[Federal Register Volume 88, Number 90 (Wednesday, May 10, 2023)]
[Rules and Regulations]
[Pages 30047-30057]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09847]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R5-ES-2019-0056; FF09E22000 FXES11130900000 201]
RIN 1018-BD65
Endangered and Threatened Wildlife and Plants; Reclassifying
Furbish's Lousewort (Pedicularis furbishiae) From Endangered to
Threatened Status With a Section 4(d) Rule
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
reclassifying (downlisting) Furbish's lousewort (Pedicularis
furbishiae) from an endangered species to a threatened species under
the Endangered Species Act of 1973, as amended (Act), and we finalize a
rule under section 4(d) of the Act to promote the conservation of
Furbish's lousewort. This information is based on a thorough review of
the best available scientific and commercial information, which
indicates the threats to the species have been reduced to the point
that the species no longer meets the definition of an endangered
species under the Act.
[[Page 30048]]
DATES: This rule is effective June 9, 2023.
ADDRESSES: This final rule, supporting documents we used in preparing
this rule, and public comments we received on the proposed rule are
available on the internet at https://www.regulations.gov at Docket No.
FWS-R5-ES-2019-0056.
FOR FURTHER INFORMATION CONTACT: Amanda Cross, Project Leader, Maine
Ecological Services Field Office, 306 Hatchery Road, East Orland, ME
04431; telephone 207-902-1567. 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:
Supporting Documents
A species status assessment (SSA) team prepared an SSA report for
Furbish's lousewort. The SSA team was composed of biologists from the
Service and the State of Maine Natural Areas Program. The SSA report
represents a compilation of the best scientific and commercial data
available concerning the status of the species, including the impacts
of past, present, and future factors (both negative and beneficial)
affecting the species (Service 2020, entire).
The SSA report can be found at https://www.regulations.gov under
Docket No. FWS-R5-ES-2019-0056 and on the FWS website at: https://www.fws.gov/species/st-johns-river-lousewort-pedicularis-furbishiae.
Previous Federal Actions
Furbish's lousewort was listed as an endangered species on April
26, 1978 (43 FR 17910). We completed a recovery plan in 1983 (Service
1983) and revised it in 1991 (Service 1991). The revised recovery plan
presented updated life-history and population information, and updated
information on the threats to the species. A second revised recovery
plan was signed on September 26, 2019, and on February 21, 2019, a 5-
year status review was completed (Service 2019b) and concluded that
Furbish's lousewort should be downlisted to a threatened species under
the Act.
On January 15, 2021, we proposed to reclassify Furbish's lousewort
from an endangered species to a threatened species with a rule issued
under section 4(d) of the Act to provide for the conservation of the
species, i.e., a ``4(d) rule'' (86 FR 3976).
Summary of Changes From the Proposed Rule
In this rule, we make certain nonsubstantive, editorial changes to
some text that we presented in the proposed rule, and we include a
minor amount of new information (e.g., some updated population
information showing improved conditions and new conservation actions)
that we received or that became available since the proposed rule
published. However, this new information did not change our analysis,
rationales, or determination for either the proposed reclassification
of Furbish's lousewort to a threatened species or the proposed 4(d)
rule for the species.
I. Reclassification Determination
Background
A thorough review of Furbish's lousewort is presented in the SSA
report (Service 2020), found at https://www.regulations.gov under
Docket FWS-R5-ES-2019-0056, which is briefly summarized here.
Species Information
Furbish's lousewort was first named and described in 1882 (Watson
1882, entire) and is recognized as a valid taxon. A thorough review of
the taxonomy, life history, and ecology of Furbish's lousewort is
presented in the SSA report.
Furbish's lousewort is an herbaceous perennial plant that occurs on
the intermittently flooded, ice-scoured banks of the St. John River. It
is endemic to Maine with a few, small subpopulations in northwestern
New Brunswick, Canada. The population of Furbish's lousewort comprises
20 subpopulations associated with suitable habitat that occurs along
portions of a 225-kilometer (140-mile) section of the St. John River.
The plant is recognized early in the growing season by a basal rosette
of fern-like leaves. By mid-summer, mature plants produce one or more
flowering stems that grow to about 50 to 80 centimeters (20 to 30
inches) in height. The stems have alternate, widely spaced, fern-like
leaves along their length and are topped by a tight cluster
(inflorescence) of small, yellow, tube-like flowers that bloom only a
few at a time. Furbish's lousewort has two distinct growth stages:
vegetative (immature, nonflowering) individuals that grow as a basal
rosette of leaves and reproductive (flowering) plants.
Furbish's lousewort does not spread clonally, and plants are
established exclusively by sexual reproduction and seed (Stirrett 1980,
p. 23; Menges 1990, p. 53). Flowering occurs at a minimum of 3 years
once plants reach a certain size leaf area. Reproductive plants emerge
in May and produce an average of 2 to 3 flowering stems; each stem has
one or more inflorescences, and each inflorescence has up to 25
flowers. Flowers bloom several at a time from about mid-July to the end
of August (Stirrett 1980, p. 24; Menges et al. 1986, p. 1169).
Furbish's lousewort is pollinated by a single species of bumble bee,
the half-black bumble bee (Bombus vagans) (Macior 1978, entire). About
50 percent of flowers produce egg-shaped seed capsules that ripen in
late-September after which the tiny (1 millimeter) seeds are dropped
(Menges et al. 1986, p. 1169; Gawler 1983, p. 27; Gawler et al. 1986,
entire). Seeds lack mechanisms for wind or animal dispersal, and most
drop near the parent plant. Each mature plant tends to form a colony
around itself. During spring floods, it is conceivable that some seeds
may disperse down-river (Stirrett 1980, pp. 26-27; Menges 1990, p. 53).
The seeds germinate in moist, cool microhabitats having minimal
herbaceous or woody plant competition or leaf litter, such as moss-
covered soil or parts of the riverbank that are constantly wet.
