[Federal Register Volume 87, Number 229 (Wednesday, November 30, 2022)]
[Rules and Regulations]
[Pages 73488-73504]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25998]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R3-ES-2021-0140; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BG14


Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for Northern Long-Eared Bat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), reclassify 
the northern long-eared bat (Myotis septentrionalis), a bat species 
found in all or portions of 37 U.S. States, the District of Columbia, 
and much of Canada, as an endangered species under the Endangered 
Species Act of 1973, as amended (Act). Our review of the best available 
scientific and commercial information indicates that the northern long-
eared bat meets the Act's definition of an endangered species. Because 
we are reclassifying the northern long-eared bat from a threatened to 
an endangered species, we are amending this species' listing on the 
List of Endangered and Threatened Wildlife to reflect its endangered 
species status and removing its species-specific rule issued under 
section 4(d) of the Act.

DATES: This rule is effective January 30, 2023.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov. Comments and materials we received, as well as 
supporting documentation we used in preparing this rule, are available 
for public inspection at https://www.regulations.gov at Docket No. FWS-
R3-ES-2021-0140.

FOR FURTHER INFORMATION CONTACT: Shauna Marquardt, Field Supervisor, 
U.S. Fish and Wildlife Service, Minnesota Wisconsin Ecological Services 
Field Office, 4101 American Boulevard East, Bloomington, MN 55425; 
telephone 952-252-0092. Individuals in the United States who are deaf, 
deafblind, hard of hearing, or have a speech disability may dial 711 
(TTY, TDD, or TeleBraille) to access telecommunications relay services. 
Individuals outside the United States should use the relay services 
offered within their country to make international calls to the point-
of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, a species warrants 
listing if it meets the definition of an endangered species (in danger 
of extinction throughout all or a significant portion of its range) or 
a threatened species (likely to become endangered within the 
foreseeable future throughout all or a significant portion of its 
range). If we determine that a species warrants listing, we must list 
the species promptly and designate the species' critical habitat to the 
maximum extent prudent and determinable. In 2015, we listed the 
northern long-eared bat as a threatened species under the Act, but we 
have since determined that the northern long-eared bat meets the Act's 
definition of an endangered species; therefore, we are reclassifying 
the species as an endangered species. We published a not-prudent 
determination for critical habitat for the northern long-eared bat on 
April 27, 2016 (81 FR 24707). Listing a species as an endangered or 
threatened species can be completed only by issuing a rule through the 
Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
    What this document does. This rule reclassifies the northern long-
eared bat (Myotis septentrionalis) from a threatened species to an 
endangered species under the Endangered Species Act (Act). It also 
removes the northern long-eared bat's species-specific rule issued 
under section 4(d) of the Act, because such rules apply only to species 
listed as threatened species under the Act.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any of five 
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. We have determined that the foremost stressor 
impacting the northern long-eared bat is white nose syndrome (WNS; 
Factor C).

Previous Federal Actions

    Please refer to the proposed rule to reclassify the northern long-
eared bat as an endangered species (87 FR 16442; March 23, 2022) for a 
detailed description of previous Federal actions concerning this 
species.

Peer Review

    A species status assessment (SSA) team prepared an SSA report for 
the northern long-eared bat. The SSA team was composed of Service 
biologists, in consultation with other species experts. The SSA report 
represents a compilation of the best scientific and commercial data 
available concerning the status of the species, including the impacts 
of past, present, and future factors (both negative and beneficial) 
affecting the species.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review of 
listing actions under the Act, we solicited independent scientific 
review of the information contained in the SSA report. As discussed in 
the proposed rule, we sent the SSA report to five independent peer 
reviewers and received three responses. The peer reviews can be found 
at https://regulations.gov Docket No. FWS-R3-ES-2021-0140. In preparing 
the proposed rule, we incorporated the results of these reviews, as 
appropriate, into the SSA report, which was the foundation for the 
proposed rule and this final rule.

Summary of Changes From the Proposed Rule

    To comply with the January 4, 2012, Office of Management and Budget 
(OMB) memo title, Clarifying Regulatory Requirements: Executive 
Summaries and the Department of the Interior's Departmental Handbook on 
Preparing Federal Register Documents, we added an executive summary to 
this rule.
    During the public comment period, we received comments from several 
public commenters and one State commenter expressing concerns that the 
Service was not able to identify actions that would not likely result 
in a violation of section 9 of the Act (16 U.S.C. 1531 et seq.). After 
evaluating all the information we received during the public comment 
period and other available information, we created a list of actions 
that are not likely to result in a violation of section 9 of the Act, 
if these activities are carried out in accordance with existing 
regulations and permit requirements. The provided list is not 
comprehensive and does not absolve any individual or organization from 
legal liability if a northern long-eared bat is taken. Although we have 
determined take is unlikely, any take resulting from the actions listed 
below

[[Page 73489]]

under Available Conservation Measures will still result in a violation 
of section 9 of the Act.
    We updated the number of States and Canadian provinces with 
confirmed or suspected presence of Pseudogymnoascus destructans (Pd) to 
43 States and 8 provinces (including States in the range of the 
northern long-eared bat) in the Summary of Biological Status and 
Threats section. The presence of Pd has expanded further into these 
areas since the March 23, 2022 proposed rule for the northern long-
eared bat published.

Summary of Comments and Recommendations

    In our March 23, 2022, proposed rule (87 FR 16442), we requested 
that all interested parties submit written comments on the proposal by 
May 23, 2022. We also contacted appropriate Federal and State agencies, 
scientific experts and organizations, and other interested parties and 
invited them to comment on the proposal. A newspaper notice inviting 
general public comment was published in the USA Today. We conducted a 
public informational meeting and a public hearing on April 7, 2022. All 
substantive information we received during the comment period has 
either been incorporated directly into this final determination or is 
addressed below.

Peer Reviewer Comments

    As discussed in Peer Review above, we received comments from three 
peer reviewers. We reviewed their comments for substantive issues and 
new information regarding the information contained in the SSA report. 
The peer reviewers generally concurred with our methods and conclusions 
and provided additional information, clarifications, and suggestions to 
improve the final SSA report. We incorporated peer reviewer comments 
into the final SSA report as appropriate.

Public Comments Related to the SSA Report

    (1) Comment: One commenter noticed an error in the SSA report's 
table 4.2. We described the scope of wind energy impacts as 
``Pervasive,'' when it should in fact be ``Large.''
    Our Response: We have corrected this error and will make available 
an updated version of the SSA report at https://www.regulations.gov 
under Docket No. FWS-R3-ES-2021-0140 when this final rule publishes. 
The error does not change the overall outcome of the analysis where the 
current impact from wind is ``Medium.''
    (2) Comment: Two commenters felt that, in calculating wind energy's 
impacts, our SSA report appeared to assume that the species composition 
of northern long-eared bat in ``all-bat'' fatalities from wind remained 
constant over time even though the report acknowledges this to be 
biologically unlikely and is contradicted by a robust set of real-world 
data.
    Our Response: We explored developing pre- and post-WNS species 
composition rates (the percent of all wind energy-related bat 
fatalities that are northern long-eared bat); however, there was no 
statistically significant difference in northern long-eared bat species 
composition rates pre- and post-WNS, likely due to a small sample size. 
Although we are able to detect differences in pre- and post-WNS species 
composition rates in other bat species (tricolored bat (Perimyotis 
subflavus) and little brown bat (Myotis lucifugus), these species have 
larger data sets. We acknowledge that constant species composition 
rates for northern long-eared bat may be biologically unlikely; 
however, the best available science at this time shows constant rates 
pre- and post-WNS.
    One of the commenters provided a different species composition rate 
for consideration during the public comment period but did not provide 
the dataset used to calculate the differing rate nor the methods and 
results used to calculate this alternate rate. It is possible that this 
different species composition rate would result in the wind impact 
changing from medium to low in the species status assessment. We will 
update our SSA report for the northern long-eared bat if we receive 
substantive new data in the future. However, we are not able to compare 
our results to the commenter's results because their dataset, 
methodologies, analytical approach, and inclusion criterion were not 
available to us. Even if the impact of wind on the northern long-eared 
bat is low, we would likely list the species as an endangered species 
because the status is primarily driven by WNS.
    (3) Comment: A commenter stated that they did not think it was 
reasonable to assume northern long-eared bats remain a constant 
percentage of bat fatalities at wind farms rangewide.
    Our Response: We evaluated wind-related mortality across the range 
of the northern long-eared bat in the United States and did not detect 
a difference in fatality rate by region. However, we used different bat 
fatality rates for the United States and Canada because we had 
different fatality rates between the two countries. We were able to 
detect differences in fatality rates by region for the other two 
species (tricolored bat and little brown bat), which have larger data 
sets than the northern long-eared bat. The commenter provided alternate 
values to those used in the SSA but did not provide the underlying data 
or the technical memo describing the methods or results, so we were 
unable to verify these alternative values.
    (4) Comment: One commenter stated that the Service's assumptions 
and demographic modeling tool results differ drastically from real-
world experience. The commenter says the contradictory, real-world 
results found in the Service's calculation for wind energy impacts to 
northern long-eared bat in Iowa, as shown in figure 4.7 of the SSA 
report. The commenter noted that no northern long-eared bat mortality 
has been documented at wind facilities in Iowa, post-WNS. The commenter 
stated that this an example of how the Service's results differ 
dramatically from real-world results.
    Our Response: In response to this comment, we updated figure 4.7 in 
the SSA report to more accurately show where the model predicts bat 
fatality will occur. The previous figure included wind turbine 
locations beyond the northern long-eared bat's migration range from 
known hibernacula, while the caption explained that the mortality 
depicted in the figure included locations that were not incorporated 
into the model. We have revised the figure to include locations and 
mortality that were incorporated into the model only. To the 
commenter's specific point about Iowa, the updated figure continues to 
depict some mortality at Iowa wind facilities given their proximity to 
known northern long-eared bat hibernacula in neighboring States. 
Detection probability associated with post-construction mortality 
monitoring is typically low and always under 1; thus, the reported 
number of mortalities are likely an underestimate of the actual number 
of northern long-eared bats killed by wind turbines. For these reasons, 
we determined that the fatality rate used in our model is reasonable 
and supported by the best available science.
    (5) Comment: Another commenter felt that the Service did not fully 
explain the methods used to arrive at ``no detectable difference'' 
conclusion between pre- and post-WNS species composition rates at wind 
facilities; therefore, our decision was not clear.
    Our Response: We compared pre- and post-WNS composition rates for 
three bat species in separate SSAs using the same analytical framework. 
Only the northern long-eared bat had no detectable difference due to 
limited data

