
threatened species. Such final decisions would be a logical outgrowth 
of this proposal, as

[[Page 3978]]

long as we: (1) Base the decisions on the best scientific and 
commercial data available after considering all of the relevant 
factors; (2) do not rely on factors Congress has not intended us to 
consider; and (3) articulate a rational connection between the facts 
found and the conclusions made, including why we changed our 

Previous Federal Actions

    Furbish's lousewort was listed as an endangered species on April 
26, 1978 (43 FR 17910). We completed a recovery plan in 1983 (USFWS 
1983) and revised it in 1991 (USFWS 1991). The revised recovery plan 
presented updated life-history and population information, and updated 
information on the threats to the species. A second revision recovery 
plan was signed on September 26, 2019 and on February 21, 2019, a 5-
year status review was completed (USFWS 2019b) and concluded that 
Furbish's lousewort should be downlisted to a threatened species under 
the Act.

I. Proposed Reclassification Determination


    A thorough review of Furbish's lousewort is presented in the SSA 
report (USFWS 2020), found at http://www.regulations.gov under Docket 
FWS-R5-ES-2019-0056, which is briefly summarized here.

Species Information

    Furbish's lousewort was first named and described in 1882 (Watson, 
S. 1882, entire) and is recognized as a valid taxon. A thorough review 
of the taxonomy, life history, and ecology of Furbish's lousewort is 
presented in the SSA report.
    Furbish's lousewort is an herbaceous perennial plant that occurs on 
the intermittently flooded, ice-scoured banks of the St. John River. It 
is endemic to Maine with a few, small subpopulations in northwestern 
New Brunswick, Canada. The population of Furbish's lousewort is 
comprised of 20 subpopulations associated with suitable habitat that 
occurs along portions of a 225-kilometer (140-mile) section of the St. 
John River. The plant is recognized early in the growing season by a 
basal rosette of fern-like leaves. By mid-summer, mature plants produce 
one or more flowering stems that grow to about 50 to 80 centimeters (20 
to 30 inches) in height. The stems have alternate, widely spaced, fern-
like leaves along their length and are topped by a tight cluster 
(inflorescence) of small, yellow, tube-like flowers that bloom only a 
few at a time. Furbish's lousewort has two distinct growth stages: 
Vegetative (immature, nonflowering) individuals that grow as a basal 
rosette of leaves and reproductive (flowering) plants.
    Furbish's lousewort does not spread clonally, and plants are 
established exclusively by sexual reproduction and seed (Stirrett 1980, 
p. 23; Menges 1990, p. 53). Flowering occurs at a minimum of 3 years 
once plants reach a certain size leaf area. Reproductive plants emerge 
in May and produce an average of 2 to 3 flowering stems; each stem has 
one or more inflorescences, and each inflorescence has up to 25 
flowers. Flowers bloom several at a time from about mid-July to the end 
of August (Stirrett 1980, p. 24; Menges et al. 1986). Furbish's 
lousewort is pollinated by a single species of bumble bee, the half-
black bumble bee (Bombus vagans) (Macior 1978, entire). About 50 
percent of flowers produce egg-shaped seed capsules that ripen in late-
September after which the tiny (1 millimeter) seeds are dropped (Menges 
et al. 1985, 1986; Gawler 1983, p. 27; Gawler et al. 1986, entire). 
Seeds lack mechanisms for wind or animal dispersal, and most drop near 
the parent plant. Each mature plant tends to form a colony around 
itself. During spring floods, it is conceivable that some seeds may 
disperse down-river (Stirrett 1980, pp. 26-27; Menges 1990, p. 53). The 
seeds germinate in moist, cool microhabitats having minimal herbaceous 
or woody plant competition or leaf litter, such as moss-covered soil or 
parts of the river bank that are constantly wet. Furbish's lousewort 
lacks seed dormancy; seedlings result only from the previous year's 
reproduction (Menges 1990, p. 54). Seedlings emerge in June through 
August and have two true leaves during their first growing season 
(Gawler et al. 1987, entire). Like most species of Pedicularis, 
seedlings of Furbish's lousewort are obligate hemiparasites and obtain 
part of their nutrition from root attachments with a perennial host 
plant. The species seems to be a host-generalist, perhaps relying on 
nitrogen fixing host plants in the mineral poor soil in which it grows 
(Macior 1980, entire). The lifespan of adult flowering plants is 

