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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2019-0018; FXES1113090FEDR-223-FF09E22000]

RIN 1018-BE09

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

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service or USFWS), are reclassifying the red-cockaded woodpecker (

Dryobates

(=

Picoides

)

borealis

) from endangered to threatened (

i.e.,

downlisting it) under the Endangered Species Act of 1973, as amended (Act). This action is based on our evaluation of the best available scientific and commercial information, which indicates that the species' status has improved such that it is not currently in danger of extinction throughout all or a significant portion of its range, but that it is still likely to become so in the foreseeable future. We also finalize protective regulations under the authority of section 4(d) of the Act that are necessary and advisable to provide for the conservation of the red-cockaded woodpecker. In addition, we correct the List of Endangered and Threatened Wildlife to reflect that Picoides is not the current scientifically accepted generic name for this species.

DATES:

This rule is effective November 25, 2024.

ADDRESSES:

This final rule is available on the internet at

https://www.regulations.gov.

Comments and materials we received are available for public inspection at

https://www.regulations.gov

at Docket No. FWS-R4-ES-2019-0018.

Availability of supporting materials:

Supporting materials we used in preparing this rule, such as the 5-year review, the recovery plan, and the species status assessment report, are available on the Service's website at

https://fws.gov/species/red-cockaded-woodpecker-dryobates-borealis,

at

https://www.regulations.gov

at Docket No. FWS-R4-ES-2019-0018, or both.

FOR FURTHER INFORMATION CONTACT:

Nicole Rankin, Manager Division of Conservation and Classification, U.S. Fish and Wildlife Service, Southeast Regional Office, 1875 Century Boulevard, Atlanta, GA 30345; telephone 404-679-7089. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule.

Under the Act, a species warrants reclassification from endangered to threatened if it no longer meets the definition of an endangered species (in danger of extinction throughout all or a significant portion of its range). The red-cockaded woodpecker is listed as endangered, and we are reclassifying (downlisting) it as threatened. We have determined the red-cockaded woodpecker does not meet the Act's definition of an endangered species, but it does meet the definition of a threatened species (likely to become an endangered species throughout all or a significant portion of its range within the foreseeable future). Reclassifying a species as a threatened species can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process (5 U.S.C. 551

et seq.

). Finally, we are changing the scientific name of the red-cockaded woodpecker on the List of Endangered and Threatened Wildlife from

Picoides borealis

to

Dryobates borealis,

and such revisions to the Code of Federal Regulations can be accomplished only by issuing a rule.

What this document does.

This final rule reclassifies the red-cockaded woodpecker from endangered to threatened (

i.e.,

“downlists” the species) on the List of Endangered and Threatened Wildlife and issues protective regulations under the authority of section 4(d) of the Act that are necessary and advisable to provide for the conservation of this species.

The basis for our action.

Under the Act, we may determine that a species is an endangered species or a threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We may reclassify a species if the best available commercial and scientific data indicate the species no longer meets the applicable definition in the Act. Based on the status review, the current threats analysis, and evaluation of conservation measures discussed in this final rule, we conclude that the red-cockaded woodpecker no longer meets the Act's definition of an endangered species and should be reclassified to a threatened species. The species is no longer in danger of extinction throughout all or a significant portion of its range but is likely to become so within the foreseeable future.

We have determined that red-cockaded woodpecker is a threatened species due to the following threats:

• Lack of suitable roosting, nesting, and foraging habitat due to legacy effects from historical logging, incompatible forest management, and conversion of forests to urban and agricultural uses (Factor A).

• Fragmentation of habitat, with resulting effects on genetic variation, dispersal, and connectivity to support demographic populations (Factor A).

• Stochastic events such as hurricanes, ice storms, and wildfires, exacerbated by the environmental effects of climate change (Factor E).

• Small populations (Factor E).

Acronyms and Initialisms Used in This Document

We provide the following list for the convenience of the reader:

ANHC—Arkansas Natural Heritage Commission

BMPs—best management practices

CCPs—comprehensive conservation plans

DoD—Department of Defense

EPA—Environmental Protection Agency

ESMCs—endangered species management components

FFWCC—Florida Fish and Wildlife Conservation Commission

HCP—habitat conservation plan

INRMPs—integrated natural resources management plans

LDWF—Louisiana Department of Wildlife and Fisheries

LRMPs—land and resource management plans

NCWRC—North Carolina Wildlife Resources Commission

NEPA—National Environmental Policy Act

NRCS—Natural Resources Conservation Service

NWR—National Wildlife Refuge

PBG—potential breeding group

RFA—Regulatory Flexibility Act

SSA—species status assessment

TPWD—Texas Parks and Wildlife Department

USACE—U.S. Army Corps of Engineers

USFS—U.S. Forest Service

WMA—wildlife management area

Previous Federal Actions

Please refer to the proposed reclassification rule (85 FR 63474) for the red-cockaded woodpecker published on October 8, 2020, and the subsequent revised proposed 4(d) rule (87 FR 6118) published on February 3, 2022, for detailed descriptions of previous Federal actions concerning this species.

Peer Review

A species status assessment (SSA) team prepared an SSA report for the red-cockaded woodpecker. The SSA team was composed of Service biologists, which consulted with other species experts during the process. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species.

In accordance with our joint policy on peer review published in the

Federal Register

on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we solicited independent scientific review of the information contained in the red-cockaded woodpecker SSA report. As discussed in the proposed rule, we sent the SSA report to six independent peer reviewers and received three responses. The peer reviews can be found at

https://www.regulations.gov

and

https://fws.gov/species/red-cockaded-woodpecker-dryobates-borealis.

In preparing the proposed rule, we incorporated the results of these reviews, as appropriate, into the SSA report, which was the foundation for the proposed rule and this final rule. A summary of the peer review comments and our responses can be found in the Summary of Comments and Recommendations below.

Summary of Changes From the Proposed Rule

In preparing this final rule, we reviewed and fully considered comments from the public on the proposed rule. In addition to minor editorial changes, we updated information in this final rule and the SSA report (USFWS 2022, entire) based on comments and additional information provided, as follows.

We incorporated information examining the effects of climate on breeding phenology and productivity in 19 populations across the range of the woodpecker (DeMay and Walters 2019). While we have added this information to our discussion of climate change in this rule, we find that this information does not change our conclusion about the species' current risk of extinction.

We revised our discussion in the

Status Throughout a Significant Portion of Its Range

section to clarify the statutory difference between an endangered species and a threatened species in relation to the Service's significant portion of a species' range analysis. We added a discussion addressing catastrophic risks from natural events and how they are being effectively managed (

e.g.,

through prompt post-storm response) and that small populations are not currently in danger of extinction due to ongoing active management (

e.g.,

translocation, habitat management, artificial cavity installation) such that the species is not currently in danger of extinction in any portion of its range.

In the SSA report, we added information regarding partial brood loss in relation to habitat quality in eastern Texas (McCormick et al. 2004, entire, USFWS 2022, p. 25) and clarified “encroachment partnership” (USFWS 2022, p. 76). Additionally, we corrected an error in the SSA report stating that red-cockaded woodpeckers currently inhabit 12 ecoregions (USFWS 2022, p. 92) by revising it to 13 ecoregions, and adding the Mississippi River Alluvial Plain to the list of ecoregions.

Edits were made to tables 3, 5-9, 19-20, 24, 30, and 34 in the SSA report (USFWS 2022, pp. 108-109, 112-116, 141-142, 147, 153, and 158). The changes addressed the slight underreporting of population sizes and rate of growth for Babcock Webb Wildlife Management Area (WMA), Corbett WMA, McCurtain County Wilderness Area, and Lewis Ocean Bay Heritage Preserve properties. The current population size for Yawkey Wildlife Center was also updated from 14 to 15 individuals. Additionally, figure 24 was updated to address an error in how the high-resiliency populations were represented and to update the population changes for the properties outlined above (USFWS 2022, p. 110). Finally, figure 26 was updated to include a tropical storm and hurricane centerline track map for 2012-2022 (USFWS 2022, p. 121). Collectively, these minor updates to the SSA report do not change our overall understanding of the species' viability.

Finally, we made the following changes to the discussion and/or regulatory text of the 4(d) rule:

• We made editorial corrections to the wording of certain exceptions in the discussion and regulatory text of the 4(d) rule to increase clarity and to better align the language with existing regulations and law; these editorial corrections do not alter the original meaning of these prohibitions and exceptions.

• Under the

Exceptions

discussion, we removed several paragraphs that described the Safe Harbor program, now known as the Conservation Benefit program, in greater detail. We made this change to reduce confusion by readers and redundancy in the text. One of the deleted paragraphs included a typographical error; the paragraph stated that there are currently 295 active clusters on lands that are enrolled in Safe Harbor Agreements (SHAs). Currently, across the species' range there are 273 red-cockaded woodpecker active clusters in SHAs, which may be converted into Conservation Benefit Agreements (CBAs) at some point, if needed. This issue is described in further detail in our response to

Comment 85.

Summary of Comments and Recommendations

In the proposed rule published on October 8, 2020 (85 FR 63474), we requested that all interested parties submit written comments on the proposal by December 7, 2020. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposed rule. Newspaper notices inviting general public comment were published in USA Today. We received a request for a public hearing. We held a public hearing on December 1, 2020, that was announced in the

Federal Register

on November 16, 2020 (85 FR 73012). We published a revised proposed 4(d) rule on February 3, 2022 (87 FR 6118), and requested that all interested parties submit written comments on the proposal by March 7, 2022. All substantive information received during the comment periods has either been incorporated directly into this final determination or is addressed below.

Peer Reviewer Comments

As discussed in Peer Review above, we received comments from three peer reviewers on the draft SSA report. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the contents of the SSA report. For example, peer reviewers provided additional nuanced information on species biology, including but not limited to, forest composition of specific National Forests, recommendations for cavities, and background on

kleptoparasitism; we updated the SSA report accordingly with this information. The peer reviewers also provided new references, or corrected existing references we cited in our SSA report, which we revised or in which we included relevant references, as appropriate. We also received a few comments from peer reviewers on recovery or listing policy that were outside the intended scope of the peer review of the SSA. The peer reviewers generally concurred with our methods and conclusions and provided support for thorough and descriptive narratives of assessed issues, additional information, clarifications, and suggestions to improve the final SSA report and rule. Peer reviewer comments are addressed in the following summary and were incorporated into the version 1.4 of the SSA report and this final rule as appropriate.

Comment 1:

One peer reviewer expressed concern that timber harvesting was being promoted in the SSA report as a necessary strategy for maintaining quality red-cockaded woodpecker habitat when fire is the essential management application.

Our Response:

In the SSA report, timber harvesting is mentioned as a potential management tool when hazardous large and small fuels have accumulated in red-cockaded woodpecker habitat, resulting in a significant impediment to a continuing program of prescribed fire. Timber harvesting is one option to reduce hazardous conditions through salvage of down or severely damaged timber and mulching of other debris and small-diameter excessive hardwoods. Both management options are included in the SSA report as timber harvesting is often used as a tool for restoration management for red-cockaded woodpecker habitat while fire is more frequently used for maintenance of habitat.

Comment 2:

One peer reviewer expressed concern that the benefits of flying squirrel removal had been understated given the potential impacts of cavity kleptoparasitism (a cavity created and used by a red-cockaded woodpecker that is usurped by another species) by flying squirrels (Laves and Loeb, 1999; Mitchell et al., 1999). They also referenced that snakes may have a positive indirect effect on red-cockaded woodpeckers by consuming cavity kleptoparasites, in addition to their direct negative impacts on the species (Kappes and Sieving, 2011).

Our Response:

Occasional loss of nests or cavities to kleptoparasitism is unlikely to have population-level impacts in red-cockaded woodpecker populations that are healthy and of medium to large size. However, critically small populations or isolated groups may not be able to tolerate high rates of kleptoparasitism. While we agree that there can be value to removing kleptoparasites in small populations (Laves and Loeb, 1999), there have yet to be studies indicating population-level effect of flying squirrels on red-cockaded woodpeckers (Mitchell et al. 1999) to suggest that flying squirrel removal should be implemented for larger populations.

Federal and State Agency Comments

We also received comments from Federal and State agencies on the proposed reclassification and 4(d) rule during the comment period. We summarize and respond to these below. When appropriate, we combined similar comments received from public commenters into these comment summaries.

Delisting

Comment 3:

In response to the original proposed downlisting rule, three State agencies (the Texas Parks and Wildlife Department (TPWD), Arkansas Natural Heritage Commission, and the North Carolina Wildlife Resources Commission (NCWRC)) and several public commenters expressed their belief that delisting the species would be premature because the active management that the species requires may not continue if the species were to lose all Federal protection.

Our Response:

We do not find that the species currently warrants delisting. On the contrary, we find that the red-cockaded woodpecker is likely to become in danger of extinction within the foreseeable future; in other words, we find that the species meets the definition of a threatened species. As a conservation-reliant species, securing management commitments for the foreseeable future would ensure that red-cockaded woodpecker populations grow or are maintained. However, given that the red-cockaded woodpecker will still face a variety of stressors in the future (

e.g.,

hurricanes, small population sizes) and due to the lack of certainty that effective management will continue in the foreseeable future, we find that this species meets the definition of a threatened species. We address the States' concerns about the decline in active management if the species' status changes in

Comment 4,

below.

Downlisting

Comment 4:

The Louisiana Department of Wildlife and Fisheries (LDWF), NCWRC, and public commenters expressed concerns that a shift in status would divert critical funds away from the recovery and management efforts of the red-cockaded woodpecker.

Our Response:

We acknowledge that the red-cockaded woodpecker is a conservation-reliant species and responds well to active management. For State agencies, a change from endangered to threatened does not change the eligibility of funding under section 6 of the Act.

Comment 5:

LDWF and multiple public commenters expressed concern that downlisting the species will undermine goals outlined in management plans if agencies decide to alter or reduce voluntary protections. Public commenters also worried that downlisting could introduce additional stressors on the species, due to increased pressure from development, logging, and/or oil, mineral, and gas exploration on public lands.