[[Page 73490]]

for the species. We explain more fully our process below.
    Northern long-eared bat percent species composition is very small 
to start (0.2 percent). As such, declines in percent species 
composition will necessarily be small. As a result, the difference in 
the total amount of take (killed bats) pre- and post-WNS will be small; 
however, this does not mean the take will be insignificant. 
Furthermore, northern long-eared bat data are very limited and thus 
erratic. For example, northern long-eared bat post-WNS percent species 
composition varies from 0.2 percent pre-WNS to 0.09 percent during the 
invasion stage and increases to 0.4 percent in the epidemic stage 
(where we would expect to see the highest decline in percent species 
composition to 0 percent in the establishment stage). However, we would 
expect percent species composition to decline over the invasion, 
epidemic, and establishment stages. Given the limited pre- and post-WNS 
data sample sizes and subsequent inconclusive results and the small 
number of bats killed overall, the most efficient and defensible 
approach was to consolidate the pre- and post-WNS data (i.e., assume no 
change in percent species composition) for the northern long-eared bat 
(rather than further derive pre- and post-WNS values from even smaller 
sample sizes). Given the above, the data were too limited to calculate 
a pre- and post-WNS percent species composition value. Instead, we used 
all data to calculate a single percent species composition value.
    (6) Comment: A few commenters stated that they believe the Service 
relied on an insufficient peer review that is contrary to agency 
policy. The commenters contended that the Service had only the northern 
long-eared bat SSA report peer reviewed but should have had the other 
bat SSA reports peer reviewed as well. Some commenters also expressed 
concern that the analysis presented in the northern long-eared bat 
report was not publicly available or peer reviewed; therefore, the 
Service did not rely on the best available data.
    Our Response: The Service's peer review policy states that we will 
solicit review of, and comment on, such listing and recovery actions 
from three or more objective and independent reviewers with expertise 
relevant to the scientific questions. In general, we will attempt to 
solicit from the reviewer whether: (1) We have assembled and considered 
the best available scientific and commercial information relevant to 
our decision; (2) our analysis of this information is correct and 
properly applied to our decisions; and (3) our scientific conclusions 
are reasonable in light of the information.
    To the commenter's point, we solicited peer review from five (more 
than the required three) independent peer reviewers for the northern 
long-eared bat SSA report as per the requirement of the guidance. We 
evaluated three bat species concurrently using the same analytical 
approach; however, we developed individual reports for each species, 
and each report was peer reviewed by a separate set of peer reviewers.
    Additionally, the supplementary analytical reports mentioned by the 
commenter that were not publicly available at the time of peer review 
have become publicly available since the time that the proposed rule 
published (87 FR 16442; March 23, 2022). The analyses used in support 
of the northern long-eared bat SSA report have also been independently 
peer reviewed since that time (though not required by our peer review 
policy). The reports were published by the U.S. Geological Survey and 
followed their Fundamental Science Practices for peer review. This 
process included receiving peer review from two independent peer 
reviewers for each chapter of the reports. Accordingly, we have 
exceeded the requirements of the Service's peer review guidelines and 
policies.

Public Comments Related to the Reclassification of the Northern Long-
Eared Bat

    (7) Comment: Some commenters believe there has been no significant 
status change since the northern long-eared bat was listed as 
threatened in 2015 and that maintaining the threatened status is more 
appropriate.
    Our Response: The status of the northern long-eared bat has changed 
since we listed the species as a threatened species under the Act (see 
80 FR 17974; April 2, 2015), and it now meets the Act's definition of 
an endangered species. The primary threat affecting northern long-eared 
bats continues to be WNS, and the disease has spread significantly 
since 2015, at which time it was present in approximately 60 percent of 
the species' range and in 25 of the 37 States in the U.S. range of the 
species. As WNS spreads, its impact on northern long-eared bats is 
severe. WNS caused estimated population declines of 97-100 percent 
across 79 percent of northern long-eared bat's range and WNS is now 
likely present in every State within the U.S. range of the northern 
long-eared bat (Cheng et al. 2021, entire; Service 2022, pg. 34; see 
figure 1, below). WNS is likely to affect bats across 100 percent of 
the northern long-eared bat's range by the end of the decade. As a 
result, we are finalizing the listing for the northern long-eared bat 
as an endangered species.
BILLING CODE 4333-15-P

[[Page 73491]]

[GRAPHIC] [TIFF OMITTED] TR30NO22.002

BILLING CODE 4333-15-C
Figure 1. Counties/districts with evidence of WNS or the WNS-causing 
fungus (Pd) as of 2015 (hashed polygons) and 2022 (solid black 
polygons), respectively, throughout the range of the northern long-
eared bat (grey polygon). WNS spread data were obtained from http://www.whitenosesyndrome.org (accessed October 27, 2022).

    (8) Comment: Several commenters encouraged the Service to conduct a 
more extensive literature review and incorporate more threats to 
individual bats into the northern long-eared bat SSA report. They 
provided citations for relevant literature not included in the report.

[[Page 73492]]

    Our Response: We have reviewed the literature provided by 
commenters and incorporated this information into the SSA report, where 
appropriate. The purpose of an SSA is to present the best available 
scientific information regarding a species' status that focuses on the 
likelihood that the species will sustain populations into the future. 
The SSA is not designed to conduct an exhaustive literature review on 
all aspects of the species' life history. As a result, we did not 
incorporate all information in the SSA regarding individual actions 
that may result in the harm or loss of a single bat; instead, we 
focused on science that elucidates what is happening to the species at 
the population and species level to inform our determination regarding 
the danger of extinction for the species.
    (9) Comment: Several commenters stated that hibernacula survey data 
are too unreliable to determine the species' status because northern 
long-eared bats are often overlooked in winter surveys due to their 
cryptic nature, and that instead, the Service should base its listing 
decision on summer survey data. Further, some commenters stated that 
this means that the Service was not basing its decision on the best 
available data.
    Our Response: Northern long-eared bats are often difficult to 
observe during winter hibernacula surveys due to their tendency to 
roost deep in cracks and crevices within hibernacula. Despite the 
difficulties in observing or counting northern long-eared bats, 
hibernacula survey counts are regularly relied on since they are 
consistently available over time. Winter counts are conducted in mid- 
to late winter when bats are expected to be predominantly inactive and 
occupying known locations. Surveying known locations regularly allows 
for accurate observation of trend data over time. Across the eastern 
half of North America, where many bat species aggregate (including the 
northern long-eared bat) during hibernation, counts of bats during 
hibernation provide the best available data for estimating changes in 
abundance related to the invasion and progression of WNS (Frick et al., 
2010, 2015; Turner et al., 2011; Langwig et al., 2012; Thogmartin et 
al., 2012 as cited in Cheng et al. 2021, pp. 1588-1589) For these 
reasons, we conclude that hibernacula surveys are considered the best 
available data for cave-dwelling bats. However, the SSA made use of 
several forms of ``summer data'' in acoustic call (mobile and 
stationary) and mist-net data in our analysis (Service 2022, entire). 
Together, these data represent the best scientific and commercial data 
available to us.
    (10) Comment: The North Dakota Game and Fish Department requested 
that the Service consider a recently finalized report (Gillam 2021, 
entire) that recommends the range of the northern long-eared bat in 
North Dakota be modified to only include the badlands habitats of 
extreme western North Dakota. The final report also states that the 
most appropriate categorization of this species is rare in western 
North Dakota and absent in the remainder of the State. The North Dakota 
Department of Agriculture (NDDA), the North Dakota Public Service 
Commission (NDPSC) and several North Dakota commenters also echoed 
these comments. The NDDA and NDPSC indicate that scattered woodlands 
comprise less than 1.8 percent of the total lands in North Dakota, 
while the remaining 98.2 percent of the State is non-wooded lands and 
does not contain any suitable or potentially suitable habitat for the 
northern long-eared bat.
    Our Response: We thank the commenters for providing the recently 
completed Gillam (2021, entire) report. Although the report provides 
recent bat data, we determined that the limited number of survey sites 
does not provide sufficient information for us to assess Statewide 
occupancy for the northern long-eared bat. The methods used in the 
report are not designed to determine presence/probable absence for 
individual species, such as northern long-eared bat. It is unclear if 
the acoustic detectors used in the survey were deployed in areas with 
potential suitable habitat for northern long-eared bat and if specific 
habitat requirements for northern long-eared were considered in the 
selection of individual mist-net sites. Mist-net locations were 
selected only in the western part of the State, as the author stated 
that eastern North Dakota is a very difficult area to capture bats due 
to a lack of known roosts and the predominance of agriculture, which is 
primarily open and lacks natural flyways in which bats can be 
effectively captured using mist nets.
    However, Haugen et al. (2009, p. 16) considered forests to be more 
abundant in eastern North Dakota than in the western half of the State, 
as conditions become less favorable to the west. The report's author 
states that ``given issues with distinguishing the calls of this 
species from other Myotis species'' in the State, these results 
``support the finding that this species is rare to absent'' in North 
Dakota. However, it is also possible that there were northern long-
eared bat calls that were missed by the acoustic identification 
software, as a high number of high-frequency calls that could possibly 
have been northern long-eared bats were recorded at several locations. 
Further, it is unclear if the qualitative analysis was conducted on 
those calls classified as northern long-eared bat calls or high 
frequency. To conclusively determine presence/probable absence of the 
northern long-eared bat, we recommend use of the rangewide Indiana bat 
and northern long-eared bat survey guidelines (https://www.fws.gov/library/collections/range-wide-indiana-bat-and-northern-long-eared-bat-survey-guidelines). Overall, we do not find that this single study 
provides conclusive evidence of absence of the northern long-eared bat 
in the eastern portion of North Dakota or Statewide.
    We also reviewed the North Dakota Forest Service Forest Action Plan 
presented by NDDA and NDPSC. Northern long-eared bats predominantly are 
found in forest habitat (outside of hibernation), but when foraging 
they have also been observed in other habitat, such as over small 
forest clearings and water and along roads (van Zyll de Jong 1985, p. 
94). In areas where forested habitat is scattered, such as North 
Dakota, remaining patches of habitat are increasingly important for the 
species where it is still present. We are currently developing a 
comprehensive current range map for the northern long-eared bat, which 
will incorporate the best available information on habitat feature 
requirements for the species. This map will be subject to revision over 
time as the quality of our scientific information improves.
    (11) Comment: The Kansas Department of Wildlife and Parks (KDWP) 
commented that since the northern long-eared bat's range is known to 
occur in only a small portion of the State, the KDWP requests that 
Kansas be exempt from the endangered species status and maintain the 
species' threatened status with the current 4(d) rule remaining in 
effect throughout the State.
    Our Response: The Service has found that the northern long-eared 
bat meets the Act's definition of an endangered species, rather than a 
threatened species, throughout all of its range. Therefore, it is not 
possible for a portion of the species' range to maintain threatened 
species status with the current 4(d) rule remaining in effect.
    (12) Comment: Several commenters requested that the Service 
identify activities for which take is not reasonably certain to occur. 
Several State commenters (Massachusetts

