[Federal Register Volume 78, Number 68 (Tuesday, April 9, 2013)]
[Proposed Rules]
[Pages 21086-21097]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-07897]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2013-0034; 4500030114]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition to List Two Populations of Black-Backed Woodpecker as 
Endangered or Threatened

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of petition finding and initiation of status review.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to list the Oregon Cascades-California 
population and Black Hills population of the black-backed woodpecker 
(Picoides arcticus) under the Endangered Species Act of 1973, as 
amended (Act), as subspecies or distinct population segments (DPSs) 
that are endangered or threatened, and to designate critical habitat 
concurrent with listing. Based on our review, we find that the petition 
presents substantial scientific or commercial information indicating 
that listing the Oregon Cascades-California and Black Hills populations 
of the black-backed woodpecker as subspecies or DPSs may be warranted. 
Therefore, with the publication of this notice, we are notifying the 
public that, when funds become available, we will be initiating a 
review of the status of the two populations to determine if listing 
either or both the Oregon Cascades-California population and the Black 
Hills population as either subspecies or DPSs is warranted. To ensure 
that this status review is comprehensive, we are requesting scientific 
and commercial data and other information regarding these two 
populations. Based on the status review, we will issue a 12-month 
finding on the petition, which will address whether the petitioned 
action is warranted, as provided in section 4(b)(3)(B) of the Act.

DATES: We request that we receive information on or before June 10, 
2013. The deadline for submitting an electronic comment using the 
Federal eRulemaking Portal (see ADDRESSES section, below) is 11:59 p.m. 
Eastern Time on this date. After June 10, 2013, you must submit 
information directly to the Division of Policy and Directives 
Management (see ADDRESSES section, below). Please note that we might 
not be able to address or incorporate information that we receive after 
the above requested date.

ADDRESSES: You may submit information by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R8-ES-2013-0034, which 
is the docket number for this action. Then click on the Search button. 
You may submit information for consideration in our status review by 
clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R8-ES-2013-0034; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We will not accept emails or faxes. We will post all information we 
receive on http://www.regulations.gov. This generally means that we 
will post any personal information you provide us (see the Request for 
Information section below for more details).

FOR FURTHER INFORMATION CONTACT: Karen Leyse, Listing Coordinator, U.S. 
Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 
Cottage Way, Room W-2605, Sacramento, CA 95825; by telephone at 916-
414-6600; or by facsimile at 916-414-6712. If you use a 
telecommunications device for the deaf (TDD), please call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Request for Information

    When we make a finding that a petition presents substantial 
information indicating that listing a species may be warranted, we are 
required to initiate review of the status of the species (status 
review). For the status review to be complete and based on the best 
available scientific and commercial information, we request information 
on the Oregon Cascades-California population and the Black Hills 
population of the black-backed woodpecker from governmental agencies, 
Native American tribes, the scientific community, industry, and any 
other interested parties. We seek information on:
    (1) The species' biology, range, and population trends, including:
    (a) Habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy of the Oregon Cascades-California and the 
Black Hills populations of the black-backed woodpecker, including 
information that would pertain to whether either, or both, populations 
can be listed under the Act (16 U.S.C. 1531 et seq.) as either 
subspecies or DPSs;
    (c) Historical and current range including distribution patterns, 
and presence or absence of physical, physiological, or behavioral 
barriers to movement between populations;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) The factors that are the basis for making a listing 
determination for a species under section 4(a) of the Act, which are:
    (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.
    If, after the status review, we determine that listing either an 
Oregon Cascades-California population or a Black Hills population of 
the black-backed woodpecker is warranted, we will propose critical 
habitat (see definition in section 3(5)(A) of the Act) under section 4 
of the Act, to the maximum extent prudent and determinable at the time 
we propose to list the species. Therefore, we also request data and 
information on:

[[Page 21087]]

    (1) What may constitute ``physical or biological features essential 
to the conservation of the species,'' within the geographical range 
currently occupied by the species;
    (2) Where these features are currently found;
    (3) Whether any of these features may require special management 
considerations or protection;
    (4) Any areas outside the geographical area occupied by the species 
that are ``essential for the conservation of the species'' and why; and
    (5) What, if any, critical habitat you think we should propose for 
designation if the species is proposed for listing, and why such 
habitat meets the requirements of section 4 of the Act.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Submissions merely stating support for or opposition to the action 
under consideration without providing supporting information, although 
noted, will not be considered in making a determination. Section 
4(b)(1)(A) of the Act directs that determinations as to whether any 
species is an endangered or threatened species must be made ``solely on 
the basis of the best scientific and commercial data available.''
    You may submit your information concerning this status review by 
one of the methods listed in the ADDRESSES section. If you submit 
information via http://www.regulations.gov, your entire submission--
including any personal identifying information--will be posted on the 
Web site. If your submission is made via a hardcopy that includes 
personal identifying information, you may request at the top of your 
document that we withhold this personal identifying information from 
public review. However, we cannot guarantee that we will be able to do 
so. We will post all hardcopy submissions on http://www.regulations.gov.
    Information and supporting documentation that we received and used 
in preparing this finding is available for you to review at http://www.regulations.gov, or by appointment, during normal business hours, 
at the U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT).

Background

    Section 4(b)(3)(A) of the Act requires that we make a finding on 
whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted. We are to base this finding on 
information provided in the petition, supporting information submitted 
with the petition, and information otherwise available in our files. To 
the maximum extent practicable, we are to make this finding within 90 
days of our receipt of the petition and publish our notice of the 
finding promptly in the Federal Register.
    Our standard for substantial scientific or commercial information 
within the Code of Federal Regulations (CFR) with regard to a 90-day 
petition finding is ``that amount of information that would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted'' (50 CFR 424.14(b)). If we find that substantial 
scientific or commercial information was presented, we are required to 
promptly initiate a species status review, which we subsequently 
summarize in our 12-month finding.

Petition History

    On May 8, 2012, we received a petition dated May 2, 2012, from the 
John Muir Project of the Earth Island Institute, the Center for 
Biological Diversity, the Blue Mountains Biodiversity Project, and the 
Biodiversity Conservation Alliance (EII et al. 2012, pp. 1-16) 
(petitioners), requesting that the Oregon Cascades-California 
population and the Black Hills population of the black-backed 
woodpecker each be listed as an endangered or threatened subspecies, 
and that critical habitat be designated concurrent with listing under 
the Act. The petition also requested that, should we not recognize 
either population as subspecies, we consider listing each population as 
an endangered or threatened distinct population segment (DPS). The 
petition clearly identified itself as such and included the requisite 
identification information for the petitioners, required at 50 CFR 
424.14(a). In a June 29, 2012, letter to the John Muir Project of the 
Earth Island Institute, we responded that our initial review of the 
information presented in the petition did not indicate that an 
emergency regulation temporarily listing the species under section 
4(b)(7) of the Act was warranted. We also stated that we were required 
to complete a significant number of listing and critical habitat 
actions pursuant to court orders, judicially approved settlement 
agreements, and other statutory deadlines, in Fiscal Year 2012, but 
that we secured funding for Fiscal Year 2012 to allow us to initiate 
our response to the petition in Fiscal Year 2012. In addition, we 
stated that we anticipated making an initial finding in Fiscal Year 
2013 as to whether the petition contains substantial information 
indicating that the petitioned action may be warranted. This finding 
addresses the petition.

Previous Federal Actions

    There are no previous Federal actions involving the black-backed 
woodpecker, or any subspecies or populations of black-backed 
woodpecker.

Species Information

    The black-backed woodpecker is similar in size to the more common 
American robin (Turdus migratorius) and is heavily barred with black 
and white sides. Its flanks have nearly solid black upper parts, and it 
has a white throat (Dawson 1923, pp. 1007-1008). Males and young have a 
yellow crown patch, while the female crown is entirely black. Its 
sooty-black dorsal plumage camouflages it against the black, charred 
bark of the burned trees upon which it preferentially forages (Murphy 
and Lehnhausen 1998, p. 1366; Dixon and Saab 2000, p. 1). The black-
backed woodpecker has only three toes on each foot instead of the usual 
four. This is one of several adaptations, including skull 
modifications, that makes it among the most specialized of birds for 
delivering hard blows to dig out wood-boring insect larvae, although at 
the expense of reducing their tree-climbing ability (Bock and Bock 
1974, p. 397; Goggans et al. 1989, p. 2).
Diet and Foraging
    Black-backed woodpeckers have a narrow diet, consisting mainly of 
larvae of wood-boring beetles and bark beetles (Cerambycidae, 
Buprestidae, and Scolytidae) (Goggans et al. 1989, pp. 20, 34; Villard 
and Beninger 1993, p. 73; Murphy and Lehnhausen 1998, pp. 1366-1367; 
Powell 2000, p. 31; Dudley and Saab 2007, p. 593), which are available 
following large-scale disturbances, especially high-severity fire 
(Nappi and Drapeau 2009, p. 1382). In burned forests, black-backed 
woodpeckers feed primarily on wood-boring beetle larvae (Villard and 
Beninger 1993, p. 73; Murphy and Lehnhausen 1998, pp. 1366-1368; Powell 
2000, p. 31). Most wood-boring beetles are unable to attack living 
trees, and concentrate heavily in fire-killed wood (reviewed in Powell 
2000, p. 78), although they also are found in other recently killed 
trees (Bull et al. 1986, p. 13; Bonnot et al. 2009, pp. 220-225). Wood-
boring beetles lay eggs soon after disturbance; larvae live inside the 
sapwood and emerge as adults approximately 4 years later. Wood-boring 
beetles are an efficient food

