Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Louisiana Black Bear (Ursus americanus luteolus), 10350-10409 [E9-4536]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 74, Number 45 (Tuesday, March 10, 2009)]
[Rules and Regulations]
[Pages 10350-10409]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-4536]



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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; Designation of Critical 
Habitat for the Louisiana Black Bear (Ursus americanus luteolus); Final 
Rule

Federal Register / Vol. 74, No. 45 / Tuesday, March 10, 2009 / Rules 
and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R4-ES-2008-0047; 92210-1117-0000-B4]
RIN 1018-AV52


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Louisiana Black Bear (Ursus americanus 
luteolus)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the Louisiana black bear (Ursus americanus 
luteolus) under the Endangered Species Act of 1973, as amended (Act). 
In total, approximately 1,195,821 acres (483,932 hectares) in 
Avoyelles, East Carroll, Catahoula, Concordia, Franklin, Iberia, 
Iberville, Madison, Pointe Coupee, Richland, St. Martin, St. Mary, 
Tensas, West Carroll, and West Feliciana Parishes, Louisiana, fall 
within the boundaries of the critical habitat designation.

DATES: This rule becomes effective on April 9, 2009.

ADDRESSES: This final rule and the associated final economic analysis 
are available on the Internet at https://www.regulations.gov and at 
https://www.fws.gov/lafayette. Supporting documentation we used in 
preparing this final rule is available for public inspection, by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Lafayette Ecological Services Field Office, 646 
Cajundome Boulevard, Suite 400, Lafayette, LA 70506; telephone 337-291-
3100; facsimile 337-291-3139.

FOR FURTHER INFORMATION CONTACT: Jim Boggs, Field Supervisor, Lafayette 
Ecological Services Field Office (see ADDRESSES section). If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Background

    It is our intent to discuss only those topics directly relevant to 
the development and designation of critical habitat for the Louisiana 
black bear in this final rule. For more information on the biology and 
ecology of the Louisiana black bear, refer to the final listing rule 
published in the Federal Register on January 7, 1992 (57 FR 588), and 
to our 1995 final recovery plan, which is available from the Lafayette 
Ecological Services Field Office (see ADDRESSES section). For 
information on Louisiana black bear critical habitat, refer to the 
proposed rule to designate critical habitat for the Louisiana black 
bear published in the Federal Register on May 6, 2008 (73 FR 25354). 
Information on the associated draft economic analysis for the proposed 
rule to designate revised critical habitat was published in the Federal 
Register on November 12, 2008 (73 FR 66831).

Previous Federal Actions

    We listed the Louisiana black bear (Ursus americanus luteolus) as 
threatened under the Act (16 U.S.C. 1531 et seq.) on January 7, 1992 
(57 FR 588). In our final rule listing this subspecies, we determined 
that normal forest management activities supporting a sustained yield 
of timber products and wildlife habitats were compatible with Louisiana 
black bear's needs. Accordingly, we promulgated a special rule under 
section 4(d) of the Act, which can be found at 50 CFR 17.40(i), 
exempting the effects incidental to normal forest management activities 
within the subspecies' historic range, except for activities causing 
damage to or loss of den trees, den tree sites, or candidate den trees 
(57 FR 588). For the purposes of that exemption, normal forest 
management activities are those activities that support a sustained 
yield of timber products and wildlife habitats, thereby maintaining 
forestland conditions in occupied (i.e., breeding) habitat. Research 
has supported this decision. In fact, in some cases, such as leaving 
downed tree tops and creating openings, timber management can provide 
or enhance black bear habitat (Weaver 1999, pp. 126-128; Hightower et 
al. 2002, p. 14; Weaver et al. 1990, p. 344; Lindsey and Meslow 1977, 
p. 424). Therefore, we have not considered changing the special rule at 
50 CFR 17.40.
    We first proposed critical habitat for the Louisiana black bear on 
December 2, 1993 (58 FR 63560), but never published a final rule 
designating critical habitat. On September 6, 2005, Mr. Harold 
Schoeffler and the Louisiana Crawfish Producers Association--West filed 
suit in U.S. District Court for the Western District of Louisiana 
(Civil Action No. CV05-1573 (W.D. La.)) regarding our failure to 
designate critical habitat for the Louisiana black bear.
    On June 26, 2007, the Court ordered the Service to withdraw the 
December 2, 1993, proposed critical habitat rule and create a new 
proposed critical habitat designation by no later than 4 months from 
the date of the judgment and to publish a final designation by no later 
than 8 months from the date of the proposed or new rule. On September 
5, 2007, following a settlement agreement, the Court revised its order 
to require the Service to: (1) Withdraw the December 2, 1993, proposed 
rule and submit a new prudency determination and, if prudent, a new 
proposed critical habitat designation to the Federal Register by April 
26, 2008; and (2) submit a final critical habitat determination, if 
prudent, to the Federal Register by February 26, 2009.
    On May 6, 2008, we proposed critical habitat designation for the 
Louisiana black bear in Avoyelles, Catahoula, Concordia, East Carroll, 
Franklin, Iberia, Iberville, Madison, Pointe Coupee, Richland, St. 
Martin, St. Mary, Tensas, West Carroll, and West Feliciana Parishes, 
Louisiana (73 FR 25354). Simultaneously, we announced our withdrawal of 
the 1993 proposal and our new prudency determination. The proposed rule 
described three units totaling approximately 1,330,000 acres (ac) 
(538,894 hectares (ha)) within Louisiana.
    For more information on previous Federal actions concerning the 
Louisiana black bear, refer to the final rule listing this subspecies 
as threatened published in the Federal Register on January 7, 1992 (57 
FR 588), and the proposed critical habitat rule published in the 
Federal Register on December 2, 1993 (58 FR 63560).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the Louisiana black bear during two 
comment periods. The first comment period associated with the 
publication of the proposed rule (73 FR 25354) opened on May 6, 2008, 
and closed on July 7, 2008. We also requested comments on the proposed 
critical habitat designation and associated draft economic analysis 
during a comment period that opened November 12, 2008, and closed on 
December 12, 2008 (73 FR 66831). We also contacted appropriate Federal, 
State, and local agencies; scientific organizations; and other 
interested parties and invited them to comment on the proposed rule and 
draft economic analysis during these two comment periods.
    During the first comment period, we received 12 comment letters 
directly addressing the proposed critical habitat designation. During 
the second comment period, we received 15 comment letters addressing 
the proposed critical habitat designation or

[[Page 10351]]

the draft economic analysis. All substantive information provided 
during both comment periods has either been incorporated directly into 
this final determination or addressed below.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from five knowledgeable 
individuals with scientific expertise that includes familiarity with 
the subspecies, the geographic region in which the subspecies occurs, 
and conservation biology principles. We received responses from three 
of the peer reviewers.
    We reviewed all comments received from the peer reviewers for 
substantive issues and new information regarding critical habitat for 
the Louisiana black bear. The peer reviewers generally concurred with 
our methods and conclusions and provided additional information, 
clarifications, and suggestions to improve the final critical habitat 
rule. Peer reviewer comments are addressed in the following summary and 
incorporated into the final rule as appropriate.

