2024-23786. Endangered and Threatened Wildlife and Plants; Reclassification of the Red-Cockaded Woodpecker From Endangered to Threatened With a Section 4(d) Rule

Table 1—Resilience Summary Based on Current Condition and Population Simulations Under Four Future Management Scenarios

Model series/scenario	Population resilience category percentages
	Very low	Low	Moderate	High	Very high
Past-to-Current	57.3	29.8	8.1	2.4	2.4
Future Low	61.7	14.8	11.1	6.2	6.2
Future Medium	25.0	45.2	15.5	8.3	6.0
Future High	22.2	39.5	21.0	11.1	6.2
Future Manager's	28.6	42.9	14.3	8.3	5.9

Low Management Scenario

At the end of the 25-year simulation period, the predicted resiliency for the resulting 81 simulated demographic populations is: 6.2 percent of populations (5) very high; 6.2 percent (5) high; 11.1 percent (9) moderate; 14.8 percent (12) low; and 61.7 percent (50) very low. The low management scenario projects a modest increase in the percentage of current populations of moderate to very high resiliency from about 13 percent (16) to about 24 percent (19) of the 81 simulated populations compared to current conditions, but the majority of the populations that currently have low resiliency decline sufficiently to transition into the very low resiliency category. The projected outcome of this scenario clearly demonstrates the dependence of red-cockaded woodpecker population resiliency on intensive, species-specific management.

Medium Management Scenario

At the end of the 25-year simulation period, the predicted resiliency for the resulting 84 simulated demographic populations is: 6.0 percent of populations (5) very high; 8.3 percent (7) high; 15.5 percent (13) moderate; 45.2 percent (38) low; and 25.0 percent (21) very low. The medium management scenario projected a more substantial increase in the percentage of populations of moderate to very high resiliency from about 13 percent (16) to about 30 percent (25) of the populations. At the other end, the percentage of low and very low resiliency populations decreased.

High Management Scenario

At the end of the 25-year simulation period, the predicted resiliency for the resulting 81 demographic populations are as follows: 6.2 percent of populations (5) very high; 11.1 percent (9) high; 21.0 percent (17) moderate; 39.5 percent (32) low; and 22.2 percent (18) very low. The high management scenario projected an even more substantial increase in the percentage of populations of moderate to very high resiliency, increasing to about 38 percent (31) of the populations. However, the land base available for conservation has a substantial effect on the growth of these populations under this scenario. For example, none of the populations with low or very low resiliency in this scenario has the carrying capacity on their respective managed properties to transition to a higher resiliency category, regardless of the intensive management reflected in this scenario. Thus, there are 50 red-cockaded woodpecker populations that, in the absence of acquisition of additional habitat for population expansion, will always remain small regardless of the management efforts.

Manager's Expectation Scenario

At the end of the 25-year simulation period, the predicted resiliency for the resulting 84 demographic populations is: 5.9 percent of the populations (5) very high; 8.3 percent (7) high; 14.3 percent (12) moderate; 42.9 percent (36) low; and 28.6 percent (24) very low. The results are very similar to the medium management scenario.

Future Representation and Redundancy of the Species

Under all management scenarios, five populations in four ecosystems are predicted to have very high resiliency (East Gulf Coastal Plain (2), Sandhills (1), Mid-Atlantic Coastal Plain (1), and South Atlantic Coastal Plain (1)). Under the Manager's Expectation and medium management scenarios, seven populations in five ecosystems are considered to have high resiliency (East Gulf Coastal Plain (2), South Atlantic Coastal Plain (1), Sandhills (2), Upper West Gulf Coastal Plain (1), and West Gulf Coastal Plain (1)). Also, compared to current conditions, the greater number of future high and very high resiliency populations are more widely distributed among ecoregions and include the western geographic range; however, over the whole range of the woodpecker, the occurrence of high and very high resiliency populations is most concentrated in the East Gulf Coastal Plain and Sandhills ecoregions.

Only two ecoregions (Cumberland Ridge and Valley and Gulf Coast Prairie and Marshes) have no simulated populations of moderate to very high resiliency in the manager's expectation, medium management, and high management scenarios, compared to six ecoregions (Florida Peninsula, Ouachita Mountains, Cumberland Ridge and ( print page 85325) Valley, Piedmont, Gulf Coast Prairie and Marshes, and Mississippi River Alluvial Plain) that currently do not have moderate to very high resiliency populations. The one current population in the Mississippi River Alluvial Plain ecoregion was not simulated in the future. In the low management scenario, four ecoregions (Cumberland Ridge and Valley, Gulf Coast Prairie and Marshes, Ouachita Mountains, and Piedmont) that currently only have low or very low resiliency populations are not projected to gain any moderate to very high resiliency populations at 25 years.

Summary of Future Condition

The total number of simulated populations at 25 years varied slightly among the management scenarios because of a different number of initial populations that demographically merged during simulations to establish new and larger populations. Results of the manager's expectation and medium management scenarios were most similar, while the low management and high management scenarios represented more extreme future resiliency conditions. These simulations, particularly for the low management and high management scenarios, illustrate the extent to which the red-cockaded woodpecker is a conservation-reliant species that responds positively to management, and how successful management can sustain small populations with low or very low resiliency.

In all scenarios, most populations at year 25 were still in the very low, low, and moderate resiliency categories. However, the majority of populations were projected to be stable or increasing in all but the low management scenario, highlighting how successful management can sustain even small populations. The low management scenario illustrates that without adequate species-level management, in contrast to ecosystem management alone, very little increase in the number of moderate to very high resiliency populations can be expected and small populations of low or very low resiliency are unlikely to persist. The high management scenario represents the limit of what can be accomplished given the current land base and carrying capacity to support populations. However, management at current levels, as represented by the medium management scenario, further increases the number of moderate to very high resiliency populations and projects that small populations can be preserved. In addition, at current (or greater) levels of future management, redundancy and representation are expected to improve significantly in response to increasing populations.