Recovery Criteria

    Section 4(f) of the Act directs us to develop and implement 
recovery plans for the conservation and survival of endangered and 
threatened species unless we determine that such a plan will not 
promote the conservation of the species. Recovery plans must, to the 
maximum extent practicable, include ``objective, measurable criteria 
which, when met, would result in a determination, in accordance with 
the provisions [of section 4 of the Act], that the species be removed 
from the list.''
    Recovery plans provide a roadmap for us and our partners on methods 
of enhancing conservation and minimizing threats to listed species, as 
well as measurable criteria against which to evaluate progress towards 
recovery and assess the species' likely future condition. However, they 
are not regulatory documents and do not substitute for the 
determinations and promulgation of regulations required under section 
4(a)(1) of the Act. A decision to revise the status of a species, or to 
delist a species is ultimately based on an analysis of the best 
scientific and commercial data available to determine whether a species 
is no longer an endangered species or a threatened species, regardless 
of whether that information differs from the recovery plan.
    There are many paths to accomplishing recovery of a species, and 
recovery may be achieved without all of the criteria in a recovery plan 
being fully met. For example, one or more criteria may be exceeded 
while other criteria may not yet be accomplished. In that instance, we 
may determine that the threats are minimized sufficiently and that the 
species is robust enough that it no longer meets the definition of an 
endangered species or a threatened species. In other cases, we may 
discover new recovery opportunities after having finalized the recovery 
plan. Parties seeking to conserve the species may use these 
opportunities instead of methods identified in the recovery plan. 
Likewise, we may learn new information about the species after we 
finalize the recovery plan. The new information may change the extent 
to which existing criteria are appropriate for identifying recovery of 
the species. The recovery of a species is a dynamic process requiring 
adaptive management that may, or may not, follow all of the guidance 
provided in a recovery plan.
    On June 29, 1983, the Service completed the first recovery plan for 
Furbish's lousewort (USFWS 1983). Following completion of this recovery 
plan, recovery activities enhanced our understanding about the life-
history of the plant and about the populations. This information and 
the removal of the primary threat to the species at the time of listing 
(the proposed Dickey-Lincoln hydropower project) led to a revised 
recovery plan for Furbish's lousewort, which was made final on July 2, 
1991 (USFWS 1991). The revised 1991 recovery plan includes criteria for 
downlisting Furbish's lousewort from endangered to threatened, but it 

[[Page 3979]]

not provide delisting criteria due to lack of information regarding the 
species' long-term population dynamics and viability. The 2019 5-year 
review (USFWS 2019a, pp. 2-3) states that, given the revised recovery 
plan is more than 25 years old, the downlisting criteria are no longer 
considered adequate; recent population data are not incorporated into 
the recovery criteria, and the plan lacks recent published and 
unpublished scientific information on Furbish's lousewort and its 
habitat. In the 2019 5-year review, we conclude that a change in the 
species' listing status to threatened is warranted because the Dickey-
Lincoln hydropower project is no longer a threat, the species' 
population rebounded from several severe ice-scour events, the 
population is widely distributed, and a single catastrophic event is 
unlikely to extirpate the species.
    In September 2019, the Service completed the Recovery Plan for the 
Furbish's Lousewort (Pedicularis furbishiae), Second Revision (USFWS 
2019b), which was developed using the information in the SSA report for 
the species (USFWS 2020). In light of the recommendation to reclassify 
Furbish's lousewort to a threatened species, the revised recovery plan 
includes criteria that describe the conditions indicative of a 
recovered species (delisting criteria). Specifically, the revised 
recovery plan contains two recovery criteria for delisting based on 
population status over a period of at least 30 years (three 
generations). The first criterion states that the metapopulation is 
viable, comprising a 30-year median of 4,400 flowering stems or 
greater, and distributed with a 30-year median of 2,800 flowering stems 
or greater upriver in at least 6 subpopulations with at least 3 good 
and 3 fair subpopulations, and a 30-year median of 1,600 flowering 
stems or greater downriver in at least 9 subpopulations with at least 3 
good and 6 fair subpopulations. Once the upriver and downriver criteria 
are reached, the median number of flowering stems for each respective 
river section will remain stable or increase over a period of at least 
30 years without augmentation, reintroduction, or hand-pollinating of 
plants. Additionally, in New Brunswick, there is a 30-year median of 
1,100 plants distributed among at least 5 subpopulations. The second 
criterion states there is long-term habitat protection for all 
subpopulations in Maine that provides for the species' needs throughout 
its life cycle (USFWS 2019b, pp. 8-9).
    Based on the latest census (2018-2019), for criterion 1, the 30-
year median for upriver subpopulations is 1,817 flowering stems and 983 
for downriver subpopulations. In 2018-2019 there were 6 subpopulations, 
5 good and 1 fair, in the upriver region and 3 subpopulations, 1 good 
and 2 fair, in the downriver region. In 2018-2019, the Maine population 
increased by 970 flowering stems (43%). Canadian subpopulations remain 
at or below historic lows of about 150 plants at 5 subpopulations, but 
few plants are flowering. For criterion 2, in 2019, The Maine Chapter 
of The Nature Conservancy purchased several areas of the St. John River 
corridor in 3 upriver townships. Currently, there is long-term habitat 
protection in 4 of 15 subpopulations. A total of 9.26 miles of 22.89 
miles of Furbish's lousewort habitat is protected, mostly in the 
upriver region.

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species is an ``endangered species'' or a ``threatened 
species.'' The Act defines an endangered species as a species that is 
``in danger of extinction throughout all or a significant portion of 
its range,'' and a threatened species as a species that is ``likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range.'' The Act requires that we 
determine whether any species is an ``endangered species'' or a 
``threatened species'' because of any of the following factors:
    (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; or
    (E) Other natural or manmade factors affecting its continued 
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the species' expected response, and 
the effects of the threats--in light of those actions and conditions 
that will ameliorate the threats--on an individual, population, and 
species level. We evaluate each threat and its expected effects on the 
species, then analyze the cumulative effect of all of the threats on 
the species as a whole. We also consider the cumulative effect of the 
threats in light of those actions and conditions that will have 
positive effects on the species, such as any existing regulatory 
mechanisms or conservation efforts. The Secretary determines whether 
the species meets the definition of an ``endangered species'' or a 
``threatened species'' only after conducting this cumulative analysis 
and describing the expected effect on the species now and in the 
foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as the 
Services can reasonably determine that both the future threats and the 
species' responses to those threats are likely. In other words, the 
foreseeable future is the period of time in which we can make reliable 
predictions. ``Reliable'' does not mean ``certain''; it means 
sufficient to provide a reasonable degree of confidence in the 
prediction. Thus, a prediction is reliable if it is reasonable to 
depend on it when making decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those