Peer Reviewer Comments

    (1) Comment: One peer reviewer questioned the permanency of 
perpetual easements purchased through the Wetland Reserve Program (WRP) 
and the process by which such easements could be terminated.
    Our Response: According to the WRP Manual, found in Title II 
(Conservation) of The Farm Security and Rural Investment Act of 2002 
(2002 Farm Bill; Public Law 107-171), prior to making a decision 
regarding easement termination, the Natural Resources Conservation 
Service (NRCS) must: (1) Consult with the Service; (2) investigate 
whether reasonable alternatives to the proposed action exist; and (3) 
determine whether the easement modification is appropriate considering 
the purposes of WRP and the facts surrounding the request for easement 
modification or termination. Any WRP easement modification, including 
termination, must: (1) Be approved by the Director of the NRCS in 
consultation with the Service (the National WRP Program Manager must 
coordinate the consultation with the Service at the national level); 
(2) not adversely affect the wetland functions and values for which the 
easement was acquired; (3) result in equal or greater ecological (and 
economic) values to the U.S. Government; (4) further the purposes of 
the program and address a compelling public need; and (5) comply with 
applicable Federal requirements, including the Act, the National 
Environmental Policy Act (42 U.S.C. 4321 et seq.), Executive Order 
11990 (Protection of Wetlands), and related requirements. At least 90 
days before taking any action to terminate an easement, the Secretary 
of the Department of Agriculture must provide written notice of such 
action to the Committee on Agriculture of the U.S. House of 
Representatives and the Committee on Agriculture, Nutrition, and 
Forestry of the U.S. Senate. Therefore, based on our assessment of 
these requirements, the termination of a WRP easement appears highly 
improbable.
    In addition, our Lafayette Ecological Services Field Office has 
partnered with NRCS to administer WRP in Louisiana since the inception 
of that program in 1992. Following a comprehensive review of our local 
files, and a search of national WRP records, we have been unable to 
find a single instance of a WRP easement being terminated in the 
history of that program (which includes nearly 10,000 projects on 
approximately 2 million ac (800,000 ha) of land nationwide).
    (2) Comment: One peer reviewer expressed concern about the 
potential future conversion of non-WRP forestland to agricultural uses.
    Our Response: Results of recent studies indicate that there has 
been a reversal in the pre-1980s trend of forest conversion to 
agricultural use in the Lower Mississippi River Alluvial Valley (LMAV). 
Documentation of that reversal is limited, however, and a clear 
understanding of the magnitude of afforestation to date has been 
difficult because of the lack of collated data (Schoenholtz et al. 
2001, p. 603). Nonetheless, available data indicates that over the past 
three decades, forest restoration in the LMAV portions of Louisiana, 
Mississippi, and Arkansas has increased dramatically, and has led to a 
significant removal of land from agricultural production for the 
purpose of hardwood forest establishment (Gardiner and Oliver 2005, p. 
243). For example, in the LMAV region of Mississippi, the total 
forested area increased by 11 percent between 1987 and 1994, and 
reforestation of former agricultural lands accounted for nearly 40 
percent of that increase (King and Keeland 1999, p. 352). Between 1993 
and 2007, over 140,000 ac (57,000 ha) were restored to forestland via 
WRP, and 200,000 ac (81,000 ha) via the Conservation Reserve Program, 
within Louisiana black bear habitat priority areas in Louisiana (Ginger 
et al. 2007, p. 41). In summary, there is no evidence that any 
significant amount of forestland will be converted to agriculture in 
the future, and to the contrary, there is a promising trend in the 
annual increase of bottomland hardwood forest (BLH) forestation across 
the LMAV (Schoenholtz et al. 2001, p. 612).
    (3) Comment: One peer reviewer questioned whether bottomland 
hardwoods designated as critical habitat would be considered 
jurisdictional wetlands which would require permit authorization under 
section 404 of the Clean Water Act prior to filling for developmental, 
agricultural, or other purposes. That reviewer also inquired about 
habitat losses and associated impacts to bears should section 404 
permits authorize the loss of forested wetlands within the critical 
habitat boundary.
    Our Response: The U.S. Army Corps of Engineers (Corps) has been 
delegated the authority to regulate the placement of fill in wetlands 
and other waters of the United States. Wetland determination for 
regulatory purposes, such as assessments of wetland losses incurred 
from section 404-permitted activities, is typically done on a project-
specific basis by Corps personnel. Although regional large-scale 
wetland determination maps have not been typically used or developed by 
the Corps for jurisdictional purposes, based on our knowledge of 
forested ecosystems in the LMAV, we believe that most bottomland 
hardwoods within the critical habitat boundary are jurisdictional 
wetlands. Because the Corps evaluates permit applications on an 
individual basis, it would not be possible to determine whether the 
Corps would issue permits and if, or to what extent, they would be 
modified to minimize impacts or to accurately assess the full extent of 
future wetland losses from permitted projects. Given the nature and 
extent of previously permitted activities in bottomland hardwood 
wetlands within this region, we do not anticipate significant habitat 
losses from section 404-permitted projects. Furthermore, the Corps 
requires that section 404 permittees provide compensatory mitigation to 
replace wetland functions and values that are lost via their respective 
projects. Compensatory mitigation area virtually always equals or 
exceeds impacted area and is accomplished within, or in proximity to, 
the watershed of the impact site. Such mitigation, although done 
strictly for wetland replacement, would also provide habitat benefits 
for bears and should exceed habitat losses experienced from permitted 
projects.
    (4) Comment: One peer reviewer stated that we have not been able to