Our Response:

While we do not have commitments that all current management will continue, there is no information indicating that a downlisting would alter current management plans. It is important to note that downlisting the species from an endangered to a threatened status does not eliminate or alter the same need to achieve its recovery, and agencies are already managing red-cockaded woodpeckers in an effort to reach this goal. As mentioned, the management protections have always been voluntary, and the agencies could have altered or reduced them at any time, yet they have chosen not to due to their commitment to achieving recovery.

Regarding the risk of downlisting introducing additional stressors to the species on public lands, section 7(a)(2) obligations are the same regardless of whether a species is listed as an endangered species or a threatened species,

i.e.,

every Federal agency must ensure that their actions are not likely to result in jeopardizing the continued existence of the species.

Comment 6:

The NCWRC claimed that the proposed rule states that 65 percent of populations have to reach moderate to high resiliency to justify downlisting of the red-cockaded woodpecker; however, the Service also stated in the proposed rule that only 13 percent of all existing clusters have moderate to very high resiliency. Therefore, the NCWRC

believes red-cockaded woodpeckers do not meet this standard for downlisting.

Our Response:

We recognize that we made an error when we stated that 13 percent of all current red-cockaded woodpecker clusters are within moderate, high, or very highly resilient populations (85 FR 63474, October 8, 2020); this statement was incorrect, and we have rectified the error in this final rule. In fact, 13 percent of the 124 demographic populations analyzed in the SSA have moderate to very high resilience; this amounts to 16 populations. However, 65 percent of all known clusters (5,062 out of 7,794) occur in these 16 populations. Thus, 65 percent (not 13 percent) of all known red-cockaded woodpecker clusters are within moderate, high, or very highly resilient populations.

The proposed rule (85 FR 63474, October 8, 2020) does not specify that 65 percent of the populations must reach moderate to high resiliency to justify downlisting of the red-cockaded woodpecker. The proposed rule referenced 65 percent in the following context: Of the 98 populations for which trend data are available, only 13 percent are declining; in addition, over 65 percent of red-cockaded woodpecker clusters are currently in moderate to very high resiliency populations. Regardless, the species currently has sufficient levels of resiliency, redundancy, and representation, in large part due to effective habitat management, such that the species is no longer in danger of extinction (see Determination of Red-Cockaded Woodpecker Status below).

Comment 7:

The LDWF and one public commenter requested clarification on how the guidelines and provisions of the 2003 Red-cockaded Woodpecker Recovery Plan (hereafter the “2003 recovery plan”) are applicable under the rule, noting that the revised 4(d) rule describes recovery plans as being strategies to guide conservation and not regulatory documents, but also states that the provisions of the 2003 recovery plan may still be applicable under the 4(d) rule.

Our Response:

The 4(d) rule does not state that the provisions of the recovery plan will still be applicable. Recovery plans are not regulatory documents, but rather they provide a strategy to guide the conservation and recovery of the identified species. The 2003 recovery plan outlined the actions that, to the best of current understanding at the time, would aid in the recovery of the red-cockaded woodpecker. The 2003 recovery plan will still guide continued management for the species, and provisions of the 4(d) rule are crafted to encourage this type of management.

Comment 8:

LDWF requested a list of management plans for all red-cockaded woodpecker recovery units, including the dates of recent revisions and a timeline for next revision. They requested that the information be incorporated into the downlisting documents (we believe LDWF is referring to our SSA report and final rule) to provide insight into timing and frequency of the refinement of red-cockaded woodpecker population goals given that the proposed 4(d) rule relies on voluntary management plans for Federal agencies.

Our Response:

While management plans are outside of the scope of the 4(d) rule, we encourage the LDWF to request management plan information from properties they are interested in. As noted in the Background of this rule, below, Federal agencies' section 7 consultation obligations are not and cannot be removed by rules under section 4(d) of the Act. Federal agencies will still consult under section 7 of the Act if their actions may affect red-cockaded woodpeckers. As such, the management plans will still be subject to the consultation requirements of section 7 of the Act.

Policy and Process

Comment 9:

The Arkansas Natural Heritage Commission (ANHC) and a public commenter questioned whether the peer review process was adequate. ANHC recommended that the SSA report be submitted to peer review journals, and the public commenter asked why we had sought peer review from six individuals but received review from only three.

Our Response:

The peer review process for the SSA report complied with our July 1, 1994, peer review policy (59 FR 34270), the Office of Management and Budget's December 16, 2004, Final Information Quality Bulletin for Peer Review, and our August 22, 2016, memorandum clarifying the peer review process.

The 2016 memorandum clarifying the peer review process requires that the Service solicit review from three or more objective and independent peer reviewers. In the case of the red-cockaded woodpecker SSA report, we sought review from six qualified peer reviewers. While our policies do not require us to receive three responses from peer reviewers (just to seek review from at least three peer reviewers), we received comments back from three reviewers, which we made available to the public when we published our proposed rule. A summary of the comments received, and how they were addressed, can be found in the

Peer Reviewer Comments

section above. We are not aware of why three peer reviewers chose not to respond.

Recovery

Comment 10:

Several State agencies (ANHC, LDWF, and the NCWRC) and public commenters expressed concerns about inconsistencies between the 2003 recovery plan and the SSA report; they believed that the 2003 recovery plan, rather than the SSA report, should be used as guidance for evaluating whether a change in species status is warranted.

Our Response:

Recovery plans provide roadmaps to species recovery but are not required to achieve recovery of a species or to evaluate it for delisting or downlisting. A determination of whether a valid, extant species should be delisted or downlisted is made solely on the question of whether it meets the Act's definitions of an “endangered species” or a “threatened species.” The SSA framework is an analytical approach developed by the Service to deliver foundational science for informing decisions under the Act (Smith et al. 2018, entire). The SSA characterizes species' viability (the ability of a species to sustain populations in the wild over time) based on the best scientific understanding of current and future abundance and distribution within the species' ecological settings using the conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 308-311). The SSA report provides decisionmakers with a scientifically rigorous characterization of a species' status and the likelihood that the species will sustain populations over time, along with key uncertainties in that characterization.

The 2003 recovery plan provides management guidelines fundamental to the conservation and recovery of the red-cockaded woodpecker. The best available information in the SSA report does not invalidate the habitat management guidelines in the recovery plan. We continue to strongly encourage the application of these guidelines to the management of woodpecker populations on public and private lands.

Comment 11:

ANHC and several public commenters suggested that the Service should have updated the 2003 recovery plan before considering a downlisting and noted specific guidance they believe should be updated.

Our Response:

The SSA report for red-cockaded woodpeckers represents a compilation of the best available

scientific and commercial information on the current and future viability of the species. We used this analysis to inform our determination of the species' status. We did not need to consider the recommended management strategies outlined in the 2003 recovery plan to inform our decision regarding the species' status under the Act.

Updating recovery plans is a discretionary action; the Service may choose to update a species' recovery plan at any point, but it is not required to incorporate new science into recovery plans when the science becomes available, as stated in

Center for Biological Diversity

v.

Bernhardt,

509 F. Supp. 3d 1256 (D. Montana 2020).

Comment 12:

The LDWF and NCWRC expressed concern that some populations of red-cockaded woodpeckers have either only partially met or have not met recovery criteria for downlisting. Additionally, several commenters thought it was too soon to downlist the species and provided ideas for conditions that should be met, such as waiting for the population to become more stable, before downlisting would be appropriate.

Our Response:

While recovery plans provide management guidelines fundamental to the conservation and recovery of species, they are guidance and not regulatory documents. There are many paths to accomplishing recovery of a species, and recovery may be achieved without all recovery criteria being fully met. The overriding considerations in determining listing status are the five factors listed in section 4(a)(1) of the Act.

Since the recovery plan was last revised in 2003, the number of red-cockaded woodpecker active clusters has increased from 5,627 to over 7,800 (USFWS 2022, entire). The population size objectives to meet applicable downlisting criteria have been met for 15 of 20 designated populations. All of these designated populations show stable or increasing long-term population growth rates (λ ≥ 1).

Ecology and Populations

Comment 13:

TPWD shared that in Texas, there was a 70 percent decline in red-cockaded woodpeckers on State lands between 1991 and 2019 and a 17 percent decline on private lands in the State during the same period. Additionally, Texas suggested that those populations that have increased in size occur on U.S. Forest Service (USFS) lands, which house 90.5 percent of the woodpeckers in the State; they suggested this indicates that, in Texas, the species is highly dependent on the continued application of effective management practices.

The USFS also shared that their implementation of land and resource management plans (LRMPs) that were specifically designed to recover the red-cockaded woodpecker has increased the number of active red-cockaded woodpecker territories on National Forests from 2,000 to almost 3,700 over the past two decades.

Our Response:

While we appreciate the trend information that TPWD and the USFS provided, without site-level detail, we were not able to compare this information to the SSA. However, we receive property reports from Federal, State, and Safe Harbor program lands with red-cockaded woodpeckers on an annual basis; these property reports informed the demographic information in our SSA, so we are confident that the SSA captures the trend information these commenters provided. Moreover, the general trends that TPWD and the USFS describe align with the findings of our SSA.

We also agree that the species remains highly dependent on active management. The currently stable or increasing growth rates, even in small populations, demonstrate the effectiveness of the current active management regime. New restoration techniques and changes in silvicultural practices have led to a substantial increase in the number and distribution of populations. Sixty-five percent of all red-cockaded woodpecker clusters are within moderate, high, or very high resiliency populations, and populations are spread across multiple ecoregions, providing for redundancy and representation. We fully expect this conservation management to continue into the foreseeable future, and we have structured our final 4(d) rule to facilitate the continuation of such management.

Population Stressor

Comment 14:

The LDWF and members of the public raised concern about the risk of inbreeding depression in the majority of red-cockaded woodpecker populations (

i.e.,

those with fewer than 100 clusters), due to their small size and isolation. They highlighted the importance of translocations given that red-cockaded woodpeckers do not typically disperse between populations, given they are geographically isolated from each other. As a result, commenters felt that it is premature to reduce protections for the species.

Our Response:

We agree that small populations having high degrees of isolation and habitat fragmentation are the most susceptible to risk from inbreeding depression and negative genetic impacts and acknowledge the importance of habitat management and translocations for maintaining healthy populations. However, the species no longer meets the definition of an endangered species and instead meets the definition of a threatened species.

Because the species is still protected under the Act and because reclassification as a threatened species does not increase any existing permitting requirements that pertain to translocation, we expect current translocation efforts to continue unaffected. In fact, there are fewer permitting requirements for recovery efforts, such as translocation, for threatened species (

e.g.,

50 CFR 17.31(b) and 50 CFR 17.32) than those for endangered species (

e.g.,

50 CFR 17.21(c)(5) and 50 CFR 17.22). Additionally, most properties on public lands harboring red-cockaded woodpeckers have implemented management programs to sustain or increase habitat availability and connectivity and to meet population size objectives in the 2003 recovery plan or other management plans. Accordingly, managers are reducing fragmentation by restoring and increasing habitat and through the strategic placement of recruitment clusters to reduce gaps within and between populations.

Climate Change and Catastrophic Events

Comment 15:

Multiple State agencies (Florida Fish and Wildlife Conservation Commission (FFWCC), ANHC, LDWF, NCWRC) and public commenters discussed how hurricanes are already intensifying and becoming more frequent along the Atlantic coast due to climate change and that this situation will only worsen in the future, resulting in detrimental effects on the recovery of the species, especially given that the majority of populations occur in coastal plain ecoregions. FFWCC noted that, despite active management, populations have not been able to reach their goal on Picayune Strand State Forest because of the impacts of such natural disasters.

Our Response:

We agree that red-cockaded woodpecker populations and their habitats are periodically subjected to significant disturbances (

e.g.,

hurricanes) that increase mortality and destroy cavity trees, which can lead to temporary population declines. We acknowledge that every population in the coastal plain ecoregions has been affected by one or more hurricanes over the past two decades. As such, in the proposed rule and in this final rule, we identified hurricanes, and other naturally occurring disturbances that

destroy pines used for cavities and foraging, as one of the stressors affecting the species. However, populations can withstand and persist after hurricanes if biologists and land managers implement prompt, effective post-storm recovery actions, such as installing artificial cavities, reducing hazardous fuels, and restoring forests to suitable habitat. This emergency response and routine management are well-understood and are currently being implemented across the range of the woodpecker. Additionally, much of the red-cockaded woodpecker's currently occupied habitat is now protected under various management plans. As such, despite the regular occurrence of hurricanes within red-cockaded woodpecker habitat, 87 percent of populations evaluated in the SSA demonstrate stable to increasing growth rates, illustrating the effectiveness of currently ongoing active management in preventing species-level impacts from hurricanes (USFWS 2022, p. 112).

We recognize the impacts natural disasters have had on the Picayune Strand State Forest. Annual property report data from 2019-2021 show that the active clusters in Picayune Strand State Forest have maintained 14 active clusters. This number is due in large part to the management actions conducted by the land managers. Further details about impacts of hurricanes on the species can be found in the Habitat Loss and Degradation section, below.

Comment 16:

The LDWF, NCWRC, and public commenters noted that it could take years to gather reliable population counts to fully understand impacts from a given natural disaster. They provided preliminary estimates of the impacts from Hurricanes Laura and Delta on Fort Polk, the Evangeline Unit of the Kisatchie National Forest, and the Alexander State Forest WMA, suggesting over 1,221 total cavity trees were lost.

Our Response:

As these commenters acknowledge, we do not yet have monitoring data to illuminate the impacts of the most recent hurricane seasons on red-cockaded woodpecker populations. While we do not yet have data on the species' response to the most recent hurricane events, we know from responses to previous storms that populations can withstand and persist after hurricanes if biologists and land managers implement prompt, effective post-storm recovery actions, such as installing artificial cavities, reducing hazardous fuels, and restoring forests to suitable habitat. Such actions have been occurring after storm events for managed populations, such as the quick response after Hurricane Michael in October 2018.

We recognize the impacts natural disasters have had on Fort Polk, the Evangeline Unit of Kisatchie National Forest, and the Alexander State Forest WMA. Annual property report data from 2019-2021 shows that Fort Polk has maintained between 46 and 49 active clusters; the Evangeline Unit of Kisatchie National Forest has increased the active clusters from 135 to 141; and the Alexander State Forest WMA has maintained 13 active clusters. These results are due in large part to the management actions conducted by the land managers. Both this emergency response and routine management are well-understood and are currently being implemented across the range of the woodpecker. In addition, much of the red-cockaded woodpecker's currently occupied habitat is now protected under various management plans. Please reference our response to

Comment 15

for more information on these findings.