[[Page 21088]]

source for the woodpecker because, where habitat is appropriate, they 
are abundant in small areas and can be exploited with hard blows, but 
little climbing (Goggins et al. 1989, p. 2; Nappi and Drapeau 2009, p. 
1387). The black-backed woodpecker consumes bark beetle larvae from 
trees during beetle infestations (Goggans et al. 1989, pp. 20, 34; 
Powell 2000, pp. 77-79). Utilization of live or dead trees for foraging 
may differ, depending on site or disturbance type. In a bark-beetle 
infestation in Oregon, Bull et al. (1986, p. 13) found that black-
backed woodpeckers used live and dead trees for foraging in 
approximately equal proportions. In the Sierra Nevada Range, black-
backed woodpeckers have been found to forage preferentially on large 
trunks of snags in burned forests (Hanson and North 2008, p. 780). 
Although they forage on several species of live trees, they use snags 
(dead trees) more than expected based on snag availability (Raphael and 
White 1984, pp. 33-36).
Breeding
    The black-backed woodpecker is a cavity-nesting bird. It nests in 
late spring, with nest excavation generally occurring from April to 
June, depending on location and year. Clutch size averages three to 
four eggs. Both parents incubate the eggs and brood the young; adults 
collect insect prey for the young within several hundred meters of the 
nest. The black-backed woodpecker nests in live and dead trees of 
various species (including Douglas-fir (Pseudotsuga menziesii), 
lodgepole pine (Pinus contorta), ponderosa pine (Pinus ponderosa), red 
fir (Abies magnifica), and quaking aspen (Populus tremuloides)), 
depending upon local forest type and condition (see review in Dixon and 
Saab 2000, pp. 11-14). Bull et al. (1986, p. 9) conclude that the 
black-backed woodpecker prefers to nest in dead pines because pines 
have a thicker layer of sapwood, which decays more quickly than 
heartwood and thus should be more suitable for excavation. They also 
conclude that trees less than 50 centimeters (cm) (20 inches (in)) 
diameter at breast height are preferred because they contain a higher 
percentage of sapwood than do larger trees. In the Sierra Nevada Range, 
nests are found primarily in dead trees and secondarily nests are found 
in the dead portions of live trees (Raphael and White 1984, p. 19). 
Black-backed woodpeckers select nest sites in stands where tree 
densities are greater than average (Vierling et al. 2008, pp. 423-425), 
and select, unlogged burned forests over logged, burned forests for 
nesting (Saab et al. 2007, pp. 100-101, 103). Nest sites in burned 
forests are positively correlated with areas of high pre-fire canopy 
cover and high wood-boring insect abundance (Raphael and White 1984, 
pp. 55-57; Russell et al. 2007, p. 2603-2604; Bonnot et al. 2009, pp. 
225-227).
Range
    The black-backed woodpecker occurs across dense, closed-canopy 
boreal and montane coniferous forests of North America (Winkler et al. 
1995, p. 296; Dixon and Saab 2000, p. 4). They are resident from 
western Alaska to northern Saskatchewan and central Labrador, south to 
southeastern British Columbia, central northwestern Wyoming, 
southwestern South Dakota, central Saskatchewan, northern Minnesota, 
southeastern Ontario, and northern New England (Dixon and Saab 2000, 
pp. 2-3; NatureServe 2008, pp. 5-6). In the Rocky Mountains and to the 
east, the species reaches its southernmost distribution in northwest 
Wyoming and the Black Hills, and is apparently absent from the central 
and southern Rocky Mountains, where the pine forests may be too poorly 
developed to attract the species (Bock and Bock 1974, p. 397; Dixon and 
Saab 2000, pp. 2-3).
    In Washington State, the black-backed woodpecker occurs mainly on 
the eastern side of the Cascade Range and in the Blue Mountains (Dixon 
and Saab 2000, p. 2), although range maps also place them in the Rocky 
Mountains where the range transects the northeastern portion of the 
State (NatureServe 2008). In Oregon, the species is found mainly on the 
eastern side of the Cascade Range, throughout the Blue Mountains and 
Wallowa Mountains in northeastern Oregon, and the Siskiyou Mountains in 
southwestern Oregon. From Oregon, the range continues south into 
California along the higher elevation eastern slopes of the Cascade and 
Sierra Mountains to eastern Tulare County; the California range also 
extends west through the Siskiyou and Klamath Mountains and east to the 
Warner Mountains (Dawson 1923, p. 1007; Grinnell and Miller 1944, p. 
248; Dixon and Saab 2000, p. 2).
    The black-backed woodpecker's breeding range generally corresponds 
with the location of boreal and montane coniferous forests throughout 
its range. East of the Rocky Mountains, the species breeds south to 
central Alberta, Saskatchewan, and Manitoba to the northern portions of 
Minnesota, Wisconsin, and Michigan (Dixon and Saab 2000, p. 2). In 
Oregon, the breeding range predominantly occurs in montane lodgepole 
pine and lodgepole pine-dominated mixed-conifer forest, but also 
includes burned and unburned ponderosa pine forest (Dixon and Saab 
2000, p. 4). The breeding habitat of the black-backed woodpecker in the 
Black Hills is predominantly ponderosa pine forest (Vierling et al. 
2008, p. 422).
    The black-backed woodpecker is mainly sedentary (does not leave the 
range where resident) during the winter and does not have a regular 
latitudinal migration. However, the species is subject to periodic 
irruptions southward from the boreal forest into southern Ontario and 
the northern United States (from Minnesota to New England) during the 
fall and winter months. These irruptions can vary in magnitude from a 
few wandering birds to very irregular irruptions involving large 
numbers of individual birds. During winter irruptions, birds move to 
areas south of the eastern boreal breeding range to opportunistically 
forage on outbreaks of wood-boring beetles. Winter records have 
occurred south to midwestern States, Pennsylvania, and New Jersey 
(Dixon and Saab 2000, pp. 2-4), with some individuals remaining in the 
southern locations for up to 193 days (Yunick 1985, p. 139; Winkler et 
al. 1995, p. 296; Dixon and Saab 2000, pp. 3-4). Such irruptions 
demonstrate the species' ability to move long distances over unforested 
habitats. In the Sierra Nevada Range, some sources suggest that black-
backed woodpeckers may move downslope in winter (Siegel et al. 2010, p. 
7).
Habitat
    At the landscape scale, while not tied to any particular tree 
species, the black-backed woodpecker generally is found in older 
conifer forests comprised of high densities of larger snags (Bock and 
Bock 1973, p. 400; Russell et al. 2007, p. 2604; Nappi and Drapeau 
2009, p. 1388; Siegel et al. 2012, pp. 34-42). The species is closely 
associated with standing dead timber that contains an abundance of 
snags (Dixon and Saab 2000, pp. 1-7, 15). Black-backed woodpeckers 
appear to be most abundant in stands of trees recently killed by fire 
(Hutto 1995, pp. 1047, 1050; Smucker et al. 2005, pp. 1540-1543) and in 
areas where beetle infestations have resulted in high tree mortality 
(Bonnot et al. 2009, p. 220). In the western United States, black-
backed woodpeckers show a strong association with burned forest 
conditions (Siegel et al. 2010, p. 8; Hutto 2008, p. 1831); in the 
northern Rockies, they are 16 times more likely to be found in burned 
forest than in the next most commonly occupied vegetation type (Hutto 
2008, p.