See the SSA report (USFWS 2022, entire) for a more detailed discussion of our evaluation of the biological status of the red-cockaded woodpecker and the influences that may affect its continued existence. Our conclusions in the SSA report, which form the basis for the determination below, are based upon the best available scientific and commercial data.

Determination of Red-Cockaded Woodpecker Status

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of an endangered species or a threatened species. The Act defines an endangered species as a species “in danger of extinction throughout all or a significant portion of its range,” and a threatened species as a species “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Act requires that we determine whether a species meets the definition of an endangered species or a threatened species because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence.

Status Throughout All of Its Range

Red-cockaded woodpeckers were once considered a common bird across the southeastern United States. At the time of listing in 1970, the species was severely threatened by lack of adequate habitat due to historical logging, incompatible forest management, and conversion of forests to urban and agricultural uses. Fire-maintained old growth pine savannas, on which the species depends, were extremely rare. What little habitat remained was mostly degraded due to fire suppression and silvicultural practices that hindered the development of older, larger trees needed by the species for cavity development and foraging. Even after listing, the species continued to decline. However, new restoration techniques, such as artificial cavities, along with changes in silvicultural practices and wider use of prescribed fire to recreate open pine parkland structure, has led to stabilization of the species' viability and resulted in an increase in the number and distribution of populations. The majority of populations for which we were able to determine trends are stable or increasing (λ = 1.0 or greater), and only 13 percent are declining. Specifically, of the 86 very low and low resiliency populations where growth rate could be measured, 73 populations demonstrated stable and positive growth rates, with several populations showing very high growth rates. This is indicative of the positive effects of red-cockaded woodpecker conservation management programs on these locations and the ability of such management to offset inherently low or very low population resilience. Additionally, there are currently at least 124 populations across 13 ecoregions.

As discussed under Future Conditions above, in the SSA report, future population conditions under different management scenarios were simulated and modeled to 25 years into the future, and we determined that we can rely on the timeframe presented in the scenarios and predict how future stressors and management will affect the red-cockaded woodpecker.

When we modeled future scenarios, the majority of populations were projected to be stable or increasing in all but the low management scenario, highlighting how successful management can sustain even small populations. Future management at current and recent past levels, as represented by the medium management scenario, further increases the number of moderate to very high resiliency populations and projects that small populations can be preserved. In addition, at current (or greater) levels of management, redundancy and representation are expected to significantly improve because most populations are expected to increase in size across the ecoregions.

The red-cockaded woodpecker continues to face a variety of stressors due to inadequate habitat across its range, but these are now mostly legacy stressors resulting from historical forest conversion and fire suppression practices rather than current habitat loss. These legacy stressors include insufficient numbers of cavities and suitable, abundant old pines for natural cavity excavation; habitat fragmentation and its effects on genetic variation, dispersal, and connectivity to support demographic populations; lack of suitable foraging habitat for population growth and expansion; and small populations. The species also continues to face stress from natural events, especially hurricanes, the frequency and ( print page 85326) intensity of which may continue to increase in the future.

Active conservation management over many decades has allowed the species' populations to expand, even in the face of this historically limited habitat and natural disturbances. However, red-cockaded woodpeckers rely on, and will continue to rely almost completely on, active management by property managers and biologists to install artificial cavities and manage clusters, restore additional habitat and strategically place recruitment clusters to improve connectivity, control the hardwood midstory through prescribed fire and silvicultural treatments, and translocate individuals to augment small populations and minimize loss of genetic variation. In addition, emergency response after severe storms and other natural disasters will continue to be necessary to prevent cluster abandonment and minimize wildfire fuel loading. However, both the emergency response and routine management are well-understood and are currently being implemented across the range of the woodpecker, and much of the red-cockaded woodpecker's currently occupied habitat is now protected under various management plans. As a conservation-reliant species, securing management commitments for the foreseeable future would ensure that red-cockaded woodpecker populations grow or are maintained. This conclusion is reinforced by the future scenario simulations, which indicate that management efforts equal to or greater than current levels will further increase the number of moderate to very high resiliency populations and preserve small populations.

After evaluating the threats to the species and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we find that, while the legacy stressors identified above continue to negatively affect the red-cockaded woodpecker, new restoration techniques and changes in silvicultural practices have led to stabilization of the red-cockaded woodpecker's viability and even resulted in a substantial increase in the number and distribution of populations such that the species is not currently in danger of extinction. Sixty-five percent of all current red-cockaded woodpecker clusters are within moderate, high, or very highly resilient populations, and populations are spread across multiple ecoregions, providing for redundancy and representation. However, the species remains highly dependent on continued conservation management and the majority of populations contain small numbers of clusters, which could be especially vulnerable to hurricanes or other natural disturbances in the foreseeable future without prompt management response.

We expect current conservation management to continue into the foreseeable future given that many of the landowners and managers within the range of the species have committed to continuing to implement their conservation programs and that we have structured our final 4(d) rule to facilitate the continuation of such management. However, absent the protections of the Act, we do not have commitments that all current management will continue and that it will adapt as necessary to effectively address emerging stressors ( e.g., intensifying hurricanes). The absence of commitments to implement effective conservation efforts into the future for this conservation reliant species increases the risk of extinction in the foreseeable future. Thus, after assessing the best available information, we conclude that the red-cockaded woodpecker is not in danger of extinction but is likely to become in danger of extinction within the foreseeable future throughout all of its range.

Status Throughout a Significant Portion of Its Range

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so within the foreseeable future throughout all or a significant portion of its range. The court in Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 2020) ( Everson), vacated the provision of the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (hereafter “Final Policy”; 79 FR 37578; July 1, 2014) that provided that if the Services determine that a species is threatened throughout all of its range, the Services will not analyze whether the species is endangered in a significant portion of its range.

