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the most restrictive car in the train immediately available upon request to Issued in Washington, DC. between the brake tests described in FRA and State inspectors under part 212 Quintin C. Kendall, §§ 232.205 through 232.207: of this chapter for inspection and Deputy Administrator. (1) A written or electronic record is copying for no less than 30 days after [FR Doc. 2020–28870 Filed 1–14–21; 8:45 am] maintained in the cab of the controlling entry or last amendment; and BILLING CODE 4910–06–P locomotive that includes the following (5) Procedures to minimize the effect information for each car: of breakdown or malfunction, including (i) Its location in the train; redundant storage of records, and means DEPARTMENT OF THE INTERIOR (ii) The reporting mark and car to communicate and record the number; information required by paragraph (a)(3) Fish and Wildlife Service (iii) The date, time, and location of its of this section when access to the eABS most recent Class I or IA brake test; system is unavailable. 50 CFR Part 17 (iv) The identification and (g) Records in the eABS system may qualification of the person who only be modified for the following [Docket No. FWS–R5–ES–2019–0056; performed the test (qualified person or purposes: FF09E22000 FXES11130900000 201] qualified mechanical inspector, as (1) Correction of records, provided the RIN 1018–BD65 defined in § 232.5); and eABS system stores amended records (v) An accurate calculation of the separately from the original records and Endangered and Threatened Wildlife mileage remaining under paragraph (a) the amended record clearly identifies and ; Reclassifying Furbish’s or (b) of this section, as applicable; the information being amended; and Lousewort ( furbishiae) (2) The copy of this cab record must (2) To update the calculation of From Endangered to Threatened be updated at each location to reflect mileage remaining until the next Class Status With a Section 4(d) Rule changes in the train consist; and I brake test is required. AGENCY: (3) In the event of disruption of (h) An accurate calculation of the Fish and Wildlife Service, communication with the eABS system, mileage remaining under paragraph (a) Interior. a train is permitted to move based upon or (b) of this section must, at minimum: ACTION: Proposed rule. the mileage permitted to the most (1) Be based upon the number of SUMMARY: We, the U.S. Fish and restrictive car as reported in the cab miles the car has traveled as part of a Wildlife Service (Service), propose to record. train; reclassify (downlist) Furbish’s (e) Notwithstanding §§ 232.205 (2) Be updated for the car as soon as lousewort (Pedicularis furbishiae) from through 232.209, a Class I, Class IA, or practicable after departure of the car in an to a threatened Class II brake test is not required to be a train, but no later than the time at species under the Endangered Species performed at the following locations for which the car departs in any subsequent Act of 1973, as amended (Act), and we a train consisting solely of cars operated train; and propose a rule under section 4(d) of the under this section: (3) Be inclusive of any excess mileage Act to promote the conservation of (1) A location where one or more cars accumulated between brake tests. Such Furbish’s lousewort. This information is are removed from any location in the excess mileage shall be reported as a based on a thorough review of the best train; negative number. (2) A location where any car meeting (i) The eABS system must retain available scientific and commercial the requirements of paragraph (a) or (b) records for a minimum of one year from information, which indicates the threats of this section is added to a train; or the records’ creation. to the species have been reduced to the (3) A location where the motive (j) FRA’s Associate Administrator for point that the species no longer meets power for the train consist is changed. Railroad Safety may revoke a railroad’s the definition of an endangered species (f) The eABS system must maintain authority to utilize the provisions of this under the Act. We request information the integrity and availability of records, section, in whole or in part, if: and comments from the public on this including but not limited to: (i) FRA finds that the railroad’s eABS proposal. (1) Recognition of a unique identifier system or the records contained in the DATES: We will accept comments associated with each person that authors railroad’s eABS system are not properly received or postmarked on or before records in the eABS system, with secure, are inaccessible to FRA or the March 16, 2021. Comments submitted provisions to ensure that records railroad’s employees, or fail to electronically using the Federal containing such identifier accurately adequately track and monitor the eRulemaking Portal (see ADDRESSES, reflect that the individual associated movement of equipment operating below) must be received by 11:59 p.m. with the identifier authored the record; pursuant to this section; or Eastern Time on the closing date. We (2) Implementation of means to (ii) The railroad demonstrates a record must receive requests for a public ensure that stored records contain all of repeated or willful noncompliance hearing, in writing, at the address information required in paragraph (a)(3) with the provisions of this part or parts shown in FOR FURTHER INFORMATION of this section; 215 and 229 of this chapter. CONTACT by March 1, 2021. (3) Implementation of means to (2) Revocation may be limited to ADDRESSES: You may submit comments ensure that each record containing the specific locations, equipment, by one of the following methods: statements described in paragraph (a)(3) environmental conditions, train routes, (1) Electronically: Go to the Federal of this section identifies as a qualified employees, or eABS systems. eRulemaking Portal: http:// mechanical inspector any person (3) FRA will record such a www.regulations.gov. In the Search box, performing a Class I brake test who determination in writing, state the basis enter FWS–R5–ES–2019–0056, which is meets the criteria for a qualified for such action, establish conditions of the docket number for this rulemaking. mechanical inspector, as defined in revocation, including a specific period Then, click on the Search button. On the § 232.5; of suspension or conditions for the resulting page, in the Search panel on (4) Accessibility for FRA review and restoration of the authority to utilize the the left side of the screen, under the monitoring at any time. Records in the provisions of this section, and provide Document Type heading, click on the eABS system must be made a copy of the document to the railroad. Proposed Rule box to locate this