[[Page 21089]]

1831). Suitable habitat is thus unpredictable and ephemeral, and may 
remain suitable for only 6 to 10 years, and often less following 
disturbance, depending upon local conditions (Murphy and Lehnhausen 
1998, pp. 1368-1369; Hoyt and Hannon 2002, pp. 1886-1887; Saab et al. 
2004, pp. 28, 34; Saab et al. 2007, p. 99; Hutto 2008, p. 1831). 
Recently killed trees only support wood-boring beetles and bark beetles 
for several years before numbers of beetle larvae begin to steeply 
decline (Dixon and Saab 2000, p. 6), although the length of time that 
an area remains suitable after a fire varies in a site-specific way, 
depending on the size, intensity, and landscape patterns of the fire 
(Saab et al. 2004, pp. 28-34; Saab et al. 2007, p. 106). Some studies 
suggest that optimal habitat for the species appears to be mature and 
old forest (with high pre-fire canopy cover and high densities of trees 
of all sizes) that has burned at a high intensity within the previous 1 
to 4 years (Dixon and Saab 2000, pp. 4-7; Siegel et al. 2010, pp. 10-
46; EII et al. 2012, p. 99). Hutto (1995, p. 1050) has proposed that 
the black-backed woodpecker is basically restricted to early post-fire 
coniferous forests, noting that although it is possible that 
populations of the species are maintained by low numbers of birds that 
persist in unburned forests, it is equally likely that their 
populations are maintained by a patchwork of recently burned forests.
Taxonomy
    The black-backed woodpecker is in the order Piciformes, family 
Picidae, and subfamily Picinae (DeSante and Pyle 1986, p. 219), and is 
also known as the Arctic three-toed woodpecker and the black-backed 
three-toed woodpecker. First described by Swainson and Richardson in 
1832 (American Ornithologists' Union (AOU) 1983, p. 392), the black-
backed woodpecker probably evolved in North America from an ancestor in 
common with the three-toed woodpecker, Picoides tridactylus (Bock and 
Bock 1974, pp. 402-403). The scientific community recognizes the black-
backed woodpecker as a species (AOU 1983, pp. 392-393), and no 
subspecies of the black-backed woodpecker were included at the time 
that AOU last published subspecies names in 1957 (AOU 1957, p. 330), 
although earlier literature does contain limited references to 
different taxonomy. Dixon and Saab (2000, p. 3) have reported that in 
1900, Bangs described a more slender-billed form (tenuirostris) in the 
Cascades and the Sierra Nevada. In their Distribution of the Birds of 
California, Grinnell and Miller (1944, p. 248) note the names black-
backed three-toed woodpecker and Sierra three-toed woodpecker (Picoides 
arcticus tenuirostris and Picoides tenuirostris) as synonyms for the 
species, but do not provide additional information on taxonomy. They 
describe the species' range as being of small extent and interrupted 
nature, chiefly in the Cascade Mountains and the high northern and 
central Sierra Nevada Range.
    The petition (EII et al. 2012, pp. 12-15) included as supporting 
information a recent genetic study (Pierson et al. 2010) that 
identifies three distinct genetic groupings of the black-backed 
woodpecker: A large, genetically continuous population that spans the 
northern continuous forest (boreal forest) from the northern Rocky 
Mountains and Alberta, Canada, to Quebec (``boreal'' population 
hereafter); a small and isolated population in the Black Hills of 
southwestern South Dakota and northeastern Wyoming; and a population in 
the Cascade Range of Oregon (Pierson et al. 2010, pp. 1, 3, 6-13). The 
Washington Cascades are mapped as part of the boreal population 
(Pierson et al. 2010, pp. 3, 8; see also NatureServe 2008, p. 5). The 
petitioners have relied on the Pierson et al. (2010) study results to 
propose that this new information may warrant a revised interpretation 
of the taxonomic description of the species (EII et al. 2012, pp. 13-
16). The findings by Pierson et al. (2010, entire) are discussed in the 
``Evaluation of Listable Entities'' section below.
Population Status and Trend
    No systematic, long-term, rangewide surveys have been conducted for 
the black-backed woodpecker. However, despite its widespread breeding 
distribution, the black-backed woodpecker is considered locally rare 
(Dixon and Saab 2000, p. 1), with low densities and large home ranges 
(Dudley and Saab 2007, p. 593). Some indication of population trend is 
based on anecdotal observations that indicate the species was at least 
locally ``common'' over 100 years ago (Cooper 1870, p. 385), but is 
considered ``rare'' by more current sources (Dixon and Saab 2000, p. 1; 
EII et al. 2012, pp. 38-39, 41). However, despite its rarity, the 
information provided by the petitioners does not indicate a clear 
decrease in the species' current range compared to its historical 
range, although patterns of genetic structure may suggest some changes 
within the range of the species over time (Pierson et al. 2010, pp. 10, 
12). References provided by the petitioners also suggest that intensive 
human impacts to habitat within the species' range may have reduced 
suitable habitat within the mountain ranges of the Oregon Cascades-
California and Black Hills populations (Shinneman and Baker 1997, pp. 
1278-1286; Vierling et al. 2008, pp. 422, 423; Cahall and Hayes 2009, 
p. 1127). In the Black Hills, for example, nearly every acre is 
reported to have been logged or thinned at least twice since the late 
1800s, with widespread logging and human-caused fires having occurred 
in the Black Hills by 1891 (Shinneman and Baker 1997, pp. 1278-1279).
    Black-backed woodpeckers are opportunistic in response to changes 
in forest structure and composition that are created by fire and insect 
outbreaks, and that provide the specialized food and nesting resources 
utilized by the species (Dixon and Saab 2000, p. 15). Thus, black-
backed woodpecker populations are subject to significant fluctuations. 
Their numbers may be low in unburned or undisturbed forests, but 
increase rapidly following fire or other disturbance, in response to 
increased populations of wood-boring beetles and bark beetles (Dixon 
and Saab 2000, p. 15). Abundance of black-backed woodpeckers is thus 
thought to be strongly influenced by the extent of fires and insect 
outbreaks (Dixon and Saab 2000, p. 15).
    In the Sierra Nevada Range, two large-scale, annual bird monitoring 
programs, the Breeding Bird Survey and the Monitoring Avian 
Productivity and Survivorship Program, have detected black-backed 
woodpeckers throughout the region in small numbers, but data are too 
sparse for estimating regional populations (see Siegel et al. 2008, p. 
4). Siegel et al. (2010, pp. 1-3, 44-45) have found that black-backed 
woodpeckers are relatively rare, yet widely distributed over the 10 
national forests in the Sierra Nevada. In their study of 51 fire areas 
between 1 and 10 years after fire occurred on the 10 national forests, 
they used survey results combined with modeling to estimate that 
approximately 81,814 ha (202,167 ac) of the 323,358 ha (799,035 ac) of 
burned forest were occupied by the woodpecker, and found that results 
indicating that the species is most common within a few years after 
high-severity fire were in general agreement with published studies 
from elsewhere within the species' range. They provide preliminary 
estimates that this occupied habitat could contain 470, 538, or 1,341 
pairs, based on varying home-range size estimates reported elsewhere 
within the species' range, but they caution that estimates are not 
reliable until home

[[Page 21090]]

range sizes are determined for the Sierras.
    In the Black Hills, the black-backed woodpecker population is 
thought to be quite small. Bonnot et al. (2008, p. 450) report that the 
South Dakota Department of Game, Fish, and Parks lists the species as 
locally rare and vulnerable to extinction. A baseline population study 
in 2000 estimated approximately 1,200 black-backed woodpeckers in the 
Black Hills at that time (USDA 2005a, p. III-241). Small population 
size is supported by the findings of Pierson et al. (2010, p. 12) that 
the population has a small genetically effective population size.

Evaluation of Listable Entities

    Under section 3(16) of the Act, we may consider for listing any 
species, including any subspecies of fish or wildlife or plants, and 
any distinct population segment of any species of vertebrate fish or 
wildlife which interbreeds when mature (16 U.S.C. 1532(16)). Such 
entities are considered eligible for listing under the Act (and, 
therefore, are referred to as listable entities) if we determine that 
they meet the definition of an endangered or threatened species. The 
petitioners have requested that the Oregon Cascades-California 
population and the Black Hills population of the black-backed 
woodpecker each be listed under the Act as either a subspecies or as a 
distinct population segment.

Evaluation of Information Provided in the Petition and Available in our 
Files Regarding Subspecies Status for the Oregon Cascades-California 
and Black Hills Populations

    The petitioners have requested that we consider each population as 
a separate subspecies based on the results of Pierson et al. (2010, p. 
11) indicating that genetic samples from black-backed woodpeckers in 
the Oregon Cascades and in the Black Hills display a degree of genetic 
differentiation from the boreal population, and from each other, that 
is similar to the genetic differentiation found between subspecies or 
clades of other birds occupying similar ranges. Additionally, Pierson 
et al. (2010, p. 10) suggested low genetic diversity patterns within 
the Oregon Cascades and Black Hills populations indicate that each 
population has a shared ancestry with the boreal population, without 
much current gene flow. According to Pierson et al. (2010, pp. 2, 3), 
the eastern Cascade Range of Oregon and the Sierra Nevada Range of 
California are geographically separated from the remainder of the 
species' range, but not from each other, suggesting that further 
resolution of populations in California, Oregon, and Washington is 
needed. Pierson et al. (2010), however, did not propose subspecies 
status for any populations.
    The AOU, the recognized authority for taxonomy of North American 
birds, has not listed subspecies since 1957, stating space limitations, 
and also noting that the validity (in the sense of their 
distinguishability) of many described avian subspecies still needs to 
be evaluated, as does the potential for unrecognized subspecies (AOU 
1983, p. 284; AOU 1998, pp. 1-19). The 1957 AOU checklist did not list 
subspecies of black-backed woodpecker (p. 330), and neither the Oregon 
Cascades-California nor the Black Hills population of the black-backed 
woodpecker has since been proposed or recognized as a subspecies. Given 
the recent genetic information published by Pierson et al. (2010, p. 
11), the information available to us at this stage is not clear as to 
whether these populations may qualify as subspecies. We request further 
information should it become available, and will revisit this question 
when conducting our status review.

