[Federal Register Volume 87, Number 23 (Thursday, February 3, 2022)]
[Proposed Rules]
[Pages 6118-6130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02006]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2019-0018; FF09E22000 FXES1113090FEDR 223]
RIN 1018-BE09
Endangered and Threatened Wildlife and Plants; Reclassification
of the Red-Cockaded Woodpecker From Endangered to Threatened With a
Section 4(d) Rule
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; revisions and reopening of comment period.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
reopening of the comment period on our October 8, 2020, proposed rule
to reclassify the red-cockaded woodpecker (Dryobates borealis) as a
threatened species with a rule issued under section 4(d) of the
Endangered Species Act of 1973 (Act), as amended. This action will
allow all interested parties the opportunity to comment on the revised
proposed section 4(d) rule language set forth in this document, which
addresses concerns raised in the public comments we received on the
October 8, 2020, proposed rule. Comments previously submitted on the
proposed reclassification of the red-cockaded woodpecker and previously
proposed section 4(d) rule need not be resubmitted, as they will be
fully considered in preparation of the final determination.
DATES: The public comment period on the proposed rule that published on
October 8, 2020, at 85 FR 63474, is reopened. We will accept comments
received or postmarked on or before March 7, 2022. 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.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R4-ES-2019-0018,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R4-ES-2019-0018, 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 https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: This document and supporting
materials (including the species status assessment report and
references cited) are available at https://www.regulations.gov under
Docket No. FWS-R4-ES-2019-0018 and at the Southeast Regional Office
(see FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Aaron Valenta, Chief, Division of
Restoration and Recovery, U.S. Fish and Wildlife Service, Southeast
Regional Office, 1875 Century Boulevard, Atlanta, GA 30345; telephone
404-679-4144. Persons who use a telecommunications device for the deaf
(TDD) may call the Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Information Requested
We intend that any final action resulting from the October 8, 2020,
and 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 and information from other
governmental agencies, Native American Tribes, the scientific
community, industry, or any other interested party concerning these
proposed rules.
We particularly seek comments or information on regulations that
are necessary and advisable for the conservation and management of the
red-cockaded woodpecker, including whether the measures outlined in
this document for the revised proposed section 4(d) rule are necessary
and advisable for the conservation of the red-cockaded woodpecker.
Specifically, we seek comments on:
(1) Whether the included prohibitions in the revised proposed
section 4(d) rule would adequately and appropriately provide for the
conservation of the red-cockaded woodpecker;
(2) Whether it is appropriate to except incidental take that
results from red-cockaded woodpecker management and military training
activities on Department of Defense (DoD) installations with a Service-
approved integrated natural resources management plan (INRMP);
(3) Whether different or additional conditions, if any, should be
applied to the exception for DoD installations in order to provide
adequately for the conservation of the red-cockaded woodpecker;
(4) Whether it is appropriate to except incidental take that
results from habitat management activities intended to restore or
maintain red-cockaded woodpecker habitat on Federal land management
agency properties;
(5) Whether different or additional conditions, if any, should be
applied to the exception for Federal land management agency properties
in order to provide adequately for the conservation of the red-cockaded
woodpecker;
(6) Whether it is appropriate to except incidental take associated
with prescribed burns and the application of herbicides on private
lands when compatible with maintaining any known red-cockaded
woodpecker populations;
(7) Whether different or additional conditions, if any, should be
applied to the exception for prescribed burns and the application of
herbicides on private lands in order to provide adequately for the
conservation of the red-cockaded woodpecker;
(8) Whether it is appropriate to except incidental take that
results from the installation of artificial cavity inserts and drilled
cavities on public and private lands;
(9) Whether different or additional conditions, if any, should be
applied to the exception for the installation of artificial cavities in
order to provide adequately for the conservation of the red-cockaded
woodpecker;
(10) Whether we should provide additional clarity on the minimum
diameter of trees that are appropriate for selection for installation
of artificial cavities and, if so, what the best available science
indicates regarding a universally applicable minimum tree diameter;
(11) Whether any other forms of take should be excepted from the
prohibitions in the revised proposed section 4(d) rule;
[[Page 6119]]
(12) Whether there are additional provisions the Service may wish
to consider for the section 4(d) rule in order to conserve, recover,
and manage the red-cockaded woodpecker; and
(13) Whether or how the Service could provide additional guidance
or methods to streamline the implementation of the proposed section
4(d) rule for the red-cockaded woodpecker.
If you submitted comments or information on the October 8, 2020,
proposed rule (85 FR 63474) during the comment period that was open
from October 8, 2020, to December 7, 2020, please do not resubmit these
comments. Any such comments are already part of the public record of
this rulemaking proceeding, and we will fully consider them in the
preparation of our final determination. Our final determination will
take into consideration all written comments and any additional
information we receive during both comment periods.
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 a
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 https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
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 hardcopy submissions on https://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 on https://www.regulations.gov.
The final decision may differ from this revised proposed rule,
based on our review of all information we receive during this
rulemaking proceeding, including both comment periods. We may change
the parameters of the prohibitions or the exceptions to those
prohibitions in this proposed section 4(d) rule if we conclude it is
appropriate in light of comments and new information received. For
example, we may establish additional exceptions to the prohibitions in
the final rule if we conclude that the activities would facilitate or
are compatible with the conservation and recovery of the species. We
may also expand the prohibitions to include prohibiting additional
activities if we conclude that those additional activities are not
compatible with conservation of the species.
Background
We will only discuss those topics directly relevant to the
revisions we are proposing to the section 4(d) rule in this document.
For more information on the species, its habitat, and previous Federal
actions concerning the red-cockaded woodpecker, refer to the proposed
rule published in the Federal Register on October 8, 2020 (85 FR
63474).
In our October 8, 2020, proposed rule, we proposed to reclassify
the red-cockaded woodpecker as a threatened species with a section 4(d)
rule that provided specific prohibitions and exceptions that we
determined necessary and advisable for the conservation of the red-
cockaded woodpecker. These originally proposed prohibitions included
prohibiting incidental take resulting from damage or conversion of
currently occupied red-cockaded woodpecker nesting and foraging habitat
to other land uses that results in conditions not able to support red-
cockaded woodpeckers; forest management practices in currently occupied
red-cockaded woodpecker nesting and foraging habitat; operation of
vehicles or mechanical equipment, the use of floodlights, activities
with a human presence, other actions associated with construction and
repair, or extraction activities in an active cavity tree cluster
during the red-cockaded woodpecker breeding season; installation of
artificial cavity inserts, drilled cavities, or cavity restrictor
plates; inspecting cavity contents, including, but not limited to, use
of video scopes, drop lights, or mirrors inserted into cavities;
activities that render active cavity trees unusable to red-cockaded
woodpeckers; and the use of insecticide or herbicide on any standing
pine tree within 0.50-mile from the center of an active cavity tree
cluster of red-cockaded woodpeckers (85 FR 63498, October 8, 2020).
The species-specific exceptions in the October 8, 2020, proposed
rule included excepting incidental take caused by red-cockaded
woodpecker management and military training activities on DoD
installations with a Service-approved INRMP; habitat restoration
activities carried out in accordance with a management plan providing
for red-cockaded woodpecker conservation developed in coordination
with, and approved by, the Service or a State conservation agency; and
operation of vehicles or mechanical equipment, the use of lights at
night, or activities with a human presence in active cavity tree
cluster during the red-cockaded woodpecker breeding season, under some
circumstances.
We accepted comments on the October 8, 2020, proposed rule for 60
days, ending December 7, 2020. The public comments we received during
that public comment period indicated significant confusion regarding
the intent of the Service's proposed section 4(d) rule and how it could
impact activities that may affect the red-cockaded woodpecker.
Based on these comments, we propose a revised section 4(d) rule for
the red-cockaded woodpecker. We request public comments on the revised
proposed section 4(d) rule set forth in this document. We will provide
a more detailed response to all of the comments we have already
received on the October 8, 2020, proposed rule in our final
determination; however, our revisions in this document generally
address the overarching comments and concerns we received from the
public regarding the proposed section 4(d) rule set forth in the
October 8, 2020, proposed rule.
New Information and Revisions to Proposed 4(d) Rule
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary of the Interior (Secretary) shall issue such
regulations as she 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
[[Page 6120]]
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 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 included 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 section 4(d) rules that do not
address all 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 [or her] with regard to the permitted activities for
those species. [S]he may, for example, permit taking, but not
importation of such species, or [s]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).