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document female interchange between the Deltic Timber tracts and the 
Tensas River National Wildlife Refuge (TRNWR). Therefore, those 
populations currently function as separate populations and should be 
described as such.
    Our Response: After reevaluating all available information related 
to bear populations and interchange between the Deltic Timber tracts 
and the TRNWR, we agree with this statement and have considered this in 
our analysis. It is more correct to state that the relationship between 
those populations ``may soon begin,'' rather than ``have likely 
begun,'' to function as a single population.
    (5) Comment: One peer reviewer requested that we provide a more 
detailed description of the process used to approximate female bear 
home ranges for our breeding habitat delineation.
    Our Response: Female bear home ranges were determined on a 
population-specific basis using published, telemetry-based research 
(Anderson 1997, p. 37; Beausoleil 1999, p. 60; Marchinton 1995, p. 31; 
Wagner 1995, p. 12; Weaver 1999, p. 70). The average home range sizes 
that were calculated as minimum convex polygons for each population 
were converted to average home range radii. Female locations 
(determined from telemetry data collected for the above-referenced 
studies) were buffered with those population-specific home range radii 
using a geographic information system software package to establish an 
approximate breeding habitat boundary. Minor modifications to that 
boundary were made based on the availability of contiguous habitat and 
the presence of movement barriers (such as large expanses of 
agricultural land or poor-quality habitat, waterways, highways, urban 
development, and other major landscape features).
    (6) Comment: One peer reviewer stated that the estimate of minimum 
habitat size for black bears presented by Cox et al. (1994, p. 50) is 
probably too large for Louisiana black bears due to higher habitat 
quality and more agricultural crop availability for many Louisiana 
black bear populations.
    Our Response: We concur with this statement and did not intend to 
suggest that the Cox et al. (1994) estimate would be used as a basis 
for our habitat requirements assessment. We used known home range sizes 
and habitat requirements for Louisiana black bears, on a population-
specific basis (with emphasis on the TRNWR population as a stable 
population that relies mostly on habitat containing features as 
described by the primary constituent elements (PCE) for survival), to 
determine the minimum required habitat size. Our mention of the Cox et 
al. (1994) publication was only intended to present other research 
findings related to minimum habitat requirements for black bears. 
Consistent with this reviewer's comment, our minimum habitat size 
calculation, as described in our May 6, 2008, proposed rule (73 FR 
25354, p. 25364), yielded an estimate that is significantly smaller 
than that of Cox et al. (1994).
    (7) Comment: One peer reviewer commented on the potential value of 
smaller habitat fragments within larger habitat matrices, and whether 
those smaller forested tracts should be designated as critical habitat 
for the Louisiana black bear.
    Our Response: We concur that smaller habitat patches provide 
benefits for bears, particularly to facilitate movement through 
corridors between populations, when they are components of a larger 
habitat matrix. Based on our review of available scientific literature, 
we determined that habitat fragments as small as 12 ac (5 ha) may be 
sufficient to provide linkage and facilitate movement across a 
fragmented landscape (Pelton and Van Manen 1997, p. 33; Beausoleil et 
al. 2005, pp. 409-410). For that reason, we included ``corridors 
consisting of habitat patches 12 ac (5 ha) or greater in size'' in our 
May 6, 2008, proposed rule to designate critical habitat for the 
Louisiana black bear (73 FR 25354, p. 25363).
    (8) Comment: One peer reviewer requested clarification of our 
definition of an ``actual den tree.''
    Our Response: Specific language affording protection of actual den 
trees was included in the 1992 4(d) rule that was part of the listing 
of the Louisiana black bear as a threatened subspecies (57 FR 588, p. 
593). That rule did not, however, define the criteria to be used for 
determining whether a tree is an ``actual den tree.'' We interpret that 
regulatory language to extend protection to den trees as long as bear 
usage is determinable (i.e., it is recognizable by visual observation 
of the subject tree, or was known to be used in previous denning 
seasons), such that those trees are protected even when bears are not 
actively using them. We determine bear use of a den tree by visual or 
audible confirmation (if it is actively being used), telemetry data, 
and the presence of bear claw marks.
    (9) Comment: One peer reviewer questioned the portion of our 
critical habitat designation strategy that involves maintaining the 
viability of existing populations, stating that he does not believe 
that existing populations have been proven viable.
    Our Response: We concur that existing populations have not been 
proven to have long-term (i.e. , 100 years or more) viability. All 
known breeding populations of Louisiana black bears that were present 
at the time of listing, however, continue to exist more than 15 years 
later. Population estimates for Louisiana black bears at the time of 
listing appear to be lower than what recent research would indicate, 
and there is circumstantial evidence that the population is growing 
(LDWF 2007, p. 22). Therefore, we consider these populations to be 
viable (at least in the near term) for planning purposes related to 
habitat restoration and corridor establishment.
    (10) Comment: One peer reviewer questioned the application of 
habitat requirements for the TRNWR subgroup, which benefits from 
extensive access to adjacent agricultural fields, to the Upper and 
Lower Atchafalaya River Basin (ARB) (Critical Habitat Units 2 and 3) 
populations, which have less opportunity to forage on agricultural 
crops. He asserted that due to agricultural crop availability and use 
by the TRNWR subgroup, a greater land base may be necessary for the two 
ARB populations to compensate for the lack of available agriculture.
    Our Response: We agree that the TRNWR subgroup is situated in an 
area that provides greater access to agricultural crops with higher 
nutritional value (e.g., corn, wheat, and soybeans) than the crops that 
are available for the two ARB populations. The Deltic Timber area in 
the northern portion of the Tensas River Basin (Critical Habitat Unit 
1) is a highly fragmented system of isolated forested tracts 
interspersed within an expansive agricultural landscape. Agricultural 
crops used by bears in this area is well documented and occurs at 
greater rates than for any other subgroup or population of Louisiana 
black bears. It should be noted, however, that even within this TRNWR 
subgroup, agricultural crops used by bears varies greatly by season and 
natural foods comprise most of the diet (by volume) for half of the 
year (Anderson 1997, p. 53). We believe that bears in both ARB 
populations also have access to, and will forage on, agricultural crops 
in their vicinity. Because sugarcane is the most commonly grown crop in 
this region, bears in these populations likely benefit less from the 
use of adjacent agriculture than bears in the TRNWR subgroup. 
Accordingly, we incorporated more PCE-definitional habitat into our 
critical habitat boundary (423,170 ac (171,251