Evaluation of Information Provided in the Petition and Available in our 
Files Regarding Distinct Population Segment Status for the Oregon 
Cascades-California and Black Hills Populations

    In determining whether an entity constitutes a DPS, and is 
therefore a listable entity under the Act, we follow the Policy 
Regarding the Recognition of Distinct Vertebrate Population Segments 
Under the Endangered Species Act (DPS Policy) (61 FR 4722; February 7, 
1996). Under our DPS Policy, we analyze three elements prior to making 
a decision to establish and classify a possible DPS: (1) The 
discreteness of the population segment in relation to the remainder of 
the taxon; (2) the significance of the population segment to the taxon 
to which it belongs; and (3) the population segment's conservation 
status in relation to the Act's standards for listing (i.e., is the 
population segment, when treated as if it were a species, endangered or 
threatened?) (61 FR 4722). This finding considers whether the 
petitioned Oregon Cascades-California population or the Black Hills 
population of the black-backed woodpecker may be considered a DPS under 
our 1996 DPS policy.
    Under our DPS Policy, a population segment of a vertebrate species 
may be considered discrete if it satisfies either one of the following 
conditions: (1) It is markedly separated from other populations of the 
same taxon as a consequence of physical, physiological, ecological, or 
behavioral factors (quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation); or (2) It is 
delimited by international governmental boundaries within which 
significant differences in control of exploitation, management of 
habitat, conservation status, or regulatory mechanisms exist (61 FR 
4722).
    If a population segment is considered discrete under either of the 
conditions described in our DPS policy, we then consider its biological 
and ecological significance to the taxon to which it belongs. This 
consideration may include, but is not limited to, the following: (1) 
Persistence of the discrete population segment in an ecological setting 
that is unusual or unique for the taxon; (2) Evidence that loss of the 
discrete population segment would result in a significant gap in the 
range of a taxon; (3) Evidence that the discrete population segment 
represents the only surviving natural occurrence of a taxon that may be 
more abundant elsewhere as an introduced population outside its 
historical range; or (4) Evidence that the discrete population segment 
differs markedly from other populations of the species in its genetic 
characteristics (61 FR 4722).
Oregon Cascades-California Population
    Discreteness--The petitioners provide recent genetic information 
(Pierson et al. 2010, pp. 1-16) to support their presentation of the 
Oregon Cascades-California population as markedly separated, or 
discrete, from the boreal and Black Hills populations of the black-
backed woodpecker. They rely on the conclusions of Pierson et al. 2010 
(pp. 10-13) that genetic results indicate that large gaps among 
forested sites apparently act as behavioral barriers to movement of 
females, and create a higher resistance to movement for males. Pierson 
et al. (2010, pp. 6-11) conclude that the geographic locations of sharp 
discontinuities in gene flow match breaks in the large forested areas 
between the Rocky Mountains and Oregon, and also conclude that a 
barrier likely exists between Oregon and the boreal forest to the 
north. However, they further note that, for conservation planning 
purposes, it will be important to determine if the Oregon population is 
connected to the California or Washington populations (Pierson et al. 
2010, pp. 11, 13). The authors note that irruptions indicate that the 
species is physiologically capable of long-distance movements, but also 
note that because the irruptions occurred almost exclusively outside of 
the breeding season, they do not represent natal or breeding dispersal. 
The petitioners did

[[Page 21091]]

not present, nor do we have, additional information on the genetics of 
black-backed woodpecker populations that would provide additional 
evidence of marked separation of the Oregon Cascades-California 
population.
    Various materials provided by the petitioners indicate gaps in 
forested habitat may support a potential behavioral or geographic 
separation between the eastern Oregon Cascades and the Washington 
populations (Winkler et al. 1996, p. 296; Pierson et al. 2010, p. 3; 
EII et al. 2012, p. 17). Ecotype and forest mapping (USDA 2008, pp. 4, 
5) indicate that between the eastern Oregon Cascade Range and the Blue 
and Wallowa Mountains of northeastern Oregon, there may be gaps in 
dense, montane forest cover, which is the type of habitat in which the 
species typically occurs. Range maps provided by the petitioners show 
differing degrees of continuity in the species' range in Washington and 
Oregon, with more recent maps showing discontinuity in the species' 
range between the Washington and Oregon Cascades, where the Columbia 
Basin bisects the mountain range, and also between the Oregon Cascades 
and the Blue and Wallowa Mountains in the northeastern portion of the 
State (Bock and Bock 1974, p. 399; Winkler et al. 1995, p. 296; Dixon 
and Saab 2000, p. 1; National Geographic Society 2008, unpaginated; 
NatureServe 2009, unpaginated). These range maps show the distribution 
of the black-backed woodpecker in the Oregon Cascades as continuous 
with the species' range in California (Winkler et al. 1995, p. 296; 
Dixon and Saab 2000, p. 1; National Geographic Society 2008, 
unpaginated; NatureServe 2009, unpaginated).
    In consideration of the information the petitioners presented 
indicating continuity of the Oregon Cascades and California portions of 
the species' range, and in the absence of contradictory information, we 
are including black-backed woodpeckers throughout their California 
range along with black-backed woodpeckers throughout their range in the 
Cascade Range of Oregon as one potential DPS. We conclude that the 
petitioners have presented substantial information to indicate that 
black-backed woodpecker population segment in the Oregon Cascades and 
California may be markedly separated from other populations of the 
species, due to a combination of physical and ecological factors. 
Genetic data are presented as quantitative evidence of this separation.
    Significance--The petitioners state that the Oregon Cascades-
California population meets two of the DPS significance criteria 
because (1) loss of the population would result in a significant gap in 
the range of the species, specifically at the periphery of the range of 
the black-backed woodpecker; and (2) the population differs markedly 
from other populations of the species in its genetic characteristics 
(EII et al. 2012, pp.14-16). The petitioners rely on Service documents 
(71 FR 56228, 56233; September 26, 2006; and 76 FR 63720, 63732; 
October 13, 2011), and the references cited therein, to note that there 
are several reasons why populations at the edge of a species' range may 
be important, and why a gap in the range would be significant: 
Peripheral populations maintain opportunities for speciation and future 
biodiversity, which allow adaptation to future environmental changes; 
they may represent refugia for a species as the species' range is 
reduced; and genetically divergent peripheral populations are often 
disproportionately important to the species in terms of maintaining 
genetic diversity and, therefore, the capacity for evolutionary 
adaptation (EII et al. 2012, p. 15).
    Based on a review of the information in the petition and available 
in our files, the petitioners have presented substantial information to 
indicate that loss of the Oregon Cascades-California population may 
result in a significant gap in the range of the species. Loss of the 
population would result in the loss of that portion of the range west 
of the Rocky Mountain corridor and south of the Columbia River (the 
southwestern-most extent of the range), including the Sierra Nevada 
Range south to Tulare County, the southern-most portion of the species' 
entire range. Additionally, the petitioners cited genetic analyses by 
Pierson et al. (2010, pp. 1-16) that provide evidence that the Oregon 
Cascades-California population may differ markedly from other 
populations of the species in its genetic characteristics.
Black Hills Population
    Discreteness--As with the Oregon Cascades-California population, 
the petitioners provide information that the Black Hills population is 
genetically distinct from other sampled black-backed woodpecker 
populations, relying on the recent genetic information in Pierson et 
al. (2010, pp. 1-16) to support their statement that the Black Hills 
population is markedly separated, or discrete, from the boreal and 
Oregon Cascades-California populations because large gaps between 
forested sites act as behavioral barriers to birds' movements (Pierson 
et al. 2010, pp. 10-13). Pierson et al. (2010, p. 11) conclude that, 
because the black-backed woodpecker's distribution closely follows the 
distribution of the boreal forest, gaps in forested habitat are likely 
to be the ultimate cause of the limited gene flow between geographic 
regions.
    The petitioners state that the Black Hills population also meets 
the discreteness criterion based on geographic separation as a result 
of the large gap in forested habitat between the Black Hills and the 
nearest boreal population (Pierson et al. 2010, p. 3) (EII et al. 2012, 
pp. 14-16). Range maps consistently show the Black Hills as clearly 
separated from the boreal and northern Rocky Mountain portions of the 
range (Bock and Bock 1974, p. 399; Winkler et al. 1995, p. 296; Dixon 
and Saab 2000, p. 1; National Geographic Society 2008, unpaginated; 
NatureServe 2009, unpaginated). The Black Hills population is separated 
from the main range by approximately 200 miles (USDA 2005a, p. III-
238). The Black Hills are an isolated, forested mountain range located 
within the Great Plains in western South Dakota and northeastern 
Wyoming (Shinneman and Baker 1997, p. 1278; Vierling et al. 2008, pp. 
422, 425). The Black Hills portion of the black-backed woodpecker's 
range covers a relatively small area of approximately 15,500 square 
kilometers (5,984 square miles) (Pierson et al. 2010, p. 12). Thus, the 
petitioners have presented substantial information to indicate that the 
Black Hills population may be markedly separated from the other 
populations of the species, due to a combination of physical and 
ecological factors. Genetic data are presented to provide quantitative 
evidence of this separation.
    Significance--The petitioners state that loss of the Black Hills 
population would be considered a significant gap at the periphery of 
the species' range (EII et al. 2012, pp. 14-16). The petitioners 
present information to indicate that loss of this population, which 
would occur at the southern edge of the center of its range, would 
result in the loss of a disjunct population that is located within the 
Great Plains. In addition, the Black Hills population may differ 
markedly from other sampled populations of the species in its genetic 
characteristics (Pierson et al. 2010, pp. 3-10). Consequently, the 
petitioners have provided substantial information to indicate that the 
Black Hills population may meet the significance element of the 1996 
DPS policy.