In practice, consistent with the two sentences in section 4(d), the
Secretary has two mechanisms to provide for the conservation of
threatened species in a section 4(d) rule. One mechanism is to
promulgate prohibitions similar to those in section 9 of the Act. As
discussed above, section 4(d) grants particularly broad discretion to
the Service for prohibiting acts discussed in section 9. As noted in
Sweet Home Chapter of Communities for a Great Oregon v. Babbitt, this
``second sentence gives [the Service] discretion to apply any or all of
the [section 9] prohibitions to threatened species without obliging it
to support such actions with findings of necessity,'' because ``[o]nly
the first sentence . . . contains the `necessary and advisable'
language and mandates formal individualized findings'' (Sweet Home
Chapter of Communities for a Great Oregon v. Babbitt, 1 F.3d 1, 8 (D.C.
Cir. 1993), modified on other grounds on reh'g, 17 F.3d 1463 (D.C. Cir.
1994), rev'd on other grounds, 515 U.S. 687 (1995)).
Secondly, section 4(d) provides the Secretary discretion to issue
such regulations as she deems necessary and advisable to provide for
the conservation of species listed as threatened. Therefore, in
addition to prohibiting relevant forms of take, section 4(d) rules can
allow other forms of take by excepting this take from the prohibitions.
These exceptions can encourage managers to pursue activities that
benefit the species but that might result in take, especially if this
take would not result in considerable detrimental effects to the
species. If the Service excepts take associated with these beneficial
activities in a section 4(d) rule, managers can implement these
activities without fear of violating section 9 of the Act, even if take
occurs.
Exercising this authority under section 4(d) of the Act, we have
developed revisions to the proposed section 4(d) rule that are designed
to address the red-cockaded woodpecker's specific threats and
conservation needs. Although the statute does not require us 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 the red-cockaded woodpecker.
As the Service concluded in its October 8, 2020, proposed rule to
reclassify the red-cockaded woodpecker from endangered to threatened
(85 FR 63474), the red-cockaded woodpecker is likely to become in
danger of extinction within the foreseeable future primarily due to
threats stemming from lack of suitable habitat. Given these threats,
the intent of this revised proposed section 4(d) rule is to enhance
population resiliency and to make it easier to carry out the habitat
and species management activities that enhance the availability of the
species' key habitat and resource needs, which are outlined in the red-
cockaded woodpecker's species status assessment (SSA) report (U.S. Fish
and Wildlife Service (USFWS) 2020a, pp. 74-87). This means that this
proposed section 4(d) rule would prohibit take to protect the species,
while also providing exceptions to these take prohibitions to encourage
necessary and beneficial habitat restoration and species' management to
advance recovery.
The red-cockaded woodpecker requires cavity trees, nesting habitat,
and foraging habitat (USFWS 2020a, pp. 81-85). Red-cockaded woodpeckers
rely on cavities for nesting and roosting (USFWS 2020a, p. 31). Old
pines are required as cavity trees because cavity chambers must be
completely within the heartwood to prevent pine resin in the sapwood
from entering the chamber and because heartwood diameter is a function
of tree age (Jackson and Jackson 1986, pp. 319-320; Clark 1993, pp.
621-626; USFWS 2020a, p. 30). In addition, old pines have a higher
incidence of the heartwood decay that greatly facilitates cavity
excavation (USFWS 2020a, p. 30). As we explain in the 2003 red-cockaded
woodpecker recovery plan, given that the species requires these
cavities to complete its life cycle, the number of suitable cavities
available can limit population size (USFWS 2003, p. 20); thus, the
recovery plan states, ``to prevent loss of occupied territories,
existing cavity trees should be protected, so that a sufficient number
of suitable ones are maintained at all times'' (USFWS 2003, p. 20).
Red-cockaded woodpeckers also require open pine woodlands and
savannahs with large old pines for nesting and roosting (i.e., nesting
habitat) (USFWS 2020a, p. 30). Cavity trees, with rare exception, occur
in open stands with little or no hardwood midstory and few or no
overstory hardwoods (USFWS 2020a, p. 30). Suitable foraging habitat
generally consists of mature pines with an open canopy, low densities
of small pines, a sparse hardwood or pine midstory, few or no overstory
hardwoods, and abundant native bunchgrass and forb groundcovers (USFWS
2020a, p. 39).
Additionally, the red-cockaded woodpecker is a conservation-reliant
species ``highly dependent on active conservation management with
prescribed fire, beneficial and compatible silvicultural methods to
regulate forest composition and structure, the provision of artificial
cavities where natural cavities are insufficient, translocation to
sustain and increase small vulnerable populations, and effective
monitoring to identify limiting biological and habitat factors for
management'' (USFWS 2020a, p. 129). The proposed rule to downlist the
red-cockaded woodpecker from endangered to threatened emphasized this
conservation reliance and indicated that the future persistence of the
species will require these management actions to continue (85 FR 63474;
October 8, 2020). As such, in addition to providing
[[Page 6121]]
prohibitions necessary to protect individuals, the revised proposed
section 4(d) rule provides exceptions that would maintain and restore
these essential nesting and foraging resources for the species (i.e.,
cavity trees, nesting habitat, and foraging habitat), which will
advance the species' recovery and conservation.
Specifically, the exceptions in the revised proposed section 4(d)
rule encourage beneficial habitat management on Federal lands,
compatible prescribed burns and use of herbicides on private lands, and
the provision of artificial cavities throughout the species' range.
These activities provide considerable benefit to the species and its
habitat by maintaining or increasing the quantity and quality of cavity
trees, nesting habitat, and foraging habitat. Additionally, this
revised proposed 4(d) rule retains the proposed exception for take that
results from activities authorized by a permit under the Act, which
includes permits we have issued or will issue under the valuable safe
harbor agreement program. Together, these prohibitions and exceptions
would maintain and restore essential nesting and foraging resources for
the species, improving the availability of suitable habitat, and would
promote continued recovery.
Additionally, one of the primary purposes of the Act is to provide
a means whereby the ecosystems upon which endangered and threatened
species depend may be conserved (16 U.S.C. 1531(b)); crafting a section
4(d) rule for red-cockaded woodpecker that encourages habitat
management that benefits the species would also support conservation of
the native pine-grass ecosystems upon which the species depends.
The provisions of this revised proposed 4(d) rule would promote
conservation of the red-cockaded woodpecker by prohibiting take that
can directly or indirectly impact population demographics. It would
also promote conservation of the species by providing more flexibility
for incidental take that may result from activities that maintain and
restore requisite habitat features.
Moreover, we acknowledge and commend the accomplishments of our
Federal partners, State agencies, nongovernmental organizations, and
private landowners in providing conservation for the red-cockaded
woodpecker for the past four decades. This intensive management has
facilitated population growth since the time of listing, thereby
allowing the Service to propose downlisting the species from endangered
to threatened. Private landowners' safe harbor agreements, DoD's
INRMPs, U.S. Forest Service land and resource management plans (LRMPs),
and National Wildlife Refuge System habitat management plans currently
provide specific measures for the active management and conservation of
the species throughout its range, which have aided in the recovery of
the species and its habitat. Overall, the majority of red-cockaded
woodpecker populations are managed under plans that address population
enhancement and habitat management to sustain or increase populations
and to meet the 2003 recovery plan objectives for primary core,
secondary core, and essential support populations (USFWS 2003, pp. 156-
159). Our revised proposed 4(d) rule does not invalidate or replace
these successful programs. In fact, the revised proposed 4(d) rule
would continue to encourage private landowners to participate in the
safe harbor agreement program and would provide incentives for public
land managers and applicable State land management agencies to continue
providing specific management for the benefit of the species and its
habitat.
The provisions of this revised proposed section 4(d) rule are only
one of the many tools the Service can use to promote the conservation
of the red-cockaded woodpecker. For example, if this 4(d) rule is
finalized, private landowners and some State agencies may still pursue
regulatory flexibility through existing mechanisms that currently
promote the species' conservation, such as safe harbor agreements or
habitat conservation plans. These effective mechanisms would continue
to provide considerable assurances for landowners.
Similarly, this 4(d) rule would not change a private landowner's
ability to enroll in Natural Resources Conservation Service or Partners
for Fish and Wildlife conservation programs. These Federal programs
provide technical and financial assistance to private landowners to
support habitat management on working lands that will benefit wildlife
and other natural resources in the open-pine systems of the
southeastern United States. Nationwide, these programs help conserve or
restore hundreds of thousands of acres of wildlife habitat every year
(USFWS 2020b, p. 4). As a result of the consultations these Federal
programs conduct with the Service, enrolled private landowners already
receive allowances for incidental take associated with beneficial
conservation practices, without having to embark on a complex
permitting process; the reclassification of the red-cockaded woodpecker
and the revised proposed 4(d) rule, if finalized, would not alter these
programs. We encourage private landowners to continue participating in
these valuable private lands conservation programs.