Therefore, we proceed to evaluating whether the species is endangered in a significant portion of its range—that is, whether there is any portion of the species' range for which both (1) the portion is significant; and (2) the species is in danger of extinction in that portion. Depending on the case, it might be more efficient for us to address the “significance” question or the “status” question first. We can choose to address either question first. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the other question for that portion of the species' range.

Following the court's holding in Everson, we now consider whether there are any significant portions of the species' range where the species is in danger of extinction now ( i.e., endangered). In undertaking this analysis for red-cockaded woodpecker, we choose to address the status question first—we consider information pertaining to the geographic distribution of both the species and the threats that the species faces to identify portions of the range where the species may be endangered.

We evaluated the range of the red-cockaded woodpecker to determine if the species is in danger of extinction now in any portion of its range. The range of a species can theoretically be divided into portions in an infinite number of ways. We focused our analysis on portions of the species' range that may meet the definition of an endangered species. For red-cockaded woodpecker, we considered whether the threats or their effects on the species are greater in any biologically meaningful portion of the species' range than in other portions such that the species is in danger of extinction now in that portion.

The statutory difference between an endangered species and a threatened species is the timeframe in which the species becomes in danger of extinction; an endangered species is in danger of extinction now while a threatened species is not in danger of extinction now but is likely to become so within the foreseeable future. Thus, we reviewed the best scientific and commercial data available regarding the time horizon for the threats that are driving the red-cockaded woodpecker to warrant listing as a threatened species throughout all of its range.

We then considered whether these threats or their effects are occurring in any portion of the species' range such that the species is in danger of extinction now in that portion of its range. We examined the following threats: natural disasters such as hurricanes and vulnerability due to small population sizes and fragmentation, including cumulative effects. Other identified stressors, such as inadequate habitat, are uniform throughout the red-cockaded woodpecker's range. Although hurricanes may impact populations across the red-cockaded woodpecker's range, return intervals are shorter and impacts are more pronounced in near-coastal populations compared to inland populations (USFWS 2022, pp. 121- ( print page 85327) 124). Furthermore, while small populations occur throughout the species' range, we found a portion of the range that may have a different extinction risk due to a concentration of threats from the combination of both hurricanes and small population sizes in the Florida Peninsula, West Gulf Coastal Plain, and the southernmost near-coastal extension of the Upper West Gulf Coastal Plain ecoregions. This means these populations when combined together may constitute a portion of the species' range where the species could have a different status.

Despite the vulnerability of these areas to hurricanes, this stressor is not currently accelerating extinction risk in this portion of the range due to effective conservation management. Populations can withstand and persist after hurricanes if biologists and land managers implement prompt, effective post-storm recovery actions, such as installing artificial cavities, reducing hazardous fuels, and restoring forests to suitable habitat. Such actions have been occurring after storm events for managed populations, such as the quick response after Hurricane Michael in October 2018. Both this emergency response and routine management are well-understood and are currently being implemented across the range of the woodpecker. In addition, much of the red-cockaded woodpecker's currently occupied habitat is now protected under various management plans. As such, despite the regular occurrence of hurricanes within red-cockaded woodpecker habitat, especially in the coastal areas in the Florida Peninsula, West Gulf Coastal Plain, and the southernmost near-coastal extension of the Upper West Gulf Coastal Plain ecoregions, 89 percent of the populations for which we have trend data demonstrate stable to increasing growth rates in this portion of the range, illustrating the effectiveness of currently ongoing active management in preventing broad impacts from hurricanes and other stressors (USFWS 2022, p. 112). Catastrophic risk from natural events is being effectively managed ( e.g., through prompt post-storm response) such that the species is not currently in danger of extinction in this portion of the range.

However, we also noted in the proposed rule and in this final rule that the frequency of major hurricanes (Bender et al. 2010, entire; Knutson et al. 2010, entire; Walsh et al. 2014, pp. 41-42) may increase in the future in response to global climate change, and this increase could disproportionately affect the smaller, less resilient woodpecker populations. Immediate management response after natural disasters is key to preventing cluster abandonment in all populations and is critical to keeping smaller populations from being extirpated altogether. As a conservation-reliant species, securing management commitments for the foreseeable future, including commitments for effective post-storm response, would ensure that red-cockaded woodpecker populations grow or are maintained. However, given potential increased negative impacts from hurricanes in the future and due to the lack of certainty that effective post-storm response will continue in the foreseeable future, we find that red-cockaded woodpeckers are likely to become endangered within the foreseeable future throughout all of their range. This risk may be particularly high in the foreseeable future in the Florida Peninsula, West Gulf Coastal Plain, and the southernmost near-coastal extension of the Upper West Gulf Coastal Plain ecoregions. However, although some threats to the red-cockaded woodpecker are concentrated in the Florida Peninsula, West Gulf Coastal Plain, and the southernmost near-coastal extension of the Upper West Gulf Coastal Plain ecoregions, the timing of the effects of the threats and the species' anticipated responses in that portion is the same as that for the entire range for the foreseeable future. As a result, the red-cockaded woodpecker is not in danger of extinction now in this portion of its range.