Comment 17:

The FFWCC, NCWRC, and public commenters called for updating the methods in the SSA analysis to better account for the effects of climate change and hurricanes on the species' future resiliency. One commenter provided a recent paper (DeMay and Walters 2019, entire) suggesting that our failure to consider this paper in our analysis demonstrates an inadequate consideration of climate change's effects on long-term population health.

Our Response:

As we acknowledge in the SSA report, due to uncertainty and limitations in modeling, the projections from the future simulation models should not be viewed as definitively known future conditions (USFWS 2022, p. 136). Therefore, the projected resiliency in our three future scenarios may overestimate or underestimate potential future resiliency, as all models include assumptions about the future trends of threats, and the species' response to them. As our ability to model the species' response reliably and quantitatively to climate change improves, we may be able to provide greater clarity on the potential effects of hurricanes on red-cockaded woodpecker populations in the future.

We are aware of preliminary investigations that show correlation between breeding phenology and productivity and changing climate variables like temperature and wetness (DeMay and Walters 2019, entire). Although our SSA did not incorporate the findings of DeMay and Walters (2019), since it was published after the SSA report neared completion, the SSA report noted that southwestern populations have lower productivity (USFWS 2022, p. 26) and considered earlier research which similarly suggested that climate change has the potential to influence productivity through anticipated changes in temperature and precipitation patterns (USFWS 2022, p. 92; Schiegg et al. 2002, entire). Thus, while we have added a summary of the paper by DeMay and Walters (2019) to our discussion of climate change in this rule, we find that it does not provide any new information to change our conclusion about the species' current risk of extinction. Additional information on climate change can be found in the Habitat Loss and Degradation section below and in the SSA report (USFWS 2022, pp. 121-124).

Comment 18:

The ANHC suggested that figure 26 in the SSA report, which depicted tropical storm and hurricane tracks between 2003 and 2011, is outdated, especially given changes that have occurred over the most recent 5 years. They also claimed that the timeframe depicted in this figure is too narrow to be relevant.

Our Response:

We recognize that figure 26 does not present a full picture of hurricanes and tropical storms that have occurred throughout the range of red-cockaded woodpeckers in the past few decades and have added an updated figure 26 to the SSA report (USFWS 2022, p. 122). However, it is important to note that the intent of this figure is to illustrate the potential stressor that hurricanes pose to red-cockaded woodpeckers, and the vulnerability of many populations to storms. This figure is not intended to present an exact quantitative measure of the number and types of storms that have occurred within the species' range; as we discuss in the SSA report, due to uncertainty and limitations in modeling, the projections from the future simulation models should not be viewed as definitive outcome for future conditions (USFWS 2022, p. 135).

Habitat Stressor and Conservation

Comment 19:

LDWF, FFWCC, and public commenters provided feedback emphasizing the species' reliance on extensive and continual habitat management; they reiterated that the species is not yet self-sustaining and needs this active management (

e.g.,

thinning, prescribed fire, provision of artificial cavities, and translocation) to maintain stability. As a result, they requested that the species not be reclassified without the continued support for existing management strategies. Additionally, one commenter

requested guidance on how to better manage the species on public lands.

Our Response:

We recognize that the red-cockaded woodpecker is a conservation-reliant species and responds well to active management (USFWS 2022, p. 159). As such, the species is not being delisted and will continue to be afforded protections under the Act. Furthermore, we have structured our final 4(d) rule to facilitate the continuation of conservation management.

While we do not have commitments that all current management will continue, there is no information indicating that a downlisting would alter current management plans. It is important to note that downlisting the species from an endangered to a threatened status does not eliminate or alter the need to achieve its recovery, and agencies are already managing red-cockaded woodpeckers in an effort to reach this goal. As mentioned, the management protections have always been voluntary, and the agencies could have altered or reduced them at any time yet have chosen not to, due to their commitments to achieving recovery.

A species' reliance on conservation management does not, by definition, suggest that it must always be listed as endangered. With effective assurances of such management, or with sufficient viability, species that require active management may not be at risk of imminent extinction. We have listed multiple conservation-reliant species as threatened (

e.g.,

Hawaiian goose, Peirson's milk-vetch, humpback chub) and have even delisted conservation-reliant species, when appropriate commitments to necessary management are in place (

e.g.,

interior least tern, running buffalo clover, Kirtland's warbler).

Guidance on how to better manage the red-cockaded woodpecker on public lands can be found in the 2003 recovery plan, integrated natural resources management plans (INRMPs), forest management plans, National Wildlife Refuge plans, National Park plans, and State plans, among other sources.

Comment 20:

The LDWF suggested that the downlisting proposal did not adequately address the current condition of red-cockaded woodpecker habitat on the landscape by not properly acknowledging that much of the currently occupied and potential red-cockaded woodpecker habitat remains degraded and is in need of additional restoration (

e.g.,

timber stand improvement via thinning or prescribed burning) before populations could achieve maximum resiliency.

Our Response:

As we discuss in greater detail under Summary of Conservation Management below, with the potential exception of several ecologically unique populations in pond pine and related habitat on organic soils in northeast North Carolina, none of the current or estimated future populations are capable of naturally persisting without ongoing management. The proposed downlisting rule relies on the analysis provided in the SSA report, which describes the many influences on viability, including foraging habitat loss, land use/construction, conservation management, and habitat degradation.

Most properties on public lands harboring red-cockaded woodpeckers have implemented management programs to sustain or increase populations consistent with population size objectives in the 2003 recovery plan or other plans. The species is reliant on active habitat management, as discussed in the SSA report (USFWS 2022, p. 131).

General Stressors

Comment 21:

The NCWRC expressed concern that we have not adequately considered the stressor of human population expansion and encroachment into red-cockaded woodpecker habitat. They informed us that the area of private lands between the Sandhills Game Lands and Fort Bragg (now Fort Liberty), known collectively as “the Gap,” is in need of continued active management or this area will not be able to serve to connect isolated populations on public lands.

Our Response:

The effects of human expansion and encroachment have been taken into consideration. The SSA report describes many influences on viability, including foraging habitat loss, land use/construction, conservation management, and habitat degradation (USFWS 2022, pp. 124-131). Current red-cockaded woodpecker populations are highly dependent on active conservation management with prescribed fire, beneficial and compatible silvicultural methods to regulate forest composition and structure, the provision of artificial cavities where natural cavities are insufficient, translocation to sustain and increase small vulnerable populations, and effective monitoring to identify limiting factors for management (USFWS 2022, pp. 121-131). We recognize that human impacts, including development, have the potential to negatively affect red-cockaded woodpeckers through loss or degradation of habitat; however, through the continued protections under the Act, we are ensuring that any action with a Federal nexus will be required to make sure that the continued existence of the species will not be jeopardized.

Comment 22:

The FFWCC commented that we had not identified invasive exotic vegetation as a threat. They suggested that invasive plants are a major issue in Florida, especially in south Florida, and provided the following examples: Melaleuca (

Melaleuca quinquenervia

) monocultures appearing after fire, higher intensity wildfires that kill native pines, and decreased effectiveness of prescribed burns when Brazilian pepper (

Schinus terebinthifolius

) is present. They also recommended that we include invasive vegetation as a stressor in the final rule, given these negative effects and the fact that eradication is difficult.

Our Response:

We agree that the rule does not state specific examples of the invasive, nonnative, exotic vegetation types that exist within various open pine habitat types throughout the red-cockaded woodpecker's range. However, the SSA report specifically identifies invasive species as an example of disturbances that have the potential to impact red-cockaded woodpecker habitat and, therefore, red-cockaded woodpecker population resilience (USFWS 2022, p. 74).

Throughout the SSA report, we acknowledge the importance of prescribed fire and its overall impact on the structure, function, and process of the open pine/grass systems (USFWS 2022, pp. 37-39, 124-127). We do agree and report that most of the prescribed fire references are generally linked to the improvements in hardwood midstory control, fuel load reduction, and overall open pine habitat restoration. However, we also recognize in the “Current Condition” portion of this document (below) that there are impacts from disturbance that represent hazardous fire fuels like those reported by the FFWCC, and these structural habitat components are potential threats to red-cockaded woodpecker resiliency.

Comment 23:

The FFWCC suggested that we still do not know the effects of an ongoing hydrologic restoration project (Picayune Strand Restoration Project) on the Picayune Strand State Forest essential support population, and that this project's increased water flows could reduce the intensity of future wildfires; the FFWCC recommended that we also consider adaptive management strategies for mitigating any impacts to the red-cockaded woodpecker from increased water and prolonged hydroperiods.

Our Response:

We appreciate the suggestion to consider the Picayune hydrologic restoration project and its potential indirect effects on red-cockaded woodpeckers. We also appreciate the request to consider an adaptive management approach as a means to mitigate for any unanticipated negative impacts that would be correlated with the hydrologic project. Since this comment was submitted, modeling efforts conducted by the U.S. Army Corps of Engineers (USACE) have predicted impacts from the anticipated flooding. The model results indicate that the red-cockaded woodpecker habitat will shift below the standard of management as the project progresses. While it is still unclear how quickly slashpine will react to being inundated, modeling efforts suggest there is a potential projected loss of up to 3 clusters as the result of this project. We are actively working with the USACE through the section 7 process to minimize any impacts.

The Service has a long history of supporting the application of adaptive management. When applied, assumption-based applications have rigorous datasets that support informed decision making. We support adaptive management approaches that (1) conceptualize the problem, (2) plan actions and monitoring, (3) implement actions and monitoring, (4) analyze, use, and adapt from the data, and (5) capture and share the learning. Based on the FFWCC comments, we fully support Picayune State Forest implementing an assumption-based (adaptive management) scientific approach in order to provide early detection of potential adverse impacts to the forest's red-cockaded woodpecker population.

Conservation Efforts and Plans

Comment 24:

The NCWRC suggested two conservation initiatives that would aid in the management of the species after downlisting: (1) a conservation fund to support future land management and (2) a post-downlisting monitoring plan.

Our Response:

As we continue down the path towards full recovery of red-cockaded woodpeckers, we will use the best available science to inform and facilitate further conservation efforts that benefit the species. While we do not have a specific conservation fund for red-cockaded woodpecker land management, we encourage partners to apply to grant opportunities available (

e.g.,

Partners for Fish and Wildlife, Natural Resources Conservation Service (NRCS), section 6 funding (for State lands).

We are not required to create a post-downlisting monitoring plan; a specific monitoring plan is required only after delisting a species due to recovery. However, annual population monitoring of red-cockaded woodpeckers will continue once they are downlisted. For example, anyone enrolled with an SHA will continue to provide annual reports that include the number of breeding groups and increases/decreases in active clusters. Additionally, annual property reports from section 10(a)(1)(A) permits will include data on active clusters, inactive clusters, potential breeding groups, and descriptions of habitat management completed. Furthermore, the 4(d) rule requires Federal agencies and Department of Defense (DoD) properties to provide a report on their red-cockaded woodpecker populations to the Service annually.

4(d) Rule Exceptions

Comment 25:

LDWF expressed concern that the 4(d) rule does not define “short-term” with regard to incidental take of red-cockaded woodpecker during habitat conversion, if there are short-term impacts to the species. The State agency requested that the Service define “short-term” and provide greater clarification on the magnitude of impact that habitat conversions can have on a given red-cockaded woodpecker population.

Our Response:

The terms “short-term” and “magnitude” have not been defined in the rule because they have different meanings depending on many variables. In terms of wildlife species and biological populations, both short- and long-term effects, and the magnitude of those effects, depend on many influential inherent and external biological, ecological, and environmental factors like lifespan, reproductive timing, and generational time; population size, growth rate, and connectivity; population dynamics and demographics; and availability of natural resources. In this rule, it is anticipated that the temporal scale of short-term adverse effects (

e.g.,

reducing a stand below the managed stability standard) to red-cockaded woodpeckers are likely to occur within one or two generations (

i.e.,

4-8 years; USFWS 2022, p. 71) in a resident population. The magnitude of long-term beneficial impacts from those same short-term adverse management actions are expected to be high and to span over multiple generations (three generations or more) within a resident population.

The 4(d) rule provides take exceptions only when habitat management actions are intended to further conservation of the species. However, any incidental adverse effects to red-cockaded woodpeckers from these beneficial management actions would likely be low in magnitude; therefore, in this context, incidental adverse effects are not likely to rise to the level of incidental take of red-cockaded woodpeckers.

4(d) Rule Artificial Cavity Provisions

Comment 26:

The South Carolina Department of Natural Resources recommended the threshold minimum diameter of 15 inches for cavity inserts should be followed and that areas lacking trees of sufficient size for insert installation should use the Copeyon method for drilled cavities (Copeyon 1990, pp. 303-311). Separately, a public commenter noted that Picayune Strand and Big Cypress rely on South Florida slash pine, which are naturally much smaller in diameter even when mature. They indicated they would have overall 32 percent fewer artificial cavities on the landscape if they had to select trees ≥14 inches.

Our Response:

We currently support the artificial cavity standards defined by Allen (1991, p. 19), Copeyon (1990, pp. 303-311), and USFWS (2022, pp. 85-87). For the cavity insert technique, the guidance requires selected trees have a minimum of 15 inches diameter at cavity height, while the guidance for the drilled cavity technique generally requires knowledge of the tree's sapwood (3.5 inches or less) to heartwood (7 inches or more) ratios at cavity height. We agree that the drilled cavity technique provides more opportunity to utilize smaller diameter trees at cavity height where sapwood/heartwood ratios are suitable, and we continue to advocate drilled cavities as the preferred method. However, many landscapes are challenged with limited access restrictions. The number of return visits for drilled cavity applications, which includes screening, checks for resin leakage, and routine maintenance checks is often limited for those on access restricted landscapes. While we support the standards outlined above, we acknowledge that there are unique habitats in the region, such as Picayune and Big Cypress, that require site-specific application of this technique. These standards have been previously approved by the Service and are fundamentally based on the heartwood/sapwood ratio rather than the diameter of the tree.