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document. You may submit a comment to Furbish’s lousewort or its habitat of the hearing, as well as how to obtain by clicking on ‘‘Comment Now!’’ associated with climate change. reasonable accommodations, in the (2) By hard copy: Submit by U.S. mail: (5) New information on planned Federal Register at least 15 days before Public Comments Processing, Attn: development activities within the range the hearing. For the immediate future, FWS–R5–ES–2019–0056; U.S. Fish and of Furbish’s lousewort that may we will provide these public hearings Wildlife Service, MS: PRB/3W, 5275 adversely affect or benefit the . using webinars that will be announced Leesburg Pike, Falls Church, VA 22041– (6) Information on regulations that are on the Service’s website, in addition to 3803. necessary and advisable to provide for the Federal Register. The use of these We request that you send comments the conservation of Furbish’s lousewort virtual public hearings is consistent only by the methods described above. and that the Service can consider in with our regulations at 50 CFR We will post all comments on http:// developing a 4(d) rule for the species. In 424.16(c)(3). particular, information concerning the www.regulations.gov. This generally Supporting Documents means that we will post any personal extent to which we should include any information you provide us (see Public of the section 9 prohibitions in the 4(d) A species status assessment (SSA) Comments, below, for more rule or whether any other forms of take team prepared an SSA report for information). should be excepted from the Furbish’s lousewort. The SSA team was Document availability: This proposed prohibitions in the 4(d) rule. composed of biologists from the Service rule and supporting documents Please include sufficient information and the State of Natural Areas including the 5-year review, the with your submission (such as scientific Program. The SSA report represents a Recovery Plan, and the species status journal articles or other publications) to compilation of the best scientific and assessment (SSA) report are available at allow us to verify any scientific or commercial data available concerning http://www.regulations.gov under commercial information you include. the status of the species, including the Docket No. FWS–R5–ES–2019–0056, Please note that submissions merely impacts of past, present, and future and at the Maine Ecological Services stating support for or opposition to the factors (both negative and beneficial) Field Office (see FOR FURTHER action under consideration without affecting the species. In accordance with our July 1, 1994, INFORMATION CONTACT). providing supporting information, although noted, will not be considered peer review policy (59 FR 34270; July 1, FOR FURTHER INFORMATION CONTACT: in making a determination, as section 1994), our August 22, 2016, Director’s Project Leader, Maine Ecological 4(b)(1)(A) of the Act directs that Memo on the Peer Review Process, and Services Field Office, 306 Hatchery determinations as to whether any the Office of Management and Budget’s Road, East Orland, ME 04431; telephone species is an endangered or threatened December 16, 2004, Final Information 207–902–1567. Persons who use a species must be made ‘‘solely on the Quality Bulletin for Peer Review telecommunications device for the deaf basis of the best scientific and (revised June 2012), we solicited (TDD) may call the Federal Relay commercial data available.’’ independent scientific reviews of the Service at 800–877–8339. You may submit your comments and information contained in the Furbish’s SUPPLEMENTARY INFORMATION: materials concerning this proposed rule lousewort SSA report. We solicited independent peer review of the SSA Information Requested by one of the methods listed in ADDRESSES. We request that you send report by four individuals with We intend that any final action comments only by the methods expertise in Furbish’s lousewort, resulting from this proposed rule will be described in ADDRESSES. botany, ice scour and flooding regimes based on the best scientific and If you submit information via http:// of the St. John River, and landscape commercial data available and be as www.regulations.gov, your entire ecology; we received comments from accurate and as effective as possible. submission—including any personal three of the four peer reviewers. In Therefore, we request comments or identifying information—will be posted addition, we received comments from information from other concerned on the website. If your submission is the State of Maine and Canada. The SSA governmental agencies, Native made via a hard copy that includes report can be found at http:// American tribes, the scientific personal identifying information, you www.regulations.gov under Docket No. community, industry, or any other may request at the top of your document FWS–R5–ES–2019–0056, and on the interested parties concerning this that we withhold this information from Maine Ecological Services Field Office proposed rule. public review. However, we cannot website at: https://www.fws.gov/ We particularly seek new information guarantee that we will be able to do so. mainefieldoffice/Furbish_ not already included in the species We will post all hard copy submissions lousewort.html. In preparing this status assessment report concerning: at http://www.regulations.gov. proposed rule, we incorporated the (1) Reasons we should or should not Comments and materials we receive, results of these reviews, as appropriate, reclassify Furbish’s Lousewort as well as supporting documentation we into the final SSA report, which is the (Pedicularis furbishiae) under the Act used in preparing this proposed rule, foundation for this proposed rule. (16 U.S.C. 1531 et seq.). will be available for public inspection at Because we will consider all (2) New biological or other relevant http://www.regulations.gov. comments and information we receive data concerning any threat (or lack during the comment period, our final thereof) to this plant and existing Public Hearing determinations may differ from this regulations that may be addressing these Section 4(b)(5) of the Act provides for proposal. Based on the new information or any of the threats described in this a public hearing on this proposal, if we receive (and any comments on that proposed rule or the species status requested. Requests must be received by new information), we may conclude that assessment report. the date specified in DATES. Such the species is endangered instead of (3) New information concerning the requests must be sent to the address threatened, or we may conclude that the population size or trends of Furbish’s shown in FOR FURTHER INFORMATION species does not warrant listing as either lousewort. CONTACT. We will schedule a public an endangered species or a threatened (4) New information or data on the hearing on this proposal, if requested, species. Such final decisions would be projected and reasonably likely impacts and announce the date, time, and place a logical outgrowth of this proposal, as

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long as we: (1) Base the decisions on the (immature, nonflowering) individuals provisions [of section 4 of the Act], that best scientific and commercial data that grow as a basal rosette of leaves and the species be removed from the list.’’ available after considering all of the reproductive (flowering) plants. Recovery plans provide a roadmap for relevant factors; (2) do not rely on Furbish’s lousewort does not spread us and our partners on methods of factors Congress has not intended us to clonally, and plants are established enhancing conservation and minimizing consider; and (3) articulate a rational exclusively by sexual reproduction and threats to listed species, as well as connection between the facts found and seed (Stirrett 1980, p. 23; Menges 1990, measurable criteria against which to the conclusions made, including why p. 53). Flowering occurs at a minimum evaluate progress towards recovery and we changed our conclusion. of 3 years once plants reach a certain assess the species’ likely future size leaf area. Reproductive plants condition. However, they are not Previous Federal Actions emerge in May and produce an average regulatory documents and do not Furbish’s lousewort was listed as an of 2 to 3 flowering stems; each stem has substitute for the determinations and endangered species on April 26, 1978 one or more inflorescences, and each promulgation of regulations required (43 FR 17910). We completed a recovery inflorescence has up to 25 flowers. under section 4(a)(1) of the Act. A plan in 1983 (USFWS 1983) and revised Flowers bloom several at a time from decision to revise the status of a species, it in 1991 (USFWS 1991). The revised about mid-July to the end of August or to delist a species is ultimately based recovery plan presented updated life- (Stirrett 1980, p. 24; Menges et al. 1986). on an analysis of the best scientific and history and population information, and Furbish’s lousewort is pollinated by a commercial data available to determine updated information on the threats to single species of bumble bee, the half- whether a species is no longer an the species. A second revision recovery black bumble bee (Bombus vagans) endangered species or a threatened plan was signed on September 26, 2019 (Macior 1978, entire). About 50 percent species, regardless of whether that and on February 21, 2019, a 5-year of flowers produce egg-shaped seed information differs from the recovery status review was completed (USFWS capsules that ripen in late-September plan. 2019b) and concluded that Furbish’s after which the tiny (1 millimeter) seeds There are many paths to lousewort should be downlisted to a are dropped (Menges et al. 1985, 1986; accomplishing recovery of a species, threatened species under the Act. Gawler 1983, p. 27; Gawler et al. 1986, and recovery may be achieved without all of the criteria in a recovery plan I. Proposed Reclassification entire). Seeds lack mechanisms for wind being fully met. For example, one or Determination or animal dispersal, and most drop near the parent plant. Each mature plant more criteria may be exceeded while Background tends to form a colony around itself. other criteria may not yet be A thorough review of Furbish’s During spring floods, it is conceivable accomplished. In that instance, we may lousewort is presented in the SSA report that some seeds may disperse down- determine that the threats are (USFWS 2020), found at http:// river (Stirrett 1980, pp. 26–27; Menges minimized sufficiently and that the www.regulations.gov under Docket 1990, p. 53). The seeds germinate in species is robust enough that it no FWS–R5–ES–2019–0056, which is moist, cool microhabitats having longer meets the definition of an briefly summarized here. minimal herbaceous or woody plant endangered species or a threatened competition or leaf litter, such as moss- species. In other cases, we may discover Species Information covered soil or parts of the river bank new recovery opportunities after having Furbish’s lousewort was first named that are constantly wet. Furbish’s finalized the recovery plan. Parties and described in 1882 (Watson, S. 1882, lousewort lacks seed dormancy; seeking to conserve the species may use entire) and is recognized as a valid seedlings result only from the previous these opportunities instead of methods taxon. A thorough review of the year’s reproduction (Menges 1990, p. identified in the recovery plan. , life history, and ecology of 54). Seedlings emerge in June through Likewise, we may learn new Furbish’s lousewort is presented in the August and have two true leaves during information about the species after we SSA report. their first growing season (Gawler et al. finalize the recovery plan. The new Furbish’s lousewort is an herbaceous 1987, entire). Like most species of information may change the extent to perennial plant that occurs on the Pedicularis, seedlings of Furbish’s which existing criteria are appropriate intermittently flooded, ice-scoured lousewort are obligate hemiparasites for identifying recovery of the species. banks of the St. John River. It is endemic and obtain part of their nutrition from The recovery of a species is a dynamic to Maine with a few, small root attachments with a perennial host process requiring adaptive management subpopulations in northwestern New plant. The species seems to be a host- that may, or may not, follow all of the Brunswick, Canada. The population of generalist, perhaps relying on nitrogen guidance provided in a recovery plan. Furbish’s lousewort is comprised of 20 fixing host plants in the mineral poor On June 29, 1983, the Service subpopulations associated with suitable soil in which it grows (Macior 1980, completed the first recovery plan for habitat that occurs along portions of a entire). The lifespan of adult flowering Furbish’s lousewort (USFWS 1983). 225-kilometer (140-mile) section of the plants is uncertain. Following completion of this recovery St. John River. The plant is recognized plan, recovery activities enhanced our early in the growing season by a basal Recovery Criteria understanding about the life-history of rosette of fern-like leaves. By mid- Section 4(f) of the Act directs us to the plant and about the populations. summer, mature plants produce one or develop and implement recovery plans This information and the removal of the more flowering stems that grow to about for the conservation and survival of primary threat to the species at the time 50 to 80 centimeters (20 to 30 inches) endangered and threatened species of listing (the proposed Dickey-Lincoln in height. The stems have alternate, unless we determine that such a plan hydropower project) led to a revised widely spaced, fern-like leaves along will not promote the conservation of the recovery plan for Furbish’s lousewort, their length and are topped by a tight species. Recovery plans must, to the which was made final on July 2, 1991 cluster (inflorescence) of small, yellow, maximum extent practicable, include (USFWS 1991). The revised 1991 tube-like flowers that bloom only a few ‘‘objective, measurable criteria which, recovery plan includes criteria for at a time. Furbish’s lousewort has two when met, would result in a downlisting Furbish’s lousewort from distinct growth stages: Vegetative determination, in accordance with the endangered to threatened, but it does