[[Page 21092]]

Listable Entity Determination for the Oregon Cascades-California and 
Black Hills Populations

    Based on current knowledge from genetic studies and distribution 
information presented in the petition and readily available in our 
files, we determine that the petitioners have presented substantial 
information indicating that the Oregon Cascades-California population 
of black-backed woodpecker and the Black Hills population of black-
backed woodpecker may be listable entities under the Act either as 
subspecies or as DPSs.
    We base the DPS findings on information indicating the Oregon 
Cascades-California and the Black Hills populations may meet both the 
discreteness and significance elements of the Service's 1996 DPS 
policy. The populations may meet the discreteness element of the DPS 
policy because information indicates that each population segment may 
be markedly separated from each other and from the boreal black-backed 
woodpecker population as a consequence of physical and ecological 
factors, and as indicated by genetic differences between black-backed 
woodpeckers in the Oregon Cascades, Black Hills, and boreal 
populations. The populations may meet the significance element of the 
DPS policy because loss of each population may result in a significant 
gap in the range of the black-backed woodpecker, and because each 
population segment may differ markedly from other populations of black-
backed woodpeckers in its genetic characteristics.
    We will further evaluate the weight of evidence available to 
support subspecies or DPS status for the Oregon Cascades-California and 
the Black Hills populations during the status review.

Evaluation of Information for this Finding

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations at 50 CFR part 424 set forth the procedures for adding a 
species to, or removing a species from, the Federal Lists of Endangered 
and Threatened Wildlife and Plants. A species may be determined to be 
an endangered or threatened species due to one or more of the five 
factors described in section 4(a)(1) of the Act:
    (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.
    In considering what factors might constitute threats, we must look 
beyond the mere exposure of the species to the factor to determine 
whether the species responds to the factor in a way that causes actual 
impacts to the species. If there is exposure to a factor, but no 
response, or only a positive response, that factor is not a threat. If 
there is exposure and the species responds negatively, the factor may 
be a threat and we then attempt to determine how significant a threat 
it is. If the threat is significant, it may drive or contribute to the 
risk of extinction of the species such that the species may warrant 
listing as endangered or threatened as those terms are defined by the 
Act. This does not necessarily require empirical proof of a threat. The 
combination of exposure and some corroborating evidence of how the 
species is likely impacted could suffice. The mere identification of 
factors that could impact a species negatively may not be sufficient to 
compel a finding that listing may be warranted. The information shall 
contain evidence sufficient to suggest that these factors may be 
operative threats that act on the species to the point that the species 
may meet the definition of endangered or threatened under the Act.
    In making this 90-day finding, we evaluated whether information 
regarding threats to either the Oregon Cascades-California population 
or the Black Hills population of the black-backed woodpecker, as 
presented in the petition and other information available in our files, 
is substantial, thereby indicating that the petitioned action may be 
warranted. Our evaluation of this information is presented below.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

Information Provided in the Petition
    The petitioners state that black-backed woodpecker habitat is 
directly eliminated, and indirectly reduced or degraded, by management 
actions that are widely conducted on public and private forests 
throughout the range of the species. They specify that habitat is 
systematically lost through post-disturbance salvage logging, active 
fire suppression, and pre-disturbance tree and brush thinning to reduce 
fire risk or beetle-induced tree mortality (EII et al. 2012, pp. 45-
67). The petitioners provide literature addressing the species in the 
boreal range, the Black Hills, the eastern Oregon Cascades, and the 
Sierra Nevada Range to support the identified threats (Hutto 1995, pp. 
1053-1054; Dixon and Saab 2000, p. 15; Hoyt and Hannon 2002, p. 1887; 
Vierling et al. 2008, pp. 426-427; Saab et al. 2007, p. 106; Hutto 
2008, pp. 1931-1833; Hanson and North 2008, pp. 779-781; Bonnot et al. 
2009, p. 227). References cited by the petitioners indicate that 
current management prescriptions in black-backed woodpecker habitat are 
likely insufficient to protect and prevent further declines of the 
species (Hutto 1995, p. 1054; Hanson and North 2008, pp. 780-781; 
Cahall and Hayes 2009, pp. 1125-1127). The petitioners also state that 
future climate change may further reduce habitat availability; this 
potential threat is evaluated in Factor E, below.
    Salvage Logging--The petitioners state that salvage logging of 
fire- and beetle-killed trees is likely the most important and most 
well-documented threat to the persistence of black-backed woodpecker 
throughout its range. They add that every study conducted that has 
examined the effects of salvage logging on black-backed woodpeckers has 
documented significant declines in abundance, nest densities, and 
presence of foraging birds in salvage-logged forests, compared to 
unlogged post-disturbance forests (EII et al. 2012, pp. 57-60).
    The petitioners provide a variety of study results showing that 
post-fire salvage logging results in lower black-backed woodpecker nest 
densities, lower foraging presence, and lower overall abundance, 
compared to levels of the same activities in unlogged burned areas 
(Hutto 1995, pp. 1047-1050; Caton 1996, pp. 96-111; Murphy and 
Lehnhausen 1998, pp. 1359, 1362-1368; Saab and Dudley 1998, pp. 6, 11; 
Hutto and Gallo 2006, p. 825; Saab et al. 2007, pp. 100-101; Cahall and 
Hayes 2009, pp. 1125-1127).
    The petitioners provide information to indicate that salvage 
logging affects foraging habitat by removing snags that support wood-
boring beetle larvae, and that management prescriptions leave 
insufficient numbers of snags to support adequate foraging resources 
(see Hanson and North 2008, pp. 780-781). Information provided by the 
petitioners indicates that black-backed woodpeckers were absent or 
nearly absent from salvage-logged areas of burned forests in California 
(Hanson and North 2008, pp. 779-781; Siegel et al. 2012 [see Fig. 10]). 
The petitioners present a study indicating that, in the eastern Oregon 
Cascades, salvage logging reduces abundance of black-backed woodpeckers 
(Cahall and Hayes 2009, pp. 1125-1127). Similarly, the

[[Page 21093]]