Furbish's lousewort lacks seed dormancy; seedlings result only from the
previous year's reproduction (Menges 1990, p. 54). Seedlings emerge in
June through August and have two true leaves during their first growing
season (Gawler et al. 1987, entire). Like most species of Pedicularis,
seedlings of Furbish's lousewort are obligate hemiparasites and obtain
part of their nutrition from root attachments with a perennial host
plant. The species seems to be a host-generalist, perhaps relying on
nitrogen-fixing host plants in the mineral-poor soil in which it grows
(Macior 1980, entire). The lifespan of adult flowering plants is
uncertain.
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 a final rule that revised the regulations
in 50 CFR part 424 regarding how we add, remove,
[[Page 30049]]
and reclassify endangered and threatened species and the criteria for
designating listed species' critical habitat (84 FR 45020; August 27,
2019). On the same day 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 (84 FR 44753; August 27, 2019).
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 consider these same five
factors in downlisting a species from endangered to threatened.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species--such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species now and in the
foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as we can
reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable predictions.
``Reliable'' does not mean ``certain''; it means sufficient to provide
a reasonable degree of confidence in the prediction. Thus, a prediction
is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The SSA report documents the results of our comprehensive
biological status review of the best scientific and commercial data
regarding the status of the species, including an assessment of the
potential threats to the species. The SSA report does not represent a
decision by the Service on whether Furbish's lousewort should be
reclassified under the Act. It does, however, provide the scientific
basis that informs our regulatory decisions, which involve the further
application of standards within the Act and its implementing
regulations and policies.
To assess Furbish's lousewort viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency supports the ability of the species to withstand
environmental and demographic stochastic events (for example, wet or
dry, warm or cold years), redundancy supports the ability of the
species to withstand catastrophic events (for example, droughts, large
pollution events), and representation supports the ability of the
species to adapt over time to long-term changes in the environment (for
example, climate changes). In general, the more resilient and redundant
a species is and the more representation it has, the more likely it is
to sustain populations over time, even under changing environmental
conditions. Using these principles, we identified the species'
ecological requirements for survival and reproduction at the
individual, population, and species levels, and described the
beneficial and risk factors influencing the species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.
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. In addition, the SSA
(Service 2020, entire) and 5-year review (Service 2019a, entire)
document our comprehensive biological status review
[[Page 30050]]
for the species, including an assessment of the potential threats to
the species.
To assess the resiliency of Furbish's lousewort, we reviewed the
abundance of flowering and nonflowering individuals and colonization of
populations through seed dispersal mechanisms; the dependency of
populations on periodic ice scour and flooding; and the effects of
climate change, and development. To assess the redundancy of Furbish's
lousewort, we evaluated how the distribution and biological status of
subpopulations contribute to the species' ability to withstand
catastrophic events. Specifically, we examined how climate change and
current and future development are likely to affect the number, sizes,
and distribution of populations (Service 2020, pp. 38-39; 42-48; 52-
59). To assess representation, we evaluated the environmental diversity
within and among subpopulations.
Summary of Current Condition
Furbish's lousewort functions as a metapopulation. Unlike a
continuous population, a metapopulation has spatially discrete local
subpopulations, in which migration between subpopulations is
significantly restricted. In the SSA report, we define subpopulations
as separated by a mile or more of unsuitable habitat based primarily on
the limitations of the species' pollinator, the half-black bumblebee.
Bombus species typically exhibit foraging distances of less than 1
kilometer (0.62 miles) from their nesting sites (Knight et al. 2005, p.
1816; Wolf and Moritz 2008, p. 422). Based on this criterion, we
identify 15 subpopulations of Furbish's lousewort in Maine and 5 in New
Brunswick, Canada, that form the basis for our analysis of the current
condition of the species. For our analysis, we first qualitatively
assessed the subpopulations as ``good,'' ``fair,'' or ``poor,''
including the subpopulation's attributes: abundance, density, and
current status as compared to the site history. We designated sites
where Furbish's lousewort is currently thought to be absent (locally
extirpated) as ``very poor.''
Next, we evaluated each subpopulation according to three habitat
criteria: the amount of potential habitat, the condition of the
forested riparian buffer, and the prevalence of shoreline erosion. We
selected these habitat criteria to describe habitat quality because of
their influence on the species' resource needs (Service 2020, p. 11,
table 2). We assigned a score of 3 (good), 2 (fair), 1 (poor), or 0
(very poor) to each subpopulation and habitat criterion (Service 2020,
pp. 31-32). The rankings presented in the SSA for the 15 subpopulations
in Maine are 2 good, 2 fair to good, 3 fair, and 8 poor. Since the SSA
was published, the Maine Natural Areas Program (MNAP) updated these
rankings for the same subpopulations to 3 good, 3 fair to good, 1 fair,
1 poor to fair, and 7 poor (MNAP 2021, pp. 14-15). On average, the
upriver subpopulations rank higher than the downriver subpopulations
because of the high-quality habitat and low pressures from development.
Six of the 15 subpopulations in Maine are currently extirpated (all
downriver subpopulations). In New Brunswick, all five subpopulations
rank as poor (Service 2020, pp. 33-36), and there are some differences
between habitat conditions upriver and downriver. Upriver habitat is
more extensive and occurs in a managed industrial forest. Downriver
habitats (including New Brunswick) are smaller and more fragmented.
Risk Factors
Based on the life-history and habitat needs of Furbish's lousewort,
and in consultation with species' experts, as well as experts in
botany, ice scour and flooding of the St. John River, and landscape
ecology, we identify the potential stressors (negative influences), the
contributing sources of those stressors, and how conservation measures
to address those stressors are likely to affect the species' current
condition and viability (Service 2020, pp. 21-31). We evaluate how
these stressors may be currently affecting the species and whether, and
to what extent, they would affect the species in the future (Service
2020, pp. 40-57). The stressors most likely to affect the viability of
Furbish's lousewort are: (1) Development resulting in habitat loss,
erosion, and fragmentation; and (2) climate change that causes the
current trends of warmer winters that affect the ice dynamics,
flooding, and overall disturbance regime of the St. John River.