4(d) Rule Military Exception

Comment 27:

The LDWF requested that the annual property reporting language for DoD and other Federal properties be changed from “could” to

“must” when detailing the requirements for the annual report in the following sentence: “could include the property's recovery goal; the number of active, inactive, and recruitment clusters; information on habitat quality; and the number of artificial cavities the property installed.”

Our Response:

The annual property report language is outside of the scope of the 4(d) rule and played no part in our determination. However, as the DoD adjusts and modifies their INRMPs to best coordinate with the findings in the 4(d) rule, we anticipate the content of the INRMP to reflect mutually agreed upon conservation, protection, and management of fish and wildlife resources as stated in the Sikes Act (16 U.S.C. 670

et seq.

). Per the Sikes Act, this will include requirements to monitor and improve the effectiveness of the plan.

4(d) Rule Provisions for Prescribed Burning and Herbicides

Comment 28:

The LDWF requested that best management practices (BMPs) be used when prescribed burns are conducted in red-cockaded woodpecker clusters and associated foraging habitat and in protection of red-cockaded woodpecker cavity trees. Additionally, they recommended the 4(d) rule further define the BMPs using existing language from the SSA report. Similarly, a public commenter requested additional information be provided to clarify what is compatible or incompatible practice for prescribed fires and herbicide applications.

Our Response:

This 4(d) rule includes the requirement, in § 17.41(h)(4)(iii)(A)

-

(B), to follow applicable BMPs and applicable Federal and State laws for both prescribed burns and herbicide application. Privately and other non-federally owned lands may have different needs and should tailor those individual needs to their BMPs. We continue to recommend the use of the 2003 recovery plan for guidance on compatible or incompatible practices for prescribed fires and herbicide applications.

4(d) Rule Exception for Service- or State-Approved Management Plans

Comment 29:

Multiple commenters brought up issues that may impact landowner willingness to participate in the Safe Harbor program, currently known as the Conservation Benefit program, and expressed concerns over the permitting process (

i.e.,

lack of enforcement, ability to return to baseline conditions, and the burdensome process). Additionally, the South Carolina Department of Natural Resources indicated concern that the prescribed fire and herbicide exception could disincentivize further Safe Harbor program enrollment (currently known as the Conservation Benefit program).

Our Response:

We acknowledge these concerns now that landowners will have additional flexibility on how to manage their land for red-cockaded woodpeckers. Although the 4(d) rule and SHAs, currently known as CBAs, may provide many of the same benefits on managed non-Federal lands, the Conservation Benefit program provides the additional flexibility for land managers to remove new (above-baseline) clusters that emerge on their property without violating certain section 9 prohibitions of the Act. Without the incidental take exceptions in this 4(d) rule, take resulting from these activities would be prohibited, thus requiring a section 10(a)(1)(a) permit associated with a CBA or section 10(a)(1)(b) permit and habitat conservation plan (HCP) prior to implementation. These incidental take exceptions are applicable to all private lands regardless of participation in existing SHAs or future CBAs as long as the activity meets the stipulations described above. It is important to note that the 4(d) rule does not nullify existing SHAs or future CBAs. Existing enrollment and participation in SHAs or future CBAs does not preclude an enrollee from exceptions of the 4(d) rule (see “Provisions of the 4(d) Rule”).

4(d) Rule General Issue

Comment 30:

The Alabama Division of Wildlife and Freshwater Fisheries requested clarification on prohibitions and exemptions regarding insecticide use. A public commenter requested insecticide use within the cluster area be approved by the Service and used only when necessary.

Our Response:

This rule prohibits take, as set forth at § 17.21(c)(1) for endangered wildlife. We did not include any exceptions to this prohibition for take resulting from the use of insecticides from the prohibitions of section 9. If the property has red-cockaded woodpeckers, then there is a potential for take to occur from such activities and incidental take could still be exempted through a section 10 permit or an incidental take statement associated with a biological opinion. Thus, the 4(d) rule does not cause a change in the process for authorization of insecticide use in red-cockaded woodpecker clusters.

Public Comments

We received 234 unique comments from the general public on the proposed listing and 4(d) rule during the 2 public comment periods. We summarize and respond to these comments below. However, we do not repeat issues that we have already addressed above and instead address only new issues that were not raised by peer reviewers or State or Federal agencies.

Downlisting

Comment 31:

One public commenter indicated that the Service's targets for downlisting have not been met and that public records indicated the Service had been planning to downlist or delist the species if State and Federal agencies were able to provide necessary assurances of continued management.

Our Response:

Assurances of continued management are not required for reclassification of a species. Although there are uncertainties about the continuation of some management commitments, we fully expect much of the conservation management for red-cockaded woodpecker to continue into the foreseeable future and have structured our final 4(d) rule to encourage the continuation of such management.

Comment 32:

Multiple commenters emphasized the importance of longleaf pine ecosystems in supporting biodiversity in the southeastern United States and the role of red-cockaded woodpeckers as umbrella and keystone species. Several of these commenters suggested that conserving red-cockaded woodpeckers, via management of longleaf pine ecosystems, provides cascading benefits to many other species, including other at-risk species, and proposed that the species remain protected for that reason.

Our Response:

While we recognize the importance of the longleaf pine habitat, as referenced in the “Background” and “Summary of Stressors” below, section 4(a)(1) requires that the Secretary determine whether a species is an endangered species or threatened species because of any of the five factors listed. Section 4(b) of the Act requires that the determination be made “solely on the basis of the best scientific and commercial data available.” Thus, we cannot factor the need to protect other at-risk species or the ecosystem at large into the decision of whether or not a species meets the definition of threatened or endangered.

Comment 33:

Some commenters believed that, since woodpeckers currently occupy less than their historical range, they should not be downlisted.

Our Response:

Neither downlisting nor delisting require that the species

reoccupy their historical range. Under the Act, a species' status must be assessed using the five factors: (1) Present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization of the species for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; and (5) other natural or manmade factors affecting its continued existence.

Comment 34:

One commenter expressed concern that, if the species is downlisted, land managers will return to past practices of reducing the use of fire, reducing control of woody understory vegetation, and illegally removing cavity trees on private lands; all of these actions would reduce habitat quality and quantity.

Our Response:

The red-cockaded woodpecker will continue to receive protections under the Act as a threatened species. The 4(d) rule is designed to encourage continued habitat management by including exceptions to the prohibitions for incidental take caused by application of prescribed burns or herbicides on private lands to create or maintain habitat (

i.e.,

open pine ecosystems) or sustain and grow red-cockaded woodpecker populations, provided that the landowner, or their representative: (1) Follows applicable BMPs for prescribed burns and applicable Federal and State laws; (2) applies herbicides in a manner consistent with applicable BMPs and applicable Federal and State laws; and (3) applies prescribed burns and herbicides in a manner that minimizes or avoids adverse effects to known active clusters and red-cockaded woodpecker roosting and nesting behavior to the maximum extent practicable.

Our intent for this provision is to provide a simple means by which to encourage private landowners to pursue certain types of voluntary forest management activities (

i.e.,

prescribed burns and herbicide application) in a way that reduces impacts to the species and also removes any potential barriers to the implementation, such as the potential for violating the Act, of this beneficial forest management. Collaboration with partners in the forestry industry and their voluntary conservation and restoration of red-cockaded woodpecker habitat has helped advance red-cockaded woodpecker recovery to the point of downlisting; this provision would continue to encourage this beneficial management.

Comment 35:

One commenter suggested that the downlisting would not alter any of the protections the species receives and is thus merely a symbolic gesture.

Our Response:

Downlisting the red-cockaded woodpecker is not merely a symbolic gesture. The species has achieved major gains in recovery in the past several decades. These gains have benefited the species to the point that it no longer meets the definition of an endangered species. While the species has not yet achieved full recovery, it is paramount in the effective implementation of the Act to ensure every listed species has the appropriate status, based on the best available scientific information regarding its extinction risk. In the case of the red-cockaded woodpecker, since the species no longer meets the definition of an endangered species, we are revising its classification to ensure its listed status aligns with the latest information on its viability.

While downlisting the red-cockaded woodpecker will continue to provide protections under the Act, the 4(d) rule includes exceptions to take prohibitions that provide additional management flexibilities that do not apply while the species is listed as endangered (

e.g.,

exception for take resulting from prescribed burns on private lands; exception for take resulting from installation of artificial cavities) (see “Provisions of the 4(d) Rule” below).

Comment 36:

One commenter suggested that the species' status had not changed considerably since the 2006 5-year status review, in which we recommended that the species should remain listed as endangered and that the threats to the species have not been sufficiently ameliorated.

Our Response:

Since the 5-year review in 2006, the species' status has continued to improve. Based on the best available scientific information including new information available since the 2006 5-year review (

i.e.,

the new analysis in the SSA), 87 percent of red-cockaded woodpecker demographic populations for which we have trend data demonstrate stable to increasing trends. The continued growth of populations since 2006, and the species' current stability, suggests the red-cockaded woodpecker is not in immediate danger of extinction. We are also downlisting the species because we believe the threats currently acting on the species are effectively managed. Since 2006, managers have continued to install more artificial cavities, have continued to actively manage habitat to improve quality, and have continued to translocate birds to enhance genetic health and viability. These activities have contributed to the stabilization of the populations, and management of threats. Our rigorous analysis of stressors and species' condition in the SSA demonstrates the improved status of the species and effectiveness of current management.

Policy and Process

Comment 37:

Multiple commenters expressed confusion about the status of the species' 5-year status reviews, and the relationship of these reviews to the proposed rule.

Our Response:

The December 2, 2020, proposed rule to reclassify the red-cockaded woodpecker as a threatened species fulfilled the requirements of a 5-year status review for the species (85 FR 63474). While the proposed rule referenced biological information in the SSA report, the SSA alone does not represent the 5-year status review. According to the Act, a 5-year status review must contain an evaluation of the five listing factors for the species, and a recommendation as to the species' current status based on the relevant threats under those factors. In the proposed rule, we provided a thorough account of the stressors affecting the species and aligned these stressors with the five factors under the Act.

Our analysis in the proposed rule also took into account the submissions we received in response to the 5-year review initiation notice; we are not required to respond to each of these submissions individually, as we do for public comments on a proposed rulemaking. The public had an opportunity to provide feedback on our determination of species' status during the comment period on the proposed rule, and we have addressed that feedback here.

Comment 38:

Multiple commenters took issue with our “significant portion of the range” analysis, suggesting that we did not adequately explain why the Florida Peninsula, West Gulf Coastal Plain, and southernmost near-coastal extension of the Upper West Gulf Coastal Plain ecoregions are not “significant.” Other commenters believed that our discussion of significance was not consistent with our “Significant Portion of the Range” policy and court rulings concerning this policy.

Our Response:

We revised our “significant portion of the range” analysis in this rule in response to these comments and to increase consistency with current practice. We removed the discussion of the significance of the portion that includes the Florida Peninsula, West Gulf Coastal Plain, and southernmost near-coastal extension of

the Upper West Gulf Coastal Plain ecoregions.

Ultimately, this discussion of significance was not necessary for our analysis since this portion does not have a different status than the whole. Despite the vulnerability of these areas to hurricanes, this stressor is not currently accelerating extinction risk in this part of the range, due to effective conservation management. Populations can withstand and persist after hurricanes if biologists and land managers implement prompt, effective post-storm recovery actions, such as installing artificial cavities, reducing hazardous fuels, and restoring forests to suitable habitat. Both this emergency response and routine management are well-understood and are currently being implemented across the range of the woodpecker. In addition, much of the red-cockaded woodpecker's currently occupied habitat is now protected under various management plans. As such, despite the regular occurrence of hurricanes within red-cockaded woodpecker habitat, 89 percent of the populations for which we have trend data demonstrate stable to increasing growth rates in this portion of the range, illustrating the effectiveness of currently ongoing active management in preventing broad impacts from hurricanes and other stressors (USFWS 2022, p. 112).

This risk may be particularly high in the foreseeable future in the Florida Peninsula, West Gulf Coastal Plain, and the southernmost near-coastal extension of the Upper West Gulf Coastal Plain ecoregions. Therefore, although some threats to the red-cockaded woodpecker are concentrated in these ecoregions, the timing of the effects of the threats in that portion is the same as that for the entire range—the foreseeable future. As a result, the red-cockaded woodpecker is not in danger of extinction now in this portion of its range. Given the fact that this portion has the same status as the species throughout all of its range, we do not need to evaluate its significance.

Comment 39:

Commenters suggested other areas that could be considered a significant portion of the species' range (

e.g.,

the populations that have low or very low resiliency and the western portion of the species' range, where there are no “high” or “very high” resiliency populations).

Our Response:

Based on feedback from the comments, we considered whether the portion of the species' range that contains low or very low resiliency populations could constitute a portion that provides a basis for determining that the species is in danger of extinction throughout a significant portion of its range. Based on our analysis, we did not find that this portion of the species' range, or any combination of areas that lack moderate, high, or very high resiliency populations, met the definition of an endangered species. Managers are currently applying active management to these small populations. As a result of this active management, the vast majority of these low or very low resiliency populations have stable or increasing growth rates, demonstrating the effectiveness of this active management in supporting the persistence of these small populations. Of the 108 demographic populations in low or very low resiliency classes, 86 have data on growth rates; 86 percent of these populations have growth rates greater than or equal to one (USFWS 2022, pp. 108-110). Under this current paradigm, these small populations are not currently in danger of extinction due to the active management (

e.g.,

translocation, habitat management, artificial cavity installation) that supports their stability and growth. As a result, the red-cockaded woodpecker is not currently in danger of extinction in this portion of its range. Given the fact that this portion has the same status as the species throughout all of its range, we do not need to evaluate its significance.

Comment 40:

One commenter expressed concern that the Service, contrary to the best available science, has been trying to downlist or delist the red-cockaded woodpecker to appease Federal partners. This commenter also questioned an interagency agreement signed with the Army on the same day that we announced the proposal to downlist the red-cockaded woodpecker, indicating concern that the agreement set a goal of eliminating section 7 consultations in favor of general INRMP consultations.