petitioners cite a study in which the authors found that in areas with 
high tree mortality due to beetle infestations in the eastern Oregon 
Cascades, 99 percent of all foraging observations were in beetle-killed 
forests that had not been salvage-logged, and that the black-backed 
woodpecker was nearly absent from areas subject to post-disturbance 
salvage logging (Goggans et al. 1989, Table 8, p. 26). The petitioners 
provide a number of U.S. Forest Service (USFS) documents that describe 
recent and planned salvage logging operations in recently burned or 
beetle-killed areas on national forests in California and Oregon (USDA 
2005c, entire; USDA 2005d, entire; USDA 2005e, entire; USDA 2006a, 
entire; USDA 2009a, entire; USDA 2009b, entire; USDA 2010a, entire; EII 
et al. 2012, pp. 68-95).
    For the Black Hills, the petitioners provide several studies that 
measure forest stand characteristics associated with nesting in 
recently burned habitat and in beetle-killed forests, but do not 
address effects of salvage logging itself, although they present study 
results that suggest that reductions in snags result in reduced 
densities of the species (Vierling et al. 2008, pp. 426, 427; Bonnot et 
al. 2008, p. 455, 456; Bonnot et al. 2009, pp. 224, 225).
    The petitioners provide information to indicate that fires have 
occurred regularly and within the relatively recent past within the 
Black Hills (Shinneman and Baker 1997, pp. 1279-1281; Piva et al. 2005, 
p. 6; Bonnot et al. 2009, pp. 220, 221). The petitioners indicate that 
snag retention guidelines in the Black Hills National Forest Plan are 
not adequate to maintain a viable population of the black-backed 
woodpecker, based on research addressing effects of salvage logging on 
the species (Hutto 2006, pp. 988-989; Bonnot et al. 2009, p. 226; Hutto 
and Hanson 2009, unpaginated).
    Changed Fire Regime Due to Fire Suppression--The petitioners state 
that black-backed woodpecker habitat is created by high-intensity fire 
and large-scale insect outbreaks that kill most of the trees across 
large areas of dense mature forest (EII et al. 2012, p. 69). They 
provide information to indicate that fire- and beetle-killed trees 
generally only support beetle larvae for about 5 years after the 
disturbance (Dixon and Saab 2000, pp. 4-14). The petitioners state that 
widespread fire suppression is a threat to the black-backed woodpecker 
because it has reduced fire frequency and intensity, and the annual 
extent of area burned. The petitioners present information on 
historical and current fire acreage, frequency, and severity from 
California and Oregon. They also provide references to support the 
information in the petition, and assert that historically there were 3 
to 4 times more high-intensity fires within the Oregon and California 
range of the black-backed woodpecker than there are currently (EII et 
al. 2012, pp. 60-63).
    The petitioners present literature to indicate that in the eastern 
Oregon Cascades and California, the amount of area burned by fire per 
year has decreased substantially, and the fire return interval has 
increased substantially since pre-European conditions, largely as a 
result of fire suppression (Bekker and Taylor 2001, pp. 23-26; Stephens 
et al. 2007, pp. 210-213; Hanson et al. 2009, pp. 1316-1317; Baker 
2012, pp. 15-22). The petitioners estimate that current high-intensity 
fire rotation intervals in the Sierra Nevada Range, based on fires from 
2002 to 2011, is over 700 years, compared to some studies from the 
Sierra Nevada that show a high-intensity fire rotation interval 
historically of 150-350 years (high-intensity fire rotation refers to 
how often a site would, on average, experience high-intensity fire) 
(EII et al. 2012, p. 62).
    The petitioners conclude that the reduction in fire frequency and 
intensity is the result of fire suppression activities (EII et al. 
2012, pp. 60-67), and this large decline in high-intensity fires since 
the 19th century likely can be expected to correspond with a similar 
decline in black-backed woodpecker populations within their range in 
Oregon and California (EII et al. 2012, pp. 62-65).
    For the Black Hills, the petitioners assert that at the turn of the 
last century, large expanses of forests experiencing high beetle-
induced tree mortality and high-intensity fire were a natural part of 
the ecology in the area that is now the Black Hills National Forest 
(Shinneman and Baker 1997, p. 1284; Bonnot et al. 2009, p. 220; EII et 
al. 2012, p. 65), with high-intensity fire typically occurring in 
intervals of less than 100 years in a given area (Shinneman and Baker 
1997, pp. 1279-1281). The petitioners state that since 1980, 225,554 
acres (91,278 ha) have burned in the Black Hills National Forest, and 
this represents a rotation interval for all fire intensities of about 
90-100 years. The petitioners state, however, that a majority of the 
fire acreage has sustained only low-intensity and moderate-intensity 
fires, and they conclude that the high-intensity fire rotation interval 
is currently at least 300 years, which indicates that suitable burned 
habitat for black-backed woodpeckers has been greatly reduced (EII et 
al. 2012, p. 65).
    Forest Thinning--The petitioners propose that forest thinning also 
not only prevents higher-intensity fire (or high levels of beetle-
caused tree mortality) from occurring in the first place, but also 
greatly reduces or eliminates post-fire habitat suitability, even if a 
thinned area does burn (EII et al. 2012, pp. 65-66). They indicate that 
in addition to the extent to which the thinning reduces fire intensity 
(by reducing understory trees, and by removing mature trees, thereby 
increasing spacing between tree crowns) or significant beetle-caused 
tree mortality (by removing small and mature trees to reduce 
competition between trees, thereby reducing tree mortality), thinning 
also affects habitat by reducing pre-disturbance tree densities and 
canopy cover, forest stand characteristics that are correlated with 
higher post-disturbance occupancy rates and nest densities for the 
black-backed woodpecker (Russell et al. 2007, pp. 2603-2608; Vierling 
et al. 2008, pp. 424-426; Bonnot et al. 2009, p. 226; Saab et al. 2009, 
pp. 156-158; EII et al. 2012, pp. 65-67).
    The petitioners describe several major forest thinning projects in 
the Oregon Cascades that they think threaten habitat of the black-
backed woodpecker. These projects are described as targeting the few 
remaining dense, older forests on national forest lands, specifically 
to prevent moderate- and high-intensity fire and to reduce the 
potential for any significant tree mortality from beetles, which 
results in reducing suitable habitat for the black-backed woodpecker 
(EII et al. 2012, pp. 91-95). The petitioners provide numerous 
environmental and forest planning documents that provide information on 
planned forest thinning proposals within the range of the Oregon 
Cascades-California population (USDA 2001, pp. 34-54; USDA 2006b, 
entire; USDA 2007, entire; USDA 2009a, entire; USDA 2010b, entire; USDA 
2011a, entire; USDA 2011b, entire; USDA 2012a, entire; USDA 2012b, 
entire).
    The petitioners state that in the Black Hills, the scale and 
intensity of two proposed logging projects, the Mountain Pine Beetle 
Response Program and the Vestal Project, will largely eliminate 
suitable black-backed woodpecker habitat in the Black Hills National 
Forest (EII et al. 2012, pp. 96-98; see also Bonnot et al. 2009, pp. 
220, 221). The petitioners provide information that the Black Hills 
National Forest proposes to remove insect-infested trees, as well as 
thin trees to reduce future beetle

[[Page 21094]]

outbreaks and to reduce fire frequency and severity.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    A review of the information provided by the petitioners supports 
the petitioners' description of the black-backed woodpecker as a 
habitat specialist that is most often associated with dense conifer 
stands that have been killed by high-intensity fire or large-scale 
insect outbreaks within the previous 5 years. Information provided by 
the petitioners also supports descriptions of declines in fire 
frequency and fire severity in Oregon, California, and the Black Hills 
since the 19th century. The petitioners have presented numerous studies 
that indicate a negative correlation between black-backed woodpecker 
nesting, foraging, and abundance, and reduced abundance of standing 
dead trees. The petitioners have provided a variety of USFS documents 
that indicate that salvage logging, fire suppression, and thinning 
activities are either planned or being implemented on multiple forests 
within the respective ranges of the populations. As noted above, the 
petitioners have provided studies from Oregon, California, and the 
Black Hills that support their arguments that the Oregon Cascades-
California and Black Hills populations are negatively affected by these 
activities. The scope of these activities suggests that they have the 
potential to affect a large portion of the range of each of the two 
populations.
    In summary, we conclude that the information provided in the 
petition or in our files present substantial scientific or commercial 
information indicating that the petitioned action may be warranted for 
the Oregon Cascades-California and Black Hills populations of the 
black-backed woodpecker due to the present or threatened destruction, 
modification, or curtailment of the populations' habitat or range as a 
result of salvage logging, tree thinning, and fire suppression 
activities throughout their respective ranges.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes.

Information Provided in the Petition
    The petitioners state that there are no specific regulations that 
prohibit the hunting or killing of the black-backed woodpecker in 
Oregon, in California, or in the Black Hills, and that there are no 
available records of the numbers of black-backed woodpeckers that are 
killed annually through hunting, research, or for other reasons (EII et 
al. 2012, p. 67); however, the petitioners provide no information to 
indicate that overutilization for commercial, recreational, scientific, 
or educational purposes threatens either the Oregon Cascades-California 
or the Black Hills population of the black-backed woodpecker.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    The materials provided in the petition or available in our files do 
not indicate that the black-backed woodpecker is hunted. Take is 
prohibited under the Migratory Bird Treaty Act of 1918 (16 U.S.C. 703-
712). Further, the petitioners did not provide, nor do we have in our 
files, any information on overutilization for scientific research, 
education, or any other purposes. We find that the information provided 
in the petition and available in our files does not present substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted due to overutilization of the Oregon Cascades-
California or Black Hills populations for commercial, recreational, 
scientific, or educational purposes. We are requesting additional 
information regarding overutilization of the Oregon Cascades-California 
and Black Hills populations, and will further evaluate Factor B during 
the status review for each population and present our findings in the 
subsequent 12-month finding on this petition.

C. Disease or Predation.

Information Provided in the Petition
    The petitioners state that predation was a leading cause of nest 
failures in the Black Hills (EII et al. 2012, p. 67), citing two 
studies that documented nest failure rates in post-disturbance habitat 
there (Bonnot et al. 2008, p. 453; Vierling et al. 2008, pp. 424-425). 
The petitioners also note that predation rates in newly burned areas 
tend to increase over time as burned areas recover. They provided 
limited additional information on the potential for predation by 
raptors (Dixon and Saab 2000, p. 11; EII et al. 2012, pp. 67-68). The 
petitioners also identified interspecific interactions with other avian 
species as a threat (EII et al. 2012, p. 68), which we address under 
Factor E.
    The petitioners provide information to indicate that mortality due 
to nematode parasitism may be a potential threat (Siegel et al. 2012b, 
p. 421), but further note that more information is needed to determine 
the extent to which nematode parasitism occurs in black-backed 
woodpeckers, and the extent to which black-backed woodpeckers may be 
vulnerable to parasites (EII et al. 2012, p. 68). One bird was reported 
to have been lost due to nematode parasitism in the Oregon Cascades-
California population (Siegel et al. 2012b, pp. 421-424), but no 
further information was presented regarding the incidence of disease or 
parasites in either population.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Review of the information presented by the petitioners suggests 
that predation and parasitism may have individual-level effects, but no 
information was provided on what effects, if any, predation and 
parasitism have at the population level. We found no information in the 
petition or information readily available in our files to indicate that 
disease or predation (or parasitism) is negatively impacting the status 
of the Oregon Cascades-California or the Black Hills populations of the 
black-backed woodpecker. Therefore, we do not find that there is 
substantial information to indicate that the Oregon Cascades-California 
or the Black Hills populations of the black-backed woodpecker may 
warrant listing due to disease or predation. However, we are requesting 
any additional information available on the role that predation and 
parasitism may have on the status of the Oregon Cascades-California and 
Black Hills populations, and will further evaluate this factor during 
our status review for each population.