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ha) total for Units 2 and 3) for the two ARB populations than is 
currently inhabited by bears in the TRNWR subgroup (141,868 ac (57, 412 
ha)). As explained in our proposal to designate critical habitat (73 FR 
25354, pp. 25364-25365), because the TRNWR subgroup sustains itself 
throughout much of the year primarily on habitats containing the PCEs, 
and that subgroup is viable, based on the results of population 
viability analyses, that subgroup was used as a model to evaluate the 
minimum habitat requirements for maintenance of long-term population 
viability.
    (11) Comment: One peer reviewer stated that the shared boundary 
(i.e., the corridor) between Units 2 and 3 seems relatively constricted 
and may not be adequate to ensure long-term connectivity and dispersal 
across those two units.
    Our Response: We have reassessed the landscape along the southern 
boundary of Unit 2 and the northern boundary of Unit 3 relative to 
potential travel corridors for bears. As explained in the Methods 
section of this document, increasing the unit width in this region 
would incorporate primarily agricultural fields and urban development, 
and virtually no additional forested habitat. Accordingly, the shared 
boundary of these two units has not been modified from our original 
proposal.
    (12) Comment: One peer reviewer had several questions regarding the 
use of the terms ``occupied at time of listing'' and ``currently 
occupied'' and the basis for critical habitat designation only in 
habitat that was occupied at the time of listing. Also, one public 
commenter expressed similar concerns.
    Our Response: Louisiana black bear resource managers have commonly 
used the term ``occupied'' habitat to indicate areas with physical 
evidence of reproduction (e.g., young, females with young, or lactating 
females). Critical habitat is defined in section 3 of the Act in part 
as the specific areas within the geographical area occupied by a 
species at the time it is listed in accordance with the Act, on which 
are found those physical or biological features: (I) Essential to the 
conservation of the species and (II) which may require special 
management considerations or protection. Therefore, for critical 
habitat designation, we use the term ``occupied'' in a less restrictive 
sense to indicate the subspecies' presence in an area without regard to 
reproductive information (i.e., the transient or permanent presence of 
male or female bears). In order to avoid confusion, we use the term 
``breeding areas'' or ``breeding habitat'' in this document to refer to 
areas with physical evidence of reproduction. We inadvertently used the 
term ``currently occupied'' once in the proposal when we should have 
used the term ``current breeding habitat.'' We have noted this error 
and revised our text.
    Under the Act and its implementing regulations (50 CFR 424.12(e)), 
we can designate critical habitat in areas outside of the geographical 
area occupied by the species at the time it is listed only when (1) the 
inclusion of specific areas occupied at the time of listing defined by 
the essential physical and biological features are not sufficient to 
conserve the species and (2) we determine that those areas outside the 
geographical area occupied by the species are essential for the 
conservation of the species. In preparing this final critical habitat 
designation, we did not find any areas outside of the geographical area 
occupied by the Louisiana black bear at the time of listing that are 
essential for the conservation of the subspecies, and we believe the 
specific areas included in this designation are sufficient to conserve 
the subspecies; therefore, we are not designating areas outside of the 
geographical area occupied by the subspecies.
    (13) Comment: One peer reviewer stated that coastal habitat is not 
superior habitat but that the small number of data points and bear use 
of garbage for food may have affected those estimates.
    Our Response: That statement referenced a speculation made by 
researchers over 10 years ago (Wagner 1995, p. 25). We agree that the 
knowledge we have gained about the coastal population indicates the 
commenter is correct, and we have included that in our discussion.
    (14) Comment: One peer reviewer requested additional information on 
how we will evaluate the cumulative effects of critical habitat 
alteration.
    Our Response: Critical habitat receives protection under section 7 
of the Act through the prohibition against Federal agencies carrying 
out, funding, or authorizing the destruction or adverse modification of 
critical habitat. Section 7 of the Act requires consultation on Federal 
actions that may affect critical habitat. Under section 7 of the Act, 
the Federal action agency must provide an analysis of cumulative 
effects, along with other information, when requesting formal 
consultation. The Service is required to consider cumulative effects of 
a proposed action in formulating our biological opinion. Under the 
provisions of the Act, we determine destruction or adverse modification 
on the basis of whether, with implementation of the proposed Federal 
action, the affected critical habitat would remain functional (or 
retain the current ability for the primary constituent elements to be 
functionally established) to serve its intended conservation role for 
the species.
    (15) Comment: One peer reviewer stated that, through the 
coordinated efforts of Federal, State, and private groups, remarkable 
progress in the protection and restoration of black bear habitat has 
been achieved in Louisiana in the past 10 years and was achieved 
without the benefit of critical habitat designation. The commenter 
wished to congratulate all those involved.
    Our Response: We agree that the progress made in Louisiana black 
bear habitat protection and restoration is noteworthy. We estimate that 
about 600,000 ac (240,000 ha) of land have been restored or protected 
in the bear's range since it was listed in January 1992. This includes 
lands that have been purchased by State and Federal agencies, public 
and private lands protected from development, and privately owned lands 
where bear habitat has been restored. All this was accomplished through 
the voluntary participation of many partners, such as the NRCS and 
other Federal agencies, State agencies in Louisiana and Mississippi, 
the Black Bear Conservation Committee (BBCC), the Louisiana Forestry 
Association, universities, and private citizens. We believe that 
designation of critical habitat will provide benefits in addition to 
those provided through private landowner incentive and conservation 
programs, and will further conservation of this subspecies.
    (16) Comment: Two peer reviewers stated that critical habitat 
designation has the potential to diminish landowner support for 
conservation activities benefitting the Louisiana black bear. One 
suggested that we precede critical habitat designation with a public 
education campaign.
    Our Response: We agree that negative perceptions associated with 
critical habitat designations could potentially alienate the private 
landowners that have been, and continue to be, so vital in the 
Louisiana black bear recovery. As we discuss in the ``State Comments'' 
section and in the ``Benefits of Inclusion'' section of this rule, we 
continue to recognize that designating critical habitat in areas where 
we have partnerships with private landowners that have led to 
conservation or management of listed species may impact landowners and 
future partnerships and conservation efforts.

[[Page 10354]]

Therefore, we have excluded private lands enrolled in the WRP under 
permanent conservation easements from critical habitat designation. 
Furthermore, lands that currently do not contain the physical and 
biological features essential to the conservation of the Louisiana 
black bear do not meet the definition of critical habitat and are not 
designated as critical habitat, nor would they be considered to be such 
if they were restored, or allowed to naturally regenerate, to forested 
habitat subsequent to this designation.
    We also agree that public education regarding critical habitat is 
important. From the beginning of this designation process, we have made 
efforts to inform the public (landowners and public agencies) about 
critical habitat and the designation process through newspapers, fact 
sheets, and informal meetings. We are committed to continuing public 
education about the Louisiana black bear and its critical habitat.
    (17) Comment: Two reviewers stated that our approach was logical 
and reasonable. One commenter indicated that we had thoroughly reviewed 
and appropriately interpreted the most recent scientific literature. 
One commenter indicated that we had designated sufficient quantity and 
quality in a way that encompassed all breeding populations and all 
primary constituent elements.
    Our Response: We appreciate the peer reviewers' positive evaluation 
of the biological and scientific basis for our critical habitat 
determination.
    (18) Comment: One commenter provided suggestions on the consistent 
use of terms, citations, and other grammatical inconsistencies.
    Our Response: We have made those corrections where appropriate and 
necessary in this designation.
    (19) Comment: One peer reviewer stated that he did not consider a 
density of one bear per 686 ac (278 ha) as low (even in the 
southeastern United States) and that, while this density is low when 
compared to densities on the nearby Deltic lands, it was more likely 
slightly higher than average across the Southeast.
    Our Response: We agree and have made this correction.
    (20) Comment: One peer reviewer requested clarification on the 
methods we would use to determine the presence of a breeding population 
in Mississippi.
    Our Response: There have been only three documented occurrences of 
successful reproduction of Louisiana black bears in Mississippi (Ginger 
et al. 2007, p. 34); there is no overlap in the home ranges of the 
three female bears that produced those litters. Based on our analysis 
of over 15 years of Louisiana black bear research and telemetry data, 
we have concluded that an isolated female bear (though she may 
occasionally produce a litter of cubs) does not constitute a breeding 
population. We have determined that a breeding population must consist 
of at least five adult females that are known to have successfully 
reproduced and that have overlapping home ranges. Evaluation of 
existing telemetry data indicates that habitats used by fewer than five 
adult females serve as temporary residences during atypical patterns of 
dispersal (i.e., movement patterns that are most often observed in 
bears translocated during reintroduction programs).
    (21) Comment: One peer reviewer questioned why it might be 
desirable to exclude WRP lands enrolled under a permanent easement.
    Our Response: Due to the level of protection from development 
afforded these lands, and the potential that negative perceptions 
associated with critical habitat designations could potentially 
alienate the private landowners that have been so vital to the 
Louisiana black bear recovery, we have determined that the benefits of 
exclusion outweigh the benefits of inclusion for lands enrolled under 
permanent easements in the WRP. In addition, we believe that this 
determination will not result in the extinction of the Louisiana black 
bear. Please refer to the ``Benefits of Exclusion'' section of this 
rule for further information.