We also considered whether the portion of the species' range that contains low or very low resiliency populations could constitute a portion that provides a basis for determining that the species is in danger of extinction in a significant portion of its range. However, based on our analysis, we did not find that this portion of the species' range, or any combination of areas that lack moderate, high, or very high resiliency populations, met the definition of an endangered species. Managers are currently applying active management to these small populations. As a result of this active management, the vast majority of these low or very low resiliency populations have stable or increasing growth rates, evidencing the effectiveness of this active management in supporting the persistence of these small populations. Of the 108 demographic populations in low or very low resiliency classes, 86 have data on growth rates; 86 percent of these populations have growth rates greater than or equal to one (USFWS 2022, pp. 108-110). Under this current paradigm, these small populations are not currently in danger of extinction due to the active management ( e.g., translocation, habitat management, artificial cavity installation) that supports their stability and growth. However, as we discuss above, given potential increased negative impacts from other stressors ( e.g., hurricanes) in the foreseeable future and due to the lack of certainty that all active woodpecker management will continue at current rates in the foreseeable future, we find that the red-cockaded woodpecker meets the definition of threatened as the species is likely to become endangered within the foreseeable future throughout all of its range. These smaller populations will likely be particularly sensitive to these potential changes in stressors and management in the future. Therefore, although within the Florida Peninsula, West Gulf Coastal Plain, and the southernmost near-coastal extension of the Upper West Gulf Coastal Plain ecoregions, the red-cockaded woodpecker may be more vulnerable to future changes in threats and conservation, the best scientific and commercial data available do not indicate that the species' responses to the threats are such that the red-cockaded woodpecker is in danger of extinction now within the Florida Peninsula, West Gulf Coastal Plain, and the southernmost near-coastal extension of the Upper West Gulf Coastal Plain ecoregions. Therefore, we determine that the species is not in danger of extinction now in any portion of its range, but that the species is likely to become in danger of extinction within the foreseeable future throughout all of its range. This does not conflict with the courts' holdings in Desert Survivors v. U.S. Department of the Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal. 2018) and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 2017) because, in reaching this conclusion, we did not apply the aspects of the Final Policy, including the definition of “significant” that those court decisions held were invalid.

Determination of Status

Our review of the best scientific and commercial data available indicates that the red-cockaded woodpecker meets the definition of a threatened species. Therefore, we are downlisting the red-cockaded woodpecker as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act.

Available Conservation Measures

The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems ( print page 85328) upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. With this downlisting of the red-cockaded woodpecker, conservation measures continue to be provided including recognition as a listed species, planning and implementation of recovery actions, requirements for Federal protection, and prohibitions against certain practices. As discussed above, the 2003 recovery plan provides guidelines for installing artificial cavities, management of cavity trees and clusters, translocation, silviculture, prescribed fire under the management guidelines, and guidelines for managing foraging habitat on private lands under the private land guidelines. In addition, section 7(a)(1) and 7(a)(2) responsibilities of Federal agencies remain.

Section 7 of the Act is titled Interagency Cooperation and mandates all Federal action agencies to use their existing authorities to further the conservation purposes of the Act and to ensure that their actions are not likely to jeopardize the continued existence of listed species or adversely modify critical habitat. Regulations implementing section 7 are codified at 50 CFR part 402.

Section 7(a)(2) states that each Federal action agency shall, in consultation with the Secretary, ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. Each Federal agency shall review its action at the earliest possible time to determine whether it may affect listed species or critical habitat. If a determination is made that the action may affect listed species or critical habitat, formal consultation is required (50 CFR 402.14(a)), unless the Service concurs in writing that the action is not likely to adversely affect listed species or critical habitat. At the end of a formal consultation, the Service issues a biological opinion, containing its determination of whether the federal action is likely to result in jeopardy or adverse modification.

Examples of discretionary actions for the red-cockaded woodpecker that may be subject to consultation procedures under section 7 are land management or other landscape-altering activities on Federal lands administered by the DoD, USFS, USFWS, NWR, Federal Highway Administration, and U.S. Department of Energy as well 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, or the Federal Emergency Management Agency). Federal actions not affecting 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. Federal agencies should coordinate with the local Service Field Office (see FOR FURTHER INFORMATION CONTACT ) with any specific questions on Section 7 consultation and conference requirements.

Please contact us if you are interested in participating in recovery efforts for the red-cockaded woodpecker. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery implementation purposes (see FOR FURTHER INFORMATION CONTACT ).

It is the policy of the Services, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the extent known at the time a species is listed, specific activities that will not be considered likely to result in violation of section 9 of the Act. To the extent possible, activities that will be considered likely to result in violation will also be identified in as specific a manner as possible. The intent of this policy is to increase public awareness of the effect of a listing on proposed and ongoing activities within the range of the species. Although most of the prohibitions in section 9 of the Act apply to endangered species, sections 9(a)(1)(G) and 9(a)(2)(C) of the Act prohibit the violation of any regulation under section 4(d) pertaining to any threatened species of fish or wildlife, or threatened species of plant, respectively. Section 4(d) of the Act directs the Secretary to promulgate protective regulations that are necessary and advisable for the conservation of threatened species. As a result, we interpret our policy to mean that, when we list a species as a threatened species, to the extent possible, we identify activities that will or will not be considered likely to result in violation of the protective regulations under section 4(d) for that species.

At this time, we are unable to identify specific activities that will or will not be considered likely to result in violation of section 9 of the Act beyond what is already clear from the descriptions of prohibitions and exceptions established by protective regulation under section 4(d) of the Act.

Questions regarding whether specific activities would constitute violation of section 9 of the Act should be directed to the Georgia Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Protective Regulations Under Section 4(d) of the Act

Background

Section 4(d) of the Act contains two sentences. The first sentence states that the Secretary shall issue such regulations as she deems necessary and advisable to provide for the conservation of species listed as threatened species. Conservation is defined in the Act to mean the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Additionally, the second sentence of section 4(d) of the Act states that the Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 9(a)(1), in the case of fish or wildlife, or section 9(a)(2), in the case of plants. With these two sentences in section 4(d), Congress delegated broad authority to the Secretary to determine what protections would be necessary and advisable to provide for the conservation of threatened species, and even broader authority to put in place any of the section 9 prohibitions, for a given species.

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, as a valid exercise of agency authority, rules developed under section 4(d) that included limited prohibitions against takings (see Alsea Valley Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington Environmental Council v. National Marine Fisheries Service, 2002 WL 511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do not address all of the threats a species faces (see State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when the Act was initially enacted, “once an animal is on the threatened list, the Secretary has an almost infinite number of options available to [her] with regard to the permitted activities for those species. [She] may, for example, permit taking, but not importation of such species, or ( print page 85329) [she] 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).

