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Rule2024-23786

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

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Published

October 25, 2024

Effective

November 25, 2024

Issuing agencies

Interior DepartmentFish and Wildlife Service

Abstract

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.

Full Text

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[Federal Register Volume 89, Number 207 (Friday, October 25, 2024)]
[Rules and Regulations]
[Pages 85294-85338]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-23786]

[[Page 85293]]

Vol. 89

Friday,

No. 207

October 25, 2024

Part II

Department of the Interior

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Fish and Wildlife Service

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50 CFR Part 17

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

Federal Register / Vol. 89 , No. 207 / Friday, October 25, 2024 /
Rules and Regulations

[[Page 85294]]

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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.

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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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Comments and materials we received are available
for public inspection at <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 <a href="https://fws.gov/species/red-cockaded-woodpecker-dryobates-borealis">https://fws.gov/species/red-cockaded-woodpecker-dryobates-borealis</a>, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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:
<bullet> 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).
<bullet> Fragmentation of habitat, with resulting effects on
genetic variation, dispersal, and connectivity to support demographic
populations (Factor A).
<bullet> Stochastic events such as hurricanes, ice storms, and
wildfires, exacerbated by the environmental effects of climate change
(Factor E).
<bullet> 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

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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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> and <a href="https://fws.gov/species/red-cockaded-woodpecker-dryobates-borealis">https://fws.gov/species/red-cockaded-woodpecker-dryobates-borealis</a>. 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:
<bullet> 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.
<bullet> 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

[[Page 85296]]

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

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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

[[Page 85298]]

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 ([lambda] >= 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

[[Page 85299]]

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

[[Page 85300]]

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.

[[Page 85301]]

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

[[Page 85302]]

``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 Sec.
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 Sec.
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

[[Page 85303]]

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

[[Page 85304]]

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

[[Page 85305]]

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).

[[Page 85306]]

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

[[Page 85307]]

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

[[Page 85308]]

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

[[Page 85309]]

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

[[Page 85310]]

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
Sec. 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

[[Page 85311]]

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 Sec. 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
(Sec. 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

[[Page 85312]]

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

[[Page 85313]]

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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>
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

[[Page 85314]]

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 ([lambda] >= 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

[[Page 85315]]

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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
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 <a href="https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf">https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf</a>).
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
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be reclassified as a threatened species
under the Act. However, it does provide the scientific basis that
informs our regulatory decisions, which involve the further application
of standards within the Act and its implementing regulations and
policies.
To assess red-cockaded woodpecker viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency is the ability of the species to withstand environmental and
demographic stochasticity (for example, wet or dry, warm or cold
years), redundancy is the ability of the species to withstand
catastrophic events (for example, droughts, large pollution events),
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment
(for example, climate conditions, pathogens). In general, species
viability will increase with increases in resiliency, redundancy, and
representation (Smith et al. 2018, p. 306). Using these principles, we
identified the species' ecological requirements for survival and
reproduction at the individual, population, and species levels, and
described the beneficial and risk factors influencing the species'
viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated individual species' life-history
needs. The next stage involved an assessment of the historical and
current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions

[[Page 85316]]

about the species' responses to positive and negative environmental and
anthropogenic influences. Throughout all of these stages, we used the
best available information to characterize viability as the ability of
a species to sustain populations in the wild over time, which we then
used to inform our regulatory decision.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report (USFWS 2022, entire) can be found
at Docket No. FWS-R4-ES-2019-0018 on <a href="https://www.regulations.gov">https://www.regulations.gov</a> and at
<a href="https://ecos.fws.gov/ecp/species/7614">https://ecos.fws.gov/ecp/species/7614</a>.

Summary of Biological Status and Threats

In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability. In addition, the SSA report
(USFWS 2022, entire) documents our comprehensive biological status
review for the species, including an assessment of the potential
threats to the species.
The following is a summary of this status review and the best
available information gathered since that time that have informed this
decision. In the discussion below, we summarize the conclusions of that
assessment, which we provide in full under Docket No. FWS-R4-ES-2019-
0018 on <a href="https://www.regulations.gov">https://www.regulations.gov</a> and at <a href="https://fws.gov/species/red-cockaded-woodpecker-dryobates-borealis">https://fws.gov/species/red-cockaded-woodpecker-dryobates-borealis</a>.