Comments From States

    Section 4(i) of the Act states ``the Secretary shall submit to the 
State agency a written justification for his failure to adopt 
regulation consistent with the agency's comments or petition.'' 
Comments received from State agencies regarding the proposal to 
designate critical habitat for the Louisiana black bear are addressed 
below.
    (22) State Comment: The Louisiana Department of Wildlife and 
Fisheries (LDWF) stated that critical habitat designation is not 
necessary for the successful restoration of the black bear in 
Louisiana.
    Our Response: According to section 4(a)(3) of the Act, the Service 
is required to designate critical habitat for threatened and endangered 
species to the maximum extent prudent and determinable. Also, as a 
result of a lawsuit filed by Harold Schoeffler and Louisiana Crawfish 
Producers-West, we were ordered by the court to designate critical 
habitat, if prudent, for the Louisiana black bear. We have already 
determined that designation of critical habitat is prudent (May 6, 
2008, 73 FR 25354). Therefore, we must designate critical habitat to 
fulfill those statutory and legal obligations.
    (23) State Comment: The LDWF stated that critical habitat 
designation for the Louisiana black bear has the potential to alienate 
private landowners who have habitat upon which the bear depends. They 
furthermore indicated that a cooperative relationship is necessary with 
those landowners in order to collect data and accomplish habitat 
restoration needed for delisting.
    Our Response: We agree with the LDWF that negative perceptions 
associated with critical habitat designations could potentially 
alienate the private landowners that have been and continue to be so 
vital to the Louisiana black bear recovery. We also recognize that the 
significant strides made in habitat restoration for this subspecies are 
in large part due to conservation actions taken by private landowners 
and will continue to be needed to conserve this subspecies. As we 
discuss in the ``Benefits of Inclusion'' section of this rule, we 
continue to recognize that designating critical habitat in areas where 
we have partnerships with private landowners that have led to 
conservation or management of listed species may impact landowners and 
future partnerships and conservation efforts. Therefore, we have 
excluded private lands enrolled under permanent conservation easements 
in the WRP from critical habitat designation. Furthermore, lands that 
currently do not contain features essential for the Louisiana black 
bear's conservation do not meet the definition of critical habitat and 
are not designated as critical habitat, nor would they be considered to 
be such if they were restored, or allowed to naturally regenerate, to 
forested habitat subsequent to this designation. We continue to be 
committed to working on habitat restoration with private landowners in 
the future. See our response to Comment 16 above.
    (24) State Comment: The LDWF and several other commenters stated 
strong support for exempting lands enrolled in the NRCS' WRP program 
from critical habitat designation. They also requested that we consider 
exemptions for other Federal conservation assistance programs including 
the NRCS' Conservation Reserve Program (CRP), the Conservation Reserve 
Enhancement Program (CREP), and the Wildlife Habitat Incentive Program 
(WHIP).

[[Page 10355]]

    Our Response: Under section 4(b)(2) of the Act, in considering 
whether to exclude a particular area from the designation, we must 
identify the benefits of including the area in the designation, 
identify the benefits of excluding the area from the designation, and 
determine whether the benefits of exclusion outweigh the benefits of 
inclusion. If, based on this analysis, we make the determination that 
the benefits of exclusion outweigh the benefits of inclusion, then we 
can exclude the area only if such exclusion would not result in the 
extinction of the species.
    In the case of lands enrolled under a permanent easement in the 
WRP, those easement restrictions provide substantial protection and 
management for the Louisiana black bear and its essential habitat 
features in contrast to the designation of critical habitat, which only 
precludes destruction or adverse modification. We have determined that 
the benefits of exclusion outweigh the benefits of inclusion for lands 
enrolled under permanent easements in the WRP. In addition, we believe 
that this determination will not result in the extinction of the 
Louisiana black bear. Please refer to the ``Exclusions Under Section 
4(b)(2) of the Act'' section of this rule, as well as responses to 
Comments 16 and 23, for further information.
    We share the LDWF's concern and acknowledge the benefits that other 
private landowner incentive and conservation programs (i.e., CRP, CREP, 
WHIP) offer for the Louisiana black bear and other wildlife. However, 
landowners who enroll in those programs are not bound by an easement 
that permanently prohibits development or conversion of those lands. 
Instead, landowners sign an agreement (generally 10 to 15 years in 
duration) and at the end of that agreement those properties may be 
converted to another use. In those instances, the protection provided 
to those lands is not significantly different from that provided via 
critical habitat under section 7 of the Act (i.e., protection from 
adverse modification or destruction). Therefore, while we believe that 
excluding lands enrolled in those conservation agreements may provide 
benefits in terms of maintaining landowner cooperation, we have 
determined not to exclude them from this critical habitat designation.
    We recognize that critical habitat designated at a particular point 
in time may not include all of the habitat areas that we may later 
determine are necessary for the recovery of the species. For these 
reasons, a critical habitat designation does not signal that habitat 
outside the designated area is unimportant or may not promote the 
recovery of the species. We continue to be committed to working on 
habitat restoration with private landowners in the future.
    (25) State Comment: The LDWF expressed agreement with the proposed 
critical habitat geographic boundaries. The LDWF also indicated that 
those boundaries are consistent with the most current LDWF telemetry, 
research, and habitat data. In addition, the agency stated that while 
bear sightings may occur throughout Louisiana, the proposed critical 
habitat protects the core breeding populations and the highest quality 
bear habitat.
    Our Response: We appreciate the LDWF's positive evaluation of the 
biological and scientific basis for our critical habitat determination.