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not provide delisting criteria due to lack median for upriver subpopulations is negatively affect individuals of a of information regarding the species’ 1,817 flowering stems and 983 for species. The term ‘‘threat’’ includes long-term population dynamics and downriver subpopulations. In 2018– actions or conditions that have a direct viability. The 2019 5-year review 2019 there were 6 subpopulations, 5 impact on individuals (direct impacts), (USFWS 2019a, pp. 2–3) states that, good and 1 fair, in the upriver region as well as those that affect individuals given the revised recovery plan is more and 3 subpopulations, 1 good and 2 fair, through alteration of their habitat or than 25 years old, the downlisting in the downriver region. In 2018–2019, required resources (stressors). The term criteria are no longer considered the Maine population increased by 970 ‘‘threat’’ may encompass—either adequate; recent population data are not flowering stems (43%). Canadian together or separately—the source of the incorporated into the recovery criteria, subpopulations remain at or below action or condition or the action or and the plan lacks recent published and historic lows of about 150 plants at 5 condition itself. unpublished scientific information on subpopulations, but few plants are However, the mere identification of Furbish’s lousewort and its habitat. In flowering. For criterion 2, in 2019, The any threat(s) does not necessarily mean the 2019 5-year review, we conclude Maine Chapter of The Nature that the species meets the statutory that a change in the species’ listing Conservancy purchased several areas of definition of an ‘‘endangered species’’ or status to threatened is warranted the St. John River corridor in 3 upriver a ‘‘threatened species.’’ In determining because the Dickey-Lincoln hydropower townships. Currently, there is long-term whether a species meets either project is no longer a threat, the species’ habitat protection in 4 of 15 definition, we must evaluate all population rebounded from several subpopulations. A total of 9.26 miles of identified threats by considering the severe ice-scour events, the population 22.89 miles of Furbish’s lousewort species’ expected response, and the is widely distributed, and a single habitat is protected, mostly in the effects of the threats—in light of those catastrophic event is unlikely to upriver region. actions and conditions that will extirpate the species. ameliorate the threats—on an In September 2019, the Service Regulatory and Analytical Framework individual, population, and species completed the Recovery Plan for the Regulatory Framework level. We evaluate each threat and its Furbish’s Lousewort (Pedicularis expected effects on the species, then furbishiae), Second Revision (USFWS Section 4 of the Act (16 U.S.C. 1533) analyze the cumulative effect of all of 2019b), which was developed using the and its implementing regulations (50 the threats on the species as a whole. information in the SSA report for the CFR part 424) set forth the procedures We also consider the cumulative effect species (USFWS 2020). In light of the for determining whether a species is an of the threats in light of those actions recommendation to reclassify Furbish’s ‘‘endangered species’’ or a ‘‘threatened and conditions that will have positive lousewort to a threatened species, the species.’’ The Act defines an effects on the species, such as any revised recovery plan includes criteria endangered species as a species that is existing regulatory mechanisms or that describe the conditions indicative ‘‘in danger of throughout all conservation efforts. The Secretary of a recovered species (delisting or a significant portion of its range,’’ and determines whether the species meets criteria). Specifically, the revised a threatened species as a species that is the definition of an ‘‘endangered recovery plan contains two recovery ‘‘likely to become an endangered species’’ or a ‘‘threatened species’’ only criteria for delisting based on species within the foreseeable future after conducting this cumulative population status over a period of at throughout all or a significant portion of analysis and describing the expected least 30 years (three generations). The its range.’’ The Act requires that we effect on the species now and in the first criterion states that the determine whether any species is an foreseeable future. metapopulation is viable, comprising a ‘‘endangered species’’ or a ‘‘threatened The Act does not define the term 30-year median of 4,400 flowering stems species’’ because of any of the following ‘‘foreseeable future,’’ which appears in or greater, and distributed with a 30- factors: the statutory definition of ‘‘threatened year median of 2,800 flowering stems or (A) The present or threatened species.’’ Our implementing regulations greater upriver in at least 6 destruction, modification, or at 50 CFR 424.11(d) set forth a subpopulations with at least 3 good and curtailment of its habitat or range; framework for evaluating the foreseeable 3 fair subpopulations, and a 30-year (B) Overutilization for commercial, future on a case-by-case basis. The term median of 1,600 flowering stems or recreational, scientific, or educational ‘‘foreseeable future’’ extends only so far greater downriver in at least 9 purposes; into the future as the Services can subpopulations with at least 3 good and (C) Disease or predation; reasonably determine that both the 6 fair subpopulations. Once the upriver (D) The inadequacy of existing future threats and the species’ responses and downriver criteria are reached, the regulatory mechanisms; or to those threats are likely. In other median number of flowering stems for (E) Other natural or manmade factors words, the foreseeable future is the each respective river section will remain affecting its continued existence. period of time in which we can make stable or increase over a period of at These factors represent broad reliable predictions. ‘‘Reliable’’ does not least 30 years without augmentation, categories of natural or human-caused mean ‘‘certain’’; it means sufficient to reintroduction, or hand-pollinating of actions or conditions that could have an provide a reasonable degree of plants. Additionally, in , effect on a species’ continued existence. confidence in the prediction. Thus, a there is a 30-year median of 1,100 plants In evaluating these actions and prediction is reliable if it is reasonable distributed among at least 5 conditions, we look for those that may to depend on it when making decisions. subpopulations. The second criterion have a negative effect on individuals of It is not always possible or necessary states there is long-term habitat the species, as well as other actions or to define foreseeable future as a protection for all subpopulations in conditions that may ameliorate any particular number of years. Analysis of Maine that provides for the species’ negative effects or may have positive the foreseeable future uses the best needs throughout its life cycle (USFWS effects. scientific and commercial data available 2019b, pp. 8–9). We use the term ‘‘threat’’ to refer in and should consider the timeframes Based on the latest census (2018– general to actions or conditions that are applicable to the relevant threats and to 2019), for criterion 1, the 30-year known to or are reasonably likely to the species’ likely responses to those