Summary of Species Needs

In the SSA report, we discuss individual-, population-, and
species-level needs of the red-cockaded woodpecker in detail (USFWS
2022, pp. 32-104). Red-cockaded woodpeckers require open pine woodlands
and savannas with large, old pines for nesting and roosting. Old pines
are required as cavity trees because cavity chambers must be completely
within the heartwood to prevent pine resin in the sapwood from entering
the chamber (Conner et al. 2001, pp. 79-155); a tree must be old and
large enough to have sufficient heartwood to contain a cavity. In
addition, old pines have a higher incidence of the heartwood decay that
greatly facilitates cavity excavation. Cavity trees must be in open
stands with little or no hardwood midstory and few or no overstory
hardwoods. Hardwood encroachment on cavity trees resulting from fire
suppression is a well-known cause of cluster abandonment.
Red-cockaded woodpeckers also require adequate foraging habitat.
Over 75 percent of the red-cockaded woodpecker's diet consists of
arthropods. Individuals generally capture arthropods on and under the
outer bark of live pines and in dead branches of live pines. A large
proportion of the arthropods on pine trees crawl up into the trees from
the ground, which implies the condition of the ground cover is an
important factor influencing abundance of prey for red-cockaded
woodpecker (Hanula and Franzreb 1998, entire). The density of pines has
a negative relationship with arthropod abundance and biomass, likely
due at least in part to the negative effect of pine density on ground
cover, from which some of the prey comes (Hanula et al. 2000, entire).
Arthropod abundance and biomass also increase with the age and size of
pines (Hooper 1996, entire; Hanula et al. 2000, entire), which is
another reason older pines are so critical to this species.
Accordingly, suitable foraging habitat generally consists of mature
pines with an open canopy, low densities of small pines, a sparse
hardwood or pine midstory, few or no overstory hardwoods, and abundant
native bunchgrass and forb groundcovers. Frequent fire likely increases
foraging habitat quality by reducing hardwoods and by increasing the
abundance and perhaps nutrient value of prey (James et al. 1997,
entire; Hanula et al. 2000, entire; Provencher et al. 2002, entire).
Thus, frequent growing season fire may be critical in providing red-
cockaded woodpeckers with abundant prey.
For the red-cockaded woodpecker to maintain viability, its
populations or some portion thereof must be resilient. The SSA assessed
resiliency at the population level, primarily by evaluating the current
population size as the number of active clusters and secondarily by the
associated past growth rate. Ultimately, a resilient population of red-
cockaded woodpecker has a large number of active clusters and a
positive growth trajectory. Red-cockaded woodpecker resiliency
primarily depends upon a single factor: amount of managed suitable
habitat.
Representation provides the ability of the species to adapt to
physical (e.g., climate conditions, habitat conditions or structure
across large areas) and biological (e.g., novel diseases, pathogens,
predators) changes in its environment presently and into the future; it
is a proxy measure for the evolutionary capacity or flexibility of the
species. Representation is the range of variation found in a species,
and this adaptive diversity is the source of species' adaptive
capabilities. The red-cockaded woodpecker's adaptive diversity can be
thought of as the amount and spatial distribution of genetic and
phenotypic diversity. By maintaining these two sources of adaptive
diversity across a species' range, the responsiveness and adaptability
of a species over time is preserved (USFWS 2022, pp. 90-104). The SSA
evaluated representation based on the extent and variability of habitat
characteristics across the geographical range of the species and
characterized representative units for the red-cockaded woodpecker
using ecoregions. This analysis generally followed the approach to
representation used in the species' 2003 recovery plan (USFWS 2003, pp.
148, 152-155).
For the red-cockaded woodpecker to maintain viability, the species
also needs to exhibit some degree of redundancy. Measured by the number
of populations, their resiliency, and their distribution, redundancy
increases the probability that the species has a margin of safety to
withstand, or can bounce back from, catastrophic events. The SSA
reported redundancy for red-cockaded woodpeckers as the total number
and resilience of population segments and their distribution within and
among representative units.
In summary, a species needs a suitable combination of all three
characteristics (resilience, representation, and redundancy) for long-
term viability.