Public Comments

    (26) Comment: One commenter stated that he believed the Louisiana 
black bear population to be between 500 and 700 bears.
    Our Response: Current Louisiana black bear population estimates 
vary somewhat among the professional community, primarily due to the 
lack of a reliable and comprehensive estimate. We used every published 
population estimate available (Beausoliel 1999, p. 51; Boerson et al. 
2003, p. 203; Pelton and Van Manen 1997, p. 38; Triant et al. 2004, p. 
653) to support our estimated current population size of 400 to 700 
bears. A more comprehensive population study is currently being 
conducted, but will not be finalized prior to the court-ordered 
deadline for publication of this critical habitat designation.
    (27) Comment: One commenter stated that a map published by the BBCC 
in 2006 indicated that bears had been observed in virtually every 
Louisiana parish. That commenter also discussed potential critical 
habitat designation in specific areas based on anecdotal sighting 
information from locations throughout Louisiana and in portions of 
Arkansas and Mississippi.
    Our Response: We acknowledge that bears have been observed 
throughout Louisiana and in portions of its neighboring States. 
Included in those sightings are confirmed Louisiana black bear 
occurrences in relatively major urban areas such as Abbeville, Bossier 
City, Crowley, Lafayette, and New Iberia. Current breeding habitat and 
corridors linking breeding areas were paramount in the delineation of 
this critical habitat designation. We do not have data to show that 
these specific bear sightings suggested by the commenter, in portions 
of Louisiana, Arkansas, and Mississippi, are part of a resident 
population, within current breeding habitat, or within a suitable 
travel corridor that would warrant designation as critical habitat. 
Therefore, we have not included these areas in our designation of 
critical habitat.
    (28) Comment: One commenter briefly described the significance of 
corridors, expressed concern regarding our designation of corridors 
that only link existing populations, and stated that additional 
corridors in other areas should be considered. Several suggested 
potential corridors were described, including those that would link: 
(1) Felsenthal National Wildlife Refuge (NWR) in south Arkansas to the 
Upper Ouachita NWR in north Louisiana; (2) the Gulf of Mexico to the 
Town of Bogalusa in Louisiana, which would include the Pearl River and 
Old River Wildlife Management Areas (WMA) and the Bogue Chitto NWR; (3) 
Cat Island NWR and Tunica Hills WMA to St. Catherine Creek NWR in 
Mississippi; and (4) east-central Louisiana (i.e., Lasalle and Rapides 
Parish) to Texas via the Red River Alluvial Plain (incorporating 
various State WMAs and U.S. Forest Service parcels).
    Our Response: We concur that corridors perform a significant role 
in the conservation of the Louisiana black bear. Accordingly, we have 
designated corridors between all known breeding populations of the 
Louisiana black bear. We also acknowledge that anecdotal Louisiana 
black bear sighting information exists for various locations throughout 
Louisiana and in portions of its neighboring States. As previously 
explained, such sightings are not always evidence of a resident 
population or of an important (or even suitable) travel corridor that 
would warrant designation as critical habitat. Accordingly, we do not 
believe that the designation of Felsenthal NWR and the Upper Ouachita 
NWR, including a corridor linkage, would further the conservation of 
the Louisiana black bear. Since 2000, over 100 bears (including both 
adult females and cubs) have been captured on White River NWR and 
neighboring lands and reintroduced to Felsenthal NWR. Those bears, 
however, are not considered Louisiana black bears; therefore, the 
regulations implementing the Act and associated critical habitat 
designations would not apply to that population or to Felsenthal NWR. 
There have been occasional bear sightings on the Upper Ouachita NWR, 
which have increased since the initiation of the Felsenthal NWR black 
bear reintroduction program (USFWS 2008,

[[Page 10356]]