Historical land use patterns influence Furbish's lousewort habitat
today; the land use upriver of the town of Allagash is undeveloped,
while the downriver landscapes in Maine and farther downriver in New
Brunswick are dominated by agriculture and small villages. Changes in
land use on the banks of the St. John River in downriver areas have
occurred through the clearing of vegetation, especially trees, for
agriculture, individual house lots, and roads. These land use changes
within the St. John River valley may have negatively affected habitat
of some Furbish's lousewort subpopulations through removal or reduction
of forested riparian buffers and subsequent loss of shade critical to
the species' growth and reproduction. Areas cleared of forest, and
impermeable surfaces associated with development, have led to the
erosion and subsidence of the unconsolidated glacial till soils, and
caused slumping and erosion of Furbish's lousewort habitat. Modest
predicted trends of future development for the St. John River Valley
are described in the SSA Report (Service 2020, p. 47). Future
development will likely occur in the center of larger towns and expand
into some areas currently in agricultural land use; this activity could
cause slumping and erosion in Furbish's lousewort habitat.
Furbish's lousewort is identified as one of Maine's plant species
most vulnerable to climate change (Jacobson et al. 2009, p. 33). The
species depends on periodic disturbance of the riverbank from ice scour
that is not too frequent or too infrequent and not too severe. Climate
change is expected to affect the ice regime of northern rivers,
including the St. John, by increasing the frequency and severity of ice
scour and flood events (Service 2020, p. 23). River ice models for the
St. John River demonstrate that key variables influencing the frequency
and severity of ice scour, jamming, and flooding are caused by
midwinter temperatures above freezing, midwinter precipitation in the
form of rain, and increasing river flows (Beltaos and Prowse 2009, pp.
134-137). Beltaos (2002, entire) developed a hydroclimatic analysis for
the upper St. John River using long-term climate and flow records. He
documented that a small rise in winter air temperatures over the past
80 years has resulted in a substantial increase in the number of mild
winter days and the amount of winter rainfall, which were previously
rare occurrences in this region. These two factors augment river flows,
causing increased breakup of ice cover, increased peak flows in late
winter, and a higher frequency of spring ice jams and flooding (Service
2020, p. 24). Increasing summer temperatures may also affect Furbish's
lousewort. The climate envelope of the species has not been described,
but its closest genetic relatives are all arctic plants that require
cool, moist environments. We are uncertain about the maximum summer
temperatures and moisture deficits that Furbish's lousewort can
withstand (Service 2020, p. 27).
Several conservation actions are in place and may reduce some of
the stressors to Furbish's lousewort or provide habitat protection (see
[[Page 30051]]
Conservation Efforts for Furbish's lousewort, for more information).
Summary of Future Conditions Analysis
We assess two timeframes for characterizing the condition of
Furbish's lousewort in the future. We selected the years 2030 and 2060
as a period for which we can reasonably project effects of the
stressors and plausible conservation efforts. Climate change
information for these timeframes is based on the available information
contained in climate predicting models provided through the U.S.
Geological Survey (USGS) Climate Change Viewer, Summary of the Upper
St. John River Watershed, Aroostook County, Maine (USGS 2017a, b,
entire). The timeframes of 2030 and 2060 capture approximately one to
two, and four to five, generations of Furbish's lousewort,
respectively. Development information for this timeframe is available
in municipal comprehensive plans (Town of Fort Kent 2012, entire) and
The University of Maine Sustainability Solutions Initiative (Service
2020, p. 41).
For each of the two timeframes, 2030 and 2060, we developed three
future scenarios: continuation, best case, and a worst case. We provide
a range of reasonable, plausible effects for development and climate
change. For climate change scenarios, we use data from representative
concentration pathways (RCPs) of greenhouse gas (GHG) concentration
trajectories adopted by the International Panel on Climate Change
(IPCC). The three RCPs selected, RCP 2.6, RCP 4.5, and RCP 8.5, reflect
a wide range of possible changes in future anthropogenic GHG emissions.
RCP 2.6 is a scenario that assumes that global GHG emissions have
peaked and will decline after 2020. The continuation scenario assumes
moderate increases in GHG emissions (RCP 4.5), moderate increases in
development downriver, and conservation measures continuing or being
reduced slightly. The best-case scenario assumes low GHG emissions (RCP
2.6), conservation measures remaining in place, and no further
development downriver. The worst-case scenario assumes high GHG
emissions and moderate increases of GHG emissions into the future (RCP
8.5), modest levels of development, and reduced conservation measures
(Service 2020, p. 48).
All future predictions are uncertain; therefore, we qualified them
using relative terms of likelihood that had been adopted as terminology
specified by the IPCC (2014). Based on the future analysis, we predict
that by 2030 there is a higher likelihood that, in all three scenarios,
the metapopulation of the Furbish's lousewort will continue to decline
due to local extirpations of downriver subpopulations. By 2060, we
predict that it is likely that the overall viability of the
metapopulation will be greatly reduced from current conditions and a
few subpopulations will persist upriver in Maine. We predict that there
is a high likelihood that in both the continuation and worst-case
scenarios the metapopulation will no longer be viable; it will be
extirpated throughout most of its range; and the few plants that remain
would be concentrated at upriver sites.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. Our assessment of the
current and future conditions encompasses and incorporates the threats
individually and cumulatively. Our current and future condition
assessment is iterative because it accumulates and evaluates the
effects of all the factors that may be influencing the species,
including threats and conservation efforts. Because the SSA framework
considers not just the presence of the factors, but to what degree they
collectively influence risk to the entire species, our assessment
integrates the cumulative effects of the factors and replaces a
standalone cumulative effects analysis.
The SSA report contains a more detailed discussion on our
evaluation of the biological status of the species and the influences
that may affect its continued existence. Our conclusions are based upon
the best available scientific and commercial data, including the
judgments of the species' experts and peer reviewers. See the SSA
report for a complete list of the species' experts and peer reviewers
and their affiliations.
Existing Regulatory Mechanisms
Section 4(b)(1)(A) of the Act requires that the Service take into
account ``those efforts, if any, being made by any State or foreign
nation, or any political subdivision of a State or foreign nation, to
protect such species.'' In relation to Factor D under the Act, we
interpret this language to require the Service to consider relevant
Federal, State, and Tribal laws, regulations, and other such binding
legal mechanisms that may ameliorate or exacerbate any of the threats
we describe in threat analyses under the other four factors or
otherwise enhance the species' conservation. We give the strongest
weight to statutes and their implementing regulations and to management
direction that stems from those laws and regulations.