Summary of Stressors

We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have
analyzed the cumulative effects of identified threats and conservation
actions on the species. To assess the current and future condition of
the species, we evaluate the effects of all the relevant factors that
may be influencing the species, including threats and conservation
efforts. Because the SSA framework considers not just the presence of
the factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative-effects analysis.
The primary risk factor (i.e., stressor) affecting the status of
the red-cockaded woodpecker remains the lack of suitable habitat
(Factor A). Wildfire, pine beetles, ice storms, tornadoes, hurricanes,
and other naturally occurring disturbances that destroy pines used for
cavities and foraging are stressors for the red-cockaded woodpecker
(Factor E), especially given the high number of very small

[[Page 85317]]

woodpecker populations (Factor E) (USFWS 2022, pp. 40-41, 83-85, 105,
121-129). The number and severity of major hurricanes (Bender et al.
2010, entire; Knutson et al. 2010, entire; Walsh et al. 2014, pp. 41-
42) is expected to increase in response to global climate change, and
this increase could also disproportionately affect the smaller, less
resilient woodpecker populations (Factor E). With rare exception, the
vast majority of red-cockaded woodpecker populations remain dependent
on artificial cavities due to the absence of sufficient old pines for
natural cavity excavation and habitat treatments to establish and
maintain the open, pine-savanna conditions favored by the species
(Factor E). These populations will decline without active and
continuous management to provide artificial cavities and to sustain and
restore forest conditions to provide suitable habitat for natural
cavities and foraging similar to the historical conditions (Conner et
al. 2001, pp. 220-239, 270-299; Rudolph et al. 2004, entire).
Although published after the completion of the SSA report, a recent
publication indicated potential effects of warming temperatures,
resulting from climate change, on breeding phenology of red-cockaded
woodpeckers. A description of this preliminary research has been
incorporated below.
Habitat Loss and Degradation
The primary remaining threats to the red-cockaded woodpecker's
viability have the same fundamental cause: lack of suitable habitat.
Historically, the significant impacts to red-cockaded woodpecker
habitat occurred as a result of clearcutting, incompatible forest
management, and conversion to urban and agricultural land uses. Both
the longleaf pine and other open pine ecosystems were eliminated from
much of their original range because of early (1700s) European
settlement, widespread commercial timber harvesting, and the naval
stores (turpentine) industry (1800s). Early to mid-1900 commercial tree
farming, urbanization, and agriculture contributed to further declines.
Much of the remaining habitat is very different from the vast,
historical pine forests in which the red-cockaded woodpecker evolved.
The second growth longleaf pine forests of today, rather than being
dominated by centuries-old trees as the original forests were, are just
reaching the age (90-100 years) required to meet all the needs of the
red-cockaded woodpecker. Furthermore, in many cases, the absence of
fire has caused the original open savannas to degrade into dense pine/
hardwood forest. Much of today's forest is young and dense, and
dominated by loblolly pine, with a substantial hardwood component and
little or no herbaceous groundcover (Noel et al. 1998, entire; Frost
2006, pp. 37-38).
The impacts from this clearcutting and incompatible forest
management have been significantly curtailed and replaced by beneficial
conservation management that sustains and increases populations;
however, stressors caused by adverse historical practices still linger,
including insufficient numbers of cavities, low numbers of suitable old
pines, habitat fragmentation, degraded foraging habitat, and small
populations. These lingering impacts can negatively affect the ability
of populations to grow, even when populations are actively managed for
growth, 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.
Currently, stressors to the species resulting from exposure to
habitat modification or destruction are lower, especially when compared
to historical levels. Periodically, military training on DoD
installations requires clearing of red-cockaded woodpecker habitat for
construction of ranges, expansion of cantonments, and related
infrastructure, but these installations have management plans to
sustain and increase red-cockaded woodpecker populations. In addition,
silvicultural management on Federal, State, and private lands also
occasionally results in temporary impacts to habitat; for example, red-
cockaded woodpecker habitat may be unavoidably, but temporarily,
adversely affected in old, even-aged loblolly pine stands that require
regeneration prior to stand senescence to sustain a matrix of future
suitable habitat for a net long-term benefit. Similarly, red-cockaded
woodpecker habitat may be temporarily destroyed in areas where offsite
loblolly, slash, or other pines are removed and replaced by the more
fire-tolerant native longleaf pine. However, the net result of these
activities is a long-term benefit, as the goal is to restore these
areas to habitat preferred by woodpeckers.
Climate Change
In 2019, DeMay and Walters published preliminary investigations
that examined the ``effects of climate on breeding phenology and
productivity in 19 populations across the range of the red-cockaded
woodpecker'' (DeMay and Walters 2019, p. 1). They found that birds at
higher latitudes appear to be adjusting the timing of breeding in
response to warming temperatures; they are nesting earlier and have
resultingly higher productivity. However, they found that birds in the
southwestern portion of the range have been exhibiting declining
productivity, even in populations with high-quality habitat and ongoing
active management (e.g., Eglin Air Force Base); the authors
hypothesized this decline in productivity could be due to ``a possible
shift in acceptable climate conditions for the species'' or an
inability of these populations to make appropriate adjustments to the
timing of reproduction in the face of a changing climate.
While the SSA report did not incorporate the findings of DeMay and
Walters (2019), it did acknowledge that southwestern populations have
lower productivity (USFWS 2022, p. 26) and referenced earlier research
to similarly suggest 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).Even with the lower productivity in the southwestern
populations, it should be noted that the current species distribution
covers 13 different ecoregions, all with unique climatic profiles,
suggesting that the species has an increased ability to adapt.
Natural Disturbances
Wildfire, pine beetles, ice storms, tornadoes, and hurricanes are
naturally occurring disturbances that destroy pines used for cavities.
The loss of pines can result in subsequent reductions to population
size unless management actions are taken to reduce or ameliorate
adverse impacts. These management actions include providing artificial
cavities, reducing hazardous fuels, and restoring forests to suitable
habitat following these events. These disturbances can also destroy or
degrade foraging habitat and cause direct mortality of woodpeckers.
Small populations are the most vulnerable to these disturbances as
there are fewer individuals to recover from the disturbance,
potentially resulting in poorer survival or reproduction for the
population. See the SSA report for more information about these natural
disturbances (USFWS 2022, pp. 121-129).