[[Page 73493]]

Division of Fisheries and Wildlife and Iowa Department of Natural 
Resources) requested guidance on how activities, such as habitat 
management, habitat restoration, and forest management, can continue in 
a streamlined manner. These commenters all expressed their desire for 
regulatory predictability and the need for the Service to provide a 
list of activities that are likely to result in a violation of Section 
9 of the Act and a list of activities that are not likely to result in 
a violation of section 9 in the Act (which the commenters referred to 
as ``no-take guidance'').
    Our Response: We recognize the need expressed from commenters to 
provide regulatory predictability by identifying those activities for 
which take is not reasonably certain to occur. Due to the northern 
long-eared bat's extensive range with a variety of habitat conditions, 
we are unable to provide a comprehensive list of activities that would 
not be considered to result in a violation of section 9 of the Act. 
However, we have added a condensed list of activities that are not 
likely to result in a violation of section 9 of the Act, if these 
activities are carried out in accordance with existing regulations and 
permit requirements (see Available Conservation Measures, below).
    Further, we continue to develop tools to allow projects compatible 
with the species' conservation to move forward. We are developing 
streamlining tools and guidance to help project proponents identify 
what types of activities may result in ``take'' under the Act. When 
available, these resources will be accessible on the Service's northern 
long-eared bat website (https://www.fws.gov/species/northern-long-eared-bat-myotis-septentrionalis). One tool in development intended to 
streamline consultation is the rangewide northern long-eared bat 
determination key (DKey). The DKey will address many project scenarios 
in which adverse effects to the species would be unlikely. The DKey 
will help streamline section 7 consultations for Federal agencies and 
their designated non-Federal representatives and will help proponents 
of non-Federal actions determine whether their action may cause 
incidental take of the northern long-eared bat.
    (13) Comment: Many commenters requested the Service pursue 
programmatic section 7 consultations under the Act and cited as an 
example the Federal Highway Administration (FHWA), Federal Railroad 
Administration, and Federal Transit Administration's section 7 
rangewide consultation for Indiana bat and northern long-eared bat.
    Our Response: We are fortunate to have experience in developing 
streamlined consultations under the Act and compliance processes for 
this and other listed bat species. The Service will look to build on 
those example programmatic consultations and to work proactively with 
other Federal agencies to develop other similar streamlined 
consultations to ensure efficiency in compliance with the requirements 
in the Act.
    (14) Comment: Commenters encouraged the Service to develop regional 
or industry-wide habitat conservation plans (HCPs) with associated 
incidental take permits (ITPs) or general conservation plans (GCPs) to 
avoid potential delays to projects. Commenters also encouraged the 
Service to accept financial contributions toward research into 
preventing and reversing the effects of white-nose syndrome as a valid 
option for compensatory mitigation in HCPs.
    Our Response: We recommend applying for an ITP when incidental take 
is reasonably certain to occur. For some non-Federal activities, there 
may not be reasonable certainty of take for northern long-eared bats. 
The decision to pursue a permit rests with the applicant based on their 
environmental risk assessment. The Service continues to develop tools 
and templates to streamline regulatory processes (see our response to 
(12) Comment, above). The Service has developed a short-term HCP 
template for wind facility impacts to northern long-eared bats and 
Indiana bats. State or regional forestry HCPs have been issued or are 
in development for Missouri, Pennsylvania, Minnesota, Michigan, and 
Wisconsin. A regional GCP is in development for projects in the 
Northeast Region. We will continue to work with industry in developing 
effective mitigation measures for the northern long-eared bat.
    The latest information on these tools is available on our northern 
long-eared bat website: https://www.fws.gov/species/northern-long-eared-bat-myotis-septentrionalis.
    (15) Comment: Commenters expressed concerns over the Service's 
rangewide Indiana bat and northern long-eared bat survey guidelines and 
recommended that the Service separate survey guidelines for the Indiana 
bat and northern long-eared bat. Also, commenters recommended that the 
Service consider identifying ``block clearance'' zones (area that is 
free of value to northern long-eared bats) within the species' range.
    Our Response: The team that developed the rangewide Indiana bat and 
northern long-eared bat survey guidelines (guidelines) considered the 
best available information in developing survey recommendations for 
both the northern long-eared bat and Indiana bat. The Service's white 
paper (Niver et al. 2014, entire) and 2018 addendum (Niver et al. 2018, 
entire) outline the methods used to determine the minimum Indiana bat 
level of effort (LOE). Our 2022 addendum (Armstrong et al. 2022, 
entire) provides the rationale for the northern long-eared bat minimum 
LOE for acoustic and mist-net surveys (previously we deferred to LOE 
used for the Indiana bat). The guidelines take into consideration the 
differences between the two species' ranges and habitat requirements, 
and they provide separate recommendations for each species for survey 
level of effort and survey equipment placement. See https://www.fws.gov/library/collections/range-wide-indiana-bat-and-northern-long-eared-bat-survey-guidelines for more information. We may consider 
identifying ``block clearance'' zones as suggested. We may identify 
areas where take is unlikely to occur as areas with extensive surveys 
that demonstrate the absence of northern long-eared bat and in areas 
with no suitable habitat (see definition in SSA report (Service 2022, 
Chapter 2) and guidelines); however, the northern long-eared bat is a 
highly mobile species, which presents challenges to confirming absence 
from large ``blocks'' of suitable habitat.
    (16) Comment: One commenter stated that the Service did not rely on 
the best available data in the SSA by not fully considering the impact 
of WNS in each portion of the species' range, particularly in the mid- 
to southern Atlantic Coast where the species may remain viable. Also, 
this and other commenters state that the SSA did not fully consider the 
benefit of positive actions, such as habitat management, in the 
analysis of threats to the species.
    Our Response: The SSA assessed the current and future impacts to 
the species from WNS, not only rangewide but separately for each 
representation unit (i.e., areas of unique adaptive diversity) 
throughout the range. Five representation units were identified in the 
SSA: Eastern Hardwoods, Southeast, Midwest, Subarctic, and East Coast. 
All current and future hibernacula abundances and probability of 
persistence either have already declined or are projected to decline 
precipitously throughout all representation units, including the East 
Coast unit, which includes the mid- to southern Atlantic Coast portion 
of the species' range.
    As for considering all positive actions in the assessment of 
influences on the species, we considered all relevant