The provisions of this species' protective regulations under section 4(d) of the Act are one of many tools that we will use to promote the conservation of the red-cockaded woodpecker. Nothing in 4(d) rules change in any way the recovery planning provisions of section 4(f) of the Act, the consultation requirements under section 7 of the Act, or the ability of the Service to enter into partnerships for the management and protection of the red-cockaded woodpecker.

As mentioned previously in Available Conservation Measures, Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they authorize, fund, 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. These requirements are the same for a threatened species regardless of what is included in a 4(d) rule.

Section 7 consultation is required for Federal actions that “may affect” a listed species regardless of whether take caused by the activity is prohibited or excepted by a 4(d) rule (“blanket rule” or species-specific 4(d) rule). A 4(d) rule does not change the process and criteria for informal or formal consultations and does not alter the analytical process used for biological opinions or concurrence letters. For example, as with an endangered species, if a Federal agency determines that an action is “not likely to adversely affect” a threatened species, this will require our written concurrence (50 CFR 402.13(c). Similarly, if a Federal agency determines that an action is “likely to adversely affect” a threatened species, the action will require formal consultation and the formulation of a biological opinion (50 CFR 402.14(a)). Because consultation obligations and processes are unaffected by 4(d) rules, we may consider developing tools to streamline future intra-Service and inter-Agency consultations for actions that result in forms of take that are not prohibited by the 4(d) rule (but that still require consultation). These tools may include consultation guidance, Information for Planning and Consultation effects determination keys, template language for biological opinions, or programmatic consultations.

The red-cockaded woodpecker requires cavity trees, nesting habitat, and foraging habitat (USFWS 2022, pp. 83-87). Red-cockaded woodpeckers rely on cavities for nesting and roosting (USFWS 2022, p. 33). 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 2022, p. 32). In addition, old pines have a higher incidence of the heartwood decay that greatly facilitates cavity excavation (USFWS 2022, p. 32). As we explain in the 2003 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 savannas with large old pines for nesting and roosting ( i.e., nesting habitat) (USFWS 2022, p. 32). Cavity trees, with rare exception, occur in open stands with little or no hardwood midstory and few or no overstory hardwoods (USFWS 2022, p. 32). 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 2022, p. 41).

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 2022, p. 131). We emphasize this conservation reliance in the proposed rule (85 FR 63474, October 8, 2020) and indicate that the future persistence of the species will require these management actions to continue. As such, in addition to providing prohibitions necessary to protect individuals, the section 4(d) rule provides exceptions that will 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 section 4(d) rule encourage beneficial habitat management on Federal lands, compatible prescribed burns and use of herbicides on eligible private and other non-Federal 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 section 4(d) rule retains the exception for take that results from activities authorized by a permit under the Act, which includes permits we have issued under the SHA program or will issue under the CBA program. Together, these prohibitions and exceptions will maintain and restore essential nesting and foraging resources for the species, improving the availability of suitable habitat, and will 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 will also support conservation of the native pine-grass ecosystems upon which the species depends.

The provisions of this section 4(d) rule will promote conservation of the red-cockaded woodpecker by prohibiting take that can directly or indirectly impact population demographics. They 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 us to downlist the species from endangered to threatened. Private and other non-Federal landowners' SHAs and HCPs, DoD's INRMPs, USFS LRMPs, and the NWR System's CCPs 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 ( print page 85330) 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 section 4(d) rule does not invalidate or replace these successful programs. In fact, the section 4(d) rule continues to encourage participation in the CBA program, previously known as the SHA program, and provides 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 section 4(d) rule are only one of the many tools we can use to promote conservation of the red-cockaded woodpecker. For example, private and other non-Federal landowners may still pursue regulatory flexibility through existing mechanisms that currently promote the species' conservation, such as CBAs or HCPs. These mechanisms will continue to provide considerable assurances for landowners.

Similarly, this section 4(d) rule does not change an eligible private or other non-Federal landowner's ability to enroll in conservation programs such as those available through the NRCS or the Partners for Fish and Wildlife Program. These Federal programs provide technical and financial assistance to eligible private and other non-Federal landowners to support habitat management for the benefit of wildlife and other natural resources in the open-pine systems of the southeastern United States, as well as other habitat types throughout the country. Nationwide, these programs help conserve or restore hundreds of thousands of acres of wildlife habitat every year. As a result of the consultations these Federal programs conduct with us, enrolled private and other non-Federal 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 section 4(d) rule do not alter these programs. We encourage eligible private and other non-Federal landowners to continue participating in these valuable conservation programs.

Finally, this section 4(d) rule does not alter or invalidate the 2003 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.

The only portion of this document that has regulatory effect is the text presented below under Regulation Promulgation ( i.e., the text we add as paragraph (h) of § 17.41 of title 50 of the Code of Federal Regulations (50 CFR 17.41(h)); the explanatory text above and in “Provisions of the 4(d) Rule” below merely clarifies the intent of these regulations.

Provisions of the 4(d) Rule

Prohibitions

Exercising the Secretary's authority under section 4(d) of the Act, we have developed a rule that is designed to address the red-cockaded woodpecker's conservation needs. As discussed previously in Summary of Biological Status and Threats, we have concluded that the red-cockaded woodpecker is likely to become in danger of extinction within the foreseeable future primarily due to lack of suitable roosting, nesting, and foraging habitat resulting from the legacy effects of historical logging, incompatible forest management, and conversion of forests to urban and agricultural uses. Section 4(d) requires the Secretary to issue such regulations as she deems necessary and advisable to provide for the conservation of each threatened species and authorizes the Secretary to include among those protective regulations any of the prohibitions that section 9(a)(1) of the Act prescribes for endangered species. We are not required to make a “necessary and advisable” determination when we apply or do not apply specific section 9 prohibitions to a threatened species ( In re: Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation, 818 F. Supp. 2d 214, 228 (D.D.C. 2011) (citing Sweet Home Chapter of Cmtys. for a Great Or. v. Babbitt, 1 F.3d 1, 8 (D.C. Cir. 1993), rev'd on other grounds, 515 U.S. 687 (1995))). Nevertheless, even though we are not required to make such a determination, we have chosen to be as transparent as possible and explain below why we find that, if finalized, the protections, prohibitions, and exceptions in this rule as a whole satisfy 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.