[[Page 3980]]

threats in view of its life-history characteristics. Data that are 
typically relevant to assessing the species' biological response 
include species-specific factors such as lifespan, reproductive rates 
or productivity, certain behaviors, and other demographic factors.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological status review of the best scientific and commercial data 
regarding the status of the species, including an assessment of the 
potential threats to the species. The SSA report does not represent a 
decision by the Service on whether Furbish's lousewort should be 
reclassified under the Act. It does, however, provide the scientific 
basis that informs our regulatory decisions, which involve the further 
application of standards within the Act and its implementing 
regulations and policies. The following is a summary of the key results 
and conclusions from the SSA report; the full SSA report can be found 
online, see Supporting Documents.
    To assess Furbish's lousewort viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency supports the ability of the species to withstand 
environmental and demographic stochastic events (for example, wet or 
dry, warm or cold years), redundancy supports the ability of the 
species to withstand catastrophic events (for example, droughts, large 
pollution events), and representation supports the ability of the 
species to adapt over time to long-term changes in the environment (for 
example, climate changes). In general, the more resilient and redundant 
a species is and the more representation it has, the more likely it is 
to sustain populations over time, even under changing environmental 
conditions. Using these principles, we identified the species' 
ecological requirements for survival and reproduction at the 
individual, population, and species levels, and described the 
beneficial and risk factors influencing the species' viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time. We use this information to inform our regulatory 

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the 
species and its resources, and the threats that influence the species' 
current and future condition, in order to assess the species' overall 
viability and the risks to that viability.
    To assess the resiliency of Furbish's lousewort, we reviewed the 
abundance of flowering and nonflowering individuals and colonization of 
populations through seed dispersal mechanisms; the dependency of 
populations on periodic ice scour and flooding; and the effects of 
climate change, and development. To assess the redundancy of Furbish's 
lousewort, we evaluated how the distribution and biological status of 
subpopulations contribute to the species' ability to withstand 
catastrophic events. Specifically, we examined how climate change and 
current and future development are likely to affect the number, sizes, 
and distribution of populations (USFWS 2020, pp. 38-39; 42-48; 52-59). 
To assess representation, we evaluated the environmental diversity 
within and among subpopulations.

Summary of Current Condition

    Furbish's lousewort functions as a metapopulation. Unlike a 
continuous population, a metapopulation has spatially discrete local 
subpopulations, in which migration between subpopulations is 
significantly restricted. In the SSA report, we define subpopulations 
as separated by a mile or more of unsuitable habitat based primarily on 
the limitations of the species' pollinator, the half-black bumblebee. 
Studies of Bombus species typically exhibit foraging distances of less 
than 1 kilometer (0.62 miles) from their nesting sites. Based on this 
criterion, we identify 15 subpopulations of Furbish's lousewort in 
Maine and 5 in New Brunswick, Canada, that form the basis for our 
analysis of the current condition of the species. For our analysis, we 
first qualitatively assessed the subpopulations as ``good,'' ``fair,'' 
or ``poor,'' including the subpopulations attributes: abundance, 
density, and current status as compared to the site history. We 
designated sites where Furbish's lousewort is currently absent (locally 
extirpated) as ``very poor.''
    Next, we evaluated each subpopulation according to three habitat 
criteria: The amount of potential habitat, the condition of the 
forested riparian buffer, and the prevalence of shoreline erosion. We 
selected these habitat criteria to describe habitat quality because of 
their influence on the species resource needs (USFWS 2020, p.11, table 
2). We assigned a score of 3 (good), 2 (fair), 1 (poor), or 0 (very 
poor) to each subpopulation and habitat criterion (USFWS 2020, pp. 31-
32). The rankings for the 15 subpopulations in Maine are 2 good, 2 fair 
to good, 3 fair, and 8 poor. On average, the upriver subpopulations 
rank higher than the downriver subpopulations because of the high 
quality habitat and low pressures from development. Six of the 15 
subpopulations in Maine are currently extirpated (all downriver 
subpopulations). In New Brunswick, all 5 subpopulations rank as poor 
(USFWS 2020, pp. 33-36). There is marked difference in habitat 
conditions and stressors upriver and downriver. Upriver habitat is more 
extensive and occurs in a managed industrial forest. Downriver habitats 
(including New Brunswick) are smaller and more fragmented.

Risk Factors

    Based on the life-history and habitat needs of Furbish's lousewort, 
and in consultation with species' experts, as well as experts in 
botany, ice scour and flooding of the St. John River, and landscape 
ecology, we identify the potential stressors (negative influences), the 
contributing sources of those stressors, and how conservation measures 
to address those stressors are likely to affect the species' current 
condition and viability (USFWS 2020, pp. 21-31). We evaluate how these 
stressors may be currently affecting the species and whether, and to 
what extent, they would affect the species in the future (USFWS 2020, 
pp. 40-57). The stressors most likely to affect the viability of 
Furbish's lousewort are: (1) Development resulting in habitat loss, 
erosion, and fragmentation; and (2) climate change that causes the 
current trends of warmer winters that affect the ice dynamics, 
flooding, and overall disturbance regime of the St. John River.
    Historical land use patterns influence Furbish's lousewort habitat 
today; the land use upriver of the town of Allagash is undeveloped, 
while the downriver landscapes in Maine and farther downriver in New 
Brunswick are dominated by agriculture and small villages. Changes in 
land use on the