[[Page 73494]]

potential influences on the species (positive and negative), and we 
included in our analysis only those that were ecologically significant 
at the population level or species level and for which we had adequate 
qualitative or quantitative information (WNS, wind energy mortality, 
effects from climate change, habitat loss, and conservation efforts).
    (17) Comment: Several commenters sought clarification to ensure 
that specific activities or projects will not constitute harassment or 
harm or both of potential (summer) roosting northern long-eared bats.
    Our Response: For information on impacts to northern long-eared 
bats from specific activities or projects, we recommend contacting your 
respective field office(s) where the activity or project will occur for 
further guidance (see https://www.fws.gov/our-facilities?program=%5B%22Ecological%20Services%22%5D).
    (18) Comment: One commenter recommended that the final rule state 
that any threats or stresses to cave-dwelling bats from the operation 
of offshore wind energy have not been documented.
    Our Response: For offshore wind development, assessment of 
potential impacts to bats is complicated due to a broader lack of data 
on bat use of offshore environments. North American bats have been 
observed offshore along the Atlantic coast, mainly within the extent of 
the continental shelf, although there are also several observations of 
bats found farther offshore. Most observations are of migratory species 
(e.g., hoary bat (Aeorestes cinereus), eastern red bat (Lasiurus 
borealis), silver-haired bat (Lasionycteris noctivagans)), with records 
of Myotis species, tricolored bats, and big brown bats being relatively 
rare. It is possible that individual northern long-eared bats may be 
killed by wind turbines offshore. However, at this time, data are 
lacking to project the potential for substantive impacts of offshore 
wind development on populations of northern long-eared bats.
    (19) Comment: One commenter stated they were opposed to listing the 
bat as an endangered species because of the restrictions that will be 
placed on farmers and ranchers. They were concerned that the listing 
would affect a significant amount of land and practices that are 
otherwise beneficial to animal and plant species. The commenter 
expressed that listing the northern long-eared bat would create 
hardship for food producers when they did not cause the issue (i.e., 
white nose syndrome).
    Our Response: We appreciate the commenters' concerns. The Act does 
not allow us to consider these impacts from a listing, when making a 
determination that a species meets the definition of a threatened or 
endangered species. When a species is listed as endangered, the species 
receives protections that are outlined in section 9 of the Act. These 
protections include a prohibition of take of the listed species. Take 
means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, 
or collect, or attempt to engage in any such conduct. Ranching and 
farming activities are not prohibited under section 9 of the Act, 
unless they result in take of the northern long-eared bat.
    We understand there may be concern about the effect of listing the 
northern long-eared bat as an endangered species under the Act. We 
encourage any landowners with a listed species present on their 
property and who think they carry out activities that may negatively 
impact that listed species to work with the Service. We can help those 
landowners determine whether a habitat conservation plan (HCP) or safe 
harbor agreement (SHA) may be appropriate for their needs. These plans 
or agreements provide for the conservation of the listed species while 
providing the landowner with a permit for incidental take of the 
species during the course of otherwise lawful activities.
    (20) Comment: Several commenters stated that they believed the 
definition of ``take'' had been amended and the Service should explain 
that the revised ``take'' definition recognizes that actual death or 
injury of a protected animal is necessary for a violation of section 9 
of the Act. To support their argument, commenters point to the 
definition of harm in our regulations (see 50 CFR 17.3), which states 
that ``harm'' means an act which actually kills or injures wildlife. 
Such act may include significant habitat modification or degradation 
where it actually kills or injures wildlife by significantly impairing 
essential behavioral patterns, including breeding, feeding or 
sheltering.
    Our Response: The Act defines ``take'' as to harass, harm, pursue, 
hunt, shoot, wound, kill, trap, capture, or collect or to attempt to 
engage in any such conduct (16 U.S.C. 1532(19)). The Act's definition 
of ``take'' has been supplemented by the Service with regulatory 
definitions of the terms ``harm'' and ``harass,'' and these terms have 
been redefined several times. As the commenters stated, ``harm'' means 
an act which actually kills or injures wildlife. Such an act may 
include significant habitat modification or degradation where it 
actually kills or injures wildlife by significantly impairing essential 
behavior patterns, including breeding, feeding, or sheltering (see 50 
CFR 17.3). ``Harass'' is defined in our regulations (see 50 CFR 17.3) 
as an intentional or negligent act or omission which creates the 
likelihood of injury to wildlife by annoying it to such an extent as to 
significantly disrupt normal behavioral patterns which include, but are 
not limited to, breeding, feeding, or sheltering. Therefore ``take'' is 
broader than just ``harm'' and includes other actions besides those 
that result in death or injury of a northern long-eared bat.
    (21) Comment: Several commenters stated that the Service should 
state that forest management activities that comply with the existing 
4(d) rule are not likely to cause take.
    Our Response: When this final rule goes into effect (see DATES, 
above), the species-specific rule issued under section 4(d) of the Act 
(``4(d) rule'') that was associated with the northern long-eared bat's 
threatened species status will be null and void and will be removed 
from the Code of Federal Regulations. The 4(d) rule for the northern 
long-eared bat did not prohibit take that may occur during certain tree 
removal activities in certain locations, provided the activities 
complied with the conservation measures in the 4(d) rule. Although the 
4(d) rule did not prohibit this take, the Service did not determine 
that take is not likely to occur during such activities. Many of the 
actions excepted by the 4(d) rule may actually cause take, so we are 
unable to do what the commenter requested. For example, it is possible 
that tree removal activities could result in take if an unknown but 
occupied roost tree is cut down while northern long-eared bats are 
present. If any private entity is concerned that they may be engaging 
in an activity that will result in take of a northern long-eared bat, 
they should coordinate with their respective Service field office.
    (22) Comment: Several commenters argued that the proposed 
reclassification rule did not satisfy the ``best scientific and 
commercial data available'' and a commenter provided alternative 
results to parts of our analysis using a different dataset.
    Our Response: We find that we did comply with this standard. We 
collected data and information during a multi-month data collection 
period and throughout the SSA process. The Service considered and 
incorporated all data relevant to our analysis. The

[[Page 73495]]

Service coordinated with Federal agencies, Tribal nations, 47 States, 
academia, and many nongovernmental organizations during the SSA 
process. No information that we received was overlooked. The Service 
used multiple data sets (e.g., hibernacula count, mist-net captures, 
mobile and stationary acoustic data) in its modeling effort and the 
report was reviewed by independent peer reviewers and many experts 
selected from across the range of the species. No one data stream was 
prioritized or weighted more heavily than another. We also conducted a 
qualitative analysis of the threats considered in the SSA. All data 
submitted to the Service (multiple analyses and data streams) provided 
the scientific bedrock for this decision. Although one commenter 
provided alternative results to our analysis, the commenter did not 
provide us the underlying data they used; therefore, we could not fully 
evaluate their analysis. Therefore, we considered the best scientific 
and commercial data available when determining that the northern long-
eared bat meets the definition of an endangered species.
    (22) Comment: One commenter was concerned with the effect of the 
listing on wildlife control officers, private citizens, or both with 
regard to actions that may be classified as ``take'' when conducting 
bat removal or exclusion activities in buildings or other artificial 
structures. Specifically, the commenter mentioned concern about the 
cost, feasibility, or both of identifying whether bats being considered 
for exclusion were northern long-eared bats, whether exclusions can 
occur if northern long-eared bats are present, and whether northern 
long-eared bats can be submitted for disease testing in accordance with 
State/local Department of Health guidelines.
    Our Response: The reclassification of the northern long-eared bat 
to an endangered species will not prevent citizens from removing bats 
from dwellings or other structures, but additional coordination with 
the Service may be needed. The Act's implementing regulations include a 
take exception for the defense of human life (see 50 CFR 17.21(c)(2)). 
The regulations require that any person taking, including killing, 
endangered wildlife in the defense of human life under this exception 
must report that take as set forth at 50 CFR 17.21(c)(4). It is 
important to note that Federal regulations do not supersede State or 
local laws that are more restrictive than those mentioned here. Please 
consult your local Service field office (https://www.fws.gov/our-facilities?program=%5B%22Ecological%20Services%22%5D) or State wildlife 
conservation agency with any questions or concerns.
    When the presence of a bat or bat colony is not imminently 
endangering human safety, we recommend contacting the local Service 
field office for assistance. We encourage the bat removal to be 
conducted safely and humanely by a trained professional, such as a 
wildlife or pest exclusion company or a State-certified bat 
rehabilitator. Additionally, we recommend the White-nose Syndrome 
Response Team's acceptable management practices (AMPs) for nuisance 
wildlife control operators (available at https://www.whitenosesyndrome.org/mmedia-education/acceptable-management-practices-for-bat-control-activities-in-structures-a-guide-for-nuisance-wildlife-control-operators). The AMPs were developed in 
concert with wildlife control operators, State and Federal agencies, 
private conservation organizations, and the Centers for Disease 
Control. The AMPs are recommended for use with all structure-dwelling 
bat species, regardless of their conservation status. Again, these 
recommendations do not supersede or replace any existing, valid State 
or local government laws regarding the handling of bats in homes and 
artificial structures.
    (23) Comment: Several commenters pointed out several potential 
stressors (for example, hibernacula collapse and vandalism, pesticide 
use, disease (other than WNS), and road related mortalities) to the 
northern long-eared bat that were not analyzed in the SSA.
    Our Response: We considered all relevant population- and species-
level potential stressors to the species (positive and negative) and 
only those for which we had substantial qualitative or quantitative 
information (WNS, wind energy mortality, effects from climate change, 
and habitat loss) were included our analysis. We did not include every 
known source of mortality to individuals of the species.
    (24) Comment: Some commenters requested that the Service delay the 
effective date of the final rule to allow more time for coordination 
and preparations for the effect of reclassifying the northern long-
eared bat and removing its species-specific 4(d) rule.
    Our Response: We have set an effective date of 60 days after this 
rule publishes so that the Service can finalize consultation tools for 
the northern long-eared bat (e.g., a determination key and an interim 
consultation framework). A delay in effective date will have little to 
no effect on the northern long-eared bat because it will still be 
protected under the previous final listing rule. Additionally, the 
species will be hibernating throughout most of its range during this 
time and we anticipate few projects occurring between this final rule 
publication and the bat's active season in 2023.
    (25) Comment: One commenter requested that emergency work (e.g., 
hazard tree removal, storm restoration), that was allowed under the 
4(d) rule, should continue to be allowed.
    Our Response: A 4(d) rule is a tool provided by the Act to allow 
for flexibility in the Act's implementation and to tailor prohibitions 
to those that make the most sense for protecting and managing at-risk 
species. This rule, which may be applied only to species listed as 
threatened, directs the Service to issue regulations deemed ``necessary 
and advisable to provide for the conservation of threatened species.'' 
The Act does not allow application of 4(d) rules for species listed as 
endangered; thus, the 4(d) rule will be nullified.
    However, Section 7 regulations recognize that a Federal action 
agency's response to an emergency may require expedited consultation 
and such provisions are provided at 50 CFR 402.05.
    We recommend coordinating with your respective Service field office 
(see https://www.fws.gov/our-facilities?program=%5B%22Ecological%20Services%22%5D) as soon as 
practicable after the emergency is under control.