Municipal shoreline zoning in Maine now provides partial protection
of Furbish's lousewort habitat (Service 2020, appendix 1). As
established by State law in 2013, the shoreline zone extends to 250
feet from the high-water line all along the St. John River. Zoning
prohibits clear-cutting within 50 feet of the river; openings located
greater than 50 feet from the river (or 75 feet from the river for a
few subpopulations in organized towns) are restricted to a maximum of
0.3 acres, and no more than 40 percent of the forest in the 250-foot
zone can be harvested in a 10-year period (Maine Department of
Environmental Protection Mandatory Shoreland Zoning, title 38, chapter
3, sections 435-449). Organized towns have the option to designate
lousewort habitats as resource protection subdistricts, which would
provide more stringent measures. Currently, no towns have designated
any resource protection subdistricts for the lousewort (Service 2020,
p. 28).
The New Brunswick Clean Water Act provides shoreline protections
that convey a benefit to the Furbish's lousewort in Canada. The New
Brunswick Department of Environmental and Local Government acts as the
regulatory entity responsible for issuing all watercourse alteration
permits. Guidelines for implementing the regulations specify that no
heavy equipment may be operated within 15 meters of the bank of a
watercourse, no ground disturbance may occur within 30 meters of a
watercourse, and only 30 percent of the total merchantable trees may be
removed from a 30-meter buffer zone every 10 years. All activities
taking place within 30 meters of a watercourse that is either one
hectare or larger in area or that involve the removal, deposit, or
disturbance of the water, soil, or vegetation require a permit (Service
2020, p. 29).
Several parcels that support Furbish's lousewort have permanent
protection. Since 2001, the New England Forestry Foundation has had a
754,673-acre conservation easement on lands along the St. John River
where Furbish's lousewort occurs. The easement protects approximately
6.2 percent of the total population in Maine and restricts development
rights in perpetuity. In 2019, The Maine Chapter of The Nature
Conservancy purchased several areas of the St. John River corridor. The
Maine Bureau of Parks and Lands (Bureau) owns a large unit in the town
of
[[Page 30052]]
Allagash that provides several hundred feet of Furbish's lousewort
habitat, approximately 2 percent of the population in Maine. The
Bureau's integrated resource policy requires that the Bureau promote
the conservation of federally listed species. One of the five
subpopulations in New Brunswick is permanently protected (Service 2020,
pp. 29-30).
The Furbish's lousewort was listed on Canada's Schedule 1 of the
Species at Risk Act (SARA) in June 2003 and was initially designated as
endangered by the Committee on the Status for Endangered Wildlife in
Canada (COSEWIC) in 1980. With this proclamation, protection and
recovery measures were developed and implemented.
The Furbish's lousewort is protected by New Brunswick's Endangered
Species Act. Under this Act, it is prohibited to kill, harm, or collect
this species or disturb its habitat on Federal lands (Service New
Brunswick 1996, entire).
As discussed, Furbish's lousewort and its habitat receives some
protection from regulatory mechanisms in both the United States and
Canada. In the United States, the State of Maine and municipal
regulations provide partial protection for shorefronts, which includes
protections of riparian habitats where the lousewort could be located.
These State and municipal regulations are enforced through local and
State ordinances. They were not designed to protect Furbish's lousewort
from direct take, and as such, the species is not regulated from direct
take on private lands in Maine. In Canada, where populations are at
historic lows, New Brunswick regulates heavy equipment use and buffer
zones and prohibits take of Furbish's lousewort through the New
Brunswick Endangered Species Act. Furbish's lousewort is further
regulated as a Schedule 1 species at risk under SARA. Collectively
these regulations provide protections in Canada for the Furbish's
lousewort and its habitat.
Conservation Efforts for Furbish's Lousewort
Since Furbish's lousewort was listed in 1978, various conservation
and recovery actions have improved the status of the species. For
example:
In 1986, Congress deauthorized the construction of the
Dickey-Lincoln hydropower project (Pub. L. 99-662), which was the
primary threat to the species at the time of listing (Service 2020, p.
27).
St. John River Resource Protection Plan (Plan): Industrial
forest landowners voluntarily signed the Plan beginning in 1982, with
revisions in 1992, 2002, 2012, and 2022 (Land Use Planning Commission
2022, entire). The intent of the Plan is to protect the natural values
and traditional recreational uses of the river. The primary value of
the Plan to the conservation of Furbish's lousewort is that it does not
allow commercial and residential development, subdivisions, water
impoundments, and utility projects on land along the St. John River
owned by signatory landowners.
Since 2009, the Service's Partners for Fish and Wildlife
Program has partnered with a small business owner in Aroostook County,
Maine, to restore riparian forests that are potential habitat for
Furbish's lousewort. Through this partnership, they have collaborated
with 37 landowners encompassing 40 parcels. To date, $110,000 has been
invested, and trees were planted along 4.6 miles of river, creating
55.2 acres of forested riparian habitat (Service 2020, pp. 30-31).
At the end of the 2021 growing season, seeds (as flowering
scapes) were collected by MNAP and the Service from plants at three
sites to send to researchers in New Brunswick, Canada. These
researchers hope to propagate the species in anticipation of possible
reintroductions. A total of 36 flowering scapes were collected, each
with anywhere from one dozen to several dozen flowering capsules (MNAP
2021, p. 17).
The Furbish's lousewort occurs only on private lands in
Canada. Therefore, private landowner stewardship is vitally important.
Several nonprofit organizations collaborated to create the George
Stirret Nature Preserve, a protected area around one population of
lousewort. The Nature Trust of New Brunswick contacted private
landowners surrounding the remaining areas where Furbish's lousewort
grows and developed 15 voluntary private landowner stewardship
agreements to encourage and support stewardship practices (Dowding
2020).