[[Page 85318]]

Habitat destruction caused by hurricanes is the most acute and
potentially catastrophic disturbance because hurricanes can impact
entire populations. As noted in the SSA report, of the 124 current
demographic populations, about 63 populations in the East Gulf Coastal
Plain, West Gulf Coastal Plain, the lower portion of the Upper West
Gulf Coastal Plain, and Florida Peninsula ecoregions are vulnerable to
potential catastrophic impacts of hurricanes, particularly major
hurricanes. Fifty-six of these 63 populations (89 percent) are
identified as low or very low resiliency in the SSA report, which makes
them significantly vulnerable to adverse impacts from exposure to
hurricanes. In addition, the frequency of intense Atlantic basin
hurricanes, particularly major Category 4 and 5 storms, may be expected
to increase in response to global climate change during the 21st
century (Bender et al. 2010, entire; Knutson et al. 2010, entire; Walsh
et al. 2014, pp. 41-42, Vecchi et al. 2021, entire). That being said,
we are unable to precisely predict the location and frequency of future
storms affected by climate change relative to particular red-cockaded
woodpecker populations, which is why we are unable to identify specific
populations as being at risk from hurricanes. While larger populations
(greater than 400 active clusters) are the most likely to withstand a
strike by a major hurricane (e.g., Hooper et al. 1990, entire; Hooper
and McAdie 1995, entire; Watson et al. 1995, entire), smaller
populations are more vulnerable to adverse effects from them, including
extirpation, as well as to the effects of recurring storms that
subsequently deplete cavity trees and foraging habitat, causing
reductions in population size. However, these smaller populations may
be able to 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.