[[Page 3981]]

banks of the St. John River in downriver areas have occurred through 
the clearing of vegetation, especially trees, for agriculture, 
individual house lots, and roads. These land use changes within the St. 
John River valley may have negatively affected habitat of some 
Furbish's lousewort subpopulations through removal or reduction of 
forested riparian buffers and subsequent loss of shade critical to the 
species' growth and reproduction. Areas cleared of forest, and 
impermeable surfaces associated with development, have led to the 
erosion and subsidence of the unconsolidated glacial till soils, and 
caused slumping and erosion of Furbish's lousewort habitat. There are 
modest predicted trends of future development for the St. John River 
Valley that are described in the SSA Report (USFWS 2020, p. 47). Future 
development will likely occur in the center of larger towns and expand 
into some areas currently in agricultural land use, this could cause 
slumping and erosion in Furbish's lousewort habitat.
    Furbish's lousewort is identified as one of Maine's plant species 
most vulnerable to climate change (Jacobson et al. 2009, p. 33). The 
species depends on periodic disturbance of the riverbank from ice scour 
that is not too frequent or too infrequent and not too severe. Climate 
change is expected to affect the ice regime of northern rivers, 
including the St. John, by increasing the frequency and severity of ice 
scour and flood events (USFWS 2020, p. 23). River ice models for the 
St. John River demonstrate that key variables influencing the frequency 
and severity of ice scour, jamming, and flooding are caused by 
midwinter temperatures above freezing, midwinter precipitation in the 
form of rain, and increasing river flows (Beltaos and Prowse 2009, pp. 
134-137). Beltaos (2002, entire) developed a hydroclimatic analysis for 
the upper St. John River using long-term climate and flow records. He 
documented that a small rise in winter air temperatures over the past 
80 years has resulted in a substantial increase in the number of mild 
winter days and the amount of winter rainfall, which were previously 
rare occurrences in this region. These two factors augment river flows, 
causing increased breakup of ice cover, increased peak flows in late 
winter, and a higher frequency of spring ice jams and flooding (USFWS 
2020, p. 24). Increasing summer temperatures may also affect Furbish's 
lousewort. The climate envelope of the species has not been described, 
but its closest genetic relatives are all arctic plants that require 
cool, moist environments. We are uncertain about the maximum summer 
temperatures and moisture deficits that Furbish's lousewort can 
withstand (USFWS 2020, p. 27).
    Several conservation actions are in place and may reduce some of 
the stressors to Furbish's lousewort or provide habitat protection (see 
Conservation Efforts for Furbish's lousewort, for more information).

Summary of Future Conditions Analysis

    We assess two timeframes for characterizing the condition of 
Furbish's lousewort in the future. We selected the years 2030 and 2060, 
as a period for which we can reasonably project effects of the 
stressors and plausible conservation efforts. Climate change 
information for these timeframes is based on the available information 
contained in climate predicting models provided through the U.S. 
Geological Survey (USGS) Climate Change Viewer, Summary of the Upper 
St. John River Watershed, Aroostook County, Maine (USGS 2017a, b, 
entire). The timeframes of 2030 and 2060 capture approximately 1 to 2, 
and 4 to 5 generations of Furbish's lousewort, respectively. 
Development information for this timeframe is available in municipal 
comprehensive plans (Town of Fort Kent 2012, entire) and The University 
of Maine Sustainability Solutions Initiative (USFWS 2020, p. 41).
    For each of the two timeframes, 2030 and 2060, we developed three 
future scenarios: continuation, best case, and a worse case. We provide 
a range of reasonable, plausible effects for development and climate 
change. For climate change scenarios, we use data from representative 
concentration pathways (RCPs) of greenhouse gas (GHG) concentration 
trajectories adopted by the International Panel on Climate Change 
(IPCC). The three RCPs selected, RCP 2.6, RCP 4.5, and RCP 8.5, reflect 
a wide range of possible changes in future anthropogenic greenhouse gas 
emissions. RCP 2.6 is a scenario that assumes that global greenhouse 
gas emissions have peaked and will decline after 2020. The continuation 
scenario assumes moderate increases in GHG emissions (RCP 4.5), 
moderate increases in development downriver, and conservation measures 
continuing or being reduced slightly. The best case scenario assumes 
low GHG emissions (RCP 2.6), conservation measures remaining in place, 
and no further development downriver. The worse case scenario assumes 
high GHG emissions and moderate increases of GHG emissions into the 
future (RCP 8.5), modest levels of development, and reduced 
conservation measures (USFWS 2020, p. 48). All future predictions are 
uncertain; therefore, we qualify them using relative terms of 
likelihood; adopted terminology specified by the IPCC (2014). Based on 
the future analysis, we predict that by 2030 there is a higher 
likelihood that, in all three scenarios, the metapopulation of the 
Furbish's lousewort will continue to decline due to local extirpations 
of downriver subpopulations. By 2060, we predict that it is likely that 
the overall viability of the metapopulation will be greatly reduced 
from current conditions, and a few subpopulations will persist upriver 
in Maine. We predict that there is a high likelihood that in both the 
continuation and worse case scenarios the metapopulation will no longer 
be viable; it will be extirpated throughout most of its range; and the 
few plants that remain would be concentrated at upriver sites.
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have not 
only analyzed individual effects on the species, but we have also 
analyzed their potential cumulative effects. We incorporate the 
cumulative effects into our SSA analysis when we characterize the 
current and future condition of the species. Our assessment of the 
current and future conditions encompasses and incorporates the threats 
individually and cumulatively. Our current and future condition 
assessment is iterative because it accumulates and evaluates the 
effects of all the factors that may be influencing the species, 
including threats and conservation efforts. Because the SSA framework 
considers not just the presence of the factors, but to what degree they 
collectively influence risk to the entire species, our assessment 
integrates the cumulative effects of the factors and replaces a 
standalone cumulative effects analysis.
    The SSA report contains a more detailed discussion on our 
evaluation of the biological status of the species and the influences 
that may affect its continued existence. Our conclusions are based upon 
the best available scientific and commercial data, including the 
judgments of the species' experts and peer reviewers. See the SSA 
report for a complete list of the species' experts and peer reviewers 
and their affiliations.