I. Final Listing Determination

Background

    A thorough review of the taxonomy, life history, and ecology of the 
northern long-eared bat is presented in the SSA report (Service 2022, 
entire).
    The northern long-eared bat is a wide-ranging bat species found in 
37 States (Alabama, Arkansas, Connecticut, Delaware, Georgia, Illinois, 
Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, 
Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, 
Nebraska, New Hampshire, New Jersey, New York, North Carolina, North 
Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, 
South Dakota, Tennessee, Vermont, Virginia, West Virginia, Wisconsin, 
and Wyoming), the District of Columbia, and 8 Canadian provinces. The 
species typically

[[Page 73496]]

overwinters in caves or mines and spends the remainder of the year in 
forested habitats. As its name suggests, the northern long-eared bat is 
distinguished by its long ears, particularly as compared to other bats 
in its genus, Myotis. The bat is medium to dark brown on its back, with 
dark brown ears and wings, and tawny to pale-brown fur on its ventral 
side. Its weight ranges from approximately 5 to 8 grams (0.2 to 0.3 
ounces). Female northern long-eared bats produce a maximum of one pup 
per year; therefore, loss of one pup results in missing one year of 
recruitment for a female.
    The individual, population-level, and species-level needs of the 
northern long-eared bat are summarized below in tables 1 through 3. For 
additional information, please see the SSA report (Service 2022, 
chapter 2).

                                         Table 1--The Ecological Requisites for Survival and Reproductive Success of Northern-Long-Eared Bat Individuals
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
            LIFE STAGE                                                                                         SEASON
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   Spring                                  Summer                                   Fall                                   Winter
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Pups (non-flying juveniles)......  ......................................  Roosting habitat with suitable          ......................................  .....................................
                                                                            conditions for lactating females and
                                                                            for pups to stay warm and protected
                                                                            from predators while adults are
                                                                            foraging.
Juveniles........................  ......................................  Other maternity colony members (colony  Suitable roosting and foraging habitat  Habitat with suitable conditions for
                                                                            dynamics, thermoregulation), and        near abundant food and water            prolonged bouts of torpor and
                                                                            suitable roosting and foraging          resources.                              shortened periods of arousal.
                                                                            habitat near abundant food and water
                                                                            resources.
All adults.......................  Suitable roosting and foraging habitat  Summer roosts and foraging habitat      Suitable roosting and foraging habitat  Habitat with suitable conditions for
                                    near abundant food and water            near abundant food and water            near abundant food and water            prolonged bouts of torpor and
                                    resources, and habitat connectivity     resources.                              resources, cave and/or mine entrances   shortened periods of arousal.
                                    and open-air space for safe migration                                           or other similar locations (for
                                    between winter and summer habitats.                                             example, culvert, tunnel) for
                                                                                                                    conspecifics to swarm and mate, and
                                                                                                                    habitat connectivity and open-air
                                                                                                                    space for safe migration between
                                                                                                                    winter and summer habitats.
Reproductive females.............  ......................................  Other maternity colony members (colony  ......................................  .....................................
                                                                            dynamics), a network of suitable
                                                                            roosts (i.e., multiple summer roosts
                                                                            in close proximity) near
                                                                            conspecifics, and foraging habitat
                                                                            near abundant food and water
                                                                            resources.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


 Table 2--Population-Level Requisites for a Healthy Northern Long-Eared
                             Bat Population
------------------------------------------------------------------------
               Parameter                           Requirements
------------------------------------------------------------------------
Population growth rate, [lambda].......  At a minimum, [lambda] must be
                                          >=1 for a population to remain
                                          stable over time.
Population size, N.....................  Sufficiently large N to allow
                                          for essential colony dynamics
                                          and to be adequately resilient
                                          to environmental fluctuations.
Winter roosting habitat................  Safe and stable winter roosting
                                          sites with suitable
                                          microclimates.
Migration habitat......................  Safe space to migrate between
                                          spring/fall habitat and winter
                                          roost sites.
Spring and fall roosting, foraging, and  A matrix of habitat of
 commuting (i.e., traveling between       sufficient quality and
 habitat types) habitat.                  quantity to support bats as
                                          they exit hibernation (lowest
                                          body condition) or as they
                                          enter hibernation (need to put
                                          on body fat).
Summer roosting, foraging, and           A matrix of habitat of
 commuting habitat.                       sufficient quality and
                                          quantity to support maternity
                                          colonies.
------------------------------------------------------------------------


[[Page 73497]]


   Table 3--Species-Level Ecology: Requisites for Long-Term Viability
  [Ability to maintain self-sustaining populations over a biologically
                          meaningful timeframe]
------------------------------------------------------------------------
                              Requisites for long-
            3 Rs                 term viability          Description
------------------------------------------------------------------------
Resiliency (populations able  Healthy populations   Self-sustaining
 to withstand stochastic       across a diversity    populations are
 events).                      of environmental      demographically,
                               conditions.           genetically, and
                                                     physiologically
                                                     robust, and have
                                                     enough suitable
                                                     habitat.
Redundancy..................  Multiple and          Sufficient number
(number and distribution of    sufficient            and distribution of
 populations to withstand      distribution of       populations to
 catastrophic events).         populations within    guard against
                               areas of unique       population losses.
                               variation
                               (representation
                               units).
Representation (genetic and   Maintain adaptive     Populations
 ecological diversity to       diversity of the      maintained across a
 maintain adaptive             species.              range of
 potential).                                         behavioral,
                                                     physiological,
                                                     ecological, and
                                                     environmental
                                                     diversity.
                              Maintain              Maintain
                               evolutionary          evolutionary
                               processes.            drivers--gene flow,
                                                     natural selection--
                                                     to mimic historical
                                                     patterns.
------------------------------------------------------------------------

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an endangered 
species or a threatened species, issuing protective regulations for 
threatened species, and designating critical habitat for threatened and 
endangered species. In 2019, jointly with the National Marine Fisheries 
Service, the Service issued final rules that revised the regulations in 
50 CFR parts 17 and 424 regarding how we add, remove, and reclassify 
threatened and endangered species and the criteria for designating 
listed species' critical habitat (84 FR 45020 and 84 FR 44752; August 
27, 2019). At the same time, the Service also issued final regulations 
that, for species listed as threatened species after September 26, 
2019, eliminated the Service's general protective regulations 
automatically applying to threatened species the prohibitions that 
section 9 of the Act applies to endangered species (collectively, the 
2019 regulations).
    As with the proposed rule, we are applying the 2019 regulations for 
this final rule because the 2019 regulations are the governing law just 
as they were when we completed the proposed rule. Although there was a 
period in the interim--between July 5, 2022, and September 21, 2022--
when the 2019 regulations became vacated and the pre-2019 regulations 
therefore governed, the 2019 regulations are now in effect and govern 
listing and critical habitat decisions (see Center for Biological 
Diversity v. Haaland, No. 4:19-cv-05206-JST, Doc. 168 (N.D. Cal. July 
5, 2022) (CBD v. Haaland) (vacating the 2019 regulations and thereby 
reinstating the pre-2019 regulations)); In re: Cattlemen's Ass'n, No. 
22-70194 (9th Cir. Sept. 21, 2022) (staying the district court's order 
vacating the 2019 regulations until the district court resolved a 
pending motion to amend the order); Center for Biological Diversity v. 
Haaland, No. 4:19-cv-5206-JST, Doc. Nos. 197, 198 (N.D. Cal. Nov. 16, 
2022) (granting plaintiffs' motion to amend July 5, 2022 order and 
granting government's motion for remand without vacatur).
    The Act defines an ``endangered species'' as a species that is in 
danger of extinction throughout all or a significant portion of its 
range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an endangered species or a threatened 
species because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the expected response by the species, 
and the effects of the threats--in light of those actions and 
conditions that will ameliorate the threats--on an individual, 
population, and species level. We evaluate each threat and its expected 
effects on the species, then analyze the cumulative effect of all of 
the threats on the species as a whole. We also consider the cumulative 
effect of the threats in light of those actions and conditions that 
will have positive effects on the species, such as any existing 
regulatory mechanisms or conservation efforts. The Secretary determines 
whether the species meets the definition of an ``endangered species'' 
or a ``threatened species'' only after conducting this cumulative 
analysis and describing the expected effect on the species now and in 
the foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as the 
Services can reasonably determine that both the future threats and the 
species' responses to those threats are likely. In other words, the 
foreseeable future is the period of time in which we can make