pp. 48-50); however, we do not have any evidence of a breeding 
population on Upper Ouachita NWR. Consequently, we do not believe that 
there is justification to warrant designation of Felsenthal NWR (with a 
non-U. a. luteolus population), Upper Ouachita NWR (with no 
population), or a corridor linkage between those properties.
    Although bear sightings are occasionally reported in the Pearl 
River Basin between the Gulf of Mexico to the Town of Bogalusa, there 
is no documented evidence of reproduction of Louisiana black bears 
occurring east of the Mississippi River in Louisiana. Very few bear 
studies have been conducted east of the Mississippi River in Louisiana 
due to the extremely low density of bears in this region. We are aware 
of just one such study, where only one confirmed bear occurrence was 
documented during a 5-month study involving 70 bait stations (Stinson 
1996, p. 12). In addition to the Pearl River Basin not supporting a 
breeding population, it does not form a logical corridor between any 
known populations of Louisiana black bears. Accordingly, we have 
determined that this area does not contain the features essential to 
the conservation of the subspecies; therefore, it was not included 
within our critical habitat boundary.
    Cat Island NWR and Tunica Hills WMA occur within, and St. Catherine 
Creek NWR occurs immediately north of, the Stinson (1996, p. 13) study 
area. As described above, that study confirmed speculations that this 
region supports very few bears. Louisiana black bear reproduction has 
not been documented on any of these lands, and establishing a corridor 
between them would serve little, if any, function for bear 
conservation. Therefore, we have determined that this area does not 
contain the features essential to the conservation of the subspecies, 
and it was not included within our critical habitat boundary.
    Although occasional sightings are reported, there is no evidence 
that Louisiana black bears travel the Red River Alluvial Plain between 
east-central Louisiana (i.e., Lasalle and Rapides Parish) and Texas 
with any frequency. There is also no data to support classification of 
any areas within this region as Louisiana black bear breeding habitat.
    In summary, as stated above, current breeding habitat was paramount 
in this delineation of critical habitat, and was based on known 
locations and home ranges of reproductive females. Corridors linking 
those core breeding areas were also designated based on the best 
available science (primarily telemetry studies) and extensive 
landscape-level habitat analyses which are described in the Methods 
section of our previous proposal May 6, 2008, (73 FR 25354, pp. 25359) 
and in this Final Rule.
    (29) Comment: Several commenters suggested that we evaluate the 
effect of major highways on Louisiana black bear dispersal and habitat 
access. Specific reference was made regarding U.S. Highway 90 (Hwy. 90) 
in St. Mary Parish, Louisiana and U.S. Interstate 20 (I-20) in Madison 
Parish, Louisiana, and their apparent lack of permeability for bear 
movement.
    Our Response: We concur that Hwy. 90 and I-20 are major obstacles 
to intra- and inter-population bear movement. Over the last several 
years, we have organized numerous site inspections and meetings 
involving biologists from both the National Wildlife Refuge System and 
the Ecological Services Divisions of the Service, the LDWF, the 
Louisiana Department of Transportation and Development, the Federal 
Highway Administration (FHWA), private environmental and engineering 
firms, and the BBCC to address issues with highway-associated impacts 
to bears. We have completed a biological opinion on the effects of a 
proposed upgrade of Hwy. 90 to interstate specifications on the 
Louisiana black bear, which included a conservation recommendation that 
the FHWA ``install large mammal/bear crossings at suitable locations 
along the subject reach of Hwy. 90.'' With the assistance of the BBCC, 
private corporations, and major local landowners, we are currently 
developing a large-scale habitat restoration and protection plan to 
address both habitat issues and highway-associated limitations on bear 
conservation in this region of the State. We have designed similar 
plans along I-20, most of which have been successfully implemented, 
primarily through the designation of a WRP Special Project Area. 
Although I-20 in Madison Parish has numerous large bridges over river 
and stream crossings that allow safe passage for bears, we have 
developed and implemented plans to further improve the permeability of 
that roadway for bears. The current critical habitat boundary crosses 
both of the subject roadways (in addition to many others), and we 
believe that it fully reflects our planning and conservation efforts 
and is consistent with these commenters' requests.
    (30) Comment: One commenter stated that a single corridor or series 
of habitat linkages through the Mississippi River Delta and the ARB may 
not be adequate for Louisiana black bear conservation.
    Our Response: We determined that designating all Louisiana black 
bear breeding habitat, including corridors that link those habitats, 
would be sufficient to ensure the conservation of this subspecies. 
Currently, all Louisiana black bear breeding populations occur along 
the Atchafalaya and Lower Mississippi River Alluvial Valleys, as 
reflected in our critical habitat boundary and delineation of 
corridors. We concur with this commenter's general position that a 
single habitat linkage would be insufficient for Louisiana black bear 
conservation purposes. For that reason, we delineated corridors to 
provide sufficient width to incorporate numerous potential travel and 
habitat linkages (e.g., small forested patches and riparian zones along 
streams, sloughs, and bayous) between each of the existing breeding 
populations.
    (31) Comment: One commenter recommended modifications to the 
Louisiana Black Bear Recovery Plan including revisions to estimated 
population increases and home range sizes based on Taylor's (1971) 
estimate for the Upper ARB population. The commenter also suggested 
several specific changes to our critical habitat boundary in the 
context of that Plan.
    Our Response: Louisiana black bear population and home range sizes 
were determined on a population-specific basis from the most recent 
available scientific studies (Anderson 1997, p. 37; Beausoliel 1999, 
pp. 51, 57, 60; Boerson et al. 2003, p. 203; Marchinton 1995, p. 31; 
Pelton and Van Manen 1997, p. 38; Triant et al. 2004, p. 653; Wagner 
1995, p. 12; Weaver 1999, p. 70). We will consider recommended 
modifications to the Louisiana Black Bear Recovery Plan when it is 
updated. We assume that the commenter intends for us to address 
critical habitat suggestions in this final rule rather than in a 
revised recovery plan. Accordingly, recommendations related 
specifically to critical habitat are addressed throughout the Public 
Comments section of this document.
    (32) Comment: Two commenters expressed concern about the effects of 
global climate change and resultant sea level rise on the long-term 
viability of the Lower ARB population and of the corridor that connects 
the Lower and Upper ARB populations of Louisiana black bear.
    Our Response: Our critical habitat designation includes the 
hardwood forests on three south Louisiana salt domes (i.e., Avery 
Island, Weeks Island, and Belle Isle). The elevations of those domes 
far exceed the surrounding landscape, with a maximum elevation

[[Page 10357]]