These recovery actions and other supporting data that we analyzed
indicate that some of the threats identified at the time of listing
have been ameliorated or reduced in areas occupied by Furbish's
lousewort, and that the species' status has improved, primarily due to
the congressional deauthorization of the Dickey-Lincoln hydropower
project. However, more recent threats associated with climate change
may impede the plant's ability to recover.
Recovery Criteria
Section 4(f) of the Act directs us to develop and implement
recovery plans for the conservation and survival of endangered and
threatened species unless we determine that such a plan will not
promote the conservation of the species. Recovery plans must, to the
maximum extent practicable, include ``objective, measurable criteria
which, when met, would result in a determination, in accordance with
the provisions [of section 4 of the Act], that the species be removed
from the list.''
Recovery plans provide a roadmap for us and our partners on methods
of enhancing conservation and minimizing threats to listed species, as
well as measurable criteria against which to evaluate progress towards
recovery and assess the species' likely future condition. However, they
are not regulatory documents and do not substitute for the
determinations and promulgation of regulations required under section
4(a)(1) of the Act. A decision to revise the status of a species or to
delist a species is ultimately based on an analysis of the best
scientific and commercial data available to determine whether a species
is no longer an endangered species or a threatened species, regardless
of whether that information differs from the recovery plan.
There are many paths to accomplishing recovery of a species, and
recovery may be achieved without all of the criteria in a recovery plan
being fully met. For example, one or more criteria may be exceeded
while other criteria may not yet be accomplished. In that instance, we
may determine that the threats are minimized sufficiently and that the
species is robust enough that it no longer meets the definition of an
endangered species or a threatened species. In other cases, we may
discover new recovery opportunities after having finalized the recovery
plan. Parties seeking to conserve the species may use these
opportunities instead of methods identified in the recovery plan.
Likewise, we may learn new information about the species after we
finalize the recovery plan. The new information may change the extent
to which existing criteria are appropriate for identifying recovery of
the species. The recovery of a species is a dynamic process requiring
adaptive management that may, or may not, follow all of the guidance
provided in a recovery plan.
On June 29, 1983, the Service completed the first recovery plan for
Furbish's lousewort (Service 1983). Following completion of this
recovery
[[Page 30053]]
plan, recovery activities enhanced our understanding about the life-
history of the plant and about the populations. This information and
the removal of the primary threat to the species at the time of listing
(the proposed Dickey-Lincoln hydropower project) led to a revised
recovery plan for Furbish's lousewort, which was made final on July 2,
1991 (Service 1991). The revised 1991 recovery plan includes criteria
for downlisting Furbish's lousewort from endangered to threatened, but
it does not provide delisting criteria due to lack of information
regarding the species' long-term population dynamics and viability. The
2019 5-year review (Service 2019a, pp. 2-3) states that, given the
revised recovery plan is more than 25 years old, the downlisting
criteria are no longer considered adequate; recent population data are
not incorporated into the recovery criteria, and the plan lacks recent
published and unpublished scientific information on Furbish's lousewort
and its habitat. In the 2019 5-year review, we concluded that a change
in the species' listing status to threatened is warranted because the
Dickey-Lincoln hydropower project is no longer a threat, the species'
population rebounded from several severe ice-scour events, the
population is widely distributed, and a single catastrophic event is
unlikely to extirpate the species.
In September 2019, the Service completed the Recovery Plan for the
Furbish's Lousewort (Pedicularis furbishiae), Second Revision (Service
2019b), which was developed using the information used to inform the
SSA report for the species (Service 2020). In light of the
recommendation to reclassify Furbish's lousewort to a threatened
species, the revised recovery plan includes criteria that describe the
conditions indicative of a recovered species (delisting criteria).
Specifically, the revised recovery plan contains two recovery criteria
for delisting based on population status over a period of at least 30
years (three generations). The first criterion states that the
metapopulation is viable, comprising a 30-year median of 4,400
flowering stems or greater, and distributed with a 30-year median of
2,800 flowering stems or greater upriver in at least 6 subpopulations
with at least 3 good and 3 fair subpopulations, and a 30-year median of
1,600 flowering stems or greater downriver in at least 9 subpopulations
with at least 3 good and 6 fair subpopulations. Once the upriver and
downriver criteria are reached, the median number of flowering stems
for each respective river section will remain stable or increase over a
period of at least 30 years without augmentation, reintroduction, or
hand-pollinating of plants. Additionally, in New Brunswick, there is a
30-year median of 1,100 plants distributed among at least 5
subpopulations. The second criterion states there is long-term habitat
protection for all subpopulations in Maine that provides for the
species' needs throughout its life cycle (Service 2019b, pp. 8-9).
Based on the latest census (2018-2019), for criterion 1, the 30-
year median for upriver subpopulations is 1,817 flowering stems and 983
for downriver subpopulations. In 2018-2019 there were six
subpopulations, five good and one fair, in the upriver region and three
subpopulations, one good and two fair, in the downriver region. In
2018-2019, the Maine population increased by 970 flowering stems (43
percent). Canadian subpopulations remain at or below historic lows of
about 150 plants at 5 subpopulations, but few plants are flowering. For
criterion 2, in 2019, The Maine Chapter of The Nature Conservancy
purchased several areas of the St. John River corridor in three upriver
townships. Currently, there is long-term habitat protection in 4 of 15
subpopulations. A total of 9.26 miles of 22.89 miles of Furbish's
lousewort habitat is protected, mostly in the upriver region.
Determination of Furbish's Lousewort Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an endangered species as a species
``in danger of extinction throughout all or a significant portion of
its range,'' and a threatened species as a species ``likely to become
an endangered species within the foreseeable future throughout all or a
significant portion of its range.'' The Act requires that we determine
whether a species meets the definition of an endangered species or a
threatened species because of any of the following factors: (A) The
present or threatened destruction, modification, or curtailment of its
habitat or range; (B) Overutilization for commercial, recreational,
scientific, or educational purposes; (C) Disease or predation; (D) The
inadequacy of existing regulatory mechanisms; or (E) Other natural or
manmade factors affecting its continued existence.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, we
determined that the Furbish's lousewort no longer meets the definition
of an endangered species. This determination is based on the following:
the removal of the primary threat at the time of listing, the Dickey-
Lincoln hydropower project; the ability of the species to rebound after
several severe ice-scouring events; the species continuing to be found
at sites beyond its known distribution at the time of the original
listing; and more than 25 percent of the overall population being
located on protected lands. Additionally, long-term census data
demonstrate that the Furbish's lousewort is resilient to stochastic
events such as periodic ice scour and flooding. Redundancy in the
downriver subpopulations has diminished, though the conditions in the
upriver subpopulations have remained constant. Thus, after assessing
the best available information, we conclude that the Furbish's
lousewort no longer meets the Act's definition of an endangered
species. Therefore, we proceed with determining whether Furbish's
lousewort meets the Act's definition of a threatened species.