[[Page 73498]]

reliable predictions. ``Reliable'' does not mean ``certain''; it means 
sufficient to provide a reasonable degree of confidence in the 
prediction. Thus, a prediction is reliable if it is reasonable to 
depend on it when making decisions.
    It is not always possible or necessary to define the foreseeable 
future as a particular number of years. Analysis of the foreseeable 
future uses the best scientific and commercial data available and 
should consider the timeframes applicable to the relevant threats and 
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing 
the species' biological response include species-specific factors such 
as lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent our decision 
on whether the species should be listed as an endangered or threatened 
species under the Act. However, it does provide the scientific basis 
that informs our regulatory decisions, which involve the further 
application of standards within the Act and its implementing 
regulations and policies.
    To assess the northern long-eared bat's viability, we used the 
three conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency is the ability of the species to withstand environmental and 
demographic stochasticity (for example, wet or dry, warm or cold 
years), redundancy is the ability of the species to withstand 
catastrophic events (for example, droughts, large pollution events), 
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment 
(for example, climate conditions, pathogens). In general, species 
viability will increase with increases in resiliency, redundancy, and 
representation (Smith et al. 2018, p. 306). Using these principles, we 
identified the species' ecological requirements for survival and 
reproduction at the individual, population, and species levels, and 
described the beneficial and risk factors influencing the species' 
viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time. We use this information to inform our regulatory 
decision.
    The following is a summary of the key results and conclusions from 
the SSA report; the full SSA report can be found under Docket No. FWS-
R3-ES-2021-0140 at https://www.regulations.gov and at https://www.fws.gov/species/northern-long-eared-bat-myotis-septentrionalis.

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the 
species and its resources, and the threats that influence the species' 
current and future condition, in order to assess the species' overall 
viability and the risks to that viability. For a full description, see 
the SSA report (Service 2022, entire).
    Although there are other stressors affecting the northern long-
eared bat, the primary factor influencing its viability is white-nose 
syndrome (WNS), a disease of bats caused by a fungal pathogen. Some of 
the other factors that influence the northern long-eared bat's 
viability (although to a far lesser extent than the influence of WNS) 
include wind energy mortality, effects from climate change, and habitat 
loss. These stressors and their effects to the northern long-eared bat 
are summarized below:
     WNS has been the foremost stressor on the northern long-
eared bat for more than a decade. The fungus that causes the disease, 
Pd, invades the skin of bats. Infection leads to increases in the 
frequency and duration of arousals during hibernation and eventual 
depletion of fat reserves needed to survive winter and results in 
mortality. Since its discovery in New York in 2006, Pd has been 
confirmed (or presumed) in 43 States and 8 Canadian provinces. There is 
no known mitigation or treatment strategy to slow the spread of Pd or 
to treat WNS in bats. WNS has caused estimated northern long-eared bat 
population declines of 97-100 percent across 79 percent of the species' 
range.
     Wind energy-related mortality of the northern long-eared 
bat is a stressor at local and regional levels. In 2020, northern long-
eared bats were at risk from wind mortality in approximately 49 percent 
of their range, based on the areas where wind turbines were in place 
and operating (using known northern long-eared bat occurrences, average 
migration distance, and the spatial distribution of wind turbines) 
(Service 2022, p. iv). Most bat mortality at wind energy projects is 
caused by direct collisions with moving turbine blades.
     Climate change variables, such as changes in temperature 
and precipitation, may influence the northern long-eared bat's resource 
needs, such as suitable roosting habitat for all seasons, foraging 
habitat, and prey availability. Although a changing climate may provide 
some benefit to the northern long-eared bat, overall negative impacts 
are anticipated, especially at local levels.
     Habitat loss (including, but not limited to, forest 
conversion or hibernacula disturbance or destruction) may include loss 
of suitable roosting or foraging habitat, resulting in longer flights 
between suitable roosting and foraging habitats due to habitat 
fragmentation, fragmentation of maternity colony networks, and direct 
injury or mortality. Loss or modification of winter roosts (i.e., 
making hibernaculum no longer suitable) can result in impacts to 
individuals or at the population level. However, habitat loss alone is 
not considered to be a key stressor at the species level, and habitat 
does not appear to be limiting.
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have not 
only analyzed individual effects on the species, but we have also 
analyzed their potential cumulative effects. We incorporate the 
cumulative effects into our SSA analysis when we characterize the 
current and future condition of the species. To assess the current and 
future condition of the species, we undertake an iterative analysis 
that encompasses and incorporates the threats individually and then 
accumulates and evaluates the effects of all the factors that may be 
influencing the species, including threats and conservation efforts. 
Because the SSA framework considers not just the presence of the 
factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and

[[Page 73499]]

replaces a standalone cumulative effects analysis.
Current Condition
    In evaluating current conditions of the northern long-eared bat, we 
used the best available data. Winter hibernacula counts provide the 
most consistent, long-term, reliable trend data and provide the most 
direct measure of WNS impacts. We also used summer data in evaluating 
population trends, although the availability and quality of summer data 
varies temporally and spatially.
    Available evidence, including both winter and summer data, 
indicates northern long-eared bat abundance has and will continue to 
decline substantially under current demographic and stressor 
conditions, primarily driven by the effects of WNS. As part of our 
assessment of the current condition of northern long-eared bat's 
representation, we identified and delineated the variation across the 
northern long-eared bat's range into geographical representation units 
(RPUs) using the following proxies: variation in biological traits, 
genetic diversity, peripheral populations, habitat niche diversity, and 
steep environmental gradients.
    Winter abundance (from known hibernacula) has declined rangewide 
(49 percent) and declined across all but one RPU (declines range from 
no decline to 90 percent). The number of extant winter colonies also 
declined rangewide (by 81 percent) and across all RPUs (40-88 percent). 
There has also been a noticeable shift towards smaller colony sizes, 
with a 96-100 percent decline in the number of large hibernacula (>=100 
individuals) across the RPUs (see figure 2, below). Continued declines 
are anticipated, with projections indicating rangewide abundance 
declining by 95 percent and the spatial extent declining by 75 percent 
from historical conditions (under current threat conditions), by 2030 
(Service 2022, Chapter 5). Declines continue to be driven by the 
catastrophic effects of WNS.
[GRAPHIC] [TIFF OMITTED] TR30NO22.003

Figure 2. The number of hibernacula in each colony abundance category 
under current conditions.

    Declining trends in abundance and extent of occurrence are also 
evident across much of the northern long-eared bat's summer range. 
Rangewide occupancy has declined by 80 percent from 2010-2019. Data 
collected from mobile acoustic transects found a 79 percent decline in 
rangewide relative abundance from 2009-2019, and summer mist-net 
captures declined by 43-77 percent (across RPUs) compared to pre-WNS 
capture rates.
    As discussed above, multiple data types and analyses indicate 
downward trends in northern long-eared bat population abundance and 
distribution over the last 14 years, and the best available information 
indicates that this downward trend will continue. Northern long-eared 
bat abundance (winter and summer), number of occupied hibernacula, 
spatial extent, and summer habitat occupancy across the range and 
within all RPUs are decreasing. Since the occurrence of WNS, northern 
long-eared bat abundance has steeply declined, leaving populations with 
small numbers of individuals. At these low population sizes, colonies 
are vulnerable to extirpation from stochastic events and the 
deleterious effects of reduced population sizes, such as limiting 
natural selection processes and decreased genetic diversity. 
Furthermore, small populations generally cannot rescue one another from 
such a depressed state because of the northern long-eared bat's low 
reproduction output (one pup per year) and its high philopatry (tending 
to return to a particular area). These inherent life-history traits 
limit the ability of populations to recover from low abundances. 
Consequently, effects of small population sizes exacerbate the effects 
of current and future declines due to continued exposure to WNS, 
mortality from wind turbines, and impacts associated with habitat loss 
and climate change.
    Therefore, the northern long-eared bat's resiliency is greatly 
compromised in its current condition. Because the northern long-eared 
bat's abundance and spatial extent have so dramatically declined, it 
has also become more vulnerable to catastrophic events. In other words, 
its redundancy has also declined dramatically. The steep and

[[Page 73500]]

continued declines in abundance have likely led to reductions in 
genetic diversity, and thereby reduced the northern long-eared bat's 
adaptive capacity, and a decline in the species' overall 
representation. Moreover, at its current low abundance, loss of genetic 
diversity will likely accelerate. Consequently, limited natural 
selection processes and decreased genetic diversity will further lessen 
the species' ability to adapt to novel changes and exacerbate declines 
due to continued exposure to WNS, mortality from wind turbines, and 
impacts associated with habitat loss and climate change. Thus, even 
without further WNS spread and additional wind energy development 
(northern long-eared bat's current condition), its viability is likely 
to continue to rapidly decline over the next 10 years.
Future Condition
    As part of the SSA, we also developed two future condition 
scenarios to capture the range of uncertainties regarding future 
threats and the projected responses by the northern long-eared bat. Our 
scenarios included a plausible highest impact scenario and a plausible 
lowest impact scenario for each primary threat. Because we determined 
that the current condition of the northern long-eared bat is consistent 
with an endangered species (see Determination of Northern Long-eared 
Bat's Status, below), we are not presenting the results of the future 
scenarios in this rule. Please refer to the SSA report (Service 2022, 
entire) for the full analysis of future scenarios.