found on Avery Island at 152 feet (ft) (46 meters (m)) above sea level. 
Within Critical Habitat Unit 3, we have also included hardwood forests 
that are flood-protected by levees and pumps to provide a suitable 
travel and habitat linkage to higher-elevation habitats to the north. 
Within this unit, we have designated a relatively large corridor that 
is, to the best of our mapping capabilities, comprised of habitat 
containing the PCEs. We used the best available science (described in 
detail in the Methods section of this document) to delineate that 
corridor in a manner that would facilitate bear movement between the 
Lower ARB and higher-elevation habitats of the Upper ARB population. We 
will continue our negotiations with the Louisiana Department of 
Transportation and Development (LDOTD) and FHWA regarding highway 
crossings for bears on Hwy. 90 along the subject corridor (previously 
described in detail). We will also continue our participation in the 
development of a large-scale habitat restoration and protection plan to 
address both habitat issues and highway-associated limitations on bear 
conservation in the Lower ARB, which will ensure that the subject 
corridor can fully support dispersal from expanding bear populations 
and the northward migration of bears that may leave coastal habitats 
rendered unsuitable by sea level rise. We believe that delineating this 
critical habitat boundary to include higher-elevation salt dome 
forests, flood-protected forests, and a corridor that provides 
northward dispersal opportunities, in conjunction with our continued 
efforts to resolve highway-associated limitations to bear dispersal 
(including our participation in landscape-level habitat restoration and 
protection planning), is sufficient to address conservation challenges 
for the Louisiana black bear.
    (33) Comment: One commenter recommended that we designate critical 
habitat in all areas that support breeding populations and that we 
include habitat linkages between those populations.
    Our Response: We concur and appreciate this validation of our 
critical habitat designation strategy, which is to include all areas 
that contain features essential to the conservation of the Louisiana 
black bear. We have determined that such areas include breeding habitat 
with connecting corridors, and, in accordance with this recommendation, 
we have included all such areas in our designation.
    (34) Comment: One commenter stated that we are proposing to 
designate critical habitat on too small a portion of the Louisiana 
black bear's present range and that we should be allowed to designate 
critical habitat beyond areas where the subspecies is currently secure.
    Our Response: We are unsure what the commenter means by the term 
``where populations are secure.'' However, for inclusion in a critical 
habitat designation, the habitat within the geographical area occupied 
by the species at the time of listing must contain the physical and 
biological features that are essential to the conservation of the 
species and that may require special management consideration or 
protection. Under the Act, we can designate critical habitat in areas 
outside of the geographical area occupied by the species at the time it 
is listed only when (1) the inclusion of specific areas occupied at the 
time of listing defined by the essential physical and biological 
features are not sufficient to conserve the species; and (2) we 
determine that those areas are essential for the conservation of the 
species.
    As stated above, current breeding habitat was paramount in this 
designation, and was based on known locations and home ranges of 
reproductive females. We are also designating corridors linking those 
core breeding areas based on the best available science (primarily 
telemetry studies) and extensive landscape-level habitat analyses, 
which are described in the Methods section of our previous proposal 
(May 6, 2008, 73 FR 25354, pp. 25359) and in this final rule. We 
determined that those areas are sufficient for the conservation of this 
subspecies.
    (35) Comment: One commenter recommended that we reconsider our 
reduction of the 1993 Louisiana black bear critical habitat 
determination and our exclusion of the eastern portion of the ARB.
    Our Response: We withdrew our 1993 proposal to designate Louisiana 
black bear critical habitat (58 FR 63560) concurrently with the 
publication of our new proposal in 2008 (73 FR 25354). In that latter 
proposal, we explained that the withdrawal was not only to comply with 
a court order, but to consider the significant amount of new 
information available on this subspecies and its habitat since the 
initial proposal published over 15 years ago. At the time of the 
initial critical habitat proposal, the resultant boundary was based on 
information (both biological and geographical) that was limited and 
primarily unpublished and anecdotal in nature. The current critical 
habitat boundary is based on numerous published studies including those 
by Anderson (1997), Beausoliel (1999), Benson (2005), Boerson et al. 
(2003), Hightower et al. (2002), Marchinton (1995), Pelton and Van 
Manen (1997), Stinson (1996), Triant et al. (2004), Van Why (2003), 
Wagner (1995), and Weaver (1999). Those studies have provided new 
insight into Louisiana black bear biology and ecology that was not 
available for our 1993 proposal. Therefore, to use the 1993 critical 
habitat boundary as a basis for our current designation would not be 
incorporating the best available scientific and commercial information. 
Our current boundary includes portions, but not all, of the areas 
proposed in 1993; it also includes additional areas beyond those that 
were initially proposed. This is an entirely new designation, developed 
independently of the 1993 proposal, and it is based on sound scientific 
findings that were unavailable in 1993. We followed these same 
principles in our delineation of the boundary through the ARB. We also 
employed new elevation data and digital mapping technologies (described 
in detail in the ``Criteria Used to Designate Critical Habitat'' 
section of this document) to determine areas within the ARB that are 
most likely to facilitate bear movement between the Upper and Lower ARB 
populations. Our boundary through the ARB does not include all possible 
areas that a bear could travel. It includes lands that, based on recent 
scientific findings and the latest mapping technologies, contain the 
features essential for the conservation of the subspecies.
    (36) Comment: One commenter recommended that we designate critical 
habitat in Mississippi, due to recently documented evidence of 
reproduction, and in Texas, due to reported sightings and the area's 
position within the historic range of the Louisiana black bear.
    Our Response: As described in our response to Comment 20, we have 
determined that Mississippi does not support breeding populations of 
the Louisiana black bear. (The ``Criteria Used to Designate Critical 
Habitat'' section provides additional details regarding the 
classification of breeding habitat.)
    We acknowledge that Louisiana black bear sightings have been 
reported throughout Louisiana and in portions of its neighboring States 
including eastern Texas. As previously explained, such sightings are 
not always evidence of a resident population or of an important (or 
even suitable) travel corridor that would warrant designation as 
critical habitat. Since its listing as a threatened subspecies in 1992, 
there has been no

[[Page 10358]]

documented evidence of Louisiana black bear reproduction in Texas.
    (37) Comment: Two commenters specifically requested that lands 500 
ft (152 m) from the top of the top bank of the Tensas River and lands 
within 1,000 ft (305 m) of the land-side toe of the Mississippi River 
mainline levees be excluded because of future maintenance requirements.
    Our Response: The commenters did not provide sufficient information 
for us to evaluate the benefits of exclusion of those areas. Therefore, 
based on analysis, the protection provided to those lands is not 
significantly different from that provided via critical habitat under 
section 7 of the Act (i.e., protection from adverse modification or 
destruction). Therefore, we have not excluded those lands from critical 
habitat designation for the Louisiana black bear.
    (38) Comment: Numerous commenters, including both private and 
governmental entities, expressed opposition to the designation of 
critical habitat for the Louisiana black bear. Another commenter stated 
that we had exaggerated potential habitat losses in making our 
decision. He also stated his belief that the designation of critical 
habitat for the Louisiana black bear was about compliance with the 
courts and control over land resources and not based on science or the 
needs of the bear. Other commenters questioned the need for critical 
habitat based on increased bear sightings and encounters.
    Our Response: According to section 4(a)(3) of the Act, the Service 
is required to designate critical habitat for threatened and endangered 
species to the maximum extent prudent and determinable. As a result of 
a lawsuit filed by Harold Schoeffler and Louisiana Crawfish Producers--
West, we were issued a September 5, 2007, order from the U.S. District 
Court for the Western District of Louisiana to: (1) Withdraw the 
December 2, 1993, proposed rule and submit a new prudency determination 
and, if prudent, a new proposed critical habitat designation to the 
Federal Register by April 26, 2008; and (2) submit a final critical 
habitat determination, if prudent, to the Federal Register by February 
26, 2009. As set forth in the proposed rule, in fulfilling the Court's 
order, we found that critical habitat was prudent and determinable and 
that designation was prudent (73 FR 25354).
    Furthermore, section 4 of the Act requires that we designate 
critical habitat on the basis of the best scientific and commercial 
data available. Further, our Policy on Information Standards Under the 
Endangered Species Act, published in the Federal Register on July 1, 
1994 (59 FR 34271), the Information Quality Act (section 515 of the 
Treasury and General Government Appropriations Act for Fiscal Year 2001 
(Pub. L. 106-554; H.R. 5658)), and our associated Information Quality 
Guidelines provide criteria, establish procedures, and provide guidance 
to ensure that our decisions represent the best scientific data 
available. They require our biologists, to the extent consistent with 
the Act and with the use of the best scientific data available, to use 
primary and original sources of information as the basis for 
recommendations to designate critical habitat.
    In preparing this final critical habitat designation for the 
Louisiana black bear, we reviewed and considered comments from the 
public and peer reviewers on the May 6, 2008, proposed designation of 
critical habitat (73 FR 25354) and the November 12, 2008, draft 
economic analysis (73 FR 66831). We also reviewed the most recent data 
for land ownership and habitat types and reevaluated the information 
and data used in our previous proposal.
    (39) Comment: One commenter pointed out that we listed WRP 
enrollment as 55,000 ac (22,000 ha) while over 219,459 ac (88,811 ha) 
of land in Louisiana have been enrolled in the WRP program.
    Our Response: We agree that over 200,000 ac (81,000 ha) have been 
enrolled in the WRP program Statewide. The 55,000 ac (22,000 ha) we 
reference represent the approximate amount of land enrol