Rules under 4(d) of the Act do not and cannot remove Federal
agencies' section 7 consultation obligations (see ``Implications for
Implementation,'' below). While this revised proposed 4(d) rule may
facilitate a streamlined consultation for beneficial habitat management
projects, Federal agencies would still consult under section 7 of the
Act if their actions may affect red-cockaded woodpeckers. Specifically,
Federal agencies can consult with the Service regarding their project
to minimize effects to the red-cockaded woodpecker and, if needed, the
Service would develop a biological opinion and accompanying incidental
take statement that exempts the Federal agency from the prohibitions in
the 4(d) rule, for a specific amount of incidental take, while carrying
out their planned project.
Finally, this revised proposed 4(d) rule would not alter or
invalidate the 2003 red-cockaded woodpecker recovery plan. Recovery
plans are not regulatory documents, but rather they provide a strategy
to guide the conservation and recovery of the red-cockaded woodpecker.
While this revised proposed 4(d) rule does not incorporate certain
specific guidelines from the 2003 recovery plan (e.g., survey
protocols, training requirements for acquiring a section 10(a)(1)(A)
permit to monitor the species), as suggested by some commenters, these
provisions may still be applicable under the 4(d) rule.
This revised proposed 4(d) rule would apply only when and if we
make a final determination that the red-cockaded woodpecker should be
reclassified as a threatened species. Finally, if finalized, the only
portion of this document that would have regulatory effect is the text
presented below under Proposed Regulation Promulgation (i.e., the text
we propose to add as paragraph (h) of Sec. 17.41 of title 50 of the
Code of Federal Regulations (CFR) (50 CFR 17.41(h))); the explanatory
text above and in Provisions of the Revised Proposed Section 4(d) Rule
below merely clarifies the intent of these proposed amendments to the
regulations.
Provisions of the Revised Proposed Section 4(d) Rule
Prohibitions
In the October 8, 2020, proposed downlisting rule (85 FR 63474),
the Service proposed specific provisions
[[Page 6122]]
that prohibited incidental take associated with activities that would
result in the further loss or degradation of red-cockaded woodpecker
habitat, including damage to or loss of cavity trees, among other
practices, to specifically protect the species' key habitat needs.
However, comments submitted by the general public, Federal agencies,
and the States during the public comment period on the October 8, 2020,
proposed rule expressed confusion regarding these provisions. Many
commenters believed the Service was prohibiting the activities it
referenced in the proposed 4(d) rule. For example, commenters believed
the Service was prohibiting all use of herbicides in habitat
management, given the prohibition on incidental take that resulted from
herbicide use. The Service's intent in the October 8, 2020, proposed
rule was to prohibit incidental take that results from certain types of
habitat management and land use, not to prohibit the activities
themselves. However, given this confusion regarding the language in the
October 8, 2020, proposed rule, this revised proposed rule describes
prohibitions in a different, but more familiar, way.
Consistent with the discretion provided by section 4(d), our
revisions to the proposed section 4(d) rule would provide for the
conservation of the red-cockaded woodpecker by adopting the same
prohibitions that apply to an endangered species under section 9 of the
Act and 50 CFR 17.21. These are the same prohibitions that currently
apply to the red-cockaded woodpecker while it is listed as an
endangered species. Specifically, except as otherwise authorized or
permitted, this revised proposed 4(d) rule would continue to prohibit:
Importing or exporting red-cockaded woodpeckers; take of red-cockaded
woodpeckers; possession and other acts with unlawfully taken specimens;
delivering, receiving, transporting, or shipping red-cockaded
woodpeckers in interstate or foreign commerce in the course of
commercial activity; and selling red-cockaded woodpeckers or offering
red-cockaded woodpeckers for sale in interstate or foreign commerce. As
they do now, these prohibitions would apply throughout the species'
range, on both public and private lands. Over the past four decades,
while the species was listed as an endangered species, these
prohibitions have provided an understandable, broadly accepted
framework for protecting red-cockaded woodpeckers and the habitat
resources upon which they depend.
Identical to the regulations that apply under endangered status,
the prohibitions in this revised proposed section 4(d) rule would
prohibit all forms of take of red-cockaded woodpeckers within the
United States. Under the Act, ``take'' means to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in any such conduct. The Service has further defined the terms
``harm'' and ``harass'' in regulation (50 CFR 17.3). To ``harm''
entails an act which actually kills or injures fish or wildlife (50 CFR
17.3). Such an act may include significant habitat modification or
degradation which actually kills or injures fish or wildlife by
significantly impairing essential behavioral patterns, including
breeding, feeding or sheltering (50 CFR 17.3). To ``harass'' involves
an intentional or negligent act or omission which creates the
likelihood of injury to wildlife by annoying it to such an extent as to
significantly disrupt normal behavioral patterns which include, but are
not limited to, breeding, feeding, or sheltering (50 CFR 17.3). Take
can result knowingly or otherwise, by direct and indirect impacts, and
intentionally or incidentally.
As discussed in the SSA report for the species, effective
monitoring, research, and translocation are an important element of the
active management that promotes red-cockaded woodpecker conservation
and recovery. However, in this revised proposed section 4(d) rule, we
propose to prohibit all forms of take, which would include capturing,
handling, and similar activities. Such activities include, but are not
limited to, translocation, banding, collecting tissue samples, and
research involving capturing and handling red-cockaded woodpeckers.
While these activities are essential to conservation and recovery of
the species, there are proper techniques to capturing and handling
birds that require training and experience. Improper capture, banding,
or handling can cause injury or even result in death of red-cockaded
woodpeckers. Therefore, to assure these activities continue to be
conducted correctly by properly trained personnel, the proposed section
4(d) rule would continue to prohibit take associated with
translocation, banding, research, and other activities that involve
capture or handling of red-cockaded woodpeckers; however, take that
results from these activities could still be allowed under a section
10(a)(1)(A) permit.
In essence, this rule would prohibit take under all circumstances,
unless otherwise excepted in the section 4(d) rule (discussed below),
authorized by a permit under the Act (e.g., section 10(a)(1)(A) permit
issued for a safe harbor agreement, section 10(a)(1)(B) permit issued
for a habitat conservation plan), or exempted through section 7
consultation (including the consultations that cover landowners
enrolled in Natural Resources Conservation Service or Partners for Fish
and Wildlife conservation programs). Because the prohibitions in this
proposed rule exactly match those that currently apply under endangered
status, if managers (e.g., landowners, Federal agencies, utility
companies) are currently carrying out compatible land use activities
without resulting in take of the species, the provisions in this
proposed rule would not affect their ability to continue conducting
those activities; this 4(d) rule also would not alter Federal agencies'
current and continued obligation to conduct necessary section 7
consultation on these activities.
Prohibiting all forms of take on both public and private lands will
provide clear measures necessary and advisable to ensure the species
continues to maintain or improve its demographics. Regulating both
intentional and incidental take would help preserve the species'
remaining populations and decrease synergistic, negative effects from
other stressors, while allowing beneficial activities that do not
result in take to continue to occur. The Service seeks comments on
these prohibitions (see Information Requested, above).
Exceptions
The revised proposed section 4(d) rule would also provide for the
conservation of the species by promulgating exceptions to the
prohibitions discussed above; these exceptions would allow for routine
law enforcement activities, for defense of life, to aid sick or injured
birds, and for incidental take associated with the active habitat
management this species uniquely requires. These exceptions would
promote the maintenance and restoration of the habitat resources
(cavity trees, nesting habitat, and foraging habitat) crucial to red-
cockaded woodpecker recovery and conservation.
At the outset, the revised proposed section 4(d) rule outlines
several standard exceptions to the prohibitions that are identical to
exceptions that currently apply to the red-cockaded woodpecker and
other endangered species. First, we propose to except certain actions
that may be otherwise prohibited by this rule but that are authorized
by permits under 50 CFR 17.32. Currently, activities that are
prohibited by 50 CFR 17.21, which applies to endangered species, may be
[[Page 6123]]
permitted by permits issued under 50 CFR 17.22 for the red-cockaded
woodpecker. Accordingly, the inclusion of this provision referencing 50
CFR 17.32 does not result in a change from the status quo. This means
that if a manager has received or receives a permit for a particular
activity (e.g., a section 10(a)(1)(A) permit for monitoring red-
cockaded woodpeckers; a permit issued for a safe harbor agreement or
habitat conservation plan), any take that occurs as a result of
activities covered by this permit would remain exempted from the
aforementioned prohibitions on take; in other words, the manager would
not be liable for any take for which they already have a permit, as
long as they continue to comply with the stipulations in the permit.