D. The Inadequacy of Existing Regulatory Mechanisms.

Information Provided in the Petition
    The petitioners state that existing regulatory mechanisms are 
inadequate to protect the black-backed woodpecker on Federal and 
private lands in the Oregon Cascades-California and Black Hills 
populations. As discussed under Factor A, the petitioners explain that 
the black-backed woodpecker is a habitat specialist that is vulnerable 
to the impacts of salvage logging, as well as forest thinning and fire 
suppression activities, which are implemented to reduce occurrence of 
the high-intensity fire and beetle infestations that create the habitat 
upon which the species depends. The petitioners provide information on 
Federal regulatory mechanisms that address forest management, including 
the National Forest Management Act (NFMA; 16 U.S.C. 1600 et seq.; April 
9, 2012 at 77 FR 21162), the 2012 National Forest

[[Page 21095]]

System Land Management Planning Rule (2012 planning rule), the Sierra 
Nevada Forest Plan Amendment (SNFPA) and its 2004 and 2010 amendments, 
the Northwest Forest Plan (NWFP), several national forest land and 
resource management plans (LRMPs) in Oregon, and the Black Hills 
National Forest LRMP Amendment. They also provide information on State 
regulatory mechanisms, including the California Forest Practices Rule 
and the Oregon Forest Practices Act (EII et al. 2012, pp. 68-98). They 
indicate that there are no regulations that prohibit hunting or killing 
the species in Oregon, California, and the Black Hills (EII et al. 
2012, pp. 67).
    The petitioners explain that the 2012 planning rule may threaten 
the black-backed woodpecker, because the rule eliminates the 1982 NFMA 
planning rule requirement that the USFS maintain viable populations of 
all native vertebrate species where those species are found on national 
forest lands (EII et al. 2012, pp. 68-71; http://www.fs.usda.gov/planningrule). The petitioners assert that these changes will affect 
the vast majority of the habitat in the range of each population, 
because the NFMA governs forest management activities on all national 
forests, including those in Oregon, California, and the Black Hills. 
They state that national forests support over half of the habitat for 
the Oregon Cascades-California population, and 98 percent of the 
habitat for the Black Hills population (EII et al. 2012, p. 69).
    The petitioners assert that the 2004 and 2010 amendments to the 
2001 SNFPA have eliminated or weakened standards and guidelines so that 
land and resource management plans (LRMPs) for national forests in the 
Sierra Nevada eco-region no longer require national forests to retain 
black-backed woodpecker habitat (USDA 2001, Appendix A, Standards and 
Guidelines; USDA 2004, pp. 1-72; USDA 2010c, pp. 1-56; EII et al. 2012, 
pp. 71-75). Similarly, the petitioners list standards and guidelines 
from the 1994 NWFP and from national forests in the eastern Cascades, 
concluding that standards and guidelines for snag retention, fire 
suppression, salvage logging, and clear-cutting are not adequate to 
conserve the species (EII et al. 2012, pp. 82-89). The petitioners 
further assert that the standards provided by the California Forest 
Practices Rule and the Oregon Forest Practices Act, which govern forest 
management on private lands in California and Oregon, respectively, are 
also inadequate to protect black-backed woodpecker habitat, because 
they do not provide for adequate snag retention (EII et al. 2012, pp. 
75-77, 89-91).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Federal Regulations--Information in our files documents that the 
Migratory Bird Treaty Act of 1918 (MBTA) (16 U.S.C. 703-712), (which 
prohibits hunting, taking, capturing, or killing, or attempting to do 
so, any migratory bird, part, nest, or eggs) provides protection for 
the black-backed woodpecker, including the Oregon Cascades-California 
and Black Hills populations. The black-backed woodpecker is included 
under the MBTA based on its inclusion in the 1916 convention between 
the United States and Canada, which prohibits hunting insectivorous 
birds (USFWS Digest of Federal Resource Laws, http://www.fws.gov/laws/lawsdigest/treaties.htm).
    Information in our files also documents that the USFS published a 
final rule for the 2012 planning rule (77 FR 21162, April 9, 2012), 
which revises land management planning regulations for national 
forests. The planning rule provides new regulations to guide the 
development, amendment, and revision of management plans for all Forest 
System lands. These revised regulations, which became effective on May 
9, 2012, replace the 1982 planning rule. The 1982 planning rule 
provided for the maintenance of viable populations of species, without 
providing for the discretion of regional foresters. The 2012 planning 
rule requires that the USFS maintain viable populations of species of 
conservation concern at the discretion of regional foresters. As 
individual forest plans are revised, the changed viability language in 
the 2012 planning rule might thereby affect viability-related guidance 
for the black-backed woodpecker on those national forests.
    The petitioners provide a substantial number of regional, national 
forest, and project-specific planning documents that provide regulatory 
mechanisms that may apply to the black-backed woodpecker. Regional 
planning documents, such as the Sierra Nevada Forest Plan Amendment 
(SNFPA), amend existing LRMPs by establishing desired management 
direction and goals; land allocations; desired future conditions; 
standards and guidelines; and inventory, monitoring, and adaptive 
management strategies (USDA 2004, p. 15). The SNFPA provides management 
objectives for reducing fire intensity and acres burned, and reducing 
the risk of insect mortality by managing stand density. It provides 
standards and guidelines for canopy cover and snag retention (USDA 
2004, pp. 40-51). Forest planning documents for national forests in the 
Oregon Cascades and Sierra Nevada Range that were provided by the 
petitioners establish the black-backed woodpecker as a management 
indicator species (USDA 2005e, p. 3-201) that is addressed in numerous 
plans to salvage fire-killed trees or reduce fuels (USDA 2005e, pp. EX 
1-EX-12; USDA 2006a, pp. 1-3; USDA 2007, pp. 153, 187).
    The petitioners provided an internet link to Black Hills National 
Forest planning documents. The Black Hills National Forest Land and 
Resource Management Plan (LRMP) lists the black-backed woodpecker as a 
management indicator species (USDA 2005a, pp. III-238-III-247). The 
2005 Black Hills LRMP promotes a reduction of forest density in many 
areas, both to reduce the incidence of high-intensity wildfires and to 
reduce the likelihood of outbreaks of bark beetles (USDA 2005b pp. ROD 
1-3).
    Information provided by the petitioners provides recent research-
driven concerns that salvage logging and snag retention guidelines may 
be inadequate, although newer guidelines that are appropriate for snag-
dependent species exist (Hutto 2006, pp. 987-990; Hutto and Hanson 
2009, unpaginated). Study results from the Sierra Nevada indicate that 
current USFS salvage prescriptions there do not provide for sufficient 
snag retention and may adversely impact foraging for the species 
(Hanson 2007, p. 12). Likewise, in the Black Hills, Bonnot et al. 
(2009, pp. 220, 226) note that regulation of insect populations via 
salvage logging will reduce key food resources for the black-backed 
woodpecker and that snag retention guidelines for salvage logging may 
need to be revisited.
    State Regulations--Information in our files indicates that 
California Forest Practices Rules generally provide protections for 
wildlife during timber harvest through such measures as snag retention, 
although the rules permit immediate harvest of fire-killed or damaged 
timber, or insect-infester timber upon application through an emergency 
notice (Cal Pub. Res. Code 4592; 14 CCR 919, 919.1. 939.1, 959.1). 
Information provided by the petitioners indicates that the Oregon 
Forest Practices Act provides for retention of two snags per acre 
(Oregon Forest Practices Act 527.676).
    The petitioners have provided a substantial literature of planning 
documents for national forests comprising the majority of the 
populations' ranges. We will carefully

[[Page 21096]]

evaluate all information regarding the adequacy of existing regulatory 
mechanisms, and make a determination on whether this factor may pose a 
threat to the Oregon Cascades-California or Black Hills populations. We 
will make this determination in the 12-month finding on this petition.