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threats in view of its life-history and negative environmental and Furbish’s lousewort is currently absent characteristics. Data that are typically anthropogenic influences. Throughout (locally extirpated) as ‘‘very poor.’’ relevant to assessing the species’ all of these stages, we used the best Next, we evaluated each biological response include species- available information to characterize subpopulation according to three habitat specific factors such as lifespan, viability as the ability of a species to criteria: The amount of potential habitat, reproductive rates or productivity, sustain populations in the wild over the condition of the forested riparian certain behaviors, and other time. We use this information to inform buffer, and the prevalence of shoreline demographic factors. our regulatory decision. erosion. We selected these habitat criteria to describe habitat quality Analytical Framework Summary of Biological Status and because of their influence on the species The SSA report documents the results Threats resource needs (USFWS 2020, p.11, of our comprehensive biological status In this discussion, we review the table 2). We assigned a score of 3 (good), review of the best scientific and biological condition of the species and 2 (fair), 1 (poor), or 0 (very poor) to each commercial data regarding the status of its resources, and the threats that subpopulation and habitat criterion the species, including an assessment of influence the species’ current and future (USFWS 2020, pp. 31–32). The rankings the potential threats to the species. The condition, in order to assess the species’ for the 15 subpopulations in Maine are SSA report does not represent a overall viability and the risks to that 2 good, 2 fair to good, 3 fair, and 8 poor. decision by the Service on whether viability. On average, the upriver subpopulations Furbish’s lousewort should be To assess the resiliency of Furbish’s rank higher than the downriver reclassified under the Act. It does, lousewort, we reviewed the abundance subpopulations because of the high however, provide the scientific basis of flowering and nonflowering quality habitat and low pressures from that informs our regulatory decisions, individuals and colonization of development. Six of the 15 which involve the further application of populations through seed dispersal subpopulations in Maine are currently standards within the Act and its mechanisms; the dependency of extirpated (all downriver implementing regulations and policies. populations on periodic ice scour and subpopulations). In New Brunswick, all The following is a summary of the key flooding; and the effects of climate 5 subpopulations rank as poor (USFWS results and conclusions from the SSA change, and development. To assess the 2020, pp. 33–36). There is marked report; the full SSA report can be found redundancy of Furbish’s lousewort, we difference in habitat conditions and online, see Supporting Documents. evaluated how the distribution and stressors upriver and downriver. To assess Furbish’s lousewort biological status of subpopulations Upriver habitat is more extensive and viability, we used the three conservation contribute to the species’ ability to occurs in a managed industrial forest. biology principles of resiliency, withstand catastrophic events. Downriver habitats (including New redundancy, and representation (Shaffer Specifically, we examined how climate Brunswick) are smaller and more and Stein 2000, pp. 306–310). Briefly, change and current and future fragmented. resiliency supports the ability of the development are likely to affect the species to withstand environmental and number, sizes, and distribution of Risk Factors demographic stochastic events (for populations (USFWS 2020, pp. 38–39; Based on the life-history and habitat example, wet or dry, warm or cold 42–48; 52–59). To assess representation, needs of Furbish’s lousewort, and in years), redundancy supports the ability we evaluated the environmental consultation with species’ experts, as of the species to withstand catastrophic diversity within and among well as experts in botany, ice scour and events (for example, droughts, large subpopulations. flooding of the St. John River, and pollution events), and representation landscape ecology, we identify the Summary of Current Condition supports the ability of the species to potential stressors (negative influences), adapt over time to long-term changes in Furbish’s lousewort functions as a the contributing sources of those the environment (for example, climate metapopulation. Unlike a continuous stressors, and how conservation changes). In general, the more resilient population, a metapopulation has measures to address those stressors are and redundant a species is and the more spatially discrete local subpopulations, likely to affect the species’ current representation it has, the more likely it in which migration between condition and viability (USFWS 2020, is to sustain populations over time, even subpopulations is significantly pp. 21–31). We evaluate how these under changing environmental restricted. In the SSA report, we define stressors may be currently affecting the conditions. Using these principles, we subpopulations as separated by a mile species and whether, and to what identified the species’ ecological or more of unsuitable habitat based extent, they would affect the species in requirements for survival and primarily on the limitations of the the future (USFWS 2020, pp. 40–57). reproduction at the individual, species’ pollinator, the half-black The stressors most likely to affect the population, and species levels, and bumblebee. Studies of Bombus species viability of Furbish’s lousewort are: (1) described the beneficial and risk factors typically exhibit foraging distances of Development resulting in habitat loss, influencing the species’ viability. less than 1 kilometer (0.62 miles) from erosion, and fragmentation; and (2) The SSA process can be categorized their nesting sites. Based on this climate change that causes the current into three sequential stages. During the criterion, we identify 15 subpopulations trends of warmer winters that affect the first stage, we evaluated the individual of Furbish’s lousewort in Maine and 5 ice dynamics, flooding, and overall species’ life-history needs. The next in New Brunswick, Canada, that form disturbance regime of the St. John River. stage involved an assessment of the the basis for our analysis of the current Historical land use patterns influence historical and current condition of the condition of the species. For our Furbish’s lousewort habitat today; the species’ demographics and habitat analysis, we first qualitatively assessed land use upriver of the town of Allagash characteristics, including an the subpopulations as ‘‘good,’’ ‘‘fair,’’ or is undeveloped, while the downriver explanation of how the species arrived ‘‘poor,’’ including the subpopulations landscapes in Maine and farther at its current condition. The final stage attributes: abundance, density, and downriver in New Brunswick are of the SSA involved making predictions current status as compared to the site dominated by agriculture and small about the species’ responses to positive history. We designated sites where villages. Changes in land use on the