This exception also applies to the permits that private landowners or
some State agencies already hold as a result of a safe harbor agreement
or habitat conservation plan. This revised proposed section 4(d) rule
would not invalidate any part of a landowner's existing safe harbor
agreement, habitat conservation plan, or permit. We encourage
landowners to continue operating within the parameters of their safe
harbor agreement, habitat conservation plan, and associated permits. As
long as landowners continue to comply with the provisions of these
permits, any take that occurs as a result of covered activities would
be exempted from the prohibitions on take in this rule.
Furthermore, the Service encourages landowners to continue to
enroll in the safe harbor agreement program. Exactly like the
regulatory regime that applies while the species is listed as
endangered, any new permits issued under the authority of the safe
harbor agreement program would provide landowners with additional
management flexibility and exemption from some of the take prohibitions
in this proposed rule. Safe harbor agreements are partnerships between
landowners and the Service or between the State and the Service
involving voluntary agreements under which the property owners receive
formal regulatory assurances from the Service regarding their
management responsibilities in return for contributions to benefit the
listed species.
For the red-cockaded woodpecker, this includes voluntary
commitments by landowners to maintain and enhance red-cockaded
woodpecker habitat to support baseline active clusters, which is the
number of clusters at the time of enrollment, and to bolster their
populations with additional above-baseline active clusters that emerge
in response to beneficial management. Beneficial management includes
the maintenance and enhancement of existing cavity trees and foraging
habitat through activities such as prescribed fire, mid-story thinning,
seasonal limitations for timber harvesting, and management of pine
stands to provide suitable foraging habitat and cavity trees. Permits
issued under safe harbor agreements allow enrolled landowners to return
their properties to ``baseline'' conditions at any time. Since its
inception in the 1990s, the safe harbor program has successfully
promoted the recovery of red-cockaded woodpeckers; due to the concerted
efforts of private landowners enrolled in the program, the number of
red-cockaded clusters on private lands has increased. As described in
the proposed downlisting rule (85 FR 63474; October 8, 2020), 12
populations with 342 active clusters reside entirely on private lands,
of which 10 populations with 295 active clusters are managed by
landowners enrolled in the safe harbor agreement program. There
currently are 241 active above-baseline clusters in the program. This
revised proposed section 4(d) rule would not alter this valuable
program or the permits associated with it.
Second, we propose to incorporate standard exceptions that
currently apply to the red-cockaded woodpecker and endangered species,
including exceptions that allow take in defense of life; allow take by
an employee of the Service, Federal land management agency, or State
conservation agency to aid sick or injured red-cockaded woodpeckers,
dispose of dead specimens, or salvage dead specimens for scientific
research; and allow individuals to take the species if they have a
valid migratory bird rehabilitation permit if such action is necessary
to aid a sick, injured, or orphaned listed migratory bird. We also
propose a standard regulatory exception to allow Federal and State law
enforcement officers to possess, deliver, carry, transport or ship
individuals taken in violation of the Act as necessary in performing
their official duties and that allow those with a valid migratory bird
rehabilitation permit to possess or transport a listed migratory bird
species. All of these standard exceptions currently apply while the
species is listed as endangered, and they would continue to apply if we
finalize the reclassification of red-cockaded woodpeckers to a
threatened species with this revised proposed 4(d) rule.
Next, we propose to incorporate an exception that does not
currently apply while the woodpecker is listed as endangered. This
exception from 50 CFR 17.31(b) allows employees or agents of the
Service or State conservation agencies operating under a cooperative
agreement with the Service in accordance with section 6(c) of the Act
to take red-cockaded woodpeckers in order to carry out conservation
programs for the species. The Service can only apply the exception in
50 CFR 17.31(b) to take prohibitions for threatened species. The
Service recognizes the special and unique relationship with our State
conservation agency partners in contributing to conservation of listed
species. States solely own and manage lands occupied by at least 31
demographic populations and oversee State-wide safe harbor agreements
that have enrolled 459 non-Federal landowners covering approximately
2.5 million acres (85 FR 63474; October 8, 2020).
State agencies also often possess scientific data and valuable
expertise on the status and distribution of endangered, threatened, and
candidate species of wildlife and plants. State agencies, because of
their authorities and their close working relationships with local
governments and landowners, are in a unique position to assist the
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, any qualified employee or agent of a State
conservation agency that is a party to a cooperative agreement with the
Service in accordance with section 6(c) of the Act, who is designated
by his or her agency for such purposes, would be able to conduct
activities designed to conserve the red-cockaded woodpecker that may
result in otherwise prohibited take without additional authorization
(i.e., without a permit). Most State conservation agencies within the
range of red-cockaded woodpeckers have already worked with the Service
to develop valid cooperative agreements under section 6(c) of the Act
that include conservation programs for red-cockaded woodpeckers.
This exception is very similar to an exception that currently
applies while the woodpecker is listed as endangered (the exception
under 50 CFR 17.21(c)(5)). While the exception in 50 CFR 17.31(b) is
similar to the exception that currently applies while the species is
listed as endangered (50 CFR 17.21(c)(5)), it does not provide the same
limitations on take associated with carrying out conservation programs
in
[[Page 6124]]
States' cooperative agreements. State agencies may also enroll in the
safe harbor program to receive permits that allow for certain types of
take, if they are not otherwise covered by a cooperative agreement or
otherwise prohibited. The Service seeks comments on the inclusion of
this exception (see Information Requested, above).
Finally, unlike the regulations that apply to the species under
endangered status, we propose additional exceptions to the take
prohibitions in this revised proposed 4(d) rule that would facilitate
continued and increased implementation of beneficial management
practices that contribute to the conservation of the species. As
discussed above, active management targeted at maintaining and
restoring red-cockaded woodpecker populations and habitat is essential
to the continued recovery of the species. The analyses in the red-
cockaded woodpecker SSA report illustrate that it could take ``many
decades . . . to attain a desired future ecosystem condition in which
red-cockaded woodpeckers are no longer dependent on artificial cavities
and related special treatments. Without adequate species-level
management, in contrast to ecosystem management alone, very little
increase in the number of moderately to very highly resilient
populations can be expected, and small populations of low or very low
resilience are unlikely to persist'' (USFWS 2020a, p. 12). The species-
specific exceptions in this revised proposed section 4(d) rule aim to
facilitate management that would protect and enhance red-cockaded
woodpecker populations.
Conservation of red-cockaded woodpeckers as a species depends
primarily on the conservation of populations on Federal properties
(e.g., National forests, DoD installations) for several reasons. First,
the vast majority of red-cockaded woodpeckers in existence today are on
Federal lands (USFWS 2020a, pp. 106-108; see Table 7 in USFWS 2003, p.
137). Second, Federal properties contain most of the land that can
reasonably be viewed as potential habitat for red-cockaded woodpeckers
(USFWS 1985, p. 133). Third, existing Federal statutes, especially the
Act, require that Federal agencies conserve listed species and maintain
biodiversity within their lands. Section 2(c)(1) of the Act declares
that it is the policy of Congress that all Federal departments and
agencies shall seek to conserve endangered species and threatened
species (16 U.S.C. 1531(c)(1)); the Act defines conservation as the use
of all methods and procedures necessary to bring an endangered species
or threatened species to the point at which the measures provided
pursuant to the Act are no longer necessary (16 U.S.C. 1532(3)).
Private landowners, in contrast, can contribute substantially to
conservation, but such contributions above complying with the statutory
prohibitions (e.g., direct harm) are voluntary. For those private
landowners that wish to increase the size of their population, we
strongly encourage them to aim to achieve the recovery standard in the
2003 recovery plan or join the safe harbor program (USFWS 2003, pp.
188-189).
Therefore, the species-specific exceptions in this revised proposed
4(d) rule address private lands and Federal properties differently for
three reasons. First, these entities have differing recovery
responsibilities. Second, the Service would retain additional
involvement in Federal agencies' habitat management activities as a
result of section 7 consultation obligations. Third, there are other
flexible programs that permit take that are already available to some
State conservation agencies and private landowners (e.g., permits
issued from safe harbor agreements and habitat conservation plans,
Partners for Fish and Wildlife program, Natural Resources Conservation
Service private landowner programs).
First, we propose an exception to the take prohibitions to allow
incidental take on DoD installations that occurs as a result of
implementing red-cockaded woodpecker habitat management and military
training activities detailed in Service-approved INRMPs. In this
proposal, we define habitat management activities as activities
intended to maintain or improve the quality and/or quantity of red-
cockaded woodpecker habitat, including, but not limited to, prescribed
burning; using herbicides and equipment to reduce midstory
encroachment, thin overstocked pine stands, promote an open canopy pine
system, and promote herbaceous groundcover; converting loblolly, slash,
or other planted pines to more fire-tolerant native pines such as
longleaf pine; planting and seeding native, site-appropriate pines and
groundcover species; and regenerating areas of older pine forest, or
any overrepresented age class, to increase and maintain sustainable
current and future habitat.