Existing Regulatory Mechanisms

    Section 4(b)(1)(A) of the Act requires that the Service take into 
account ``those efforts, if any, being made by any State or foreign 
nation, or any political subdivision of a State or foreign nation, to 
protect such species.'' In relation to

[[Page 3982]]

Factor D under the Act, we interpret this language to require the 
Service to consider relevant Federal, State, and Tribal laws, 
regulations, and other such binding legal mechanisms that may 
ameliorate or exacerbate any of the threats we describe in threat 
analyses under the other four factors or otherwise enhance the species' 
conservation. We give the strongest weight to statutes and their 
implementing regulations and to management direction that stems from 
those laws and regulations.
    Municipal shoreline zoning in Maine now provides partial protection 
of Furbish's lousewort habitat (USFWS 2020, Appendix 1). As established 
by State law in 2013, the shoreline zone extends to 250 feet from the 
high water line all along the St. John River. Zoning prohibits clear 
cutting within 50 feet of the river; openings located greater than 50 
feet from the river (or 75 feet from the river for a few subpopulations 
in organized towns) are restricted to a maximum of 0.3 acres, and no 
more than 40 percent of the forest in the 250-foot zone can be 
harvested in a 10-year period (Maine Department of Environmental 
Protection Mandatory Shoreland Zoning Title 38, Chapter 3, Sec. Sec.  
435-449). Organized towns have the option to designate lousewort 
habitats as resource protection subdistricts, which would provide more 
stringent measures. Currently, no towns have designated any resource 
protection subdistricts for the lousewort (USFWS 2020, p. 28).
    The New Brunswick Clean Water Act provides shoreline protections 
that convey a benefit to the Furbish's lousewort in Canada. The New 
Brunswick Department of Environmental and Local Government acts as the 
regulatory entity responsible for issuing all watercourse alteration 
permits. Guidelines for implementing the regulations specify that no 
heavy equipment may be operated within 15 meters of the bank of a 
watercourse, no ground disturbance may occur within 30 meters of a 
watercourse, and only 30 percent of the total merchantable trees may be 
removed from a 30-meter buffer zone every 10 years. All activities 
taking place within 30 meters of a watercourse that is either one 
hectare or larger in area or that involve the removal, deposit, or 
disturbance of the water, soil, or vegetation require a permit (USFWS 
2020, p. 29).
    Several parcels that support Furbish's lousewort have permanent 
protection. Since 2001, the New England Forestry Foundation has had a 
754,673-acre conservation easement on lands along the St. John River 
where Furbish's lousewort occurs. The easement protects approximately 
6.2 percent of the total population in Maine and restricts development 
rights in perpetuity. In 2019, The Maine Chapter of The Nature 
Conservancy purchased several areas of the St. John River corridor. The 
Maine Bureau of Parks and Lands (Bureau) owns a large unit in the town 
of Allagash that provides several hundred feet of Furbish's lousewort 
habitat, approximately 2 percent of the population in Maine. The 
Bureau's integrated resource policy requires that MBPL promote the 
conservation of federally listed species. One of the five 
subpopulations in New Brunswick is permanently protected (USFWS 2020, 
pp. 29-30).
    The Furbish's lousewort was listed on Canada's Schedule 1 of the 
Species at Risk Act (SARA) in June 2003 and was initially designated as 
endangered by the Committee on the Status for Endangered Wildlife in 
Canada (COSEWIC) in 1980. With this proclamation, protection and 
recovery measures were developed and implemented.
    The Furbish's lousewort is protected by New Brunswick's Endangered 
Species Act. Under this Act, it is prohibited to kill, harm or collect 
this species or disturb its habitat (Government of New Brunswick 2020).
    As discussed, Furbish's lousewort and its habitat receives some 
protection from regulatory mechanisms in both the United States and 
Canada. In the U.S., the State of Maine and municipal regulations 
provide partial protection for shorefronts, which includes protections 
of riparian habitats where the Lousewort could be located. These state 
and municipal regulations are enforced through local and state 
ordinances. They were not designed to protect Furbish lousewort from 
direct take, and as such, the species is not regulated from direct take 
on private lands in Maine. In Canada, where populations are at historic 
lows, the New Brunswick regulates heavy equipment use and buffer zones, 
as well as, prohibits take of Furbish's lousewort through the New 
Brunswick Endangered Species Act. Furbish's lousewort is further 
regulated as a schedule 1 species at risk under SARA. Collectively 
these regulations provide protections in Canada for the Furbish's 
lousewort and its habitat.