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banks of the St. John River in downriver uncertain about the maximum summer 2020, p. 48). All future predictions are areas have occurred through the clearing temperatures and moisture deficits that uncertain; therefore, we qualify them of vegetation, especially trees, for Furbish’s lousewort can withstand using relative terms of likelihood; agriculture, individual house lots, and (USFWS 2020, p. 27). adopted terminology specified by the roads. These land use changes within Several conservation actions are in IPCC (2014). Based on the future the St. John River valley may have place and may reduce some of the analysis, we predict that by 2030 there negatively affected habitat of some stressors to Furbish’s lousewort or is a higher likelihood that, in all three Furbish’s lousewort subpopulations provide habitat protection (see scenarios, the metapopulation of the through removal or reduction of forested Conservation Efforts for Furbish’s Furbish’s lousewort will continue to riparian buffers and subsequent loss of lousewort, for more information). decline due to local extirpations of shade critical to the species’ growth and Summary of Future Conditions Analysis downriver subpopulations. By 2060, we reproduction. Areas cleared of forest, predict that it is likely that the overall and impermeable surfaces associated We assess two timeframes for viability of the metapopulation will be with development, have led to the characterizing the condition of Furbish’s greatly reduced from current conditions, erosion and subsidence of the lousewort in the future. We selected the and a few subpopulations will persist unconsolidated glacial till soils, and years 2030 and 2060, as a period for upriver in Maine. We predict that there caused slumping and erosion of which we can reasonably project effects is a high likelihood that in both the Furbish’s lousewort habitat. There are of the stressors and plausible continuation and worse case scenarios modest predicted trends of future conservation efforts. Climate change the metapopulation will no longer be development for the St. John River information for these timeframes is viable; it will be extirpated throughout Valley that are described in the SSA based on the available information most of its range; and the few plants that contained in climate predicting models Report (USFWS 2020, p. 47). Future remain would be concentrated at provided through the U.S. Geological development will likely occur in the upriver sites. Survey (USGS) Climate Change Viewer, center of larger towns and expand into We note that, by using the SSA Summary of the Upper St. John River some areas currently in agricultural land framework to guide our analysis of the Watershed, Aroostook County, Maine use, this could cause slumping and scientific information documented in (USGS 2017a, b, entire). The timeframes erosion in Furbish’s lousewort habitat. the SSA report, we have not only of 2030 and 2060 capture approximately analyzed individual effects on the Furbish’s lousewort is identified as 1 to 2, and 4 to 5 generations of species, but we have also analyzed their one of Maine’s plant species most Furbish’s lousewort, respectively. potential cumulative effects. We vulnerable to climate change (Jacobson Development information for this incorporate the cumulative effects into et al. 2009, p. 33). The species depends timeframe is available in municipal our SSA analysis when we characterize on periodic disturbance of the riverbank comprehensive plans (Town of Fort the current and future condition of the from ice scour that is not too frequent Kent 2012, entire) and The University of species. Our assessment of the current or too infrequent and not too severe. Maine Sustainability Solutions Initiative and future conditions encompasses and Climate change is expected to affect the (USFWS 2020, p. 41). incorporates the threats individually ice regime of northern rivers, including For each of the two timeframes, 2030 and cumulatively. Our current and the St. John, by increasing the frequency and 2060, we developed three future future condition assessment is iterative and severity of ice scour and flood scenarios: continuation, best case, and a because it accumulates and evaluates events (USFWS 2020, p. 23). River ice worse case. We provide a range of the effects of all the factors that may be models for the St. John River reasonable, plausible effects for influencing the species, including demonstrate that key variables development and climate change. For threats and conservation efforts. influencing the frequency and severity climate change scenarios, we use data Because the SSA framework considers of ice scour, jamming, and flooding are from representative concentration not just the presence of the factors, but caused by midwinter temperatures pathways (RCPs) of greenhouse gas to what degree they collectively above freezing, midwinter precipitation (GHG) concentration trajectories influence risk to the entire species, our in the form of rain, and increasing river adopted by the International Panel on assessment integrates the cumulative flows (Beltaos and Prowse 2009, pp. Climate Change (IPCC). The three RCPs effects of the factors and replaces a 134–137). Beltaos (2002, entire) selected, RCP 2.6, RCP 4.5, and RCP 8.5, standalone cumulative effects analysis. developed a hydroclimatic analysis for reflect a wide range of possible changes The SSA report contains a more the upper St. John River using long-term in future anthropogenic greenhouse gas detailed discussion on our evaluation of climate and flow records. He emissions. RCP 2.6 is a scenario that the biological status of the species and documented that a small rise in winter assumes that global greenhouse gas the influences that may affect its air temperatures over the past 80 years emissions have peaked and will decline continued existence. Our conclusions has resulted in a substantial increase in after 2020. The continuation scenario are based upon the best available the number of mild winter days and the assumes moderate increases in GHG scientific and commercial data, amount of winter rainfall, which were emissions (RCP 4.5), moderate increases including the judgments of the species’ previously rare occurrences in this in development downriver, and experts and peer reviewers. See the SSA region. These two factors augment river conservation measures continuing or report for a complete list of the species’ flows, causing increased breakup of ice being reduced slightly. The best case experts and peer reviewers and their cover, increased peak flows in late scenario assumes low GHG emissions affiliations. winter, and a higher frequency of spring (RCP 2.6), conservation measures ice jams and flooding (USFWS 2020, p. remaining in place, and no further Existing Regulatory Mechanisms 24). Increasing summer temperatures development downriver. The worse case Section 4(b)(1)(A) of the Act requires may also affect Furbish’s lousewort. The scenario assumes high GHG emissions that the Service take into account ‘‘those climate envelope of the species has not and moderate increases of GHG efforts, if any, being made by any State been described, but its closest genetic emissions into the future (RCP 8.5), or foreign nation, or any political relatives are all arctic plants that require modest levels of development, and subdivision of a State or foreign nation, cool, moist environments. We are reduced conservation measures (USFWS to protect such species.’’ In relation to