The protective regulations for red-cockaded woodpecker incorporate prohibitions from section 9(a)(1) to address the threats to the species. The prohibitions of section 9(a)(1) of the Act, and implementing regulations codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to commit, to attempt to commit, to solicit another to commit or to cause to be committed any of the following acts with regard to any endangered wildlife: (1) import into, or export from, the United States; (2) take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect) within the United States, within the territorial sea of the United States, or on the high seas; (3) possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such wildlife that has been taken illegally; (4) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of commercial activity; or (5) sell or offer for sale in interstate or foreign commerce. This protective regulation includes all of these prohibitions because the red-cockaded woodpecker is at risk of extinction in the foreseeable future and putting these prohibitions in place will help to prevent negative effects from other ongoing or future threats.

In particular, this 4(d) rule will provide for the conservation of the red-cockaded woodpecker by prohibiting the following activities, unless they fall within specific exceptions or are otherwise authorized or permitted: 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.

Under the Act, “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Some of these provisions have been further defined in regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by direct and indirect impacts, intentionally or incidentally. Regulating take will help decrease synergistic, negative effects from other ongoing or future threats. Therefore, we are prohibiting take of the red-cockaded woodpecker, except for take resulting from those actions and activities specifically excepted by the 4(d) rule.

As discussed in the SSA report for the species, effective monitoring, research, and translocation are important elements of the active management that promotes red-cockaded woodpecker conservation and recovery. However, in this section 4(d) rule, we prohibit all forms of take, which include capturing, handling, and similar activities. Such ( print page 85331) 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 ensure that these activities continue to be conducted correctly by properly trained personnel, the section 4(d) rule continues 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.

Exceptions

Exceptions to the prohibition on take include all of the general exceptions to the prohibition against take of endangered wildlife as set forth in 50 CFR 17.21 and additional exceptions, as described below.

Despite these prohibitions regarding threatened species, we may under certain circumstances issue permits to carry out one or more otherwise-prohibited activities, including those described above. The regulations that govern permits for threatened wildlife state that the Director may issue a permit authorizing any activity otherwise prohibited with regard to threatened species. These include permits 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 (50 CFR 17.32). The statute also contains certain exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

Furthermore, we encourage landowners to continue to enroll in the CBA program, previously known as the SHA program. Exactly like the regulatory regime that applies while the species is listed as endangered, any new permits issued under the authority of the CBA program will provide landowners with additional management flexibility and exemption from some of the take prohibitions in this rule. As discussed in greater detail above, CBAs are partnerships between landowners and us or between the State and us involving voluntary agreements under which the landowners receive formal regulatory assurances from us regarding their management responsibilities in return for contributions to benefit the listed species. This section 4(d) rule does not alter this valuable program, or the permits associated with it.

In addition, to further the conservation of the species, any employee or agent of the Service, any other Federal land management agency, the National Marine Fisheries Service, a State conservation agency, or a federally recognized Tribe, who is designated by their agency or Tribe for such purposes, may, when acting in the course of their official duties, take threatened wildlife without a permit if such action is necessary to: (i) Aid a sick, injured, or orphaned specimen; or (ii) dispose of a dead specimen; or (iii) salvage a dead specimen that may be useful for scientific study; or (iv) remove specimens that constitute a demonstrable but nonimmediate threat to human safety, provided that the taking is done in a humane manner; the taking may involve killing or injuring only if it has not been reasonably possible to eliminate such threat by live-capturing and releasing the specimen unharmed, in an appropriate area.

Next, we incorporate the exception to take prohibitions for threatened species found in 50 CFR 17.31(b), which authorizes employees or agents of the Service or State conservation agencies operating under a cooperative agreement with us in accordance with section 6(c) of the Act to take red-cockaded woodpeckers in order to carry out conservation programs for the species. We recognize the special and unique relationship that we have with our State natural resource agency partners in contributing to conservation of listed species. State agencies often possess scientific data and valuable expertise on the status and distribution of endangered, threatened, and candidate species of wildlife and plants. State agencies, because of their authorities and their close working relationships with local governments and landowners, are in a unique position to assist us in implementing all aspects of the Act. States solely own and manage lands occupied by at least 31 demographic populations and oversee State-wide SHAs, now known as CBAs, that have enrolled 459 non-Federal landowners covering approximately 2.5 million acres (85 FR 63474, October 8, 2020).

In this regard, section 6 of the Act provides that we must 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 us in accordance with section 6(c) of the Act, who is designated by his or her agency for such purposes, will be able to conduct activities designed to conserve red-cockaded woodpecker that may result in otherwise prohibited take without additional authorization.

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 States' cooperative agreements. State agencies may also enroll in the Conservation Benefit program, previously known as 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 4(d) rule will also provide for the conservation of the species by allowing exceptions that incentivize conservation actions or that, while they may have some minimal level of take of the red-cockaded woodpecker, are not expected to rise to the level that would have a negative impact ( i.e., would have only de minimis impacts) on the species' conservation. These exceptions will promote the maintenance and restoration of the habitat resources (cavity trees, nesting habitat, and foraging habitat) crucial to red-cockaded woodpecker recovery and conservation and not be subject to penalties and enforcement in accordance with section 11 of the Act.

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 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 2022, p. 14). The species-specific exceptions in this section 4(d) rule aim to facilitate ( print page 85332) management that will protect and enhance red-cockaded woodpecker populations.

For several reasons, conservation of red-cockaded woodpeckers as a species depends primarily on the conservation of populations on Federal properties ( e.g., National Forests, NWRs, DoD installations). First, the vast majority of red-cockaded woodpeckers in existence today are on Federal lands (USFWS 2022, pp. 108-110; 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 and other non-Federal 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 and other non-Federal 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 Conservation Benefit program, previously known as the Safe Harbor program (USFWS 2003, pp. 188-189).