Within the range of the species, most DoD Army, Air Force, and
Marine Corps installations have red-cockaded woodpecker management
plans and guidelines incorporated into their Service-approved INRMPs to
minimize the adverse effects of the military training activities
outlined in INRMPs and to achieve red-cockaded woodpecker recovery
objectives. These plans and guidelines all contain an ``Endangered
Species Management Component'' (ESMC) for red-cockaded woodpecker
conservation, which includes population size objectives, management
actions to achieve conservation goals, monitoring and reporting, and
specific training activities that are allowed or restricted within
clusters and near cavity trees. Under the Sikes Act (16 U.S.C. 670 et
seq.), the Service is required to review and approve INRMPs, when they
are revised, at least every 5 years, and participate in annual reviews.
In addition to this review and approval under the Sikes Act, the
Service conducts section 7 consultation under the Act on INRMPs and
ESMCs to ensure DoD installations' activities are not likely to
jeopardize the continued existence of any listed species, including
red-cockaded woodpeckers. If this revised proposed section 4(d) rule is
finalized, DoD installations would still need to comply with the Sikes
Act requirement to obtain Service approval of INRMPs and would still
need to fulfill their section 7 obligations under the Act, including
tracking and reporting amounts of incidental take that occur as a
result of activities outlined in the INRMP (see ``Implications for
Implementation,'' below, for more detail on section 7 processes under
section 4(d) rules).
In addition to excepting incidental take that results from red-
cockaded woodpecker habitat management activities in INRMPs, this
revised proposed section 4(d) rule would except incidental take
associated with routine military training activities that are included
in a Service-approved INRMP. The military training activities that DoD
installations include in their INRMPs have been specifically designed
to minimize incidental take of listed species, including red-cockaded
woodpeckers. The DoD uses long-established guidelines (e.g., Management
Guidelines for the Red-cockaded Woodpecker on Army Installations (U.S.
Army 1996, entire)) to inform minimization measures that reduce
incidental take associated with military training. Moreover, the DoD
conducts section 7 consultation with the Service on the content of
their INRMPs to ensure these military training activities will not
jeopardize the species. Any incidental take resulting from new proposed
training or construction activities that are not incorporated into a
Service-approved
[[Page 6125]]
INRMP would not be excepted under this proposed rule, but could be
exempted through an incidental take statement associated with a
biological opinion resulting from a separate section 7 consultation
under the Act. In other words, if a military installation's activities
do not fall within the exceptions in this proposed 4(d) rule (i.e.,
they are not incorporated in a Service-approved INRMP) or are not
otherwise covered in an existing section 7 biological opinion,
incidental take that results from those activities could still be
exempted from the prohibitions in this proposed 4(d) rule via a new
biological opinion's incidental take statement, as long as the
activities will not jeopardize the continued existence of the species.
To further ensure the DoD continues to monitor their red-cockaded
woodpecker populations and habitats, the provisions in the revised
proposed section 4(d) rule would require each installation to share an
annual property report regarding their red-cockaded woodpecker
populations. This annual property report could include the property's
recovery goal; the number of active, inactive, and recruitment
clusters; information on habitat quality; and the number of artificial
cavities the property installed. All military installations with red-
cockaded woodpecker populations currently provide such a report to the
Service, and we expect this to continue if we downlist the species.
This monitoring could inform adaptive management and course corrections
during annual INRMP reviews.
As a result of existing conservation programs under Service-
approved INRMPs, red-cockaded woodpecker populations have increased on
all DoD installations. In fact, Fort Bragg, Fort Stewart, Eglin Air
Force Base, Fort Benning, and Camp Blanding all have achieved or
surpassed their 2003 red-cockaded woodpecker recovery plan population
size objectives and are expected to continue to manage towards larger
populations (USFWS 2003, pp. xiii-xx, 212-213). Active and beneficial
red-cockaded woodpecker management to increase population sizes on DoD
installations has been an essential component of sustaining the
species, and it can balance the effects of military training.
Some comments we received on the October 8, 2020, proposed
downlisting rule (85 FR 63474) raised concerns this exception for
Service-approved INRMPs could be too open-ended to be sufficiently
protective of the species. However, given the close, formal involvement
the Service has in reviewing and approving INRMPs under the Sikes Act,
the species-specific beneficial management prescriptions that DoD
installations must incorporate into the ESMCs of these plans, the
monitoring that the DoD installations must conduct, and the section 7
consultation that would still occur for these plans to ensure
conservation activities do not jeopardize the species, we find that the
management resulting from INRMPs would continue to advance the
conservation of the species, even if incidental take occurs. Therefore,
this revised proposed section 4(d) rule would except incidental take
resulting from red-cockaded woodpecker habitat management and military
training activities on DoD installations carried out in accordance with
a Service-approved INRMP. The Service seeks comments on this exception
(see Information Requested, above).
Second, we propose an exception to take prohibitions to allow
incidental take that results from habitat management activities
intended to restore or maintain red-cockaded woodpecker habitat on
Federal land management agency properties; as noted earlier, we define
``habitat management activities'' for the purposes of the revised
proposed 4(d) rule (see Proposed Regulation Promulgation, below). We
provide this exception separately from the aforementioned exception for
DoD properties to account for the fact that the Sikes Act requires a
different level of Service involvement in the development of INRMPs and
provides different standards for content in INRMPs than other Federal
natural resource management planning processes.
In order to benefit from this exception, Federal land management
agencies must detail these planned activities in a Federal habitat
management plan that includes a red-cockaded woodpecker management
component, which addresses factors including, but not limited to, the
red-cockaded woodpecker population size objective and the habitat
management necessary to sustain, restore, or increase foraging habitat,
nesting habitat, and cavity trees to attain population size objectives.
Suitable management plans may be stand-alone documents or may be step-
down plans with red-cockaded woodpecker-specific management components
that implement more general plans (e.g., the habitat management plans
that implement the National Wildlife Refuge System's comprehensive
conservation plans and red-cockaded woodpecker-specific amendments to
LRMPs). In addition to describing these habitat management activities
in a Federal habitat management plan, Federal land management agencies
must also incorporate appropriate conservation measures to minimize or
avoid adverse effects of these habitat management activities on red-
cockaded woodpecker foraging habitat, on clusters, and on the species'
roosting and nesting behavior to the maximum extent practicable;
Federal agencies may identify these avoidance and minimization measures
in these habitat management plans or in documentation associated with
the section 7 consultation process. The inclusion of ``clusters'' in
this provision would ensure Federal land managers are adequately
protecting nesting habitat and cavity trees, in addition to foraging
habitat, while executing their planned beneficial habitat management
activities. The Service expects the red-cockaded woodpecker components
of these Federal management plans to allow for adaptive management and
frequent re-evaluation of appropriate conservation activities and
minimization measures.
Moreover, to further ensure Federal land management agencies
continue to monitor their red-cockaded woodpecker populations and
habitats, the provisions in the revised proposed section 4(d) rule
would require each Federal property to share an annual property report
with the Service regarding their red-cockaded woodpecker populations.
This annual property report could include the property's recovery goal;
the number of active, inactive, and recruitment clusters; information
on habitat quality; and the number of artificial cavities the property
installed. All Federal properties with red-cockaded woodpecker
populations currently provide such a report to the Service, and we
expect this to continue if we downlist the species. The reporting
Federal agencies provide as part of section 7 consultations would also
qualify as this annual property report.
As a result of this proposed provision in the section 4(d) rule, we
would, under certain conditions, except incidental take associated with
habitat management activities on Federal lands that have short-term
adverse effects to red-cockaded woodpeckers, but that are intended to
provide for improved habitat quality and quantity in the long term,
with coinciding increases in numbers of red-cockaded woodpeckers, if
these activities are detailed in a management plan that can adequately
address site-specific considerations. Current and future red-cockaded
woodpecker habitat conditions that require such restoration can vary
[[Page 6126]]
significantly among sites and properties, to the extent that it would
be extremely difficult to prescribe a universal condition by which this
exception would apply. Therefore, in this section 4(d) rule, we propose
that incidental take associated with these activities would be
excepted, as long as the activities are intended to restore and
maintain red-cockaded woodpecker habitat and are detailed in a Federal
agency habitat management plan. These management plans can
strategically and accurately assess the site-specific conditions.
According to the revised proposed 4(d) rule, Federal agencies must also
incorporate appropriate conservation measures to minimize the adverse
effects of these activities on red-cockaded woodpecker foraging
habitat, on clusters, and on the species' roosting and nesting
behavior. Because Federal agencies will still need to complete section
7 consultation, as appropriate, on these habitat management plans or
projects, the Service would have the opportunity to review these
restoration projects and provide input on how to minimize impacts to
the species.