Conservation Efforts and Regulatory Mechanisms

    Below is a brief description of conservation measures and 
regulatory mechanisms currently in place. Please see the SSA report for 
a more detailed description (Service 2022, appendix 4).
    Multiple national and international efforts are underway to try to 
reduce the impacts of WNS. Despite these efforts, there are no proven 
measures to reduce the severity of impacts of WNS. More than 100 State 
and Federal agencies, Tribes, organizations, and institutions are 
engaged in this collaborative work to combat WNS and conserve affected 
bats. Partners from all 37 States in the northern long-eared bat's 
range, Canada, and Mexico are engaged in collaborations to conduct 
disease surveillance, population monitoring, and management actions in 
preparation for or response to WNS.
    To reduce bat fatalities, some wind facilities ``feather'' turbine 
blades (i.e., pitch turbine blades parallel with the prevailing wind 
direction to slow rotation speeds) at low wind speeds at times when 
bats are more likely to be present. The wind speed at which the turbine 
blades begin to generate electricity is known as the ``cut-in speed,'' 
and this can be set at the manufacturer's recommended speed or at a 
higher threshold, typically referred to as curtailment. The 
effectiveness of feathering below various cut-in speeds differs among 
sites and years (Arnett et al. 2013, entire; Berthinussen et al. 2021, 
pp. 94-106); nonetheless, most studies have shown all-bat (based on 
dead bats detected from all bat species) fatality reductions of greater 
than 50 percent associated with raising cut-in speeds by 1.0-3.0 meters 
per second (m/s) above the manufacturer's cut-in speed (Arnett et al. 
2013, entire; USFWS unpublished data). The effectiveness of curtailment 
at reducing fatality rates specifically for the northern long-eared bat 
has not been documented.
    All States have active forestry programs with a variety of goals 
and objectives. Several States have established habitat protection 
buffers around known Indiana bat hibernacula that will also serve to 
benefit other bat species by maintaining sufficient quality and 
quantity of swarming habitat. Some States conduct some of their forest 
management activities in the winter within known listed bat home ranges 
as a measure that would protect maternity colonies and non-volant (non-
flying) pups during summer months. Depending on the type and timing of 
activities, forest management can be beneficial to bat species (for 
example, maintaining or increasing suitable roosting and foraging 
habitat). Forest management that results in heterogeneous (including 
forest type, age, and structural characteristics) habitat may benefit 
tree-roosting bat species such as northern long-eared bat (Silvis et 
al. 2016, p. 37). Silvicultural practices can meet both male and female 
northern long-eared bats' roosting requirements by maintaining large-
diameter snags in early stages of decay, while allowing for 
regeneration of forests (Lacki and Schwierjohann 2001, p. 487).
    Many State and Federal agencies, conservation organizations, and 
land trusts have installed bat-friendly gates to protect important 
hibernation sites. All known hibernacula within national grasslands and 
forestlands of the Rocky Mountain Region of the U.S. Forest Service 
(USFS) are closed during the winter hibernation period, primarily due 
to the threat of WNS, although this will reduce disturbance to bats in 
general inhabiting these hibernacula (USFS 2013, unpaginated). Because 
of concern over the importance of bat roosts, including hibernacula, 
the American Society of Mammologists developed guidelines for 
protection of roosts, many of which have been adopted by government 
agencies and special interest groups (Sheffield et al. 1992, p. 707). 
Also, regulations, such as the Federal Cave Resources Protection Act 
(16 U.S.C. 4301 et seq.), protect caves on Federal lands by limiting 
access to some caves, thereby reducing disturbance. Finally, many 
Indiana bat hibernacula have been gated, and some have been permanently 
protected via acquisition or easement, which provides benefits to other 
bats that also use the sites, including the northern long-eared bat.
    The northern long-eared bat is listed as endangered under Canada's 
Species at Risk Act (COSEWIC 2013, entire). In addition, the northern 
long-eared bat receives varying degrees of protection through State 
laws, which designate the species as endangered in 9 States (Arkansas, 
Connecticut, Delaware, Indiana, Maine, Massachusetts, Missouri, New 
Hampshire, and Vermont); as threatened in 10 States (Georgia, Illinois, 
Louisiana, Maryland, New York, Ohio, Pennsylvania, Tennessee, Virginia, 
and Wisconsin); and as a species of special concern in 10 States 
(Alabama, Iowa, Michigan, Minnesota, Mississippi, Oklahoma, South 
Carolina, South Dakota, West Virginia, and Wyoming).

Determination of Northern Long-Eared Bat's 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 endangered species 
or 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.

[[Page 73501]]

Status Throughout All of Its Range

    WNS has been the foremost stressor on the northern long-eared bat 
for more than a decade and continues to be currently. The fungus that 
causes the disease, Pd, invades the skin of bats and leads to infection 
that increases the frequency and duration of arousals during 
hibernation that eventually deplete the fat reserves needed to survive 
winter, resulting in mortality. There is no known mitigation or 
treatment strategy to slow the spread of Pd or to treat WNS in bats. 
WNS has caused estimated northern long-eared bat population declines of 
97-100 percent across 79 percent of the species' range (Factor C). 
Winter abundance (from known hibernacula) has declined rangewide (49 
percent) and declined across all but one RPU (declines range from 0 to 
90 percent), and the number of extant winter colonies also declined 
rangewide (81 percent) and across all RPUs (40-88 percent). There has 
also been a noticeable shift towards smaller colony sizes, with a 96-
100 percent decline in the number of large hibernacula (>=100 
individuals). Rangewide summer occupancy has declined by 80 percent 
from 2010-2019. Summer data collected from mobile acoustic transects 
found a 79 percent decline in rangewide relative abundance from 2009-
2019, and summer mist-net captures declined by 43-77 percent (across 
RPUs) compared to pre-WNS capture rates. We created projections for the 
species using its current condition and the current rates of mortality 
from WNS effects and wind energy. Rangewide abundance is projected to 
decline by 95 percent and the spatial extent is projected to decline by 
75 percent from historical conditions by 2030.
    As a result of these steep population declines, the northern long-
eared bat's resiliency is greatly compromised in its current condition. 
Because the northern long-eared bat's abundance and spatial extent 
substantially declined, its redundancy has decreased such that northern 
long-eared bats are more vulnerable to catastrophic events. The 
northern long-eared bat's representation has also been reduced, as the 
steep and continued declines in abundance have likely led to reductions 
in genetic diversity, and thereby reduced the northern long-eared bat's 
adaptive capacity. Further, the projected widespread reduction in the 
distribution of occupied hibernacula under current conditions will lead 
to losses in the diversity of environments and climatic conditions 
occupied, which will impede natural selection and further limit the 
northern long-eared bat's ability to adapt to changing environmental 
conditions. Moreover, at its current low abundance, loss of genetic 
diversity via genetic drift will likely accelerate. Consequently, 
limiting natural selection process and decreasing genetic diversity 
will further lessen the northern long-eared bat's ability to adapt to 
novel changes (currently ongoing as well as future changes) and 
exacerbate declines due to continued exposure to WNS and other 
stressors. Thus, even without further Pd spread and additional pressure 
from other stressors, the northern long-eared bat's viability has 
declined substantially and is expected to continue to rapidly decline 
over the near term.
    Current population trends and status indicate this species is 
currently in danger of extinction. The species continues to experience 
the catastrophic effects of WNS and the compounding effect of other 
stressors from which extinction is now a plausible outcome under the 
current conditions. Therefore, the species meets the Act's definition 
of an endangered species rather than that of a threatened species. 
Thus, after assessing the best available information, we determine that 
the northern long-eared bat is in danger of extinction throughout all 
of its range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. We have determined that the northern long-eared bat is in 
danger of extinction throughout all of its range and accordingly did 
not undertake an analysis of any significant portions of its range. 
Because the northern long-eared bat warrants listing as endangered 
throughout all of its range, our determination does not conflict with 
the decision in Center for Biological Diversity v. Everson, 435 F. 
Supp. 3d 69 (D.D.C. 2020), which 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'' (Final Policy) (79 FR 37578, July 
1, 2014) providing 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.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the northern long-eared bat meets the 
definition of an endangered species. Therefore, we are reclassifying 
the northern long-eared bat as an endangered species in accordance with 
sections 3(6) and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition as a listed 
species, planning and implementation of recovery actions, requirements 
for Federal protection, and prohibitions against certain practices. 
Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies and 
the prohibitions against certain activities are discussed, in part, 
below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems 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. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The goal of this process is to restore listed 
species to a point where they are secure, self-sustaining, and 
functioning components of their ecosystems.
    Recovery planning consists of preparing draft and final recovery 
plans, beginning with the development of a recovery outline and making 
it available to the public within 30 days of a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan also identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from protected status (``delisting''), and methods for 
monitoring recovery progress. Recovery plans also establish a framework 
for agencies to coordinate