Our Response:

The analysis in this rulemaking is based on the best available science, summarized in the SSA report. This scientific information has been peer-reviewed, and the public was provided with opportunities to review and comment on our analysis during two comment periods and one public meeting. We are required to coordinate, collaborate, and use the expertise of State agencies in developing the scientific foundation upon which the Service bases its determinations for listing actions (

i.e.,

SSA reports) per the 1994 joint policy and 2016 Revised Interagency Cooperative Policy Regarding the Role of State Agencies in Endangered Species Act Activities (State Representation of Species Status Assessment Teams). We also frequently collaborate with Federal partners in the development of SSAs to ensure we have the best available data and a thorough understanding of Federal management that may affect the species. In the development of the red-cockaded woodpecker SSA, we followed these common practices. We sought information from our State and Federal partners to inform the SSA, our understanding of relevant ongoing management, and any proposed status change under the Act.

Based on the best available information in the SSA, we have determined that the species no longer meets the definition of an endangered species under the Act. However, while many of the landowners and managers within the range of the species have committed to continuing to implement their conservation programs into the future, we do not have certain commitments that all current management will continue and that it will adapt as necessary to effectively address emerging stressors (

e.g.,

intensifying hurricanes). As a conservation-reliant species, securing management commitments for the foreseeable future would ensure that red-cockaded woodpecker populations grow or are maintained. This conclusion is reinforced by the future-scenario simulations, which indicate that management efforts equal to or greater than current levels will further increase the number of moderate to very high resiliency populations and preserve small populations. Thus, uncertainties about the continuation of the management upon which the species relies informed our determination that a downlisting status of threatened is appropriate.

The purpose of the interagency agreement is to promote the conservation of the red-cockaded woodpecker. This agreement did not factor into the proposal to downlist the species. Additionally, it is important to note that Federal agency section 7 consultations obligations have not been altered in any way with this final rule.

Comment 41:

One commenter believed that the Service's selection of 25 years as the foreseeable future was arbitrary and too short to reasonably forecast effects of threats to the species (

e.g.,

climate change impacts), especially considering the species' reliance on very old pine trees.

Our Response:

We determined the foreseeable future to be 25 years from present, because it is a timeframe in which we can reasonably estimate population responses to natural factors and management. As discussed under

Future Conditions

below, in the SSA

report, future population conditions under different management scenarios were simulated and modeled to 25 years into the future. During this process it was determined that we can rely on the timeframe presented in the scenarios and predict how future stressors and management will affect the red-cockaded woodpecker. This timeframe, given the species' life history, is also sufficient to identify any effects of stressors or conservation measures on the red-cockaded woodpecker's viability at both population and species levels. Finally, 25 years represents four to five generations of red-cockaded woodpecker, which would be sufficient time for population-level impacts from stressors and management to be detected.

Comment 42:

One commenter contended that the proposed 4(d) rule fails to explain how it is necessary and advisable, because the rule's effect on private landowners and voluntary conservation is not considered. In addition, the commenter expressed concern that the Service did not explain why the Regulatory Flexibility Act (RFA) and National Environmental Policy Act (NEPA) analyses were not prepared for the proposed 4(d) rule.

Our Response:

As discussed in our February 3, 2022, proposed reclassification rule, section 4(d) of the Act provides that the “Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation” of species listed as threatened. As discussed in the Background, the courts have recognized the extent of the Secretary's discretion under this standard to develop rules that are appropriate for the conservation of a species. Thus, regulations promulgated under section 4(d) of the Act provide the Secretary with wide latitude of discretion to select appropriate provisions tailored to the specific conservation needs of the threatened species.

We considered the effect on private landowners of our proposed rule. The proposed rule explains that if a manager has received or receives a permit for a particular activity (

e.g.,

a section 10(a)(1)(A) permit for monitoring red-cockaded woodpeckers, a permit issued for an existing SHA, CBA, or HCP), any take that occurs as a result of activities covered by this permit would remain exempted from the rule's prohibitions on take. Furthermore, our rule encourages private landowners to continue to enroll in the CBA program, under which the landowners receive formal regulatory assurances from the Service regarding their management responsibilities in return for contributions to benefit the listed species. Any landowner who enrolls in a CBA is allowed to return their property to “baseline” conditions at any time. Additionally, this final rule excepts take from activities completed by a landowner that, when the species was endangered, would have required a permit under the Act.

Regarding the commenter's concern that a NEPA analysis was not undertaken, it is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare a NEPA analysis in connection with regulations adopted pursuant to section 4(a) of the Act (see National Environmental Policy Act section below).

Regarding the commenter's concern that an RFA analysis was not provided, the Secretary, in making a determination of endangered or threatened species status under section 4(b)(1)(A) of the Act, “shall make determinations solely on the basis of the best scientific and commercial data available.” Economic considerations are in addition to such data and cannot be part of the basis for the species' status determination, which includes the 4(d) rule. The rationale for sole use of best scientific and commercial information available is provided in the legislative history for the 1982 amendments to the Act, which describes the purposes of the amendments using the following language: “to prevent non-biological considerations from affecting [listing] decisions,” Conf. Rep. (H.R.) No. 97-835 (1982) (“Conf. Rep.”), at 19. As noted in the House Report, economic considerations have no relevance to determinations regarding the status of species and the economic analysis requirements of Executive Order 12291, and such statutes as the RFA and the Paperwork Reduction Act, will not apply to any phase of the listing process. Conf. Rep. (H.R.) No. 97-835 (p. 24153; 1982).

Comment 43:

One commenter requested that the Service be more involved with assessing, approving, and enforcing actions affecting species protected under the Act so that the State agencies are not left with the burden of interpreting the 4(d) rule.

Our Response:

We acknowledge the importance of our conservation partnership with State agencies and the role they play when interpreting rules for federally listed species in response to public inquiries. In addition to providing Frequently Asked Questions documents about the 4(d) rule, our local field offices are available to provide technical assistance. State agencies can direct questions to field offices to assist with the interpretation of the 4(d) rule in addition to requesting assistance when enforcing protections for federally protected species.

Comment 44:

Another commenter recommended that non-Federal management plans, including analyses of potential impacts from ongoing and proposed activities (within the time covered), be more “programmatic” in nature, such as “worst case” estimates included in some Army INRMP endangered species management components (ESMCs).

Our Response:

While we are available to provide technical assistance to private landowners, we do not have the authority to tell private landowners how to manage their properties. The suggestion described by the commenter would be a relatively unique and specific situation to occur. We anticipate that people will follow the intent of the 4(d) rule and, as such, will apply appropriate management for the species to their properties.

General Biology, Ecology, and Population Issues

Comment 45:

Several commenters provided critiques of the data and methodologies used in the SSA. One commenter expressed concerns that the data they provided for the SSA was the best possible outcome and worried that all the data might be inflated. Another commenter indicated concern that the “moderate” resiliency class included both populations that were declining and were not declining. Yet another commenter stated that the Service did not adequately articulate uncertainties related to the model.

Our Response:

The data for the SSA was collected and analyzed according to established scientific procedures. Expert solicitation and peer review provided opportunities for public comment, and all analysis and decisions were based on the data provided. We rely on and trust that land managers provided accurate data.

The SSA report provides a description of the approach and method used to delineate demographic populations. The report also describes how the moderate category is a transitional resilience category, in which population sizes range from 102 to 248 active clusters and consist of both increasing and stable populations. The moderate category populations, unlike those in the high and very high categories, may vary considerably in their resilience depending on population size, management, and the spatial distribution and density of active clusters (USFWS 2022, p. 113).

We also described uncertainties within the SSA report, including the uncertainties associated with performing analyses with an imputed data set. With imputed data, a single value is provided for each missing value and analyzed as though it were true, while in reality there is uncertainty about the value of each missing observation (USFWS 2022, p. 227).

All of the issues raised were either already addressed in the SSA report or have been incorporated into the SSA report and/or this final rule.

Comment 46:

One commenter provided details about concerns that the way the 2003 recovery plan delineated populations of red-cockaded woodpeckers was incorrect.

Our Response:

SSA reports are scientific documents meant to be a single source for the species' biological information needed to inform decision-making in the rule. The SSA report did not use the same population boundaries as the 2003 recovery plan. As reviewed in the 2003 recovery plan, red-cockaded woodpecker populations functioned as demographically closed populations due to infrequent long-distance dispersal (USFWS 2003, pp. 25, 32). In the 2003 recovery plan, territory densities or distances among territories were not defined to explicitly categorize demographic populations. In the SSA, we instead used red-cockaded woodpecker dispersal data from long-term monitoring data and radio-telemetry studies to spatially delimit demographic populations according to nearest neighbor active clusters within 6 km (3.7 miles) (USFWS 2022, pp. 80-82). Ultimately, we delineated 124 demographic populations. In the SSA report, the essential support population this commenter referenced was split into nine demographic populations for our analysis. Although we are not currently contemplating changes to the 2003 recovery plan, we will consider this commenter's suggestion if we embark on any revisions to this plan.

Population Stressors

Comment 47:

One commenter shared that, according to the North American Breeding Bird Survey, the woodpecker has had a cumulative population decline of 86 percent between 1966 and 2014, with an average of over 3.3 percent population decline per year (Red-cockaded Woodpecker Life History); they believed this decline would continue until the species becomes extinct.

Our Response:

The Breeding Bird Survey is a roadside survey of North American birds that primarily covers the continental United States and southern Canada. Every June, experienced birders volunteer to conduct surveys along established roadside routes to facilitate the estimation of population change for birds that are encountered during surveys. Although the Breeding Bird Survey provides a very large data set, there are potential problems with estimates of population change that are derived from Breeding Bird Survey data. Therefore, “regional credibility measures” are used to check certain attributes of the survey data, such as relative abundance on survey routes, precision of trends, and the completeness of the data set. It is possible that data analysis can be inaccurate and imprecise, depending on the level of data deficiency in a region; thus, the data are categorized into three credibility categories to assist in assessing reliability of the results. The Breeding Bird Survey results for the red-cockaded woodpecker reflect that the majority of the data are in the red category, meaning the data have important deficiencies and are not of sufficient quality to use in estimates of population change or for other reasons.

Decades of species-specific, red-cockaded woodpecker survey data have been obtained using standardized data collection methodology, and are the data that the Service relied upon in the SSA and to inform this rule. These data sets provide a large amount of high-quality data for assessing attributes of red-cockaded woodpecker populations and informing management decisions. Data collected during red-cockaded woodpecker surveys represent the best available species' information and are superior to species' data provided by the Breeding Bird Survey and any other means.

Comment 48:

Several commenters believed that because a majority of populations have low resiliency to stochastic events and threats (primarily due to small population sizes), they remain in immediate danger of extirpation and do not have sufficient resiliency to warrant downlisting.

Our Response:

These commenters correctly accounted for the number of demographic populations in the low and very low resiliency categories. However, the majority (65 percent) of total active clusters (5,062 active clusters out of 7,794 total active clusters) across the range of the species are in the 16 moderate-to-very-high resiliency populations. Furthermore, of the 98 populations for which we had sufficient data to measure growth rates, only 13 percent are in decline; in other words, 87 percent of red-cockaded woodpecker populations (for which we had sufficient data) are stable or increasing, including the vast majority of low and very low resiliency populations (USFWS 2022, pp. 112-116). These stable and positive growth rates are indicative of the positive effects of red-cockaded woodpecker conservation management programs on these locations and the ability of such management to offset inherently low or very low population resilience.

In summary, after evaluating the threats to the species and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we find that the stressors identified above continue to negatively affect the red-cockaded woodpecker, but new restoration techniques and changes in silvicultural practices have led to stabilization of the red-cockaded woodpeckers' viability and even resulted in a substantial increase in the number and distribution of populations. Sixty-five percent of all current red-cockaded woodpecker clusters are within moderately, highly, or very highly resilient populations, and populations are spread across multiple ecoregions, providing for redundancy and representation. Given these current levels of resiliency, redundancy, and representation, we conclude that the red-cockaded woodpecker is not currently in danger of extinction throughout all or a significant portion of its range (

i.e.,

it no longer meets the definition of an endangered species).

Comment 49:

Multiple commenters expressed concern about the continued loss of suitable habitat constraining population growth of the species, with one commenter stating that the Service did not adequately address carrying capacity issues in the SSA report.

Our Response:

We recognize that some habitat loss may still be occurring and acknowledge that the lingering impacts of historical clearcutting and incompatible forest management, and conversion to urban and agricultural land still negatively affect the ability of red-cockaded woodpecker populations to grow, even when managed, as the carrying capacity of suitable forest areas across much of the range can be quite low. However, restoration activities such as prescribed fire and strategic placement of recruitment clusters can reduce gaps between populations and increase habitat and population size toward current carrying capacity. These activities are occurring across the range of the red-cockaded woodpecker on properties actively managed for red-cockaded woodpecker conservation (85 FR 63474 at 63479, October 8, 2020).

Carrying capacity was taken into consideration when assessing population size within the foreseeable

future in the simulations and scenarios run in the SSA. Values for each population were acquired from property and population managers who estimated carrying capacity for their populations at the end of the 25-year period. Carrying capacity reflected the estimated future amount of nesting and foraging habitat, and whether a potential increase in active territories to capacity was the result of recruitment clusters, budding, or pioneering (USFWS 2022, pp. 12-13). Additionally, we acknowledged in the SSA report (USFWS 2022, p. 14) that carrying capacity may have been underestimated in our analysis. The high densities of red-cockaded woodpeckers that occur in high-quality habitat suggest that carrying capacity estimates are overly conservative. If so, greater growth than our conservative simulations project and larger differences between management scenarios are possible.

Comment 50:

One commenter shared their concern that small woodpecker populations in low-quality habitats, experiencing additional stressors, can quickly lose their pools of helper birds, leading to rapid population decline.

Our Response:

Helpers are non-breeding adult offspring that remain on their natal territories for one or more years after fledging. Helpers assist in the rearing of young and other essential activities during years of delayed dispersal or until becoming replacement breeders on their natal territories. Annual levels of productivity and mortality may affect the following year's total number of helpers and the total number of groups with helpers found within a small red-cockaded woodpecker population; however, these variables do not similarly affect the total number of potential breeding groups (PBGs) in that same population. We acknowledge that small population size and limited availability of resources are impacting the species' viability within the foreseeable future, thus contributing to our decision to reclassify the red-cockaded woodpecker as a threatened species to ensure continued protections under the Act.