Summary of Conservation Management

As noted above, the red-cockaded woodpecker is a conservation-
reliant species and responds well to active management. The vast
majority of 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 (e.g., INRMP, USFS management plans,
National Wildlife Refuge (NWR) management plans). Plans are specific to
each property or management unit but generally contain the same core
features (e.g., cavity management, translocation, prescribed burning).
The most comprehensive plans call for intensive cavity management with
the installation of artificial cavities to offset cavity loss in
existing territories, maintenance of sufficient suitable cavities to
avoid loss of active territories, and creation of new territories with
recruitment clusters and artificial cavities in restored or suitable
habitat to increase population size. The development of techniques to
construct artificial cavities (Copeyon 1990, entire; Allen 1991,
entire) offsets the lack of natural cavities and provides managers a
new tool to greatly increase cavity availability. Fortunately, red-
cockaded woodpeckers readily adapt to these artificial cavities, with
thousands installed since the early 1990s. These cavity management
activities are necessary until mature forests are restored with
abundant old pines 65 and more years of age for natural cavity
excavation.
Managers also reduce fragmentation by restoring and increasing
habitat with strategic placement of recruitment clusters to reduce gaps
within and between populations. Furthermore, red-cockaded woodpecker
subadults from large or stable donor populations are translocated to
augment growth of small, vulnerable populations. Of the current 124
demographic populations, 108 are small (fewer than 99 active clusters)
with inherently very low or low resiliency. These are the most
vulnerable to future extirpation due to stochastic demographic and
environmental factors and inbreeding depression. Inbreeding depression
in small, fragmented populations of up to 50 to 100 active clusters
without adequate immigration can further increase the probability of
decline and future extirpation; for these populations, red-cockaded
woodpecker translocation programs reduce risks of adverse inbreeding
impacts. As noted in the SSA report (see Current Condition, below),
while resiliency is moderate for 10 of the current populations with 100
to 249 active clusters, and 6 populations exhibit high or very high
resiliency, potential adaptive genetic variation is still expected to
decline in all red-cockaded woodpecker populations (Bruggeman 2010, p.
22, appendix B, pp. 39-42; Bruggeman et al. 2010, entire; Bruggeman and
Jones 2014, pp. 29-33). Effective management programs to sustain even
the smallest populations are critical to reduce the risks of
inbreeding, establish genetic connectivity among fragmented
populations, and maintain ecological diversity and life-history
demographic variation as patterns of representation within and across
broad ecoregions.
Additionally, managers are implementing compatible silviculture
methods to sustain, restore, and increase habitat with an increased use
of effectively prescribed fire. Finally, managers are implementing
monitoring programs looking at both habitat and populations to provide
feedback for effective management. The future persistence of the
species will require these management actions to continue. In order to
facilitate this, we have structured our final 4(d) rule to encourage
the continuation of such management. 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.
In the SSA report, we identified 124 current demographic
populations with a total of 7,794 active clusters. Seventy-one of the
124 currently delineated red-cockaded woodpecker populations occur on
lands solely owned and managed by Federal agencies, with 4,033 current
active clusters. Seven additional populations with 2,026 active
clusters occur on lands that are under mixed Federal and State
ownership but are predominately managed by Federal agencies. Thirty-one
populations are on lands managed solely by State agencies, with 557
active clusters. Thus, 88 percent of delineated populations with 6,616
active clusters (85 percent of all 7,794 active clusters in 124
populations) are on lands managed entirely by Federal and State
agencies with statutes to require management plans addressing the
conservation of natural resources. Two populations occur in a matrix of
public and private lands, mostly Federal and State properties, with 816
active clusters. One population with 20 active clusters is managed by a
State agency and private landowner.
There are additional active clusters of red-cockaded woodpeckers on
nongovernmental lands enrolled in SHAs, but as noted above, we did not
have adequate data to spatially delineate all demographic populations
on these lands. Of the 933 active clusters managed by landowners with
existing SHAs in 8 States (Alabama, Florida, Georgia, Louisiana, North
Carolina,

[[Page 85319]]