[[Page 73502]]

their recovery efforts and provide estimates of the cost of 
implementing recovery tasks. Recovery teams (composed of species 
experts, Federal and State agencies, nongovernmental organizations, and 
stakeholders) are often established to develop recovery plans. When 
completed, the recovery outline, draft recovery plan, and the final 
recovery plan will be available on our website (https://www.fws.gov/species/northern-long-eared-bat-myotis-septentrionalis), or from our 
Minnesota Wisconsin Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    Funding for recovery actions is available from a variety of 
sources, including Federal budgets, State programs, and cost-share 
grants for non-Federal landowners, the academic community, and 
nongovernmental organizations. In addition, pursuant to section 6 of 
the Act, the States of Alabama, Arkansas, Connecticut, Delaware, 
Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, 
Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, 
Montana, Nebraska, New Hampshire, New Jersey, New York, North Carolina, 
North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South 
Carolina, South Dakota, Tennessee, Vermont, Virginia, West Virginia, 
Wisconsin, and Wyoming will continue to be eligible for Federal funds 
to implement management actions that promote the protection or recovery 
of the northern long-eared bat. Information on our grant programs that 
are available to aid species recovery can be found at: https://www.fws.gov/service/financial-assistance.
    Please let us know if you are interested in participating in 
recovery efforts for the northern long-eared bat. Additionally, we 
invite you to submit any new information on this species whenever it 
becomes available and any information you may have for recovery 
planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is listed as an endangered or 
threatened species. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(2) of the Act requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of any endangered or threatened 
species. If a Federal action may affect a listed species, the 
responsible Federal agency must enter into consultation with us.
    Federal agency actions within the species' habitat that may require 
consultation include, but are not limited to, management and any other 
landscape-altering activities on Federal lands administered by the U.S. 
Fish and Wildlife Service, U.S. Forest Service, Bureau of Land 
Management, National Park Service, and other Federal agencies; issuance 
of section 404 Clean Water Act (33 U.S.C. 1251 et seq.) permits by the 
U.S. Army Corps of Engineers; and construction and maintenance of roads 
or highways by the Federal Highway Administration.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered wildlife. 
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 
17.21, make it illegal for any person subject to the jurisdiction of 
the United States to take (which includes harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect; or to attempt any of 
these) endangered wildlife within the United States or on the high 
seas. In addition, it is unlawful to import; export; deliver, receive, 
carry, transport, or ship in interstate or foreign commerce in the 
course of commercial activity; or sell or offer for sale in interstate 
or foreign commerce any species listed as an endangered species. It is 
also illegal to possess, sell, deliver, carry, transport, or ship any 
such wildlife that has been taken illegally. Certain exceptions apply 
to employees of the Service, the National Marine Fisheries Service, 
other Federal land management agencies, and State conservation 
agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.22. With regard to 
endangered wildlife, a permit may be issued for the following purposes: 
for scientific purposes, to enhance the propagation or survival of the 
species, and for incidental take in connection with otherwise lawful 
activities. There are also certain statutory exemptions from the 
prohibitions, which are found in sections 9 and 10 of the Act.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that will or will not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a final listing 
on proposed and ongoing activities within the range of a listed 
species. Based on the best available information, the following actions 
are unlikely to result in a violation of section 9, if these activities 
are carried out in accordance with existing regulations and permit 
requirements; this list is not comprehensive:
    (1) Minimal tree removal and vegetation management activities that 
occur any time of the year outside of suitable forested/wooded habitat 
and more than 5 miles from known or potential hibernacula. We define 
suitable forested/wooded habitat as containing potential roosts (i.e., 
live trees or snags greater or equal to 3 inches in diameter at breast 
height that have exfoliating bark, cracks, crevices, or cavities), as 
well as forested linear features such as wooded fencerows, riparian 
forests, and other wooded corridors. Individual trees may be suitable 
habitat when they exhibit characteristics of potential roost trees and 
are within 1,000 feet (305 meters) of other forested/wooded habitat 
(USFWS 2022, pp.16-17). We broadly define hibernacula as caves (or 
associated sinkholes, fissures, or other karst features), mines, rocky 
outcroppings, or tunnels.
    (2) Insignificant amounts of suitable forested/wooded habitat 
removal provided it occurs during the hibernation period and the 
modification of habitat does not significantly impair an essential 
behavior pattern such that it is likely to result in the actual killing 
or injury of northern long-eared bats after hibernation.
    (3) Tree removal that occurs at any time of year in highly 
developed urban areas (e.g., street trees, downtown areas; USFWS 2022, 
p. 17).
    (4) Herbicide application activities that adhere to the product 
label, occur outside of suitable forested/wooded habitat, and are more 
than 5 miles from known or potential hibernacula.
    (5) Prescribed fire activities that are restricted to the inactive 
(hibernation) season, provided they are more than 0.5

[[Page 73503]]

miles from a known hibernacula and do not result in changes to suitable 
forested/wooded habitat to the extent that the habitat becomes 
unsuitable for the northern long-eared bat.
    (6) Activities that may disturb northern long-eared bat hibernation 
locations, provided they are restricted to the active (non-hibernation) 
season and could not result in permanent changes to suitable or 
potential hibernacula.
    (7) Activities that may result in modification or removal of human 
structures provided: (a) the structure does not provide roosting 
habitat for northern long-eared bats, or (b) the results of a structure 
assessment indicate no signs of bats.
    (8) Wind turbine operations at facilities following a Service-
approved avoidance strategy (such as curtailment, deterrents, or other 
technology) documented in a letter specific to the facility from the 
appropriate Ecological Services field office.
    (9) All activities (except wind turbine operation) in areas where a 
negative presence/probable absence survey result was obtained using the 
most recent version of the rangewide northern long-eared bat survey 
guidance and with Service approval of the proposed survey methods and 
results.
    (10) Livestock grazing and routine ranch maintenance.
    (11) Residential and commercial building construction, exterior 
improvements or additions, renovation, and demolition in urban areas.
    (12) Mowing of existing (non-suitable forested/woodland habitat) 
rights-of-way.
    (13) Maintenance, repair, and replacement activities conducted 
completely within existing, maintained utility rights-of-way provided 
there is no tree removal or tree trimming.
    (14) Maintenance and repair activities conducted completely within 
existing road or rail surface that do not involve tree removal, tree 
trimming, or blasting or other percussive activities.
    Based on the best available information, the following activities 
may potentially result in a violation of section 9 of the Act if they 
are not authorized in accordance with applicable law; this list is not 
comprehensive:
    (1) Unauthorized collecting, handling, possessing, selling, 
delivering, carrying, or transporting of the species, including import 
or export across State lines and international boundaries, except for 
properly documented antique specimens of this taxon at least 100 years 
old, as defined by section 10(h)(1) of the Act.
    (2) Incidental take of the species without authorization pursuant 
to section 7 or section 10(a)(1)(B) of the Act.
    (3) Disturbance or destruction (or otherwise making a hibernaculum 
no longer suitable) of known hibernacula due to commercial or 
recreational activities during known periods of hibernation.
    (4) Unauthorized destruction or modification of suitable forested 
habitat (including unauthorized grading, leveling, burning, herbicide 
spraying, or other destruction or modification of habitat) in ways that 
kill or injure individuals by significantly impairing the species' 
essential breeding, foraging, sheltering, commuting, or other essential 
life functions.
    (5) Unauthorized removal or destruction of trees and other natural 
and manmade structures being used as roosts by the northern long-eared 
bat that results in take of the species.
    (6) Unauthorized release of biological control agents that attack 
any life stage of this taxon.
    (7) Unauthorized removal or exclusion from buildings or artificial 
structures being used as roost sites by the species, resulting in take 
of the species.
    (8) Unauthorized building and operation of wind energy facilities 
within areas used by the species, which results in take of the species.
    (9) Unauthorized discharge of chemicals, fill, or other materials 
into sinkholes, which may lead to contamination of known northern long-
eared bat hibernacula.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the Minnesota 
Wisconsin Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Required Determinations

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes. We solicited information, provided 
updates, and invited participation in the SSA process in emails sent to 
Tribes, nationally, in April 2020 and November 2020. We will continue 
to work with Tribal entities during the recovery planning for the 
northern long-eared bat.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov and upon request from 
the Minnesota Wisconsin 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 Minnesota 
Wisconsin Ecological Services Field Office.

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

0
1. The authority citation for part 17 continues to read as follows:

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

0
2. In Sec.  17.11, in paragraph (h) amend the table ``List of 
Endangered and Threatened Wildlife'' by revising the entry for ``Bat, 
northern long-eared'' under MAMMALS to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 73504]]



----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
             Mammals
 
                                                  * * * * * * *
Bat, northern long-eared........  Myotis              Wherever found....  E              80 FR 17974, 4/2/2015;
                                   septentrionalis.                                       87 FR [Insert Federal
                                                                                          Register page where
                                                                                          the document begins],
                                                                                          11/30/22.
 
                                                  * * * * * * *
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Sec.  17.40  [Amended]

0
3. Amend Sec.  17.40 by removing and reserving paragraph (o).

Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-25998 Filed 11-29-22; 8:45 am]
BILLING CODE 4333-15-P