Conservation Efforts for Furbish's lousewort

    Since Furbish's lousewort was listed in 1978, various recovery 
actions have improved the status of the species. For example:
     In 1986, Congress deauthorized the construction of the 
Dickey-Lincoln hydropower project (Pub. L. 99-662), which was the 
primary threat to the species at the time of listing (USFWS 2020, p. 
     St. John River Resource Protection Plan (Plan): Industrial 
forest landowners voluntarily signed the Plan beginning in 1982, with 
revisions in 1992, 2002, and 2012. The intent of the Plan is to protect 
the natural values and traditional recreational uses of the river. The 
primary value of the Plan to the conservation of Furbish's lousewort is 
that it does not allow commercial and residential development, 
subdivisions, water impoundments, and utility projects on land along 
the St. John River owned by signatory landowners.
     Since 2009, the Service's Partners for Fish and Wildlife 
Program has partnered with a small business owner in Aroostook County, 
Maine to restore riparian forests that are potential habitat for 
Furbish's lousewort. Through this partnership, they have collaborated 
with 37 landowners encompassing 40 parcels). To date, $110,000 has been 
invested, and trees were planted along 4.6 miles of river, creating 
55.2 acres of forested riparian habitat (USFWS 2020, pp. 30-31).
     The Furbish's lousewort occurs only on private lands in 
Canada. Therefore, private landowner stewardship is vitally important. 
Several nonprofit organizations collaborated to create the George 
Stirret Nature Preserve, a protected area around one population of 
lousewort. The Nature Trust of New Brunswick contacted private 
landowners surrounding the remaining areas where Furbish's lousewort 
grows and developed 15 voluntary private landowner stewardship 
agreements to encourage and support stewardship practices (Dowding 
    These recovery actions and other supporting data that we analyzed 
indicate that some of the threats identified at the time of listing 
have been ameliorated or reduced in areas occupied by Furbish's 
lousewort, and that the species' status has improved, primarily due to 
the Congressional deauthorization of the Dickey-Lincoln hydropower 
project. However, more recent threats associated with climate change 
may impede the plant's ability to recover.

Determination of Furbish's Lousewort Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets

[[Page 3983]]

the definition of endangered species or a threatened species. The Act 
defines an ``endangered species'' as a species that is ``in danger of 
extinction throughout all or a significant portion of its range,'' and 
``threatened species'' as a species that is ``likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range.'' For a more detailed discussion on 
the factors considered when determining whether a species meets the 
definition of an endangered species or a threatened species and our 
analysis on how we determine the foreseeable future in making these 
decisions, please see Regulatory and Analytical Framework.

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the section 4(a)(1) factors, we 
determined that the Furbish's lousewort no longer meets the definition 
of endangered. This determination is based on the following: The 
removal of the primary threat at the time of listing, the Dickey-
Lincoln hydropower project; the ability of the species to rebound after 
several severe ice scouring events; the species continues to be found 
at sites beyond its known distribution at the time of the original 
listing; and over 25 percent of the overall population is located on 
protected lands. Additionally, long-term census data demonstrate that 
the Furbish's lousewort is resilient to stochastic events such as 
periodic ice scour and flooding. Redundancy in the downriver 
subpopulations has diminished, though the conditions in the upriver 
subpopulations has remained constant. Thus, after assessing the best 
available information, we conclude that the Furbish's lousewort no 
longer meets the Act's definition of an endangered species. Therefore, 
we proceed with determining whether Furbish's lousewort meets the Act's 
definition of a threatened species.
    The information indicates that, at the species level, development 
(Factor A), that causes habitat loss, erosion, and fragmentation, and 
climate change (Factor E), that causes the current trends of warmer 
winters that affect the ice dynamics, flooding, and the overall 
disturbance regime of the St. John River, are the most influential 
factors affecting Furbish's lousewort now and into the future. The 
existing state and Canadian regulations (Factor D) are not considered 
adequate to alleviate the identified threats. Furbish's lousewort is 
listed as endangered by the State of Maine; however, the lack of take 
prohibitions for plants under this law limits its ability to protect 
the species from the habitat-based threats that it faces. Canada's SARA 
and New Brunswick's Act have a provision to protect species designated 
as endangered when found on federal lands; however, the Furbish's 
lousewort does not occur on any federal lands in Canada. In both future 
timeframes, 2030 and 2060, under our projected ``continuation'' and 
``worse case'' scenarios, we predict the species' resiliency, 
redundancy, and representation to diminish significantly, indicating 
that the species is likely to become in danger of extinction within the 
next 40 years. While the downriver subpopulations are predicted to 
experience the most diminishment, even the current upriver stronghold 
is predicted to decline, indicating an increased risk of extinction of 
the entire metapopulation beyond the near term. Furbish's lousewort has 
a particular niche and appears to have very little adaptation 
potential. Hence, changes to the ice-scour regime, due to climate 
change, are highly likely to have significant impacts to the species 
within the foreseeable future. Under both timeframes analyzed, the 
downriver subpopulations are predicted to be in poor condition, thereby 
putting extra importance on the upriver subpopulations to maintain the 
species' viability. However, even under the 2030 timeframe, the upriver 
subpopulations are predicted to be significantly diminished. Thus, 
after assessing the best available information, we conclude that 
Furbish's lousewort is not currently in danger of extinction but is 
likely to become in danger of extinction within the foreseeable future, 
throughout all of its range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. The court in Center for Biological Diversity v. Everson, 
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological 
Diversity), vacated the aspect of the Final Policy on Interpretation of 
the Phrase ``Significant Portion of Its Range'' in the Endangered 
Species Act's Definitions of ``Endangered Species'' and ``Threatened 
Species'' (79 FR 37578; July 1, 2014) that provided that the Services 
do not undertake an analysis of significant portions of a species' 
range if the species warrants listing as threatened throughout all of 
its range. Therefore, we proceed to evaluating whether the species is 
endangered in a significant portion of its range-that is, whether there 
is any portion of the species' range for which both (1) the portion is 
significant; and, (2) the species is in danger of extinction in that 
portion. Depending on the case, it might be more efficient for us to 
address the ``significance'' question or the ``status'' question first. 
We can choose to address either question first. Regardless of which 
question we address first, if we reach a negative answer with respect 
to the first question that we address, we do not need to evaluate the 
other question for that portion of the species' range.
    Following the court's holding in Center for Biological Diversity, 
we now consider whether there are any significant portions of the 
species' range where the species is in danger of extinction now (i.e., 
endangered). In undertaking this analysis for Furbish's lousewort, we 
choose to address the status question first-we consider information 
pertaining to the geographic distribution of both the species and the 
threats that the species faces to identify any portions of the range 
where the species is endangered.
    The statutory difference between an endangered species and a 
threatened species is the time horizon in which the species becomes in 
danger of extinction; an endangered species is in danger of extinction 
now while a threatened species is not in danger of extinction now but 
is likely to become so in the foreseeable future. Thus, we considered 
the time horizon for the threats that are driving the Furbish's 
lousewort to warrant listing as a threatened species throughout all of 
its range. We examined the following threats: Development and climate 
change, including cumulative effects. As stated in the section Status 
Throughout All of Its Range above, we predict the species is likely to 
become in danger of extinction within the next 40 years. We recognize 
that the downriver subpopulations are small, and habitat is less 
extensive and fragmented. However, the risk of extinction to the 
population is low, and does not currently meet the threshold of 
endangered. We selected 40 years for the foreseeable future as a period 
for which we can reasonably project effects of the stressors and 
potential conservation efforts. The time frame of 2060 will capture 
approximately four to five generations of the Furbish's lousewort. We 
believe this timeframe will allow observation of changes in the 
condition of the species without increasing uncertainty about the 
nature and intensity of stressors beyond a reasonable level.