Again, the Service seeks to encourage comprehensive, proactive
management that results in red-cockaded woodpecker population growth
and stability since, according to the 2003 recovery plan, ``development
and maintenance of viable recovery populations is dependent on
restoration and maintenance of appropriate habitat'' (USFWS 2003, p.
32). Continued conservation activities and beneficial land management
are necessary to address the threats of habitat degradation and
fragmentation, and it is the intent of this revised proposed rule to
encourage these activities.
Most Federal properties within the range of the red-cockaded
woodpecker already have management plans that detail habitat management
activities specifically intended to restore or maintain red-cockaded
woodpecker habitat; this exception would not require these agencies to
rewrite these management plans or to reinitiate section 7 consultation
on these plans or on relevant projects. Moreover, because this revised
proposed section 4(d) rule would not remove or alter the obligation of
Federal agencies to complete section 7 consultation on their management
plans, the Service would have the opportunity to review any major
changes to these site-specific plans to ensure the Federal agency's
habitat management activities are not likely to jeopardize the
continued existence of any listed species, including the red-cockaded
woodpecker. As part of this section 7 process, the Service would
produce an incidental take statement for the estimated amount of take
reasonably likely to occur as a result of the management plan's
activities, even though that take would be excepted under the section
4(d) rule. Additionally, Federal agencies would still track all
incidental take, even if it is excepted under this provision. If they
exceed the amount of take in this incidental take statement as a result
of carrying out the activities in their management plan, they would
need to reinitiate consultation (see ``Implications for
Implementation,'' below, for more detail on section 7 processes under
section 4(d) rules).
This provision would not except take that results from habitat
management or other activities that provide no benefit to red-cockaded
woodpecker recovery, even if these activities are also described in the
Federal management plan; however, incidental take from such activities
could still be exempted through an incidental take statement associated
with a biological opinion resulting from section 7 consultation under
the Act. In other words, if a Federal land management agency's
activities cannot comply with the exceptions in this 4(d) rule,
incidental take that results from those activities could still be
exempted from the prohibitions in this 4(d) rule via a project-specific
section 7 consultation, as long as the activities will not jeopardize
the continued existence of the species. Finally, because the
prohibitions in this revised proposed section 4(d) rule match those
that currently apply under endangered status, if Federal agencies are
currently conducting management activities without resulting in take of
red-cockaded woodpeckers, this rule would not affect their ability to
continue conducting those activities, independent of this exception.
In short, if incidental take of red-cockaded woodpeckers occurs as
a result of Federal land management agencies carrying out habitat
management activities, as defined in the revised proposed rule, this
take would not be prohibited, as long as: (1) The habitat management
activities were implemented specifically to restore or maintain red-
cockaded woodpecker habitat; (2) the Federal agency details these
habitat management activities in a habitat management plan; (3) the
Federal agency incorporates appropriate conservation measures to
minimize or avoid adverse effects of these habitat management
activities on red-cockaded woodpecker foraging habitat, on clusters,
and on the species' roosting and nesting behavior to the maximum extent
practicable; and (4) the Federal agency provides annual reporting to
the Service. The Service seeks comments on this exception (see
Information Requested, above).
Third, we include an exception to encourage private landowners who
are not enrolled in the safe harbor agreement program to carry out
specific compatible forest management activities (namely, prescribed
burns and application of herbicides), given the importance of these
forest management tools for red-cockaded woodpecker recovery (USFWS
2020a, p. 129). This provision would not change the measures in any
existing safe harbor agreements or habitat conservation plans.
While Federal lands bear additional responsibility when it comes to
achieving the recovery goals for red-cockaded woodpeckers, private
lands still play an important role in the conservation of the species.
They provide for connectivity between populations, which boosts
resiliency, and support additional red-cockaded woodpecker clusters to
enhance redundancy and representation of the species. This revised
proposed section 4(d) rule would continue to encourage voluntary red-
cockaded woodpecker conservation on private lands through the
successful safe harbor agreement program.
The proposed exception would further support compatible forest
management on private lands, while continuing to maintain existing
populations and would be especially relevant for landowners that do not
currently participate in the safe harbor agreement program. This
exception would except incidental take caused by application of
prescribed burns or herbicides on private lands when compatible with
maintaining any known red-cockaded woodpecker populations, provided
that the landowner, or their representative: (1) Follows applicable
best management practices for prescribed burns and applicable Federal
and State laws; (2) applies herbicides in a manner consistent with
applicable best management practices and applicable Federal and State
laws, including Environmental Protection Agency label restrictions and
herbicide application guidelines as prescribed by manufacturers; and
(3) applies prescribed burns and herbicides in a manner that minimizes
or avoids adverse effects to known active clusters and red-cockaded
woodpecker roosting and nesting behavior to the maximum extent
practicable.
[[Page 6127]]
The first condition on this provision requires landowners to follow
applicable best management practices for prescribed burns. States and
counties within the range of red-cockaded woodpecker provide guidance
documents with these best management practices to ensure practitioners
safely apply prescribed burns in a way that minimizes impacts to
communities, riparian ecosystems, forest roads, and vegetation (e.g.,
North Carolina Forestry Best Management Practices Manual; Recommended
Forestry Best Management Practices for Louisiana).
The third condition on this provision calls for private landowners
to incorporate reasonable preventative measures to reduce any direct
adverse effects of these activities on red-cockaded woodpeckers they
already know to roost or nest on their property to the maximum extent
practicable, increasing the net benefit that prescribed burns and
herbicide application can provide to red-cockaded woodpecker habitat
and clusters. However, it does not require these private landowners to
survey for new clusters prior to carrying out a burn or using
herbicides, nor does it require them to follow particular preventative
measures the Service prescribes, although the methods the Service
outlines for cavity tree protection in its red-cockaded woodpecker
recovery plan can provide a helpful resource to landowners when
identifying practical ways to minimize adverse effects (USFWS 2003, pp.
201-205). Thus, this measure asks that landowners responsibly apply
prescribed burns and herbicides, without being unreasonably prohibitive
on landowners' compatible or beneficial activities.
This provision would also only be relevant in situations where take
might occur as a result of a prescribed burn or the application of
herbicides. For example, if a landowner does not currently have any
red-cockaded woodpecker cavity trees, clusters, or foraging woodpeckers
on their property, then it is not possible for these activities to
result in incidental take. Thus, this landowner can proceed with
prescribed burns or the use of herbicides without the possibility of
violating the take prohibitions in the section 4(d) rule, because such
activities would not result in take. It is only when a prescribed burn
or the use of herbicides could result in incidental take of red-
cockaded woodpeckers that private landowners may wish to take advantage
of this exception by following best management practices and conducting
activities in a manner that minimizes or avoids adverse effects to
known active clusters and red-cockaded woodpecker roosting and nesting
behavior to the maximum extent practicable. If a private landowner
follows these best management practices and incorporates reasonable
preventative measures while conducting prescribed burns and applying
herbicides, while incidental take is unlikely, if it were to occur, the
landowner would not be liable for such take under this proposed rule.
This provision would only except incidental take associated with
prescribed burns or the use of herbicides when the use of these
management practices are compatible with maintaining any known red-
cockaded woodpecker populations on their property; in other words, if a
private landowner wishes to pursue a prescribed burn that could impair
red-cockaded woodpecker population dynamics in the long term, this
exception would not cover any incidental take that results from that
burn, even if the landowner follows relevant best management practices.
Finally, if landowners are already enrolled in the safe harbor
program, this exception would not provide any additional flexibility;
the permits associated with safe harbor agreements authorize take
associated with prescribed burns, herbicide use, and other activities,
as long as landowners follow the stipulations in their safe harbor
agreement and do not decrease the number of red-cockaded woodpecker
clusters below their baseline.
The Service's intent for this provision is to provide a simple
means by which to encourage private landowners to pursue certain types
of voluntary forest management activities (i.e., prescribed burns and
herbicide application) in a way that reduces impacts to the species but
also removes any potential barriers to the implementation of this
beneficial forest management, such as fear of prosecution for take.
Collaboration with partners in the forestry industry and their
voluntary conservation and restoration of red-cockaded woodpecker
habitat has helped advance red-cockaded woodpecker recovery to the
point of downlisting; this provision would continue to encourage this
compatible or beneficial management. We also continue to encourage
private landowners to participate in existing valuable conservation
programs that promote forest management that benefits red-cockaded
woodpeckers and provide take allowances for participating landowners
through other means (e.g., permits issued as part of the safe harbor
program or habitat conservation plans, Partners for Fish and Wildlife
and Natural Resources Conservation Service private landowner programs,
and the associated section 7 consultations these Federal programs
conduct with the Service that provide allowances for incidental take
associated with beneficial conservation practices). The Service seeks
comment on this exception (see Information Requested, above).