South Carolina, Texas, and Virginia), demographic populations with
respective population sizes have not been delineated for approximately
558 active clusters.
Below is a summary of the types of management plans that include
elements directed at red-cockaded woodpecker management and
conservation. Note that the numbers of populations below do not
necessarily add up to the 124 current demographic populations
identified in the SSA report, because some populations cross property
boundaries and are managed by more than one landowner.
Department of Defense
Within the range of the red-cockaded woodpecker, the DoD manages
habitat for 14 populations, 5 of which are in the moderate to very high
resiliency categories, and 9 are in the low to very low resiliency
categories. The Sikes Act requires DoD installations to conserve and
protect the natural resources within their boundaries. INRMPs are
planning documents that outline how each military installation with
significant natural resources will manage those resources, while
ensuring no net loss in the capability of an installation to support
its military testing and training mission. Within the range of the red-
cockaded woodpecker, all DoD installations have current INRMPs that
address protection and recovery of the species, both through broader
landscape-scale ecosystem stewardship and more specific management
activities targeted directly at red-cockaded woodpecker conservation.
These activities include providing artificial cavities to sustain
active clusters, installing recruitment clusters to increase population
size, sustaining and increasing habitat through compatible forest
management and prescribed fire, and increasing the number and
distribution of old pines for natural cavity excavation. Each
installation has a red-cockaded woodpecker property or population size
objective with provisions for monitoring. For most installations, a
schedule is available for reducing certain military training
restrictions in active clusters in response to increasing populations
and attaining population size thresholds.
U.S. Forest Service
The USFS manages habitat for 49 red-cockaded woodpecker populations
on 17 National Forests and the Savannah River Site Unit (owned by the
Department of Energy but managed by the USFS). Of these populations, 10
have moderate to very high resiliency and 39 identified as having low
or very low resiliency. Under the National Forest Management Act of
1976 (16 U.S.C. 1600 et seq.), National Forests are required to develop
plans that provide for multiple use and sustained yield of forest
products and services, which includes timber, outdoor recreation,
range, watershed, fish and wildlife, and wilderness resources. These
plans, called ``land and resource management plans'' (LRMPs) and their
amendments, have been developed for every National Forest in the
current range of the red-cockaded woodpecker. The LRMPs for National
Forests in three States (Louisiana, North Carolina, and Texas) predate
the Service's 2003 recovery plan. Nevertheless, all National Forests
(even those with outdated LRMPs) have implemented management strategies
to protect and manage red-cockaded woodpecker habitat and increase
populations.
Current LRMPs approved prior to the 2003 recovery plan were
developed in coordination with the Forest Service's 1995 regional plan
for managing the red-cockaded woodpecker on southern National Forests
(USFS 1995, entire). The 1995 regional plan includes most of the new
and integrated management methods (Rudolph et al. 2004, entire) to
sustain and increase populations as incorporated in the recovery plan.
These include installing artificial cavities, increasing population
size with recruitment clusters, and restoring suitable habitat with
forest management treatments and prescribed fire. Some of the more
recent LRMPs, such as for National Forests in Mississippi, are more
broadly programmatic, but incorporate the 2003 recovery plan by
reference for appropriate conservation methods and objectives.
U.S. Fish and Wildlife Service
The National Wildlife Refuge (NWR) System manages 14 NWRs with red-
cockaded woodpeckers, with 10 NWRs supporting rangewide species
recovery. In the SSA report, we considered 3 of 19 populations found on
NWRs to be moderate to very high resiliency while 16 have low to very
low resiliency. Under the NWR System Improvement Act of 1997 (Pub. L.
105-57), NWRs prepare comprehensive conservation plans (CCPs), which
provide a blueprint for how to manage for the purposes of each refuge;
address the biological integrity, diversity, and environmental health
of a refuge; and facilitate compatible wildlife-dependent recreation.
NWRs have assigned population objectives from the 2003 recovery plan
through their CCPs or modified in their habitat management plans.
Specific tasks in these plans include installation of artificial
cavities; translocation; establishing recruitment clusters; population
monitoring; prescribed fire; and silvicultural treatments, such as mid-
story removal, thinning of younger stands, and, where necessary,
increasing stand age diversity with regeneration of pine stands.
National Park Service
Within the Big Cypress National Preserve (Preserve) in Florida, the
National Park Service (NPS) manages two red-cockaded woodpecker
populations, one with low and the other with very low resilience. The
NPS's plans do not include specific provisions for red-cockaded
woodpecker management; however, at the Preserve, the NPS conducts
prescribed fire to maintain and improve the south Florida slash pine
forest communities that support the species. The NPS also allows FFWCC
biologists to conduct red-cockaded woodpecker surveys, monitor,
periodically install a limited number of artificial cavities, and
conduct translocations on occasion. From surveys and monitoring by the
FFWCC, 75 percent of all cavity trees within the Preserve consist of
natural cavities, which is an unusually high number relative to other
populations, reflecting the predominately old condition of the Big
Cypress south Florida slash pine forests (Spickler 2019, pers. comm.).
State Lands
The States of Arkansas, Florida, Georgia, Louisiana, North
Carolina, Oklahoma, South Carolina, Texas, and Virginia have red-
cockaded woodpecker populations on State-owned lands. All or parts of
40 currently delineated populations occur on State lands. Seven
populations on or partially on State lands have moderate to very high
resiliency, while 32 populations have low to very low resiliency. These
properties range from State Forest Service or Forest Commission
holdings to Department of Wildlife, Department of Natural Resources,
and State Park Service properties. The mission, and therefore the
extent and type of management, of each unit varies. For example, some
State lands are managed generally to provide ecosystem benefits, such
as managing pine-dominated forests with prescribed fire. However, other
State properties implement proactive conservation management
specifically for the red-cockaded woodpecker. For example, the FFWCC
manages all of its properties under the umbrella of the Florida Red-
cockaded Woodpecker Management Plan, with