Climate Change and Catastrophic Events

Comment 51:

Multiple commenters expressed that red-cockaded woodpeckers will not be able to shift to new areas or habitats, given their reliance on old, mature pines, rendering them even more vulnerable to climate-related stressors. One commenter suggested the need to protect and restore new habitats as climate refugia to ensure the continued survival of red-cockaded woodpeckers.

Our Response:

We agree that red-cockaded woodpeckers are habitat specialists that rely on habitat management occurring in specific areas; they thus have limited capacity to shift their range in response to future climate changes. The majority of clusters are in moderate to very high resiliency populations, and 87 percent of populations with sufficient data indicate stable to increasing growth rates (USFWS 2022, pp. 107-112). However, if climate change decreases the suitability of habitat in certain parts of the species' range, as DeMay and Walters (2019, entire) suggest, it could increase extinction risk, due to the lack of unoccupied suitable habitat at more northern latitudes. Since red-cockaded woodpeckers have limited capacity to shift their range, ongoing, nimble habitat management applications, designed to meet changing climate conditions, will help the species achieve long-term population viability. Thus, while the species' limited capacity to shift their range is not currently manifesting in any declines in resiliency, redundancy, or representation, it is possible that, without effective management, this limited capacity could result in future viability declines. We cannot predict the scope of these potential declines due to limitations in our modeling. Consequently, while enhancing the resiliency of inland populations could further increase species' viability in the face of future impacts from climate change, the species currently has sufficient resiliency, redundancy, and representation such that it no longer meets the definition of an endangered species and warrants reclassification to a threatened species.

Comment 52:

Public commenters suggested that the Service inadequately analyzed the potential synergistic effects of climate change on other stressors, such as large wind events, wildfires, sea level rise, tornadoes, ice storms, and pine beetles.

Our Response:

In the SSA report, we discuss the stressors that wildfire (USFWS 2022, pp. 126-127); large wind events, tornadoes, sea level rise, and ice storms (USFWS 2022, pp. 84, 96, 121); and pine beetles (USFWS 2022, pp. 84, 126) can present to the species. While these natural disturbances are already occurring in parts of the species' range, effective management after disturbances (

e.g.,

installing artificial cavities, reducing hazardous fuels, and restoring forests to suitable habitat) results in these disturbances currently only influencing individuals or temporarily affecting populations. As a result, these stressors are not currently having detrimental species-level effects. As evaluated in the SSA, the stable to increasing population trend in 87 percent of the populations demonstrates that effective management has ameliorated these stressors such that they only have isolated and temporary negative effects (USFWS 2022, p. 112).

However, as these commenters suggest, uncertainty remains as to how these stressors may influence the species in the future. We were not able to model how resiliency of red-cockaded woodpecker populations might change in the future as a result of bark beetle outbreaks, sea level rise, tornados, drought, and other influences due to inconsistency in or unavailability of data (USFWS 2022, appendix 2, pp. 6-7). Should these stressors increase their scope or intensity in the future, and should effective management not keep pace with these increases, they could start to negatively affect populations, though we do not know of any research suggesting this will occur. We fully expect this post-disturbance management to continue into the foreseeable future, and we have structured our final 4(d) rule to facilitate the continuation of such management. The information these commenters provided supports our conclusion that, while the red-cockaded woodpecker is not currently in danger of extinction, the effects of climate change, paired with uncertain future management means that the species continues to meet the definition of a threatened species.

General Stressors

Comment 53:

One commenter suggested that the Service did not adequately consider the cumulative effects of stressors on red-cockaded woodpeckers when making the decision to downlist the species.

Our Response:

We incorporated the cumulative effects of stressors into the SSA when we characterize the current and future condition of the species. In order to assess the current and future condition of the species, we completed an iterative analysis that encompassed and incorporated threats individually and then accumulated and evaluated 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 integrated the cumulative effects of the factors and replaced a standalone cumulative effects analysis. To help clarify, we have added a brief discussion of cumulative effects to the

Summary of Biological Status and Threats section of this rule.

Comment 54:

Multiple commenters took issue with the fact that the proposed downlisting did not consider the effects of southern pine beetles as a potential stressor.

Our Response:

We agree that loss of cavity trees resulting from both outbreak (

i.e.,

epidemic) and non-outbreak (

i.e.,

endemic) southern pine beetles can substantially impact red-cockaded woodpeckers, as noted in the SSA report (USFWS 2022, pp. 39-40). In the SSA report we detail how southern pine beetles do not directly impact red-cockaded woodpeckers but do directly impact cavity trees. Southern pine beetle outbreaks can be minor or locally significant through killing the cavity trees and other pines used for foraging. The practice of thinning stands with outbreaks can cause direct loss of active clusters; however, the long-term benefits of stopping the outbreak often outweigh the short-term impacts of losing a few clusters (USFWS 2022, p. 84). Even though the SSA report provided a description of issues facing the red-cockaded woodpecker as it relates to southern pine beetles, these variables were not explicitly modeled; instead, they were implicitly present in the resulting models in the intercept and residual error terms, to the extent that they affected changes in population size over time (USFWS 2022, appendix 2, p. 5). Despite known outbreak events within red-cockaded woodpecker habitat (USFWS 2022, p. 140), 87 percent of populations evaluated in the SSA demonstrate stable to increasing growth rates, illustrating the effectiveness of currently ongoing active management such as described in the SSA report regarding species-level impacts from hurricanes (USFWS 2022, p. 112).

Comment 55:

Multiple commenters suggested that we did not adequately consider the stressor of diseases, such as avian keratin disorder, in our SSA report or proposed rule.

Our Response:

Given that avian keratin disorder research is ongoing, we could not explicitly include the data in the species-wide analysis (USFWS 2022, appendix 2, p. 5). Currently, there is no evidence that this disease or other novel diseases are having more than an individual-level effect on the species.

4(d) Rule Take Prohibitions

Comment 56:

One commenter expressed their concern that potential section 9 violations are not being properly investigated, resulting in no punitive actions taken.

Our Response:

We encourage the commenter to bring any information about specific potential section 9 violations to the attention of our Office of Law Enforcement.

Comment 57:

One commenter expressed frustration that the Service did not account for economic costs when developing the 4(d) rule and indicated that failing to do so would make people see red-cockaded woodpeckers as a liability. Additionally, they indicated that the Service did not have sufficient justification for extending restrictions and costs associated with the section 9 prohibition and that this approach does not meet the “necessary and advisable” standard.

Our Response:

In 1982, Congress amended the Act to add the requirement that listing determinations are to be made solely on the basis of the best scientific and commercial data available. In the Conference Report for the 1982 amendments to the Act, Congress specifically stated that economic considerations are not to be considered in determinations regarding the status of species and that the economic analysis requirements of Executive Order 12291 and such statutes as the Regulatory Flexibility Act do not apply to any phase of determining the listing status of an entity under the Act. If we determine that a species is a threatened species under the Act, part of our consideration for completing the listing process is to consider what regulations are necessary and advisable to provide for the conservation of the species under section 4(d) of the Act. As a result, a cost benefit analysis is not part of the process required to propose or finalize a section 4(d) rule.

We described on page 6120 of the revised proposed rule (87 FR 6118, February 3, 2022) that we have developed revisions to the section 4(d) rule that are designed to address the red-cockaded woodpecker's specific threats and conservation needs. The statute does not require us to make a “necessary and advisable” finding with respect to the adoption of specific prohibitions under section 9; however, 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 the red-cockaded woodpecker.

As stated in the revised proposed rule, the section 4(d) rule will provide for conservation of the red-cockaded woodpecker by adopting the same prohibitions that apply to an endangered species under section 9 of the Act and 50 CFR 17.21 and several exceptions to those prohibitions (87 FR 6118 at 6122, February 3, 2022). Included in the proposed rule are the revisions to the proposed section 4(d) rule that are designed to address the red-cockaded woodpecker's specific threats and conservation needs (87 FR 6118 at 6120, February 3, 2022). These revisions have been carried forward into this final 4(d) rule.

4(d) Rule Exceptions

Comment 58:

One commenter requested that the Service provide additional guidance in the Background, or in subsequent documents, to enable land managers to understand beneficial silviculture and management actions that would minimize incidental take versus actions that would likely be adverse for which the exceptions would apply.

Our Response:

We acknowledge this concern and are committed to continuing to provide guidance pertaining to silvicultural and habitat management actions on red-cockaded woodpecker conservation. Additional guidance is also available by contacting the local Ecological Services Field Office.

Comment 59:

Multiple commenters expressed concern that Federal agencies will start harvesting the older age classes of pines for the purpose of red-cockaded woodpecker habitat management or to gain timber sales revenue. They requested that take exemptions provided under this rule not extend to the removal of older age classes of pines and that such activities be undertaken only in consultation with the Service.

Our Response:

We acknowledge the importance of older pine trees for red-cockaded woodpecker management; however, it is important to note that the incidental take exceptions in this 4(d) rule are intended to encourage necessary and beneficial habitat restoration and species' management to advance recovery. To increase and maintain sustainable current and future habitat, red-cockaded woodpecker populations may require conversion of older age class stands of loblolly, slash, or other planted pines to site-appropriate species, as well as regenerating stands of older pines thereby providing a diversity of age-classes necessary to ensure the availability of foraging and nesting habitat in the future. We recognize that short-term adverse effects to red-cockaded woodpecker may be necessary to provide improved habitat quality and quantity in the long term with the expectation of increasing numbers of

red-cockaded woodpecker. While incidental take resulting from these activities may be excepted under certain circumstances, Federal action agencies would still need to fulfill their section 7 obligations under the Act. Through section 7 consultation, we would have the opportunity to review these activities and provide input on how to minimize impacts to the species.

Comment 60:

One public commenter recommended that 50 CFR 17.41(h)(4)(iii) exceptions for private properties be strengthened by making the following changes: (1) explicitly incorporating the methods of cavity tree protections from the 2003 recovery plan into the rule and (2) requiring a take permit with specific requirements for how to avoid and minimize disturbances to roosting and nesting behavior when applying herbicide or prescribed burning.

Our Response:

(1) The methods and levels of cavity tree protection needed varies across properties and ownership according to local habitat conditions, availability of resources for management, and several other factors; thus, land managers have latitude to incorporate appropriate, site-specific measures into their red-cockaded woodpecker habitat management plans, as long as those measures provide sufficient cavity tree protections. (2) These types of habitat management parameters are appropriately addressed in a population's red-cockaded woodpecker habitat management plan rather than a legal regulation, such as this rule.

Comment 61:

Several public commenters requested the Service define the following terminology in the rule: (1) “known active cluster,” (2) “red-cockaded woodpecker habitat restoration and management,” and (3) “conditions not able to support red-cockaded woodpeckers.”

Our Response:

(1) “Active cluster” is defined in the revised rule as a cluster in which one or more of the cavity trees exhibit fresh resin as a result of red-cockaded woodpecker activity or in which one or more red-cockaded woodpeckers are observed, and the word “known” is used in this context by the common definition found to be generally recognized in Merriam-Webster's dictionary. Our intent for the term “known active cluster” is to encourage private landowners to pursue certain types of voluntary forest management activities (

i.e.,

prescribed burns and herbicide application) in a way that reduces impacts to the species but also removes any potential barriers to the implementation of this beneficial forest management, such as fear of prosecution for take of the red-cockaded woodpecker. (2) Red-cockaded woodpecker habitat restoration and management encompasses a variety of activities designed to improve conditions for the species but that must be developed on site-specific bases to account for local habitat complexities. (3) The minimum habitat and resource conditions needed to support red-cockaded woodpeckers exhibit variation within and among populations across the species' range and are dependent on site-specific conditions and, therefore, are not quantifiable in this rule in a standard way that is representative of every population.

Comment 62:

One public commenter expressed concern about language in the October 8, 2020, proposed rule (85 FR 63474) that indicated take would be limited to only “active cavity trees or suitable foraging habitat” and stated that this limitation could drastically reduce a red-cockaded woodpecker group's ability to persist given their dependency upon old pines for foraging and nesting.

Our Response:

The rule language noted by the commenter was intended to give an example of take but was not meant to be a comprehensive list of what could cause take for the species. Under the Act, take is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.” This language was removed in the most recent proposed rule (87 FR 6118, February 3, 2022).

Comment 63:

One public commenter requested that State employees continue to report any red-cockaded woodpecker injuries, deaths, or other impacts in a manner consistent with section 10 permittees if they are excepted by the proposed 4(d) rule.

Our Response:

The 4(d) rule does not change this reporting process. Under section 6, State agencies will continue to report red-cockaded woodpecker injuries, deaths, and/or other impacts to the Service.

Comment 64:

One commenter requested exceptions for incidental take resulting from other forest management activities, specifically mechanical brush clearing and thinning operations.

Our Response:

We recognize the need for and support mechanical brush clearing and thinning when conducted to maintain or enhance red-cockaded woodpecker foraging and nesting habitat. However, incidental take resulting from such activities is not anticipated when conducted outside red-cockaded woodpecker clusters as it is not expected to significantly impair essential behavioral patterns, including breeding, feeding, or sheltering. Within clusters during the breeding season, these activities may repeatedly disturb roosting and nesting red-cockaded woodpeckers, thereby significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering, potentially resulting in cavity abandonment or nest failure thus resulting in incidental take. Within clusters outside the breeding season, these activities are not anticipated to result in incidental take when avoided within at least 1 or 2 hours of dawn and dusk. Thus, flexibility exists to conduct such activities with red-cockaded woodpecker clusters outside the breeding season without the need for a take exception.

4(d) Rule Artificial Cavity Provisions

Comment 65:

One public commenter expressed support of the Service's efforts to automate/streamline the permitting process associated with installing artificial cavity inserts, but questioned if it would require much more effort to amend permits if the Service employee is already going to have to review and file documentation letters for new trainees.

Our Response:

We agree that this specific exception may not be substantial for all practitioners, but many partners have expressed that the permitting approval process is significantly delayed. To help clarify, we will be requiring only an acknowledgement letter from the certified trainer that the trainee has met the certification requirement. The letter should go to the Service's National Red-cockaded Woodpecker Coordinator and not through the permit process.

Comment 66:

A few public commenters stated that there should be no exception for take associated with installation of artificial cavities and cavity restrictors, with several commenters expressing concern over risks associated with cavity restrictors if they are not installed and monitored properly.