E. Other Natural or Manmade Factors Affecting Its Continued Existence.

Information Provided in the Petition
    The petitioners indicate that small population size, interspecific 
competitive interactions, and climate change may also threaten the 
Oregon Cascades-California and Black Hills populations of the black-
backed woodpecker. The petitioners include the ephemeral nature of 
black-backed woodpecker habitat as a threat under this factor; however, 
the nature of the woodpecker's association with habitats having short 
duration is discussed in the context of loss of that habitat under 
Factor A and will not be discussed further here.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    The petitioners state that within the black-backed woodpecker's 
range in Oregon and California, less than 2 percent of the area is 
existing suitable habitat for the species, and that less than 1 percent 
of that area supports current moderate-to-high-quality habitat (areas 
with less than 5 years since disturbance), providing maps to 
demonstrate the fragmented nature of likely habitat (EII et al. 2012, 
pp. 47-56, 69-70). They also indicate that in the Black Hills, such 
existing suitable habitat is likely only 5 to 8 percent of the area 
within the population's range (EII et al. 2012, p. 70). Given estimates 
of current suitable habitat, the petitioners estimate that 
approximately 700 to 1,000 pairs of black-backed woodpeckers occur in 
the Oregon Cascades-California population and approximately 411 pairs 
occur in the Black Hills population (EII et al. 2012, p. 43). Their 
estimates are based on information on black-backed woodpecker home 
range size, utilization of available habitat, and nest-density 
estimates, along with estimates of the amount of current acreage of 
burned, beetle-killed, and unburned habitat in the range of each 
population (Dudley and Saab 2007, pp. 597-598; Siegel et al. 2008, pp. 
9-15; Siegel et al. 2010, pp. 19-46; EII et al. 2012, pp. 42-45).
    The petitioners state that both populations are inherently 
vulnerable to extinction because the two population sizes are below the 
threshold at which there is a significant risk of extinction in the 
near future, based on modeled minimum viable populations for several 
hundred species (Reed et al. 2003, pp. 23-34; Traill et al. 2007, pp. 
163-165; Traill et al. 2010, pp. 30-33; EII et al. 2012, pp. 98-100). 
Information provided by the petitioners indicates that, based on 
analyses for 48 bird species, minimum viable populations for bird 
species range between 2,544 and 5,244 individuals (Traill et al. 2007, 
pp. 163-165).
    As noted under Population Status and Trend above, black-backed 
woodpeckers within the Sierra Nevada Range are detected in small 
numbers, but not frequently enough for regional population estimates 
(Siegel et al. 2008, p. 4). However, the estimate given by the 
petitioners for the Oregon Cascades-California population is roughly 
consistent with preliminary breeding pair estimates of 470, 538, or 
1,341 given by Siegel et al. (2010, pp. 1-3, 44-45) for occupied 
habitat on the 10 national forests in the Sierra Nevada Range, although 
it may underestimate the number for the population as a whole.
    In the Black Hills, the South Dakota Department of Game, Fish, and 
Parks has the black-backed woodpecker listed as locally rare and 
vulnerable to extinction (see Bonnot et al. 2008, p. 450). In addition, 
Pierson et al. (2010, p. 12) find that the population is likely quite 
small based on a small genetically effective population size (see 
Traill et al. 2010, p. 30), and the relatively small area of the Black 
Hills, coupled with the bird's occupancy of large territories. The 
final environmental impact statement for the revised Black Hills 
National Forest Land and Resource Management Plan indicates that a 
baseline population study by Mohren in 2000 provided an estimate of 
approximately 1,200 black-backed woodpeckers in the Black Hills in that 
year (USDA 2005a, p. III-241). Several large burns and beetle outbreaks 
occurred between 2000 and 2005, which led to increased densities, 
although no forest-wide estimates are given. Populations were thought 
to be doing well at the time of the plan, and were expected to decline 
to numbers similar to those in 2002 during periods of low fire and 
insect activity (USDA 2005a, pp. III-241--III-245).
    The petitioners present information indicating that competitive 
interactions with other cavity-nesting birds sometimes cause the 
displacement of black-backed woodpeckers as a result of aggressive 
behavior by the other species (Villard and Benninger 1993, p. 75; Dixon 
and Saab 2000, pp. 10-11; EII et al. 2012, p. 68). However, the 
petitioners provide no further information, nor do we have information 
in our files, to indicate that such competitive interactions negatively 
affect reproduction and recruitment, or have population-level effects 
on either the Oregon Cascades-California or the Black Hills 
populations.
    The petitioners also briefly address climate change, noting that 
with climate change the incidence of wildfire will likely decrease at 
higher elevations in the forests of the Sierra Nevada and the eastern 
Cascades, rather than increase (EII et al. 2012, pp. 101-102). In part 
this decrease in fire activity is expected to be due to vegetation 
changes that will reduce the abundance of fire-prone vegetation and 
lead to reduced fire activity in the forests of the Sierra Nevada and 
the eastern Cascades (EII et al. 2012, p. 101).
    Information presented by the petitioners appears to conflict with a 
study of wildfire in the western United States available in our files, 
which documents a positive correlation between wildfire frequency and 
regional spring and summer temperature, and finds that the average 
number of large wildfires between 1987 and 2003 was four times the 
average between 1970 and 1986, with 60 percent of that increase 
occurring in the Rocky Mountains, and 18 percent occurring in the 
Sierra Nevada, Cascades, and coast ranges of Oregon and California 
(Westerling et al. 2006, p. 941; see also Spracklen et al. 2009, p. 
14). Other literature provided by the petitioners suggests that over 
the period since 1880, high-severity fire intervals have not become 
shorter in the last three decades than they were historically (Williams 
and Baker 2012, p. 8). However, predictions by Spracklen et al. (2009, 
p. 14) also indicate that in western forests area burned will increase 
by 54 percent by 2055, as compared to the 10-year period ending in 
2005. The largest increases in area burned are projected for the 
Pacific Northwest (78 percent) and Rocky Mountain (175 percent) eco-
regions, while little change is predicted for the eastern Rocky 
Mountains and Great Plains region because there increases in 
precipitation are expected to compensate for increases in temperature 
(Spracklen et al. 2009, p. 14).
    Information in our files on climate change modeling for the Sierra 
Nevada eco-region also suggests that climate change is likely to favor 
larger and more intense fires in a number of vegetation types in the 
Sierra Nevada Range, but that over the long term these conditions may 
lead to vegetation changes that

[[Page 21097]]

support less severe fire regimes, with projected threats to wildlife 
from loss of conifer-dominated vegetation (red fir, lodgepole pine, and 
subalpine conifer), especially at the higher elevations (PRBO 
Conservation Science 2011, pp. 24, 25). Global climate change models 
suggest that fires may decrease in these forests before the end of this 
century, and the authors caution that current perceived increases in 
fire throughout many parts of western North America may be too 
simplistic (Krawchuk et al. 2009, pp. 7-9). Modeling of vegetation 
response to climate change indicates that total area burned in all of 
California may increase from 9 to 15 percent above the historic norm 
before the end of the century. However, while annual biomass 
consumption may initially be greater, it will be at or below the 
historic norm by the end of the century, and both conifer forest, and 
in the Sierra Nevada Range, alpine and subalpine forest cover, will 
likely decline significantly by 2070-2099, while grassland and mixed 
conifer will increase (Lenihan et al. 2008, pp. S220-S227; see also 
PRBO Conservation Science 2011, p. 25).
    In summary, we conclude that the information provided in the 
petition and available in our files provides substantial scientific or 
commercial information indicating that the petitioned action may be 
warranted due to small population sizes for the Oregon Cascades-
California and Black Hills populations, and due to climate change for 
the Oregon Cascades-California population. However, neither the 
petition nor information in our files presents information on the 
effect of interspecific competitive interactions on the Oregon 
Cascades-California and Black Hills populations, or on the effect of 
climate change on the Black Hills population. The petitioners did not 
mention the Black Hills when discussing climate change, and we do not 
have literature in our files that addresses climate change effects on 
black-backed woodpecker habitat in the Black Hills. Spracken et al. 
(2009, p. 14) suggest that climate change may not result in increased 
wildfires within that region. We request any available information on 
these issues and will thoroughly evaluate this information during our 
status review.

Finding

    On the basis of our determination under section 4(b)(3)(A) of the 
Act, we find that information in the petition and readily available in 
our files presents substantial scientific or commercial information 
indicating that listing the Oregon Cascades-California population and 
the Black Hills population of the black-backed woodpecker may be 
warranted. This finding is based on information provided in the 
petition, in addition to information readily available in our files, on 
the possible loss of black-backed woodpecker habitat due to salvage 
logging, fire suppression, and forest thinning, and on the possible 
negative population effects due to small population size and climate 
change. We will initiate a status review to determine whether listing 
each population as endangered or threatened under the Act is warranted.
    The ``substantial information'' standard for a 90-day finding, 
under section 4(b)(3)(A) of the Act and 50 CFR 424.14(b) of our 
regulations, differs from the Act's ``best scientific and commercial 
data'' standard that applies to a status review to determine whether a 
petitioned action is warranted. A 90-day finding does not constitute a 
status review under the Act. We will report our finding on whether a 
petitioned action is warranted in a 12-month finding, after we have 
completed a thorough status review of the species. The status review is 
conducted following a substantial 90-day finding. Because the Act's 
standards for 90-day and 12-month findings are different, a substantial 
90-day finding does not mean that the 12-month finding will result in a 
warranted finding.

References Cited

    A complete list of references cited is available on the Internet at 
http://www.regulations.gov and upon request from the Sacramento Fish 
and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this notice are the staff members of the 
Sacramento Fish and Wildlife Office.

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: March 26, 2013.
David Cottingham,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2013-07897 Filed 4-8-13; 8:45 am]
BILLING CODE 4310-55-P