The information indicates that, at the species level, development
(Factor A) that causes habitat loss, erosion, and fragmentation and
climate change (Factor E) that causes the current trends of warmer
winters that affect the ice dynamics, flooding, and the overall
disturbance regime of the St. John River are the most influential
factors affecting Furbish's lousewort now and into the future. The
existing State and Canadian regulations (Factor D) are not considered
adequate to alleviate the identified threats. Furbish's lousewort is
listed as endangered by the State of Maine; however, the lack of take
prohibitions for plants under this law limits its ability to protect
the species from the habitat-based threats that it faces. Canada's SARA
and New Brunswick's Act have a provision to protect species designated
as endangered when found on Federal lands; however, the Furbish's
lousewort does not occur on any Federal lands in Canada.
In both future timeframes, 2030 and 2060, under our projected
``continuation'' and ``worst case'' scenarios, we predict the species'
resiliency, redundancy, and representation to diminish significantly,
indicating that the species is likely to become in danger of extinction
within
[[Page 30054]]
the next 40 years. While the downriver subpopulations are predicted to
experience the most diminishment, even the current upriver stronghold
is predicted to decline, indicating an increased risk of extinction of
the entire metapopulation beyond the near term. Furbish's lousewort has
a particular niche and appears to have very little adaptation
potential. Hence, changes to the ice-scour regime, due to climate
change, are highly likely to have significant impacts to the species
within the foreseeable future. Under both timeframes analyzed, the
downriver subpopulations are predicted to be in poor condition, thereby
putting extra importance on the upriver subpopulations to maintain the
species' viability. After assessing the best available information, we
conclude that Furbish's lousewort is not currently in danger of
extinction but is likely to become in danger of extinction within the
foreseeable future, throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson, 435
F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the provision of the
Final Policy on Interpretation of the Phrase ``Significant Portion of
Its Range'' in the Endangered Species Act's Definitions of ``Endangered
Species'' and ``Threatened Species'' (hereafter ``Final Policy''; 79 FR
37578; July 1, 2014) that provided that if the Services determine that
a species is threatened throughout all of its range, the Services will
not analyze whether the species is endangered in a significant portion
of its range.
Therefore, we proceed to evaluating whether the species is
endangered in a significant portion of its range--that is, whether
there is any portion of the species' range for which both (1) the
portion is significant; and (2) the species is in danger of extinction
in that portion. Depending on the case, it might be more efficient for
us to address the ``significance'' question or the ``status'' question
first. We can choose to address either question first. Regardless of
which question we address first, if we reach a negative answer with
respect to the first question that we address, we do not need to
evaluate the other question for that portion of the species' range.
Following the court's holding in Everson, we now consider whether
there are any significant portions of the species' range where the
species is in danger of extinction now (i.e., endangered). In
undertaking this analysis for Furbish's lousewort, we choose to address
the status question first--we consider information pertaining to the
geographic distribution of both the species and the threats that the
species faces to identify portions of the range where the species may
be endangered.
The statutory difference between an endangered species and a
threatened species is the time horizon in which the species becomes in
danger of extinction; an endangered species is in danger of extinction
now while a threatened species is not in danger of extinction now but
is likely to become so in the foreseeable future. Thus, we considered
the time horizon for the threats that are driving the Furbish's
lousewort to warrant listing as a threatened species throughout all of
its range. We examined the threats of development and climate change,
including cumulative effects. As stated in the section Status
Throughout All of Its Range above, we predict the species is likely to
become in danger of extinction within the next 40 years. We recognize
that the downriver subpopulations are small, and habitat is less
extensive and more fragmented. However, the risk of extinction to the
population is low and does not currently meet the threshold of
endangered. We selected 40 years for the foreseeable future as a period
for which we can reasonably project effects of the stressors and
potential conservation efforts. The timeframe of 2060 will capture
approximately four to five generations of the Furbish's lousewort. We
believe this timeframe will allow projection of changes in the
condition of the species without increasing uncertainty about the
nature and intensity of stressors beyond a reasonable level.
The best scientific and commercial data available indicate that the
time horizon on which the threats of development and climate change to
Furbish's lousewort and the responses to those threats are likely to
occur is the foreseeable future. In addition, the best scientific and
commercial data available do not indicate that any threats of
development and climate change to Furbish's lousewort and the response
to those threats are more immediate in any portions of the species'
range. There is evidence showing that, although downriver populations
are smaller and more fragmented, these populations have the ability to
rebound from declines stemming from catastrophic ice-scour events
(Service 2020, p. 4). Therefore, we determine that the Furbish's
lousewort is not in danger of extinction now in any portion of its
range, but that the species is likely to become in danger of extinction
within the foreseeable future throughout all of its range. This finding
does not conflict with the courts' holdings in Desert Survivors v. U.S.
Department of the Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal.
2018) and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d
946, 959 (D. Ariz. 2017) because, in reaching this conclusion, we did
not need to consider whether any portions are significant and,
therefore, did not apply the aspects of the final policy's definition
of ``significant'' that those court decisions held were invalid.
Determination of Status
Our review of the best available scientific and commercial
information indicates that Furbish's lousewort meets the definition of
a threatened species. Therefore, we finalize downlisting Furbish's
lousewort as a threatened species in accordance with sections 3(20) and
4(a)(1) of the Act.
II. Final Rule Issued Under Section 4(d) of the Act
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as she deems
necessary and advisable to provide for the conservation'' of species
listed as threatened. The U.S. Supreme Court has noted that statutory
language like ``necessary and advisable'' demonstrates a large degree
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)).