Our Response:

We acknowledge that we have had reports where red-cockaded woodpeckers have been adversely impacted due to issues related to artificial cavities. However, we advocate that proper installation protocols and training, onsite supervision, and attentive cavity maintenance scheduling will reduce potential adverse impacts. For example, take that occurs from the installation of artificial cavities and cavity restrictors is unfortunate; however, because proper training and maintenance protocols remain as they always have been, we expect take from artificial cavity

installation and restrictor plates to remain limited across the range.

Comment 67:

Multiple commenters provided feedback pertaining to the minimum diameter of trees for artificial cavity installation, as well as recommendations for cavity maintenance (

e.g.,

screening damaged unusable artificial cavity inserts, checking cavity trees annually) and safe installation practices (

i.e.,

inspection by a federally permitted biologist).

Our Response:

The current standards for cavity tree selection and artificial cavity installation continue to satisfy the best available science standard and will remain as the standards used to guide artificial cavity tree selection and installation. We currently support the artificial cavity standards defined by Allen (1991, p. 19), Copeyon (1990, pp. 303-311), and USFWS (2022, pp. 85-87). For the cavity insert technique, the guidance requires selected trees to have a minimum of 15-inch diameter at cavity height, while the drilled cavity technique, generally, requires knowledge of the tree's sapwood (3.5 inches or less) to heartwood (7 inches or more) ratios at cavity height.

We agree that attending to unsuitable cavities or cavities in disrepair should be part of a regular maintenance routine. Many of the procedures used to protect red-cockaded woodpeckers from unsuitable cavity conditions includes screening to minimize adverse effects. The SSA report describes protocols and procedures that are designed and intended to avoid and limit potential adverse effects to red-cockaded woodpeckers for both suitable and unsuitable cavities that have fallen into disrepair (USFWS 2022, pp. 22, 41, 42, and 53).

Comment 68:

One public commenter suggested that the training requirements for the number of installed artificial cavity inserts and drilled cavities be the same as the existing permit requirements and provided some potential detailed language to include in the rule in § 17.41(h)(4)(iv)(A).

Our Response:

The training requirements are not the same as the permit requirements so that the trainer is able to ensure the proficiency and skill level appropriate for the situation, as determined by the trainer. Training requirements for the number of installed artificial cavity inserts and drilled cavities can be obtained from the Service's National Red-cockaded Woodpecker Coordinator.

4(d) Rule Military Exception

Comment 69:

Many public commenters expressed concern that the INRMP process is insufficient and indicated mistrust that military installations would maintain the highest level of ecosystem habitat management without requirements in place.

Our Response:

The Sikes Act states that INRMPs shall reflect mutual agreement of the military service, the Service, and the States on the conservation, protection, and management of fish and wildlife resources. Mutual agreement is reflected by signature of the plan or letter of concurrence. As such, we believe that the INRMP process is sufficient and trust in the commitment of the military installations to implement them.

Comment 70:

One commenter questioned why the DoD installation exception was needed given existing Army Red-cockaded Woodpecker Guidelines already provide reduced restrictions as installations approach, meet, and/or exceed their population goals.

Our Response:

The conditions described in the 1996 “Management Guidelines for the Red-Cockaded Woodpecker on Army Installations” would still apply as site conditions dictate their applicability; however, newly constructed INRMPs would better align with the conditions proposed in the 4(d) rule. In part, this is because the Army's Red-cockaded Woodpecker Guidelines were developed and implemented with the red-cockaded woodpecker listed as endangered, which in turn requires installations to develop an ESMC. It is clear then that not all the requisites of an ESMC will be applicable under the 4(d) rule. Additionally, site-specific military operations are not part of the Army-wide guidelines but are proposed as an integral component to best utilize the 4(d) rule's structure. Finally, with the implementation of the 4(d) rule, it is likely the Army may consider revising their guidelines to better align with the 4(d) rule.

Comment 71:

Regarding the DoD installation exception, one commenter expressed concern that the Service approval of INRMPs would be a continuation of historical practices but with more exception requirements. Additionally, without the Service's approval of an INRMP, there is no valid exception for any take incidental to military training or management to maintain or restore red-cockaded woodpecker habitat and that the Service's denial of an INRMP approval could, by this exception, appear to be an additional form of notification for joint resolution among agencies, or to lead to formal consultation.

Our Response:

The Sikes Act states that INRMPs

shall

reflect mutual agreement of the military service, the Service, and the States on the conservation, protection, and management of fish and wildlife resources. If the process of approving INRMPs, by way of the requirements of the Sikes Act, were at a point of impasse between the Service and the DoD, then we agree that a notification for joint resolution among agencies or a request to enter formal consultation are potential solutions to achieve resolution.

Comment 72:

Commenters recommended numerous additional conditions and amendments be applied to the exceptions for DoD installations. A summary of some of the recommendations include: (1) Creating standards for the INRMP process, (2) using a population-driven approach for the exceptions (for example, excluding the DoD exception for installations with populations in decline that have not met population goals), (3) requiring compliance with management guidelines for exceptions to apply, and (4) requiring that each INRMP under this rule has an ESMC.

Our Response:

“Standards” would be valuable and are likely to enhance both INRMPs and new project proposals when articulating the expectations for evaluating and implementing red-cockaded woodpecker management applications under the 4(d) rule. Of course, we would likewise prefer that take, under either scenario, is limited. However, because many red-cockaded woodpecker populations have site-specific conditions, we anticipate local plan and project determinations to be most effective when guarding against population reductions. We anticipate red-cockaded woodpecker managers to align with, and continue to work toward, the regionwide description of the desired future condition that characterizes the optimal red-cockaded woodpecker habitat conditions.

Comment 73:

One commenter requested clarification around long-term habitat projects in the vicinity of military bases currently being used by some military installations to offset destruction of red-cockaded woodpecker habitat. They indicated that these programs attempt to rely on an installation's promises that it will restore off-base habitat that it has acquired, which may not be suitable for either nesting or foraging, to offset takes from the destruction of currently suitable nesting and/or foraging habitat within the installation. This commenter asked that the Service not allow this by, at a minimum, ensuring that the long-term habitat projects do not fall under the “habitat management and military

training activities” outlined in the proposed rule.

Our Response:

Section 4(d) of the Act requires that the Secretary issue regulations that are necessary and advisable to provide for the conservation of threatened species. Similarly, the intent of the INRMP is to follow the ESA and provide regulatory flexibility for the conservation of protected species. As a reminder, there are no changes in section 7 responsibilities for Federal agencies due to a 4(d) rule. With regard to the commenter's concerns, there are rigorous requirements through formal consultation with the Service that would have to be met before an Army “compatible use buffer” property could be used as an offset (

e.g.,

land is permanently encumbered for protections, an endowment is set up to provide funding for management, the land has been validated by way of a spatially explicit population model that red-cockaded woodpecker will occupy the habitat in the future, there is a unique management plan). The details of consultation language, along with the parameters identified, would be reflected in the INRMP.

4(d) Rule Provisions for Prescribed Burning and Herbicides

Comment 74:

A public commenter reported concerns that most private landowners are unlikely to contact a State agency prior to burning and that State agencies may not be aware of the protected status of the species.

Our Response:

There are already requirements in place for private landowners to contact State wildlife agencies when conducting prescribed fires within red-cockaded woodpecker populations. Given the many decades of cooperation between the Service and the State wildlife agencies, and the past and present conservation programs enacted for the conservation of the red-cockaded woodpecker by these State wildlife agencies, we contend that all State wildlife agencies in the range of the red-cockaded woodpecker are aware of the species' status under the Act.

Comment 75:

One commenter stated that there is a risk of take occurring during prescribed burns on private lands for clusters lacking intensive monitoring, and that raking around cavity trees can only minimize the risk. Another commenter stated that habitat management intended to benefit the species should not result in take and requested a distinction in the exceptions for both Federal and private lands for take of actual woodpeckers compared to forms of harm or harassment.

Our Response:

Take can result knowingly or otherwise, by direct and indirect impacts, and intentionally or incidentally. Additionally, there is a difference between short-term take of an individual and the long-term benefit to the conservation of the species from habitat management actions taken to benefit the species. This section 4(d) rule would prohibit take on both public and private lands with exceptions as described in § 17.41(h)(4)(ii)-(iii). Incidental take that results from activities such as prescribed burns could be allowed under certain authorizations, including being excepted under this section 4(d) rule, authorized by a permit under the Act (

e.g.,

section 10(a)(1)(A) permit issued for a CBA, section 10(a)(1)(B) permit issued for an HCP), or exempted through section 7 consultation (

e.g.,

consultations that cover landowners enrolled in NRCS or Partners for Fish and Wildlife conservation programs).

Given the array of management activities and how each could result in one or more forms of incidental take, distinguishing between take of individuals directly through killing or indirectly through harm or harassment affecting other aspects of the species' ecology or behavior is not practical as both may result in lethal take. Federal agencies would still consult under section 7 of the Act if their actions may affect red-cockaded woodpecker, and if take is anticipated, the form of take would be identified in the subsequent biological opinion. This includes intraservice section 7 consultation for the issuance of section 10(a)(1)(A) permits for existing SHAs or future CBAs on private land, which identify the anticipated forms of take. Additionally, we agree that managers have a responsibility to avoid killing red-cockaded woodpeckers, as we included language that Federal land management agencies must incorporate appropriate conservation measures to minimize or avoid adverse effects of excepted habitat management activities on the red-cockaded woodpecker foraging habitat, on clusters, and on the species' roosting and nesting behavior to the maximum extent practicable.

4(d) Rule Exception for Service- or State-Approved Management Plans

Comment 76:

One commenter noted that not all State agencies involved in red-cockaded woodpecker conservation have section 6 cooperative agreements with the Service and thus are not able to utilize exceptions. Additionally, they stated that many conservation plans required for section 6 cooperative agreements with the Service are out of date or lack the level of detail necessary for red-cockaded woodpecker management.

Our Response:

We acknowledge that not all State agencies conducting red-cockaded woodpecker management activities have section 6 agreements with the Service. Section 6 cooperative agreements are limited to a State agency that establishes and maintains an adequate and active program for the conservation of endangered species and threatened species fitting the requirements of section 6(c)(1). Given the requirements, section 6 is often limited to State wildlife agencies with State regulatory authority, thus other State agencies that may manage for red-cockaded woodpeckers on their lands are ineligible.

We also acknowledge that State conservation plans throughout the red-cockaded woodpecker range vary and recognize that State agencies possess valuable expertise and foster crucial relationships with State conservation agency partners contributing to woodpecker conservation. The exceptions for conservation actions (50 CFR 17.31(b)) apply only to any 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.

Comment 77:

In general, commenters recommended additional detail and conditions be added to the Federal land management agency exception (§ 17.41(h)(4)(ii)). A summary of the recommendations include: (1) Clarify in the Background how the three requirements will be assessed, (2) use a population-driven approach for the exceptions, (3) conduct thorough Service review of proposed take due to management/restorations actions, and (4) add clarification on types of analyses and information in Federal habitat management plans with regard to “habitat management actions.”

Our Response:

Population dynamics of the red-cockaded woodpecker are complex, involving number of adults and helpers and amount, type, and spatial arrangement of suitable roosting, nesting, and foraging habitat. Therefore, we believe it is appropriate for Ecological Services Field Office staff and species leads to cooperate with Federal partners during preparation, review, and/or revision of Federal plans, annual reviews, and/or reporting requirements, if applicable, and section 7 consultations. Because of this complexity, we chose not to specify how the three requirements associated with the exception for Federal land management agency properties will be

assessed or a limit to any decline or reduction in the property population size that may result because of implementing beneficial conservation management.

Federal land management agencies often cooperate with the Service and the States to prepare their habitat management plans (

e.g.,

LRMPs and National Wildlife Refuge comprehensive conservation plans (CCPs)) and incorporate management methods to sustain and increase red-cockaded woodpecker populations as detailed in the 2003 recovery plan. Also, they have established procedures to give Federal, State, and local governments and the public adequate notice and an opportunity to participate in the planning process. Lastly, under this or any section 4(d) rule Federal land management agencies would still need to fulfill their section 7 obligations under the Act. As a result, Service approval of Federal agency habitat management plans is not needed for this exception to apply for the red-cockaded woodpecker.

While this 4(d) rule does not provide additional guidance reflecting our intent for plans or detailed guidance describing the kinds of information expected in the exception, it is important to note that this 4(d) rule would not alter or invalidate the 2003 recovery plan. Recovery plans are not regulatory documents, but rather provide a strategy to guide conservation and recovery of listed species.

Comment 78:

One commenter suggests that the Service should (1) provide examples of suitable management plan details in the Background section, (2) provide consistent guidance to Federal agencies on the kinds of measures needed to effectively minimize and avoid adverse effects, and (3) require an analysis of the effects of certain types of management, which the Service should also be willing to provide as guidance or by other forms.

Our Response:

Population dynamics of the red-cockaded woodpecker are complex, including but not limited to number of adults and helpers and amount, type, and spatial arrangement of suitable roosting, nesting, and foraging habitat. Therefore, we believe it is appropriate for Ecological Services Field Office staff and species leads to cooperate with Federal partners during preparation, review, and/or revision of Federal plans, annual reviews, and/or reporting requirements, if applicable, and section 7 consultations. Much of the guidance and examples being requested are already provided in various forms (

e.g.,

2003 recovery plan, Management Guidelines for the Red-cockaded Woodpecker on Army Installations, Service memos, site-specific red-cockaded woodpecker consultation documents, among other sources).

Comment 79:

One commenter suggests that the term “maximum extent practicable” be deleted as it could be misinterpreted.

Our Response:

If a Federal agency's ability to manage for the species is limited for any reason, this information will be described with justification in their consultation with us. Federal agencies are responsible for implementing the recovery goals and subsequent recovery criteria and should share the goal of moving the red-cockaded woodpecker to the point where the size, number, and distribution of populations will be sufficient to be delisted in the future. As a result, the terminology “maximum extent practicable” has remained in the final rule.

Comment 80:

One public commenter requested that “State conservation agency” be defined in the rule and requested a table listing the agencies within each State that are authorized to permit red-cockaded woodpecker impacts.