[[Page 3984]]

    The best scientific and commercial data available indicate that the 
time horizon on which the threats of development and climate change to 
Furbish's lousewort and the responses to those threats are likely to 
occur is the foreseeable future. In addition, the best scientific and 
commercial data available do not indicate that any of threats of 
development and climate change to Furbish's lousewort and the response 
to those threats are more immediate in any portions of the species' 
range. Therefore, we determine that the Furbish's lousewort is not in 
danger of extinction now in any portion of its range, but that the 
species is likely to become in danger of extinction within the 
foreseeable future throughout all of its range. This is consistent with 
the courts' holdings in Desert Survivors v. Department of the Interior, 
No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and 
Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 
(D. Ariz. 2017).

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that Furbish's lousewort meets the definition of 
a threatened species. Therefore, we propose downlisting Furbish's 
lousewort as a threatened species in accordance with sections 3(20) and 
4(a)(1) of the Act.

II. Proposed Rule Issued Under 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 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 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 section 
9(a)(2), in the case of plants. Thus, the combination of the two 
sentences of section 4(d) provides the Secretary with wide latitude of 
discretion to select and promulgate appropriate regulations tailored to 
the specific conservation needs of the threatened species. The second 
sentence 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 upheld 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 this authority under section 4(d), the Service has 
developed a proposed species-specific 4(d) rule that is designed to 
address the threats and conservation needs of Furbish's lousewort. 
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 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 Furbish's lousewort. As discussed above in the 
Determination section, the Service has concluded that Furbish's 
lousewort is likely to become in danger of extinction within the 
foreseeable future primarily due to climate change and development. The 
provisions of this proposed 4(d) rule would promote conservation of 
Furbish's lousewort by deterring certain activities that would 
negatively impact the species in knowing violation of any law or 
regulation of the State of Maine, including any State trespass laws. 
The provisions of this proposed 4(d) rule are one of many tools that 
the Service would use to promote the conservation of Furbish's 
lousewort. This proposed 4(d) rule would apply only if and when the 
Service makes final the reclassification of Furbish's lousewort as a 
threatened species.

Provisions of the Proposed 4(d) Rule

    This proposed 4(d) rule would provide for the conservation of 
Furbish's lousewort by prohibiting the following activities, except as 
otherwise authorized: Removal and reduction to possession from areas 
under Federal jurisdiction; malicious damage or destruction on any such 
area; or removal, cutting, digging up, or damage or destruction on any 
other area in knowing violation of any law or regulation of any State 
or in the course of any violation of a State criminal trespass law.
    While removal and reduction to possession from areas under Federal 
jurisdiction is not identified as an existing threat to Furbish's 
lousewort, prohibiting this activity would maintain a deterrent that 
may become necessary in the future to support recovery of the species 
(e.g., should a Federal agency seek to conserve a population through 
land or easement acquisition). As discussed above under Summary of 
Biological Status and Threats, climate change and development are 
affecting the status of Furbish's lousewort. Indirect effects 
associated with development, including loss of shade critical to growth 
and reproduction due to reduction of the forested riparian buffer, and 
erosion of habitat due to clearing of forested areas and runoff from 
creation of impermeable surfaces, have the potential to impact 
Furbish's lousewort. Prohibiting certain activities, when in knowing 
violation of State law or regulation, would complement State efforts to 
conserve the species. Providing these protections would help preserve 
the species' remaining subpopulation; slow its rate of decline; and 
decrease synergistic, negative effects from other stressors.
    We may issue permits to carry out otherwise prohibited activities, 
including those described above, involving threatened plants under 
certain circumstances. Regulations governing permits for threatened 
plants are codified at 50 CFR 17.72, which states that the Director may 
issue a permit authorizing any activity otherwise prohibited with 
regard to threatened species. That regulation also states that the 
permit shall be governed by the provisions of Sec.  17.72 unless a 
special rule applicable to the plant is provided in Sec. Sec.  17.73 to 
17.78. We interpret that second sentence to mean that permits for 
threatened species are