Therefore, the species-specific exceptions in this section 4(d) rule address eligible private and other non-Federal lands differently from Federal lands for three reasons. First, these entities have differing recovery responsibilities. Second, because of section 7 consultation obligations, we will potentially be involved with Federal agencies' habitat management activities and any conservation activities that are authorized, funded, or carried out through Federal conservation programs on eligible private and other non-Federal lands. Third, there are other flexible programs that permit take that are already available to some State conservation agencies and other eligible private and non-Federal landowners ( e.g., permits issued from existing SHAs, future CBAs, and HCPs and assistance provided by various conservation programs, such as those administered by NRCS and the Partners for Fish and Wildlife Program).

First, we include 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 rule, 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 the INRMPs and to achieve red-cockaded woodpecker recovery objectives. These plans and guidelines all contain an 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.), we are 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, we conduct 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. Even with this exception in the section 4(d) rule, DoD installations will still need to comply with the Sikes Act requirement to obtain our approval of INRMPs and will still need to fulfill their section 7 obligations under the Act, including consulting, 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 section 4(d) rule will 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 us 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 INRMP are not excepted under this 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 section 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 section 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 section 4(d) rule will 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 us, and we expect this to continue while the species is listed as threatened. This monitoring could inform adaptive ( print page 85333) management 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. Of note, Fort Liberty, Fort Stewart, Eglin Air Force Base, Fort Moore, and Camp Blanding all have achieved or surpassed their 2003 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 such management can balance the effects of military training.

Given the close, formal involvement we have in reviewing and approving INRMPs under the Sikes Act, the species-specific beneficial management practices 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 will still occur for these plans to ensure conservation activities do not jeopardize the species, we find that the management resulting from INRMPs will continue to advance the conservation of the species, even if incidental take occurs. Therefore, this section 4(d) rule excepts 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.

Second, we include 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 section 4(d) rule (see 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 our 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 habitat management 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 objective. 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 NWR System's CCPs 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 other documentation associated with the section 7 consultation process. The inclusion of “clusters” in this provision ensures Federal land managers are adequately protecting nesting habitat and cavity trees, in addition to foraging habitat, while executing their planned beneficial habitat management activities. We expect the red-cockaded woodpecker components of these Federal management plans to allow for adaptive management and frequent reevaluation 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 section 4(d) rule require each Federal property to share an annual property report with us 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 us, and we expect this practice to continue while the species is listed as threatened. The reporting Federal agencies provide as part of section 7 consultations will also qualify as this annual property report.

As a result of this provision in the section 4(d) rule, we will, 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 significantly among sites and properties, to the extent that it would be ineffective to prescribe a universal condition by which this exception will apply. Therefore, in this section 4(d) rule, we state that incidental take associated with these activities will 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 section 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, we will have the opportunity to review these restoration projects and provide input on how to minimize impacts to the species.

Again, we 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 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 will not require these agencies to rewrite these management plans or to reinitiate ( print page 85334) section 7 consultation on these plans or on relevant projects. Moreover, because this section 4(d) rule does not remove or alter the obligation of Federal agencies to complete section 7 consultation on their management plans, we will 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, we will 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 is excepted under the section 4(d) rule. Additionally, Federal agencies will 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 will need to reinitiate consultation (see “Implications for Implementation,” below, for more detail on section 7 processes under section 4(d) rules).

This provision does not except take resulting 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 section 4(d) rule, incidental take that results from those activities could still be exempted from the prohibitions in this section 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 section 4(d) rule match those that currently apply under an endangered status, if Federal agencies are currently conducting management activities without resulting in take of red-cockaded woodpeckers, this rule will 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 rule, this take is not prohibited as long as: (1) the habitat management activities were implemented specifically to restore or maintain red-cockaded woodpecker habitat; (2) the Federal land management agency details these habitat management activities in a habitat management plan; (3) the Federal land management 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 land management agency provides annual reporting to us.

Third, we include an exception to encourage private and other non-Federal landowners who are not enrolled in the existing SHA or future CBA 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 2022, p. 131). This provision does not change the measures in any existing SHAs or HCPs. While Federal lands bear additional responsibility when it comes to achieving the recovery goals for red-cockaded woodpeckers, private and other non-Federal 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 section 4(d) rule will continue to encourage voluntary red-cockaded woodpecker conservation on private and other non-Federal lands through the CBA program.

The exception further supports compatible forest management on private and other non-Federal lands, while continuing to maintain existing populations and is especially relevant for landowners that do not currently participate in the SHA, now known as the CBA, program. This provision provides an exception to take prohibitions for incidental take caused by application of prescribed burns or herbicides on private and other non-Federal lands to create or maintain habitat ( i.e., open pine ecosystems) or sustain and grow red-cockaded woodpecker populations, provided that the landowner, or their representative: (1) follows applicable BMPs for prescribed burns and applicable Federal and State laws; (2) applies herbicides in a manner consistent with applicable BMPs and applicable Federal and State laws; 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.

The first condition on this provision requires landowners to follow applicable BMPs for prescribed burns. States and counties within the range of red-cockaded woodpecker provide guidance documents with these BMPs 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 BMP Manual; Recommended Forestry BMPs for Louisiana).

The second condition on this provision requires landowners to follow applicable Federal and State laws in addition to the BMPs when applying herbicide. Some management plans specify additional criteria for the use of herbicides in habitat management that would benefit red-cockaded woodpeckers or their habitat.