Finally, the proposed rule would except incidental take that occurs
as a result of the installation of artificial cavities, as long as
individuals conducting the installation have completed training, have
achieved a certain level of proficiency as detailed below, and are
following appropriate guidelines. As described above, maintaining an
adequate number of suitable cavities in each woodpecker cluster is
fundamental to the conservation of the species. Loss of natural cavity
trees was a major factor in the species' decline, and availability of
natural cavity trees currently limits many populations. Until a
sufficient number of large, old pines becomes widely available,
installation and maintenance of artificial cavities is an essential
management tool to sustain populations and bring about population
increases, and the Service continues to encourage the installation of
artificial cavities. However, we also acknowledge that there are proper
techniques to install cavity inserts, drill cavities, or install cavity
restrictor plates, and these techniques require training and
experience. Improperly installed artificial cavities can cause injury
or even result in death of red-cockaded woodpeckers attempting to roost
or nest in them. Currently, because the species is listed as
endangered, individuals must seek a section 10(a)(1)(A) permit to
install artificial cavity inserts, drilled cavities, or cavity
restrictor plates.
However, we recognize that many of our partners have training and
extensive experience in installing artificial cavities. Moreover, given
the essential nature of artificial cavity installation for the
continued conservation of the species, we find it is necessary and
advisable for the section 4(d) rule to remove any potential hurdles to
the efficient and effective provisioning and maintenance of artificial
cavities. We, therefore, provide an exception to take prohibitions in
this revised proposed rule for the installation, maintenance, and
replacement of artificial cavity inserts and drilled cavities on public
and private lands. However, this exception would only apply if the
individual conducting the installation has either held a valid Service
permit for that purpose and has continued to
[[Page 6128]]
install, maintain, and replace cavities since the expiration of their
permit or has completed a period of apprenticeship under the direction
of a person that has been involved in cavity installation for at least
3 years (the trainer).
In order to complete their training, under the direct supervision
of the trainer, the apprentice must install at least 10 drilled
cavities, if they plan to install drilled cavities, or 10 inserts, if
they plan to install inserts, and learn the proper maintenance and
inspection procedures for cavities and restrictor plates. After the
apprentice has completed their training, the trainer must provide a
letter to the apprentice and to the U.S. Fish and Wildlife Service
Regional red-cockaded woodpecker recovery coordinator; the letter would
outline the training the apprentice received and would serve as a
record of the apprentice's training.
Additionally, the individual conducting the installation must
follow appropriate guidelines for the installation and use of
artificial cavity inserts and drilled cavities, including: (1)
Monitoring the cavity resource; (2) installing and maintaining the
recommended number of suitable cavities in each cluster; (3) using the
appropriate type of artificial cavity insert and method of artificial
cavity installation; (4) installing artificial cavities as close to
existing cavity trees as possible, preferably within 71 meters (200
feet); (5) selecting a tree that is of appropriate age or diameter when
installing a cavity insert; (6) selecting the appropriate location for
artificial cavity installation on the tree; and (7) protecting red-
cockaded woodpeckers from sap leakage by ensuring that no artificial
cavity has resin leaking into the chamber or entrance tunnel.
The 2003 red-cockaded woodpecker recovery plan can provide some
additional detail on how an installer can ensure they successfully
follow these guidelines (USFWS 2003, pp. 175-178). If an installer does
not comply with the qualification requirements (i.e., they have not
held a valid Service permit or they have not completed the necessary
training) or installation guidelines in the proposed 4(d) rule and
incidental take occurs as a result of artificial cavity installation,
the installer would still be liable for this take. However, if an
installer is qualified and follows the installation guidelines, while
incidental take is highly unlikely, if it were to occur, the installer
would not be liable for such take under this proposed rule. We included
this exception in our revised proposed 4(d) rule as a result of public
comments on the October 8, 2020, proposal that supported its
incorporation. The Service seeks comments on this exception (see
Information Requested, above).
In addition to the exceptions we outline above, we may issue
permits to carry out activities that could result in otherwise
prohibited take of threatened wildlife under certain circumstances.
Regulations governing permits are codified at 50 CFR 17.32. With regard
to threatened wildlife, a permit may be issued for the following
purposes: For scientific purposes, to enhance propagation or survival,
for economic hardship, for zoological exhibition, for educational
purposes, for incidental taking, or for special purposes consistent
with the purposes of the Act. The statute also contains certain
exemptions from the prohibitions, which are found in sections 9 and 10
of the Act.
Implications for Implementation
Nothing in this revised proposed section 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, as noted
above; or the ability of the Service to enter into partnerships for the
management and protection of the red-cockaded woodpecker. However,
interagency cooperation may be further streamlined through planned
programmatic consultations for the species between Federal agencies and
the Service, where appropriate.
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
As a result of these provisions in the Act, if a Federal action may
affect a listed species or its critical habitat, the responsible
Federal agency (action agency) must enter into consultation with us.
Examples of actions that are subject to the section 7 consultation
process are actions on State, Tribal, local, or private lands that
require a Federal permit (such as a permit from the U.S. Army Corps of
Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et
seq.) or a permit from the Service under section 10 of the Act) or that
involve some other Federal action (such as funding from the Federal
Highway Administration, Federal Aviation Administration, Federal
Emergency Management Agency, Natural Resources Conservation Service, or
Partners for Fish and Wildlife Program). Federal actions that do not
affect listed species or critical habitat--and actions on State,
Tribal, local, or private lands that are not federally funded,
authorized, or carried out by a Federal agency--do not require section
7 consultation.
The trigger for consultation is whether a Federal action may affect
a listed species or its critical habitat, not whether the action would
result in prohibited take; species-specific section 4(d) rules,
regardless of the take they prohibit or allow, cannot change this
requirement to consult. Consultation is still required to satisfy the
requirements of section 7(a)(2) of the Act to ensure that the activity
will not jeopardize the species or result in adverse modification of
critical habitat. Thus, if a Federal agency determines that their
action is not likely to adversely affect a listed species or its
critical habitat, they must still receive the Service's written
concurrence, even if this activity is excepted under a section 4(d)
rule. If a Federal agency determines that their action is likely to
adversely affect a listed species or its critical habitat, even if it
only results in take that is excepted under a section 4(d) rule, they
must still pursue formal consultation with the Service and the Service
must formulate a biological opinion that includes an incidental take
statement. Even if a section 4(d) rule includes specific exceptions to
take prohibitions, the Service must still describe or enumerate the
amount or extent of this incidental take that is reasonably certain to
occur (i.e., in an incidental take statement) and the Federal action
agency must monitor and report any such take that occurs. If an action
agency's activities exceed the amount of incidental take enumerated in
the incidental take statement, it would trigger reinitiation of the
consultation, even if this excessive take is still excepted under the
section 4(d) rule (see Center for Biological Diversity v. Salazar, 695
F.3d 893 (2012)). This allows the agency to keep track of any take to
stay abreast of the status of the species. The Federal action agency
may also trigger reinitiation of consultation if they do not implement
the proposed action as described in the biological opinion or as
directed in the section 4(d) rule.
Even though section 4(d) rules do not remove or alter Federal
agencies' section
[[Page 6129]]
7 consultation obligations, a section 4(d) rule can facilitate
simplification of formal consultations. For example, as noted in our
August 27, 2019, final rule regarding prohibitions for threatened
species (84 FR 44753), in choosing to except take under certain
circumstances in a section 4(d) rule, the Service has already
determined that these forms of take are compatible with the species'
conservation, which can streamline our analysis of whether an action
would jeopardize the continued existence of the species, making
consultation more straightforward and predictable. The Service plans to
develop tools to streamline formal consultation for activities that do
not result in prohibited take of red-cockaded woodpeckers. For example,
given the nature of activities that would be consistent with this
revised proposed section 4(d) rule, and as the revised proposed section
4(d) rule includes an explanation for why such activities provide for
the conservation of the species, the Service could draft an analysis of
the effects of these habitat management activities on the species for
inclusion in all section 7 analyses that consider effects on the red-
cockaded woodpecker. This analysis could be inserted verbatim into any
Service biological opinion (or action agency biological assessment),
thereby creating efficiencies in the development of these documents and
providing consistency for consultation on activities that are covered
by the section 4(d) rule.
Finally, if Federal agencies have already completed section 7
consultation on particular projects, activities, or management plans
and the biological opinion remains valid, they do not need to
reinitiate consultation if or when this 4(d) rule is finalized, if
their Federal action (e.g., management plan) has not changed. However,
given the provisions in this revised proposed section 4(d) rule,
Federal agencies may find that reinitiating consultation, although not
required, could grant additional flexibilities for their management.