Conservation is defined in the Act to mean the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to the Act are no longer necessary. Additionally, the second sentence
of section 4(d) of the Act states that the Secretary may by regulation
prohibit with respect to any threatened species any act prohibited
under section 9(a)(1), in the case of fish or wildlife, or section
9(a)(2), in the case of plants. Thus, the combination of the two
sentences of section 4(d) provides the Secretary with wide latitude of
discretion to select and promulgate appropriate regulations tailored to
the specific conservation needs of the threatened species. The second
sentence grants particularly broad discretion to the Service when
adopting the prohibitions under section 9.
The courts have recognized the extent of the Secretary's discretion
under this
[[Page 30055]]
standard to develop rules that are appropriate for the conservation of
a species. For example, courts have upheld rules developed under
section 4(d) as a valid exercise of agency authority where they
prohibited take of threatened wildlife or include a limited taking
prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 U.S. Dist.
Lexis 60203 (D. Or. 2007); Washington Environmental Council v. National
Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. Wash.
2002)). Courts have also upheld 4(d) rules that do not address all of
the threats a species faces (see State of Louisiana v. Verity, 853 F.2d
322 (5th Cir. 1988)). As noted in the legislative history when the Act
was initially enacted, ``once an animal is on the threatened list, the
Secretary has an almost infinite number of options available to [her]
with regard to the permitted activities for those species. [She] may,
for example, permit taking, but not importation of such species, or
[she] may choose to forbid both taking and importation but allow the
transportation of such species'' (H.R. Rep. No. 412, 93rd Cong., 1st
Sess. 1973).
Exercising this authority under section 4(d), the Service has
developed a species-specific 4(d) rule that is designed to address the
threats and conservation needs of Furbish's lousewort. Although the
statute does not require the Service to make a ``necessary and
advisable'' finding with respect to the adoption of specific
prohibitions under section 9, we find that this rule as a whole
satisfies the requirement in section 4(d) of the Act to issue
regulations deemed necessary and advisable to provide for the
conservation of Furbish's lousewort. As discussed above in the
Determination of Furbish's Lousewort Status section, the Service has
concluded that Furbish's lousewort is likely to become in danger of
extinction within the foreseeable future primarily due to climate
change and development. The provisions of this 4(d) rule promote
conservation of Furbish's lousewort by deterring certain activities
that could negatively impact the species in knowing violation of any
law or regulation of the State of Maine, including any State trespass
laws. The provisions of this 4(d) rule are among the many tools that
the Service uses to promote the conservation of Furbish's lousewort.
Provisions of the 4(d) Rule
The 4(d) rule provides for the conservation of Furbish's lousewort
by prohibiting the following activities, except as otherwise
authorized: Removal and reduction to possession from areas under
Federal jurisdiction; malicious damage or destruction on any such area;
or removal, cutting, digging up, or damage or destruction on any other
area in knowing violation of any law or regulation of any State or in
the course of any violation of a State criminal trespass law.
While removal and reduction to possession from areas under Federal
jurisdiction is not identified as an existing threat to Furbish's
lousewort, prohibiting this activity would maintain a deterrent that
may become necessary in the future to support recovery of the species
(e.g., should a Federal agency seek to conserve a population through
land or easement acquisition). As discussed above under Summary of
Biological Status and Threats, climate change and development are
affecting the status of Furbish's lousewort. Indirect effects
associated with development, including loss of shade critical to growth
and reproduction due to reduction of the forested riparian buffer, and
erosion of habitat due to clearing of forested areas and runoff from
creation of impermeable surfaces, have the potential to impact
Furbish's lousewort. Prohibiting certain activities, when in knowing
violation of State law or regulation, would complement State efforts to
conserve the species. Providing these protections would help preserve
the species' remaining subpopulations; slow its rate of decline; and
decrease synergistic, negative effects from other stressors.
We may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened plants under
certain circumstances. Regulations governing permits for threatened
plants are codified at 50 CFR 17.72, which states that the Director may
issue a permit authorizing any activity otherwise prohibited with
regard to threatened species. That regulation also states that the
permit shall be governed by the provisions of Sec. 17.72 unless a
special rule applicable to the plant is provided in Sec. Sec. 17.73
through 17.78. We interpret that second sentence to mean that permits
for threatened species are governed by the provisions of Sec. 17.72
unless a species-specific rule provides otherwise. We recently
promulgated revisions to Sec. 17.71 providing that Sec. 17.71 will no
longer apply to plants listed as threatened in the future. We did not
intend for those revisions to limit or alter the applicability of the
permitting provisions in Sec. 17.72, or to require that every special
rule spell out any permitting provisions that apply to that species and
special rule. To the contrary, we anticipate that permitting provisions
would generally be similar or identical for most species, so applying
the provisions of Sec. 17.72 unless a species-specific rule provides
otherwise would likely avoid substantial duplication. Moreover, this
interpretation brings Sec. 17.72 in line with the comparable provision
for wildlife at 50 CFR 17.32, in which the second sentence states that
such permit shall be governed by the provisions of that section unless
a special rule applicable to the wildlife, appearing in Sec. Sec.
17.40 through 17.48, provides otherwise. Under 50 CFR 17.72 with regard
to threatened plants, a permit may be issued for the following
purposes: for scientific purposes, to enhance propagation or survival,
for economic hardship, for botanical or horticultural exhibition, for
educational purposes, or for other purposes consistent with the
purposes and policy of the Act. Additional statutory exemptions from
the prohibitions are found in sections 9 and 10 of the Act.
The Service recognizes the special and unique relationship with our
State natural resource agency partners in contributing to conservation
of listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and close working relationships
with local governments and landowners, are in a unique position to
assist the Service in implementing all aspects of the Act. In this
regard, section 6 of the Act provides that the Service shall cooperate
to the maximum extent practicable with the States in carrying out
programs authorized by the Act. Therefore, in accordance with 50 CFR
17.71(b), any person who is a qualified employee or agent of a State
conservation agency that is a party to a cooperative agreement with the
Service in accordance with section (6)(c) of the Act and who is
designated by his or her agency for such purposes would be able to
conduct activities designed to conserve Furbish's lousewort that may
result in otherwise prohibited activities without additional
authorization.