The third condition on this provision calls for private and other non-Federal landowners to incorporate reasonable preventative measures, to the maximum extent practicable, to reduce any direct adverse effects of these activities where red-cockaded woodpeckers are already known to roost or nest, 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 and other non-Federal 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 we prescribe, although the methods we outline for cavity tree protection in our 2003 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 also is relevant only 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 land, 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 ( print page 85335) do 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 and other non-Federal landowners may wish to take advantage of this exception by following BMPs 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. Under this section 4(d) rule, if a private or other non-Federal landowner follows these BMPs 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. This provision only provides an exception to the take prohibitions for incidental take associated with prescribed burns or the use of herbicides when the use of these management practices are associated with maintaining any known red-cockaded woodpecker populations on their land; in other words, if a private or other non-Federal landowner wishes to pursue a prescribed burn that could impair red-cockaded woodpecker population dynamics in the long term, this exception does not cover any incidental take that results from that burn, even if the landowner follows relevant BMPs.

Finally, if landowners are already enrolled in the Safe Harbor program, this exception does not provide any additional flexibility; the permits associated with SHAs authorize take associated with prescribed burns, herbicide use, and other activities as long as landowners follow the stipulations in their SHA and do not decrease the number of red-cockaded woodpecker clusters below their baseline.

Our intent for this provision is to provide a simple means by which to encourage private and other non-Federal 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 continues to encourage this compatible or beneficial management. We also continue to encourage eligible private and other non-Federal landowners to participate in existing conservation programs that promote forest management benefiting red-cockaded woodpeckers and provides take allowances for participating landowners through other means ( e.g., permits issued from existing SHAs, future CBAs, and HCPs; assistance provided by various conservation programs, such as those administered by NRCS and the Partners for Fish and Wildlife Program; and the associated section 7 consultations these Federal programs conduct with us that provide allowances for incidental take associated with beneficial conservation practices).

Finally, the section 4(d) rule provides an exception to take prohibitions for 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 we continue to encourage the installation of artificial cavities. However, we also acknowledge that there are proper techniques to install cavity inserts or drill cavities, 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 or drilled cavities.

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 want to remove any potential hurdles to the efficient and effective provisioning and maintenance of artificial cavities. Therefore, we provide an exception to take prohibitions in this rule for the installation, maintenance, and replacement of artificial cavity inserts and drilled cavities on public and private lands. However, this exception applies only if the individual conducting the installation has either held a valid Service permit for that purpose and has continued to 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. After the apprentice has completed their training, the trainer must provide a letter to the apprentice and to our regional red-cockaded woodpecker recovery coordinator; the letter will outline the training the apprentice received and will serve as a record of the apprentice's training. Please note that a provision pertaining to restrictor plates, which was included in the proposed rule at proposed § 17.41(h)(2)(iii) (February 3, 2022, 87 FR 6118), has been removed from this final rule as the result of advancements, such as the use of PVC (polyvinyl chloride) inserts, in preserving cavity integrity.

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) when adding to an existing cluster; (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 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 ( print page 85336) with the installation guidelines in the section 4(d) rule and incidental take occurs as a result of artificial cavity installation, the installer will 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 will not be liable for such take under this rule. We included this exception in our section 4(d) rule as a result of public comments on the October 8, 2020, proposal that supported its incorporation.

Implications for Implementation

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.

The trigger for consultation is whether a Federal action may affect a listed species or its critical habitat, not whether the action will 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 our 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 results only in take that is excepted under a section 4(d) rule, they must still pursue formal consultation with us and we must formulate a biological opinion that includes an incidental take statement. Even if a section 4(d) rule includes specific exceptions to take prohibitions, we 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, those activities will 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 system 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 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 7 consultation obligations, we will consider methods by which we might be able to streamline section 7 consultation on activities that may result in take that is excepted under this section 4(d) rule. This information and determination can be used to inform and serve as part of the basis of our analysis of whether an action is likely to jeopardize the continued existence of the species, making consultation more straightforward and predictable. For example, because of the nature of activities that will be consistent with this section 4(d) rule, and as the section 4(d) rule includes an explanation for why such activities provide for the conservation of the species, we 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 incorporated 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 when the section 4(d) rule takes effect, if their Federal action ( e.g., management plan) has not changed. However, given the provisions in this section 4(d) rule, Federal agencies may find that reinitiating consultation, although not required, could grant additional flexibilities for their ongoing actions and activities.

Required Determinations

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

Regulations adopted pursuant to section 4(a) of the Act are exempt from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) and do not require an environmental analysis under NEPA. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This includes listing, delisting, and reclassification rules, as well as critical habitat designations and species-specific protective regulations promulgated concurrently with a decision to list or reclassify a species as threatened. The courts have upheld this position ( e.g., Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical habitat); Center for Biological Diversity v. U.S. Fish and Wildlife Service., 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d) rule)).

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951, May 4, 1994), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), the President's memorandum of November 30, 2022 (Uniform Standards for Tribal Consultation; 87 FR 74479, December 5, 2022), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with federally-recognized Tribes and Alaska Native Corporations on a government-to-government basis. In accordance with Secretary's Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. We did not receive any comments from Tribes on the proposed rulemaking, nor have we received any requests for government-to-government consultation. As such, we have fulfilled our relevant responsibilities.

References Cited

A complete list of references cited in this rulemaking is available on the ( print page 85337) internet at https://www.regulations.gov and upon request from the Georgia Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

Authors

The primary authors of this final rule are the staff members of the Fish and Wildlife Service's Species Assessment Team and the Georgia, Louisiana, 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

Regulation Promulgation

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

PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.

2. Amend § 17.11, in paragraph (h), in the List of Endangered and Threatened Wildlife by revising the entry for “Woodpecker, red-cockaded” under BIRDS to read as set forth below:

§ 17.11

Endangered and threatened wildlife.

* * * * *

(h) * * *

Common name	Scientific name	Where listed	Status	Listing citations and applicable rules
*         *         *         *         *         *         *
Birds
*         *         *         *         *         *         *
Woodpecker, red-cockaded	Dryobates borealis	Wherever found	T	35 FR 16047, 10/13/1970; 89 FR [INSERT FIRST PAGE OF THE FEDERAL REGISTER DOCUMENT], 10/25/2024; 50 CFR 17.41(h).4d
*         *         *         *         *         *         *