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Factor D under the Act, we interpret this approximately 6.2 percent of the total • In 1986, Congress deauthorized the language to require the Service to population in Maine and restricts construction of the Dickey-Lincoln consider relevant Federal, State, and development rights in perpetuity. In hydropower project (Pub. L. 99–662), Tribal laws, regulations, and other such 2019, The Maine Chapter of The Nature which was the primary threat to the binding legal mechanisms that may Conservancy purchased several areas of species at the time of listing (USFWS ameliorate or exacerbate any of the the St. John River corridor. The Maine 2020, p. 27). threats we describe in threat analyses Bureau of Parks and Lands (Bureau) • St. John River Resource Protection under the other four factors or otherwise owns a large unit in the town of Plan (Plan): Industrial forest landowners enhance the species’ conservation. We Allagash that provides several hundred voluntarily signed the Plan beginning in give the strongest weight to statutes and feet of Furbish’s lousewort habitat, 1982, with revisions in 1992, 2002, and their implementing regulations and to approximately 2 percent of the 2012. The intent of the Plan is to protect management direction that stems from population in Maine. The Bureau’s the natural values and traditional those laws and regulations. integrated resource policy requires that recreational uses of the river. The Municipal shoreline zoning in Maine MBPL promote the conservation of primary value of the Plan to the now provides partial protection of federally listed species. One of the five conservation of Furbish’s lousewort is Furbish’s lousewort habitat (USFWS subpopulations in New Brunswick is that it does not allow commercial and 2020, Appendix 1). As established by permanently protected (USFWS 2020, residential development, subdivisions, State law in 2013, the shoreline zone pp. 29–30). water impoundments, and utility extends to 250 feet from the high water The Furbish’s lousewort was listed on projects on land along the St. John River line all along the St. John River. Zoning owned by signatory landowners. Canada’s Schedule 1 of the Species at • prohibits clear cutting within 50 feet of Risk Act (SARA) in June 2003 and was Since 2009, the Service’s Partners the river; openings located greater than initially designated as endangered by for Fish and Wildlife Program has 50 feet from the river (or 75 feet from the Committee on the Status for partnered with a small business owner in Aroostook County, Maine to restore the river for a few subpopulations in Endangered Wildlife in Canada riparian forests that are potential habitat organized towns) are restricted to a (COSEWIC) in 1980. With this for Furbish’s lousewort. Through this maximum of 0.3 acres, and no more proclamation, protection and recovery partnership, they have collaborated with than 40 percent of the forest in the 250- measures were developed and 37 landowners encompassing 40 foot zone can be harvested in a 10-year implemented. period (Maine Department of parcels). To date, $110,000 has been The Furbish’s lousewort is protected Environmental Protection Mandatory invested, and trees were planted along by New Brunswick’s Endangered Shoreland Zoning Title 38, Chapter 3, 4.6 miles of river, creating 55.2 acres of Species Act. Under this Act, it is §§ 435–449). Organized towns have the forested riparian habitat (USFWS 2020, prohibited to kill, harm or collect this option to designate lousewort habitats pp. 30–31). as resource protection subdistricts, species or disturb its habitat • The Furbish’s lousewort occurs which would provide more stringent (Government of New Brunswick 2020). only on private lands in Canada. measures. Currently, no towns have As discussed, Furbish’s lousewort and Therefore, private landowner designated any resource protection its habitat receives some protection from stewardship is vitally important. Several subdistricts for the lousewort (USFWS regulatory mechanisms in both the nonprofit organizations collaborated to 2020, p. 28). United States and Canada. In the U.S., create the George Stirret Nature The New Brunswick Clean Water Act the State of Maine and municipal Preserve, a protected area around one provides shoreline protections that regulations provide partial protection population of lousewort. The Nature convey a benefit to the Furbish’s for shorefronts, which includes Trust of New Brunswick contacted lousewort in Canada. The New protections of riparian habitats where private landowners surrounding the Brunswick Department of the Lousewort could be located. These remaining areas where Furbish’s Environmental and Local Government state and municipal regulations are lousewort grows and developed 15 acts as the regulatory entity responsible enforced through local and state voluntary private landowner for issuing all watercourse alteration ordinances. They were not designed to stewardship agreements to encourage permits. Guidelines for implementing protect Furbish lousewort from direct and support stewardship practices the regulations specify that no heavy take, and as such, the species is not (Dowding 2020). equipment may be operated within 15 regulated from direct take on private These recovery actions and other meters of the bank of a watercourse, no lands in Maine. In Canada, where supporting data that we analyzed ground disturbance may occur within populations are at historic lows, the indicate that some of the threats 30 meters of a watercourse, and only 30 New Brunswick regulates heavy identified at the time of listing have percent of the total merchantable trees equipment use and buffer zones, as well been ameliorated or reduced in areas may be removed from a 30-meter buffer as, prohibits take of Furbish’s lousewort occupied by Furbish’s lousewort, and zone every 10 years. All activities taking through the New Brunswick Endangered that the species’ status has improved, place within 30 meters of a watercourse Species Act. Furbish’s lousewort is primarily due to the Congressional that is either one hectare or larger in further regulated as a schedule 1 species deauthorization of the Dickey-Lincoln area or that involve the removal, at risk under SARA. Collectively these hydropower project. However, more deposit, or disturbance of the water, regulations provide protections in recent threats associated with climate soil, or vegetation require a permit Canada for the Furbish’s lousewort and change may impede the plant’s ability to (USFWS 2020, p. 29). its habitat. recover. Several parcels that support Furbish’s Conservation Efforts for Furbish’s lousewort have permanent protection. Determination of Furbish’s Lousewort lousewort Since 2001, the New England Forestry Status Foundation has had a 754,673-acre Since Furbish’s lousewort was listed Section 4 of the Act (16 U.S.C. 1533) conservation easement on lands along in 1978, various recovery actions have and its implementing regulations (50 the St. John River where Furbish’s improved the status of the species. For CFR part 424) set forth the procedures lousewort occurs. The easement protects example: for determining whether a species meets

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the definition of endangered species or limits its ability to protect the species species is endangered in a significant a threatened species. The Act defines an from the habitat-based threats that it portion of its range-that is, whether ‘‘endangered species’’ as a species that faces. Canada’s SARA and New there is any portion of the species’ range is ‘‘in danger of extinction throughout Brunswick’s Act have a provision to for which both (1) the portion is all or a significant portion of its range,’’ protect species designated as significant; and, (2) the species is in and ‘‘threatened species’’ as a species endangered when found on federal danger of extinction in that portion. that is ‘‘likely to become an endangered lands; however, the Furbish’s lousewort Depending on the case, it might be more species within the foreseeable future does not occur on any federal lands in efficient for us to address the throughout all or a significant portion of Canada. In both future timeframes, 2030 ‘‘significance’’ question or the ‘‘status’’ its range.’’ For a more detailed and 2060, under our projected question first. We can choose to address discussion on the factors considered ‘‘continuation’’ and ‘‘worse case’’ either question first. Regardless of when determining whether a species scenarios, we predict the species’ which question we address first, if we meets the definition of an endangered resiliency, redundancy, and reach a negative answer with respect to species or a threatened species and our representation to diminish significantly, the first question that we address, we do analysis on how we determine the indicating that the species is likely to not need to evaluate the other question foreseeable future in making these become in danger of extinction within for that portion of the species’ range. decisions, please see Regulatory and the next 40 years. While the downriver Following the court’s holding in Analytical Framework. subpopulations are predicted to Center for Biological Diversity, we now experience the most diminishment, consider whether there are any Status Throughout All of Its Range even the current upriver stronghold is significant portions of the species’ range After evaluating threats to the species predicted to decline, indicating an where the species is in danger of and assessing the cumulative effect of increased risk of extinction of the entire extinction now (i.e., endangered). In the threats under the section 4(a)(1) metapopulation beyond the near term. undertaking this analysis for Furbish’s factors, we determined that the Furbish’s lousewort has a particular lousewort, we choose to address the Furbish’s lousewort no longer meets the niche and appears to have very little status question first-we consider definition of endangered. This adaptation potential. Hence, changes to information pertaining to the geographic determination is based on the following: the ice-scour regime, due to climate distribution of both the species and the The removal of the primary threat at the change, are highly likely to have threats that the species faces to identify time of listing, the Dickey-Lincoln significant impacts to the species within any portions of the range where the hydropower project; the ability of the the foreseeable future. Under both species is endangered. species to rebound after several severe timeframes analyzed, the downriver The statutory difference between an ice scouring events; the species subpopulations are predicted to be in endangered species and a threatened continues to be found at sites beyond its poor condition, thereby putting extra species is the time horizon in which the known distribution at the time of the importance on the upriver species becomes in danger of extinction; original listing; and over 25 percent of subpopulations to maintain the species’ an endangered species is in danger of the overall population is located on viability. However, even under the 2030 extinction now while a threatened protected lands. Additionally, long-term timeframe, the upriver subpopulations species is not in danger of extinction census data demonstrate that the are predicted to be significantly now but is likely to become so in the Furbish’s lousewort is resilient to diminished. Thus, after assessing the foreseeable future. Thus, we considered stochastic events such as periodic ice best available information, we conclude the time horizon for the threats that are scour and flooding. Redundancy in the that Furbish’s lousewort is not currently driving the Furbish’s lousewort to downriver subpopulations has in danger of extinction but is likely to warrant listing as a threatened species diminished, though the conditions in become in danger of extinction within throughout all of its range. We the upriver subpopulations has the foreseeable future, throughout all of examined the following threats: remained constant. Thus, after assessing its range. Development and climate change, the best available information, we including cumulative effects. As stated conclude that the Furbish’s lousewort Status Throughout a Significant Portion in the section Status Throughout All of no longer meets the Act’s definition of of Its Range Its Range above, we predict the species an endangered species. Therefore, we Under the Act and our implementing is likely to become in danger of proceed with determining whether regulations, a species may warrant extinction within the next 40 years. We Furbish’s lousewort meets the Act’s listing if it is in danger of extinction or recognize that the downriver definition of a threatened species. likely to become so in the foreseeable subpopulations are small, and habitat is The information indicates that, at the future throughout all or a significant less extensive and fragmented. species level, development (Factor A), portion of its range. The court in Center However, the risk of extinction to the that causes habitat loss, erosion, and for Biological Diversity v. Everson, 2020 population is low, and does not fragmentation, and climate change WL 437289 (D.D.C. Jan. 28, 2020) currently meet the threshold of (Factor E), that causes the current trends (Center for Biological Diversity), vacated endangered. We selected 40 years for of warmer winters that affect the ice the aspect of the Final Policy on the foreseeable future as a period for dynamics, flooding, and the overall Interpretation of the Phrase ‘‘Significant which we can reasonably project effects disturbance regime of the St. John River, Portion of Its Range’’ in the Endangered of the stressors and potential are the most influential factors affecting Species Act’s Definitions of conservation efforts. The time frame of Furbish’s lousewort now and into the ‘‘Endangered Species’’ and ‘‘Threatened 2060 will capture approximately four to future. The existing state and Canadian Species’’ (79 FR 37578; July 1, 2014) five generations of the Furbish’s regulations (Factor D) are not that provided that the Services do not lousewort. We believe this timeframe considered adequate to alleviate the undertake an analysis of significant will allow observation of changes in the identified threats. Furbish’s lousewort is portions of a species’ range if the condition of the species without listed as endangered by the State of species warrants listing as threatened increasing uncertainty about the nature Maine; however, the lack of take throughout all of its range. Therefore, and intensity of stressors beyond a prohibitions for plants under this law we proceed to evaluating whether the reasonable level.