We will consider tools to streamline section 7 consultation on
activities that may result in take that is excepted under this revised
proposed 4(d) rule. We ask the public, particularly Federal and State
agencies and other interested stakeholders that may be affected by the
proposed section 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 section 4(d) rule (see Information Requested, above).
References Cited
A complete list of references cited in this document is available
on the internet at https://www.regulations.gov and upon request from
the person listed under FOR FURTHER INFORMATION CONTACT, above.
Authors
The primary authors of this proposed rule are the staff members of
the Fish and Wildlife Service's Species Assessment Team and the
Louisiana, Georgia, and South Carolina Ecological Services Field
Offices.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, we propose to further amend part 17, subchapter B of
chapter I, title 50 of the Code of Federal Regulations, as proposed to
be amended on October 9, 2018, at 83 FR 50560, and October 8, 2020, at
85 FR 63474, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.41 by revising paragraph (h) to read as follows:
Sec. 17.41 Special rules--birds.
* * * * *
(h) Red-cockaded woodpecker (Dryobates borealis). (1) Definitions.
For the purposes of this paragraph (h), we define the following terms:
(i) Habitat management activities are activities intended to
maintain or improve the quality and/or quantity of red-cockaded
woodpecker habitat, including, but not limited to, prescribed burning;
using herbicides and equipment to reduce midstory encroachment, thin
overstocked pine stands, promote an open canopy pine system, and
promote herbaceous groundcover; converting planted pines to more fire-
tolerant, site-appropriate native pines found within the associated
native pine, fire-dependent ecosystem; planting and seeding native,
site-appropriate pines and groundcover species; and regenerating areas
of older pine forest to increase and maintain sustainable current and
future habitat for red-cockaded woodpeckers.
(ii) Cavity tree means any tree containing one or more active or
inactive natural or artificial cavities.
(A) An active cavity is a completed natural or artificial cavity or
cavity start exhibiting fresh pine resin associated with red-cockaded
woodpeckers' cavity maintenance, cavity construction, or resin well
excavation.
(B) An inactive cavity is a cavity that is not presently being used
by red-cockaded woodpeckers.
(C) A cavity start is a void formed in the bole of the tree during
the initial stages of cavity excavation and can be active or inactive.
(iii) Cluster means the aggregation of cavity trees within an area
previously or currently used and defended by a single red-cockaded
woodpecker group. A cluster may be active or inactive. A cluster
encompasses the minimum convex polygon containing all of a group's
cavity trees and the 61-meter (200-foot) buffer surrounding that
polygon. The minimum cluster area size is 4.05 hectares (10 acres), as
some clusters may contain only one cavity tree.
(A) An active cluster is defined as a cluster in which one or more
of the cavity trees exhibit fresh resin as a result of red-cockaded
woodpecker activity or in which one or more red-cockaded woodpeckers
are observed.
(B) An inactive cluster is defined as a cluster that is not
currently supporting any red-cockaded woodpeckers and shows no evidence
of red-cockaded woodpecker activity.
(C) A group is a red-cockaded woodpecker social unit, consisting of
a breeding pair with one or more helpers, a breeding pair without
helpers, or a solitary male.
(iv) Foraging habitat is habitat that generally consists of mature
pines with an open canopy, low densities of small pines, a sparse
hardwood and/or pine midstory, few or no overstory hardwoods, and
abundant native bunchgrass and forb groundcovers.
(2) Prohibitions. The following prohibitions in this paragraph
(h)(2) that apply to endangered wildlife also apply to the red-cockaded
woodpecker. Except as provided under paragraphs (h)(3) and (4) of this
section and Sec. Sec. 17.4 and 17.5, it is unlawful for any person
subject to the jurisdiction of the United States to commit, to attempt
to commit, to solicit another to commit, or cause to be committed, any
of the following acts in regard to this species:
(i) Import or export, as set forth at Sec. 17.21(b) for endangered
wildlife.
(ii) Take, as set forth at Sec. 17.21(c)(1) for endangered
wildlife.
[[Page 6130]]
(iii) Possession and other acts with unlawfully taken specimens, as
set forth at Sec. 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of commercial
activity, as set forth at Sec. 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at Sec. 17.21(f) for
endangered wildlife.
(3) General exceptions from prohibitions. In regard to this
species, you may:
(i) Conduct activities as authorized by a permit issued under Sec.
17.32, such as permits associated with safe harbor agreements and
habitat conservation plans.
(ii) Take, as set forth at Sec. 17.21(c)(2) through (4) for
endangered wildlife, and Sec. 17.21(c)(6) and (7) for endangered
migratory birds.
(iii) Take, as set forth at Sec. 17.31(b).
(iv) Possess and engage in other acts with unlawfully taken red-
cockaded woodpeckers, as set forth at Sec. 17.21(d)(2) for endangered
wildlife, and Sec. 17.21(d)(3) and (4) for endangered migratory birds.
(4) Exceptions from prohibitions for specific types of incidental
take. The following activities that cause take that is incidental to an
otherwise lawful activity are not in violation of the prohibitions:
(i) Department of Defense (DoD) installations. Red-cockaded
woodpecker habitat management and military training activities on DoD
installations carried out in accordance with a U.S. Fish and Wildlife
Service (Service)-approved integrated natural resources management
plan, provided that the DoD installation reports annually to the
Service regarding their red-cockaded woodpecker populations.
(ii) Federal land management agency properties. Habitat management
activities intended to restore or maintain red-cockaded woodpecker
habitat on Federal land management agency properties, provided that:
(A) The Federal land management agency details these habitat
management activities in a Federal habitat management plan;
(B) The Federal habitat management activities incorporate
appropriate conservation measures to minimize or avoid adverse effects
of these habitat management activities on red-cockaded woodpecker
foraging habitat, on clusters, and on the species' roosting and nesting
behavior to the maximum extent practicable; and
(C) The Federal land management agency reports annually to the
Service regarding their red-cockaded woodpecker populations.
(iii) Privately owned properties. Application of prescribed burns
or herbicides on private lands when compatible with maintaining any
known red-cockaded woodpecker populations, provided that the landowner
or their representative:
(A) Follows applicable best management practices for prescribed
burns and applicable Federal and State laws;
(B) Applies herbicides in a manner consistent with applicable best
management practices and applicable Federal and State laws, including
Environmental Protection Agency label restrictions and herbicide
application guidelines as prescribed by manufacturers; and
(C) Applies prescribed burns and herbicides in a manner that
minimizes or avoids adverse effects to known active clusters and red-
cockaded woodpecker roosting and nesting behavior to the maximum extent
practicable.
(iv) Artificial cavities. Installation, maintenance, and
replacement of artificial cavity inserts and drilled cavities on public
and private lands, provided that:
(A) The individual conducting the installation, maintenance, or
replacement has either:
(1) Held a valid Service permit for that purpose in the past and
has continued to install, maintain, and replace cavities since the
expiration of their permit; or
(2) Completed the following training procedures for the type of
artificial cavity they plan to install, maintain, or replace:
(i) The individual (``apprentice'') has completed a period of
apprenticeship to learn proper installation, maintenance, and
replacement procedures for artificial cavities under the direction of a
person (``trainer'') who has been actively installing, maintaining, and
replacing cavities for at least the past 3 years;
(ii) The apprentice has installed at least 10 drilled cavities or
10 inserts under direct supervision of the trainer; and
(iii) The apprentice has learned the proper maintenance and
inspection procedures for cavities and restrictor plates.
(B) If the individual conducting the installation is an apprentice,
the apprentice's trainer provides a letter to the apprentice and to the
Service red-cockaded woodpecker recovery coordinator that outlines the
training the apprentice received, which will serve as a record of the
apprentice's training.
(C) The individual conducting the installation follows appropriate
guidelines for the installation and use of artificial cavity inserts
and drilled cavities, including, but not limited to:
(1) Monitoring the cavity resource;
(2) Installing and maintaining the recommended number of suitable
cavities in each cluster;
(3) Using the appropriate type of artificial cavity insert and
method of artificial cavity installation;
(4) Installing artificial cavities as close to existing cavity
trees as possible, preferably within 71 meters (200 feet);
(5) Selecting a tree that is of appropriate age or diameter, when
installing a cavity insert;
(6) Selecting the appropriate location for artificial cavity
installation on the tree; and
(7) Protecting red-cockaded woodpeckers from sap leakage by
ensuring that no artificial cavity has resin leaking into the chamber
or entrance tunnel.
Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-02006 Filed 2-2-22; 8:45 am]
BILLING CODE 4333-15-P