Nothing in the 4(d) rule changes in any way the recovery planning
provisions of section 4(f) of the Act, the consultation requirements
under section 7 of the Act, or the ability of the Service to enter into
partnerships for the management and protection of Furbish's lousewort.
However, interagency cooperation may be further streamlined through
planned programmatic
[[Page 30056]]
consultations for the species between Federal agencies and the Service.
III. Summary of Comments and Recommendations
Peer Reviewer Comments
In accordance with our July 1, 1994, peer review policy (59 FR
34270; July 1, 1994), our August 22, 2016, Director's Memo on the Peer
Review Process, and the Office of Management and Budget's December 16,
2004, Final Information Quality Bulletin for Peer Review (revised June
2012), we solicited independent scientific reviews of the information
contained in the Furbish's lousewort SSA report. We solicited
independent peer review of the SSA report by four individuals with
expertise in Furbish's lousewort, botany, ice scour and flooding
regimes of the St. John River, and landscape ecology; we received
comments from three of the four peer reviewers. In addition, we
received comments from the State of Maine and Canada.
We reviewed all comments we received from the peer reviewers for
substantive issues and new information regarding Furbish's lousewort.
The peer reviewers generally concurred with our methods and
conclusions, and provided additional information, clarifications, and
suggestions to improve the SSA report and final rule. Peer reviewer
comments are incorporated into the SSA report and this final rule as
appropriate; no significant, substantive issues were identified with
our analysis and SSA report.
Public Comments
In our proposed rule published on January 15, 2021 (86 FR 3976), we
requested that all interested parties submit written comments on the
proposal by March 16, 2021. We contacted appropriate Federal and State
agencies, scientific experts and organizations, and other interested
parties and invited them to comment on the proposal. We received one
request for a public hearing that was later withdrawn.
During the comment period, we received 10 comments addressing the
proposed action. These included comments from one nongovernmental
organization and nine individuals. All comments are posted at https://www.regulations.gov under Docket No. FWS-R5-ES-2019-0056. We reviewed
these comments for substantive issues and new information regarding the
proposed rule. A summary of the substantive issues raised in the
comments follows:
(1) Comment: Several commenters questioned whether the Service
should be downlisting a plant species that is pollinated by a single
species of bumble bee (the half-black bumble bee [Bombus vagans]), when
pollinating bumble bees in general are in decline.
Our Response: While the Service acknowledges the potential overall
decline of pollinating bumble bees, we determined that the half-black
bumble bee is currently widely distributed throughout the Maine range
of Furbish's lousewort and decline of the half-black bumble bee was not
determined to be a threat to Furbish's lousewort (Service 2020, p. 28).
(2) Comment: One commenter questioned whether we should downlist
Furbish's lousewort given that it would lose the protections of the
Endangered Species Act (ESA).
Our Response: The Service is responsible for determining not only
whether a species warrants listing under the ESA, but also if
warranted, which status is the most appropriate. Species with
endangered status and those with threatened status are both considered
to be federally protected. The statutory difference between an
endangered species and a threatened species is the time horizon in
which the species becomes in danger of extinction; an endangered
species is in danger of extinction now while a threatened species is
not in danger of extinction now but is likely to become so in the
foreseeable future. Thus, we considered the time horizon for the
threats that are driving the Furbish's lousewort to warrant listing and
determined that it does not currently meet the threshold of endangered.
In addition, with the added provisions of the 4(d) rule outlined above,
the species receives much of the same protection it received as an
endangered species.
(3) Comment: Several commenters questioned whether Furbish's
lousewort should be downlisted with the ongoing threats from climate
change, highlighting that this species is particularly vulnerable to
negative impacts from climate change.
Our Response: As is the case for Comment 2 (above), the Service is
responsible for determining the immediacy and magnitude of threats
impacting Furbish's lousewort, including the threats from climate
change, and then assigning the appropriate listing status, if
warranted. The best scientific and commercial data available indicate
that the time horizon on which the threats from climate change to
Furbish's lousewort and the responses to those threats are likely to
occur is the foreseeable future. Therefore, this species meets the
Service's definition of a threatened species.
IV. Required Determinations
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be
prepared in connection with determining and implementing a species'
listing status under the Endangered Species Act. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretary's Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. There are two federally recognized
Tribes in northern Maine; however, no subpopulations of Furbish's
lousewort occur on Tribal lands.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from
the Maine Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Authors
The primary authors of this final rule are staff members of the
U.S. Fish and Wildlife Service Northeast Regional Office and Maine
Ecological Services Field Office.
[[Page 30057]]
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 hereby 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. 17.12, in paragraph (h), amend the List of Endangered and
Threatened Plants by revising the entry for ``Pedicularis furbishiae''
under FLOWERING PLANTS to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Scientific name Common name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
Flowering Plants
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Pedicularis furbishiae.......... Furbish's lousewort Wherever found..... T 43 FR 17910, 4/26/1978;
88 FR [INSERT FEDERAL
REGISTER PAGE WHERE
THE DOCUMENT BEGINS],
5/10/2023; 50 CFR
17.73(d).\4d\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.73 by adding paragraph (d) to read as follows:
Sec. 17.73 Special rules--flowering plants.
* * * * *
(d) Pedicularis furbishiae (Furbish's lousewort)--(1) Prohibitions.
Except as provided under paragraph (d)(2) of this section, you may not
remove and reduce to possession the species from areas under Federal
jurisdiction; maliciously damage or destroy the species on any such
area; or remove, cut, dig up, or damage or destroy the species on any
other area in knowing violation of any law or regulation of any State
or in the course of any violation of a State criminal trespass law.
(2) Exceptions from prohibitions. The following exceptions from the
prohibitions apply to this species:
(i) You may conduct activities authorized by permit under Sec.
17.72.
(ii) Qualified employees or agents of the Service or a State
conservation agency may conduct activities authorized under Sec.
17.71(b).
* * * * *
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-09847 Filed 5-9-23; 8:45 am]
BILLING CODE 4333-15-P