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The best scientific and commercial appropriate regulations tailored to the of Furbish’s lousewort. This proposed data available indicate that the time specific conservation needs of the 4(d) rule would apply only if and when horizon on which the threats of threatened species. The second sentence the Service makes final the development and climate change to grants particularly broad discretion to reclassification of Furbish’s lousewort Furbish’s lousewort and the responses the Service when adopting the as a threatened species. prohibitions under section 9. to those threats are likely to occur is the Provisions of the Proposed 4(d) Rule foreseeable future. In addition, the best The courts have recognized the extent scientific and commercial data available of the Secretary’s discretion under this This proposed 4(d) rule would do not indicate that any of threats of standard to develop rules that are provide for the conservation of development and climate change to appropriate for the conservation of a Furbish’s lousewort by prohibiting the Furbish’s lousewort and the response to species. For example, courts have following activities, except as otherwise those threats are more immediate in any upheld rules developed under section authorized: Removal and reduction to portions of the species’ range. Therefore, 4(d) as a valid exercise of agency possession from areas under Federal we determine that the Furbish’s authority where they prohibited take of jurisdiction; malicious damage or lousewort is not in danger of extinction threatened wildlife or include a limited destruction on any such area; or now in any portion of its range, but that taking prohibition (see Alsea Valley removal, cutting, digging up, or damage the species is likely to become in danger Alliance v. Lautenbacher, 2007 U.S. or destruction on any other area in of extinction within the foreseeable Dist. Lexis 60203 (D. Or. 2007); knowing violation of any law or future throughout all of its range. This Washington Environmental Council v. regulation of any State or in the course is consistent with the courts’ holdings National Marine Fisheries Service, 2002 of any violation of a State criminal in Desert Survivors v. Department of the U.S. Dist. Lexis 5432 (W.D. Wash. trespass law. While removal and reduction to Interior, No. 16-cv-01165–JCS, 2018 WL 2002)). Courts have also upheld 4(d) possession from areas under Federal 4053447 (N.D. Cal. Aug. 24, 2018), and rules that do not address all of the jurisdiction is not identified as an Center for Biological Diversity v. Jewell, threats a species faces (see State of existing threat to Furbish’s lousewort, 248 F. Supp. 3d, 946, 959 (D. Ariz. Louisiana v. Verity, 853 F.2d 322 (5th prohibiting this activity would maintain 2017). Cir. 1988)). As noted in the legislative history when the Act was initially a deterrent that may become necessary Determination of Status enacted, ‘‘once an animal is on the in the future to support recovery of the Our review of the best available threatened list, the Secretary has an species (e.g., should a Federal agency scientific and commercial information almost infinite number of options seek to conserve a population through indicates that Furbish’s lousewort meets available to him with regard to the land or easement acquisition). As discussed above under Summary of the definition of a threatened species. permitted activities for those species. He Biological Status and Threats, climate Therefore, we propose downlisting may, for example, permit taking, but not change and development are affecting Furbish’s lousewort as a threatened importation of such species, or he may the status of Furbish’s lousewort. species in accordance with sections choose to forbid both taking and Indirect effects associated with 3(20) and 4(a)(1) of the Act. importation but allow the transportation of such species’’ (H.R. Rep. No. 412, development, including loss of shade II. Proposed Rule Issued Under Section 93rd Cong., 1st Sess. 1973). critical to growth and reproduction due 4(d) of the Act Exercising this authority under to reduction of the forested riparian Background section 4(d), the Service has developed buffer, and erosion of habitat due to a proposed species-specific 4(d) rule clearing of forested areas and runoff Section 4(d) of the Act contains two that is designed to address the threats from creation of impermeable surfaces, sentences. The first sentence states that and conservation needs of Furbish’s have the potential to impact Furbish’s the ‘‘Secretary shall issue such lousewort. Although the statute does not lousewort. Prohibiting certain activities, regulations as he deems necessary and require the Service to make a ‘‘necessary when in knowing violation of State law advisable to provide for the and advisable’’ finding with respect to or regulation, would complement State conservation’’ of species listed as the adoption of specific prohibitions efforts to conserve the species. threatened. The U.S. Supreme Court has under section 9, we find that this rule Providing these protections would help noted that statutory language like as a whole satisfies the requirement in preserve the species’ remaining ‘‘necessary and advisable’’ demonstrates section 4(d) of the Act to issue subpopulation; slow its rate of decline; a large degree of deference to the agency regulations deemed necessary and and decrease synergistic, negative (see Webster v. Doe, 486 U.S. 592 advisable to provide for the effects from other stressors. (1988)). Conservation is defined in the conservation of Furbish’s lousewort. As We may issue permits to carry out Act to mean the use of all methods and discussed above in the Determination otherwise prohibited activities, procedures which are necessary to bring section, the Service has concluded that including those described above, any endangered species or threatened Furbish’s lousewort is likely to become involving threatened plants under species to the point at which the in danger of extinction within the certain circumstances. Regulations measures provided pursuant to the Act foreseeable future primarily due to governing permits for threatened plants are no longer necessary. Additionally, climate change and development. The are codified at 50 CFR 17.72, which the second sentence of section 4(d) of provisions of this proposed 4(d) rule states that the Director may issue a the Act states that the Secretary may by would promote conservation of permit authorizing any activity regulation prohibit with respect to any Furbish’s lousewort by deterring certain otherwise prohibited with regard to threatened species any act prohibited activities that would negatively impact threatened species. That regulation also under section 9(a)(1), in the case of fish the species in knowing violation of any states that the permit shall be governed or wildlife, or section 9(a)(2), in the case law or regulation of the State of Maine, by the provisions of § 17.72 unless a of plants. Thus, the combination of the including any State trespass laws. The special rule applicable to the plant is two sentences of section 4(d) provides provisions of this proposed 4(d) rule are provided in §§ 17.73 to 17.78. We the Secretary with wide latitude of one of many tools that the Service interpret that second sentence to mean discretion to select and promulgate would use to promote the conservation that permits for threatened species are