[[Page 3985]]

governed by the provisions of Sec.  17.72 unless a special rule 
provides otherwise. We recently promulgated revisions to Sec.  17.71 
providing that Sec.  17.71 will no longer apply to plants listed as 
threatened in the future. We did not intend for those revisions to 
limit or alter the applicability of the permitting provisions in Sec.  
17.72, or to require that every special rule spell out any permitting 
provisions that apply to that species and special rule. To the 
contrary, we anticipate that permitting provisions would generally be 
similar or identical for most species, so applying the provisions of 
Sec.  17.72 unless a special rule provides otherwise would likely avoid 
substantial duplication. Moreover, this interpretation brings Sec.  
17.72 in line with the comparable provision for wildlife at 50 CFR 
17.32, in which the second sentence states that such permit shall be 
governed by the provisions of this section unless a special rule 
applicable to the wildlife, appearing in Sec. Sec.  17.40 to 17.48, of 
this part provides otherwise. Under 50 CFR 17.12 with regard to 
threatened plants, a permit may be issued for the following purposes: 
for scientific purposes, to enhance propagation or survival, for 
economic hardship, for botanical or horticultural exhibition, for 
educational purposes, or for other purposes consistent with the 
purposes and policy of the Act. Additional statutory exemptions from 
the prohibitions 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 close working relationships 
with local governments and landowners, are in a unique position to 
assist the Service in implementing all aspects of the Act. In this 
regard, section 6 of the Act provides that the Service shall cooperate 
to the maximum extent practicable with the States in carrying out 
programs authorized by the Act. Therefore, in accordance with 50 CFR 
17.71(b), any person who is a 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 and who is 
designated by his or her agency for such purposes would be able to 
conduct activities designed to conserve Furbish's lousewort that may 
result in otherwise prohibited activities without additional 
    Nothing in this proposed 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 Furbish's lousewort. However, interagency cooperation may 
be further streamlined through planned programmatic consultations for 
the species between Federal agencies and the Service. We ask the 
public, particularly the State agencies and other interested 
stakeholders that may be affected by the proposed 4(d) rule, to provide 
comments and suggestions regarding additional guidance and methods that 
the Service could provide or use, respectively, to streamline the 
implementation of this proposed 4(d) rule (see Information Requested, 

III. Required Determinations

Clarity of This Proposed Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be a specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be 
prepared in connection with determining and implementing a species' 
listing status under the Endangered Species Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244)

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 two federally recognized 
Tribes in northern Maine; however, no subpopulations of Furbish's 
lousewort occur on Tribal lands.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at http://www.regulations.gov and upon request from the 
Maine Ecological Services Field Office (see FOR FURTHER INFORMATION 


    The primary authors of this proposed rule are staff members of the 
Northeast Regional Office and the Maine Ecological Services Field 

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:


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.

2. Amend Sec.  17.12(h) by revising the entry for ``Pedicularis 
furbishiae'' under FLOWERING PLANTS in the List of

[[Page 3986]]

Endangered and Threatened Plants to read as follows:

Sec.  17.12   Endangered and threatened plants.

* * * * *
    (h) * * *

                                                                                          Listing citations and
         Scientific name              Common name          Where listed        Status        applicable rules
        Flowering Plants
                                                * * * * * * * * *
Pedicularis furbishiae..........  Furbish's lousewort  Wherever found.....  T            43 FR 17910, 4/26/1978;
                                                                                          [Federal Register
                                                                                          citation of the final
                                                                                          rule]; 50 CFR
                                                * * * * * * * * *

3. Add Sec.  17.73 to read as follows:

Sec.  17.73   Special rules--flowering plants.

    (a) [Reserved]
    (b) [Reserved]
    (c) [Reserved]
    (d) Pedicularis furbishiae (Furbish's lousewort)--(1) Prohibitions. 
Except as provided under paragraph (d)(2) of this section, you may not 
remove and reduce to possession the species from areas under Federal 
jurisdiction; maliciously damage or destroy the species on any such 
area; or remove, cut, dig up, or damage or destroy the species on any 
other area in knowing violation of any law or regulation of any State 
or in the course of any violation of a State criminal trespass law.
    (2) Exceptions from prohibitions. The following exceptions from the 
prohibitions apply to this species:
    (i) You may conduct activities authorized by permit under Sec.  
    (ii) Qualified employees or agents of the Service or a State 
conservation agency may conduct activities authorized under Sec.  

Aurelia Skipwith
Director,U.S. Fish and Wildlife Service.
[FR Doc. 2020-28978 Filed 1-14-21; 8:45 am]