[[Page 85320]]

other specific plans for the agency's WMAs.
Other Lands
Eight States have a Service-approved programmatic SHA with a
section 10(a)(1)(A) enhancement of survival permit under the Act to
enroll non-Federal landowners that voluntarily provide beneficial
management. Of 459 enrolled non-Federal landowners, one is for a State
property and all others are private nongovernmental lands. All or parts
of 12 currently delineated demographic populations are covered under a
current SHA. Again, we are aware of additional active clusters covered
under SHAs, but we lack the data to delineate them as demographic
populations. SHAs, now known as CBAs, are partnerships between
landowners and the Service involving voluntary agreements under which
the property owners receive formal regulatory assurances from the
Service regarding their management responsibilities in return for
contributions to benefit the listed species.
For the red-cockaded woodpecker, this includes voluntary
commitments by landowners to maintain and enhance red-cockaded
woodpecker habitat to support baseline active clusters, which is the
number of clusters at the time of enrollment, and additional above-
baseline active clusters that increase in response to beneficial
management. Beneficial management includes the maintenance and
enhancement of existing cavity trees and foraging habitat through
activities such as prescribed fire, mid-story thinning, seasonal
limitations for timber harvesting, and management of pine stands to
provide suitable foraging habitat and cavity trees. Because above-
baseline active clusters and habitat covered under these plans can be
returned to ``baseline'' conditions, any population growth on lands
covered by existing SHAs or future CBAs may not be permanent. In
addition, enrolled landowners can terminate their agreement at any
time. However, fewer than 5 of the 459 enrolled landowners have ever
used their permit authorities to return the number of active clusters
to baseline conditions, and only 12 landowners have terminated their
agreement. There currently are 241 active above-baseline clusters in
the program.
In summary, the red-cockaded woodpecker is a conservation-reliant
species, but one that responds very well to active management. The
majority of red-cockaded woodpecker populations are managed under plans
that address population enhancement and habitat management to sustain
or increase populations, and to meet the 2003 recovery plan objectives
for primary core, secondary core, and essential support populations. We
expect these property owners will continue to implement their
respective management plans while the species is listed as threatened,
as the red-cockaded woodpecker will remain protected under the Act and
the 2003 recovery plan is still applicable.

Current Condition

Resiliency
In the SSA report, we identified 124 demographic populations across
the range of the red-cockaded woodpecker for which sufficient data were
available to complete the SSA analysis for the recent past to current
condition. We acknowledge there are other small occurrences of red-
cockaded woodpeckers, particularly on private lands; however, spatial
data for these other occurrences were incomplete, so for purposes of
the SSA analysis, and subsequently throughout this final rule, we
focused only on the 124 demographic populations that could be spatially
delineated. The SSA categorizes two important parameters related to
current population resiliency: current population size and associated
population growth rate. Population resilience size categories are
defined as follows: very low (fewer than 30 active clusters); low (30
to 99 active clusters); moderate (100 to 249 active clusters); high
(250 to 499 active clusters); and very high (greater than or equal to
500 active clusters).
Population resilience size-classes were derived from spatially
explicit individual-based models and simulations for this species
(Letcher et al. 1998, entire; Walters et

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