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governed by the provisions of § 17.72 prohibited activities without additional Government-to-Government unless a special rule provides otherwise. authorization. Relationship With Tribes We recently promulgated revisions to Nothing in this proposed 4(d) rule In accordance with the President’s § 17.71 providing that § 17.71 will no would change in any way the recovery memorandum of April 29, 1994 longer apply to plants listed as planning provisions of section 4(f) of the (Government-to-Government Relations threatened in the future. We did not Act, the consultation requirements with Native American Tribal intend for those revisions to limit or under section 7 of the Act, or the ability Governments; 59 FR 22951), Executive alter the applicability of the permitting of the Service to enter into partnerships Order 13175 (Consultation and provisions in § 17.72, or to require that for the management and protection of Coordination with Indian Tribal every special rule spell out any Furbish’s lousewort. However, Governments), and the Department of permitting provisions that apply to that interagency cooperation may be further the Interior’s manual at 512 DM 2, we species and special rule. To the streamlined through planned readily acknowledge our responsibility contrary, we anticipate that permitting programmatic consultations for the to communicate meaningfully with species between Federal agencies and provisions would generally be similar or recognized Federal Tribes on a the Service. We ask the public, identical for most species, so applying government-to-government basis. In particularly the State agencies and other the provisions of § 17.72 unless a accordance with Secretarial Order 3206 interested stakeholders that may be of June 5, 1997 (American Indian Tribal special rule provides otherwise would affected by the proposed 4(d) rule, to likely avoid substantial duplication. Rights, Federal-Tribal Trust provide comments and suggestions Responsibilities, and the Endangered Moreover, this interpretation brings regarding additional guidance and § 17.72 in line with the comparable Species Act), we readily acknowledge methods that the Service could provide our responsibilities to work directly provision for wildlife at 50 CFR 17.32, or use, respectively, to streamline the in which the second sentence states that with Tribes in developing programs for implementation of this proposed 4(d) healthy ecosystems, to acknowledge that such permit shall be governed by the rule (see Information Requested, above). provisions of this section unless a Tribal lands are not subject to the same special rule applicable to the wildlife, III. Required Determinations controls as Federal public lands, to remain sensitive to Indian culture, and appearing in §§ 17.40 to 17.48, of this Clarity of This Proposed Rule part provides otherwise. Under 50 CFR to make information available to Tribes. We are required by Executive Orders 17.12 with regard to threatened plants, There are two federally recognized 12866 and 12988 and by the Tribes in northern Maine; however, no a permit may be issued for the following Presidential Memorandum of June 1, purposes: for scientific purposes, to subpopulations of Furbish’s lousewort 1998, to write all rules in plain occur on Tribal lands. enhance propagation or survival, for language. This means that each rule we economic hardship, for botanical or publish must: References Cited horticultural exhibition, for educational (1) Be logically organized; A complete list of references cited in purposes, or for other purposes (2) Use the active voice to address this rulemaking is available on the consistent with the purposes and policy readers directly; internet at http://www.regulations.gov of the Act. Additional statutory (3) Use clear language rather than and upon request from the Maine exemptions from the prohibitions are jargon; Ecological Services Field Office (see FOR found in sections 9 and 10 of the Act. (4) Be divided into short sections and FURTHER INFORMATION CONTACT). The Service recognizes the special sentences; and Authors and unique relationship with our State (5) Use lists and tables wherever possible. natural resource agency partners in The primary authors of this proposed If you feel that we have not met these rule are staff members of the Northeast contributing to conservation of listed requirements, send us comments by one species. State agencies often possess Regional Office and the Maine of the methods listed in ADDRESSES. To Ecological Services Field Office. scientific data and valuable expertise on better help us revise the rule, your the status and distribution of comments should be a specific as List of Subjects in 50 CFR Part 17 endangered, threatened, and candidate possible. For example, you should tell Endangered and threatened species, species of wildlife and plants. State us the numbers of the sections or Exports, Imports, Reporting and agencies, because of their authorities paragraphs that are unclearly written, recordkeeping requirements, and close working relationships with which sections or sentences are too Transportation. local governments and landowners, are long, the sections where you feel lists or in a unique position to assist the Service tables would be useful, etc. Proposed Regulation Promulgation in implementing all aspects of the Act. Accordingly, we propose to amend National Environmental Policy Act (42 In this regard, section 6 of the Act part 17, subchapter B of chapter I, title U.S.C. 4321 et seq.) provides that the Service shall cooperate 50 of the Code of Federal Regulations, to the maximum extent practicable with We have determined that as set forth below: the States in carrying out programs environmental assessments and authorized by the Act. Therefore, in environmental impact statements, as PART 17—ENDANGERED AND accordance with 50 CFR 17.71(b), any defined under the authority of the THREATENED WILDLIFE AND PLANTS person who is a qualified employee or National Environmental Policy Act ■ agent of a State conservation agency that (NEPA; 42 U.S.C. 4321 et seq.), need not 1. The authority citation for part 17 is a party to a cooperative agreement be prepared in connection with continues to read as follows: with the Service in accordance with determining and implementing a Authority: 16 U.S.C. 1361–1407; 1531– section (6)(c) of the Act and who is species’ listing status under the 1544; and 4201–4245, unless otherwise designated by his or her agency for such Endangered Species Act. We published noted. purposes would be able to conduct a notice outlining our reasons for this ■ 2. Amend § 17.12(h) by revising the activities designed to conserve Furbish’s determination in the Federal Register entry for ‘‘Pedicularis furbishiae’’ under lousewort that may result in otherwise on October 25, 1983 (48 FR 49244) FLOWERING PLANTS in the List of

VerDate Sep<11>2014 02:37 Jan 15, 2021 Jkt 253001 PO 00000 Frm 00113 Fmt 4702 Sfmt 4702 E:\FR\FM\15JAP1.SGM 15JAP1 3986 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Proposed Rules

Endangered and Threatened Plants to § 17.12 Endangered and threatened plants. (h) * * * read as follows: * * * * *

Scientific name Common name Where listed Status Listing citations and applicable rules

Flowering Plants

********* Pedicularis furbishiae ...... Furbish’s lousewort ...... Wherever found ...... T 43 FR 17910, 4/26/1978; [Federal Register cita- tion of the final rule]; 50 CFR 17.73(d).4d

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■ 3. Add § 17.73 to read as follows: damage or destroy the species on any (i) You may conduct activities such area; or remove, cut, dig up, or authorized by permit under § 17.72. § 17.73 Special rules—flowering plants. damage or destroy the species on any (ii) Qualified employees or agents of (a) [Reserved] other area in knowing violation of any the Service or a State conservation (b) [Reserved] law or regulation of any State or in the agency may conduct activities (c) [Reserved] course of any violation of a State authorized under § 17.71(b). (d) Pedicularis furbishiae (Furbish’s criminal trespass law. lousewort)—(1) Prohibitions. Except as Aurelia Skipwith provided under paragraph (d)(2) of this (2) Exceptions from prohibitions. The Director,U.S. Fish and Wildlife Service. section, you may not remove and reduce following exceptions from the [FR Doc. 2020–28978 Filed 1–14–21; 8:45 am] to possession the species from areas prohibitions apply to this species: BILLING CODE 4333–15–P under Federal jurisdiction; maliciously

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