Our Response:

We will still be responsible for issuing and managing all section 10 permits and Federal agencies will continue to consult with us on activities that may affect the red-cockaded woodpecker. State agencies are responsible for the State-approved plans but are unable to permit or approve take under the ESA. As a result, it would not be necessary to include a table listing the specific State agencies responsible for authorizing permits.

Comment 81:

Several commenters expressed some confusion regarding SHAs. One commenter requested clarification regarding the numbers cited in the rule for active clusters (295) and above baseline clusters (241) on Safe Harbor properties. They wanted to know if the 295 referred to baseline clusters. Another commenter asked that there be exception for SHAs, now known as CBAs, only if the “above baseline” clusters have exceeded State recovery goals.

Our Response:

The description of red-cockaded woodpecker clusters and SHAs in the proposed 4(d) rule did not specify the number of baseline red-cockaded woodpecker clusters enrolled in these agreements. The number provided for active clusters includes both above baseline and baseline active clusters. The number provided for above baseline clusters on Safe Harbor properties includes both active and inactive above baseline clusters. Currently there are 273 red-cockaded woodpecker active clusters (both above baseline and baseline) in SHAs across the species' range; 295 was written in error. We have excluded this level of detail in the rule to simplify the language and focus on our intended description that this section 4(d) rule does not alter this valuable program or the permits associated with it.

The regulations being promulgated by this 4(d) rule do not change or authorize the reduction of baseline clusters associated with existing SHAs or future CBAs. Take exceptions for privately owned properties would not provide any additional flexibility. The permits associated with existing SHAs and future CBAs authorize take associated with prescribed burns, herbicide use, and other activities, as long as landowners follow the stipulations in their SHA or CBA and do not decrease the number of red-cockaded woodpecker clusters below their baseline. Restricting excepted take to only above baseline clusters would not provide additional protection to red-cockaded woodpecker populations on private lands and may disincentivize beneficial habitat management. Additionally, limiting these exceptions to only properties exceeding their recovery goal could be detrimental to red-cockaded woodpecker populations below their recovery goal that require habitat management activities necessary to ensure sustainable nesting and foraging habitat. Excepted take resulting from the habitat management activities described in this 4(d) rule is intended to increase and maintain sustainable current and future habitat. We recognize that short-term adverse effects to red-cockaded woodpecker may be necessary to provide improved habitat quality and quantity in the long term with the expectation of increasing numbers of red-cockaded woodpecker.

Comment 82:

One commenter questioned why properties enrolled in SHAs have “baseline” and “above baseline” and military installations have “protected” and “unprotected” clusters, but that similar mechanisms are not in place for the USFS, State agencies, and private landowners not enrolled in SHAs, now known as CBAs.

Our Response:

All public land managers and applicable State land management agencies are able to enroll and participate in the Conservation Benefit Agreement program. While the mechanism for “protected” and “unprotected” clusters was originally developed for military installations, if the USFS, State agencies, and private landowners would like the same coverage, they can seek consultation

with the Service. It is important to note that, in this context, “unprotected” and “protected” clusters only pertains to areas where military training can or cannot occur. Only training that would not be expected to impact red-cockaded woodpeckers could occur within “unprotected” clusters, whereas military training cannot occur within “protected” clusters.

Comment 83:

One public commenter suggested that the Service except take associated with activities done in accordance with the private lands guidelines set forth in the 2003 recovery plan. The commenter stated that the plan clearly lists habitat management practices that benefit the species and that forest landowners are already implementing across the landscape.

Our Response:

The Service is not excepting take associated with activities done in accordance with the private lands guidelines. We support beneficial forest management practices conducted in accordance with the private lands guidelines in the 2003 recovery plan guidelines. Incidental take resulting from such activities is not anticipated when they are conducted outside red-cockaded woodpecker clusters or inside red-cockaded woodpecker clusters outside the breeding season but not within at least 1 or 2 hours of dawn and dusk as such activities are not expected to significantly impair essential behavioral patterns, including breeding, feeding, or sheltering. Within clusters during the breeding season, these activities may repeatedly disturb roosting and nesting red-cockaded woodpeckers thereby significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering, potentially resulting in cavity abandonment or nest failure, thus resulting in incidental take. Thus, flexibility exists to conduct such activities within red-cockaded woodpecker foraging habitat and nesting habitat outside the breeding season without the need for a take exception.

Comment 84:

One public commenter asked if the Service is required to request a formal intraservice section 7 consultation on the effect of any final 4(d) rule. They noted that they did not see any information about this requirement in the proposed rule and expressed that this would be an opportunity to provide additional guidance to agencies and landowners on how best to manage for the species.

Our Response:

The Service is required to conduct an intraservice section 7 consultation on any final 4(d) rule. We described this consultation requirement in the revised proposed rule (87 FR 6118, February 3, 2022). In the rule we clarify that section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species.

4(d) Rule General Issues

Comment 85:

We received multiple comments on the 4(d) rule as originally proposed in our October 8, 2020, proposed rule (85 FR 63474). These comments expressed confusion and concern about the framing of the prohibitions and exceptions. Some commenters believed the 4(d) rule, as originally proposed, was overly restrictive (even more restrictive than the regulations that apply while the species is listed as endangered), while other commenters believed the proposed 4(d) rule provided inadequate protection.

Our Response:

We reconsidered the proposed 4(d) rule and published a revised proposed 4(d) rule on February 3, 2022 (87 FR 6118). The revisions addressed the vast majority of concerns raised in the public comments on the October 8, 2020, proposed rule (85 FR 63474).

Final Reclassification Determination

Background

A thorough review of the taxonomy, range and distribution, life history, and ecology of red-cockaded woodpecker is presented in the SSA report (USFWS 2022, pp. 16-34; available at

https://www.regulations.gov

at Docket No. FWS-R4-ES-2019-0018) and is briefly summarized here.

Red-cockaded woodpeckers were first described as

Picus borealis

(Vieillot 1807, p. 66). However, in the recent 59th supplement to the checklist of North American birds by the American Ornithological Society (AOS), the AOS Committee on Classification and Nomenclature changed the classification of

Picoides borealis

to

Dryobates borealis

(Chesser et al. 2018, pp. 798-800). We accept the change of the red-cockaded woodpecker's classification from

Picoides borealis

to

Dryobates borealis,

and in this final rule, we amend the scientific name to match the currently accepted AOS nomenclature.

The red-cockaded woodpecker is a territorial, non-migratory bird species that makes its home in mature pine forests in the southeastern United States. The red-cockaded woodpecker is a relatively small woodpecker. Both male and female adult red-cockaded woodpeckers are black and white with a ladder back and large white cheek patches. Males have a tiny red streak, or red “cockade”, on their upper cheek.

Red-cockaded woodpeckers live in groups that share, and jointly defend, territories throughout the year. In cooperative breeding systems, some mature adults forgo reproduction and instead assist in raising the offspring of the group's breeding male and female (Emlen 1991, entire). A potential breeding group (PBG) may consist of zero to as many as five helpers, but most PBGs consist of only a breeding pair plus one to two helpers.

Young birds either disperse in their first year or remain on the natal territory and become helpers. First-year dispersal is the dominant strategy for females, but both strategies are common among males (Walters et al. 1988, pp. 287-301; Walters and Garcia 2016, pp. 69-72). Male helpers may become breeders by inheriting breeding status on their natal territory or by dispersing to fill a breeding vacancy at another territory (Walters et al. 1992, p. 625). Female helpers almost never inherit the breeding position on their natal territory, instead relying on dispersal to neighboring territories to become breeders.

Red-cockaded woodpeckers are unique among North American woodpeckers in that they nest and roost in cavities they excavate in living pines (Steirly 1957, p. 282; Jackson 1977, entire). Cavities are an essential resource for red-cockaded woodpeckers throughout the year, because the birds use them for roosting year-round, as well as nesting seasonally. The aggregation of active and inactive cavity trees within the area defended by a single group is termed the cavity tree cluster (Conner et al. 2001, p. 106).

Red-cockaded woodpeckers were once common throughout open, fire-maintained pine ecosystems, particularly longleaf pine that covered approximately 92 million acres before European settlement (Frost 1993, p. 20). Original pine forests were old and open, and contained a structure dominated by two layers, a canopy and diverse herbaceous ground cover, maintained by frequent low-intensity fire (Brockway et al. 2006, pp. 96-98).

Currently, nesting and roosting habitat of red-cockaded woodpeckers varies across the species' range. The largest populations tend to occur in the longleaf pine woodlands and savannas of the East Gulf Coastal Plain, South Atlantic Coastal Plain, Mid-Atlantic Coastal Plain, and Carolina Sandhills (Carter 1971, p. 98; Hooper et al. 1982, entire; James 1995, entire; Engstrom et

al. 1996, p. 334). The shortleaf/loblolly forests of the Piedmont, Cumberlands, and Ouachita Mountain regions (Mengel 1965, pp. 306-308; Sutton 1967, pp. 319-321; Hopkins and Lynn 1971, p. 146; Steirly 1973, p. 80) are another important habitat type. Red-cockaded woodpeckers also occupy a variety of additional pine habitat types at the edges of their range, including slash (

Pinus elliottii

), pond (

P. serotina

), pitch (

P. rigida

), and Virginia pines (

P. virginiana

) (Steirly 1957, entire; Lowery 1974, p. 415; Mengel 1965, pp. 206-308; Sutton 1967, pp. 319-321; Jackson 1971, pp. 12-20; Murphy 1982, entire).

Once a common bird distributed contiguously across the southeastern United States, the red-cockaded woodpecker was estimated range-wide around the time of listing in 1970 to be fewer than 10,000 individuals (approximately 1,500 to 3,500 active clusters; an aggregate of cavity trees used by a group of woodpeckers for nesting and roosting) in widely scattered, isolated, and declining populations (Jackson 1971, pp. 12-20; Jackson 1978, entire; USFWS 1985, p. 22; Ligon et al. 1986, pp. 849-850). Today, the Service's conservative estimate is that there are 7,800 active clusters range-wide (USFWS 2022, pp. 16, 108-110), almost double the number of clusters that existed in 1995.

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. Under section 4(f)(1)(B)(ii), 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 Lists of Endangered and Threatened Wildlife and Plants.

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.

The original recovery plan was issued by the Service on August 24, 1979. A first revision was issued on April 11, 1995, and the second, and current, revision on January 27, 2003. The 2003 recovery plan provided management guidelines fundamental to the conservation and recovery of red-cockaded woodpeckers. The Service continues to strongly encourage the application of these guidelines to the management of woodpecker populations on public and private lands. Implementation of the 2003 recovery plan has been carried out through the incorporation of management guidelines for installing artificial cavities, management of cavity trees and clusters, translocation, silviculture, and prescribed fire into various Federal and State land management plans. In addition to the management guidelines, the 2003 recovery plan provides guidelines to private landowners for managing foraging habitat on private lands occupied by red-cockaded woodpeckers. After the issuance of the 2003 recovery plan, two additional sets of foraging guidelines were developed (USFWS 2005, entire). As described in the 2005 guidance, the recovery standard for good quality foraging habitat is intended for recovery management to sustain and increase populations.

The 2003 recovery plan contains both downlisting and delisting criteria (USFWS 2003, pp. 141-145). The current status of red-cockaded woodpecker partially meets the 2003 downlisting criteria. The number of red-cockaded woodpecker active clusters has increased from 5,627 to more than 7,800 since 2003 (USFWS 2022, entire). The population size objectives to meet applicable downlisting criteria have been met for 15 of 20 designated populations. All of these designated populations show stable or increasing long-term population growth rates (λ ≥ 1). However, not all of the designated recovery populations are demographically a single functional population as intended by the 2003 recovery plan. Nine of the 20 designated recovery populations that count toward fulfilling downlisting population size criteria consist of multiple smaller demographic populations. Based on the largest single demographic population for a designated recovery population, 14 of 20 designated recovery populations have achieved downlisting population size criteria. As to delisting criteria, because the delisting criteria all require all-natural cavities, none of the delisting criteria have been fully met. With continued forest management to retain and produce sufficient old pines for natural cavity excavation, future populations would no longer be dependent on artificial cavities. Regardless, there has been encouraging progress towards meeting the delisting criteria, as 12 of 29 demographically delineated populations corresponding to designated recovery populations currently have achieved population sizes that meet the delisting criteria. We described that status of the downlisting and delisting criteria in detail in the proposed rule (85 FR 63474, October 8, 2020).

For the red-cockaded woodpecker, although all of the population objectives from the 2003 recovery plan have yet to be reached, the primary recovery task of increasing existing populations on Federal and State lands has been successful, and the population growth rates indicate sufficient resiliency to stochastic disturbances with effective management. In addition, redundancy of moderate to very high resiliency populations suggests that risks from future catastrophic events to overall viability are low.

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 endangered and threatened species. On April 5, 2024, 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, and reclassify endangered and threatened species and what criteria we apply when designating listed species' critical habitat (89 FR 24300). On the same day, the Service published a final rule revising our protections for endangered species and threatened species at 50 CFR 17 (89 FR 23919). These final rules are now in effect and are incorporated into the current regulations. Our analysis for this final decision applied our current regulations. Given that we proposed reclassifying this species under our prior regulations (revised in 2019), we have also undertaken an analysis of whether our decision would be different if we had continued to apply the 2019 regulations and we concluded that the decision would be the same. The analyses under both the regulations currently in effect and the 2019 regulations are available on

https://www.regulations.gov.

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.

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 which is further described in the 2009 Memorandum Opinion on the foreseeable future from the Department of the Interior, Office of the Solicitor (M-37021, January 16, 2009; “M-Opinion,” available online at

https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf

). The foreseeable future extends as far into the future as the Services can make reasonably reliable predictions about the threats to the species and the species' responses to those threats. We need not identify the foreseeable future in terms of a specific period of time. We will describe the foreseeable future on a case-by-case basis, using the best available data and taking into account considerations such as the species' life-history characteristics, threat-projection timeframes, and environmental variability. In other words, the foreseeable future is the period of time over which we can make reasonably reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction, in light of the conservation purposes of the Act.

Analytical Framework

The SSA report documents the results of our comprehensive biological review of the best scientific and commercial data regarding th

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