Endangered and Threatened Wildlife and Plants; Listing the Northern Long-Eared Bat With a Rule Under Section 4(d) of the Act, 2371-2378 [2015-00644]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 80, Number 11 (Friday, January 16, 2015)]
[Proposed Rules]
[Pages 2371-2378]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-00644]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R5-ES-2011-0024; 4500030113]
RIN 1018-AY98


Endangered and Threatened Wildlife and Plants; Listing the 
Northern Long-Eared Bat With a Rule Under Section 4(d) of the Act

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule and reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
create a species-specific rule under authority of section 4(d) of the 
Endangered Species Act of 1973, as amended (Act), that provides 
measures that are necessary and advisable to provide for the 
conservation of the northern long-eared bat (Myotis septentrionalis), 
should we determine this species warrants listing as a threatened 
species under the Act. In addition, we announce the reopening of the 
public comment period on the October 2, 2013, proposed rule to list the 
northern long-eared bat as an endangered species under the Act.

DATES: We will accept comments received or postmarked on or before 
March 17, 2015. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. Eastern Time on the closing date. We must receive requests for 
public hearings, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by March 2, 2015.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R5-ES-2011-0024, 
which is the docket number for this rulemaking. You may submit a 
comment by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R5-ES-2011-0024; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by one of the methods 
described above. We will post all comments on https://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Public Comments section 
below for more information).

FOR FURTHER INFORMATION CONTACT: Tony Sullins, Endangered Species 
Chief, Midwest Regional Office, 5600 American Blvd. West, Suite 990, 
Bloomington, MN 55437, by telephone 612-725-3548 or by facsimile 612-
725-3548. Persons who use a telecommunications device for the deaf 
(TDD) may call the Federal Information Relay Service (FIRS) at 800-877-
8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    On October 2, 2013, the Service proposed to list the northern long-
eared bat as an endangered species (78 FR 61046). To date, we solicited 
public comment on this proposal on three separate occasions, totaling 
180 days. Through these public comment periods, we received numerous 
comments and additional information suggesting we evaluate listing the 
northern long-eared bat as a threatened species with a species-specific 
rule under section 4(d) of the Act excepting specific forms of take. 
The Service has not yet made a final listing decision regarding the 
status of the northern long-eared bat (e.g., not warranted, threatened, 
or endangered); however, in our review of public comments we did 
determine that if threatened status is warranted, a species-specific 
rule under section 4(d) of the Act rule may be advisable. Therefore, 
this document consists of: (1) A proposed rule under section 4(d) of 
the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531 et 
seq.), that outlines the prohibitions, and exceptions to those 
prohibitions, necessary and advisable to provide for the conservation 
of the northern long-eared bat; and (2) a reopening of the comment 
period for the proposed rule to list the northern long-eared bat as an 
endangered species under the Act.

The Need for the Regulatory Action and How the Action Will Meet That 
Need

    Based on information received during three open comment periods and 
a time extension, the Service is considering multiple public comments 
and additional information to determine if listing as a threatened 
species may be appropriate. If threatened status is appropriate, 
Section 4(d) of the Act specifies that, for threatened species, the 
Secretary shall issue such regulations as she deems necessary and 
advisable to provide for the conservation of the species. Further, a 
4(d) rule may identify activities that would not be prohibited under 
section 9 of the Act.
    Although the Service has not yet made a final listing determination 
for the northern long-eared bat, we are proposing this 4(d) rule in the 
event that our final listing determination is to list the species as a 
threatened species. If we list the species as an endangered species or 
find that it does not warrant listing, we will withdraw this proposed 
rule. If we list the species as a threatened species, we intend to 
publish a final 4(d) rule concurrent with, and as a component of, the 
final listing rule. Consistent with section 4(d) of the Act, this 
proposed 4(d) rule provides measures that are tailored to our current 
understanding of the conservation needs of the northern long-eared bat.

Statement of Legal Authority for the Regulatory Action

    Under section 4(d) of the Act, the Secretary of the Interior has 
discretion to issue such regulations as she deems necessary and 
advisable to provide for the conservation of the species. The Secretary 
also has the discretion to prohibit by regulation with respect to a 
threatened species, any act prohibited by section 9(a)(1) of the Act.

Summary of the Major Provisions of the Regulatory Action in Question

    The proposed species-specific 4(d) rule prohibits purposeful take 
of northern long-eared bats throughout its range except in instances of 
removal of northern long-eared bats from human dwellings and authorized 
capture and handling of northern long-eared bat by individuals 
permitted to conduct these same activities for other listed bats.
    In areas not affected by white nose syndrome (WNS), a disease 
currently affecting many U.S. bat populations, all incidental take 
resulting from any otherwise lawful activity will be excepted from 
prohibition.
    In areas affected by WNS, all incidental take prohibitions apply 
except that take attributable to forest management practices, 
maintenance and limited expansion of transportation and utility rights-
of-way, removal of trees and brush to maintain prairie habitat, and 
limited tree removal projects shall be excepted from the take 
prohibition, provided these activities protect known maternity roosts 
and hibernacula. Further, removal of hazardous trees for the protection 
of human life or property shall be excepted from the take prohibition.

Public Comments

    To allow the public to comment simultaneously on this proposed 
species-specific 4(d) rule and the proposed listing rule, we also 
announce

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the reopening of the comment period on the Service's October 2, 2013, 
proposed rule to list the northern long-eared bat as an endangered 
species under the Act. If the result of our final listing determination 
concludes that threatened species status is appropriate for the 
northern long-eared bat, we intend to finalize the species-specific 
4(d) rule with the final listing rule. Therefore, we request comments 
or information from other concerned Federal and State agencies, the 
scientific community, or any other interested party concerning the 
proposed listing and the proposed 4(d) rule. We also are seeking peer 
review comments from knowledgeable individuals with scientific 
expertise to review our analysis of the best available science and 
application of that science and to provide any additional scientific 
information to improve this proposed rule. We will consider all 
comments and information received during our preparation of a final 
determination on the status of the species and the rule under section 
4(d) of the Act, if threatened status is determined. Accordingly, if 
our final decision is to list the species as a threatened species, and 
we determine that it is necessary and advisable to promulgate a species 
specific 4(d) rule under the Act, any 4(d) rule we finalize may differ 
from this proposal based on specific public comments and any new 
information that may become available.
    With regard to the proposed 4(d) rule, we particularly seek 
comments regarding:
    (1) Whether measures outlined in this proposed rule under section 
4(d) of the Act are necessary and advisable for the conservation and 
management of the northern long-eared bat.
    (2) Whether it may be appropriate to except incidental take as a 
result of other categories of activities beyond those covered in this 
proposed rule and, if so, under what conditions and with what 
conservation measures.
    (3) Whether the Service should modify the portion of this rule 
under section 4(d) of the Act that defines how the portion of the 
northern long-eared bat range will be identified as the ``WNS buffer 
zone.'' We are seeking comments regarding the factors and process we 
used to delineate where on the ground we believe WNS is likely 
affecting the northern long-eared bat and whether that delineation 
should incorporate political boundaries (e.g., county lines) for ease 
in describing the delineated area to the public.
    (4) Additional provisions the Service may wish to consider for a 
rule under section 4(d) of the Act in order to conserve, recover, and 
manage the northern long-eared bat.
    Please note that comments merely stating support for or opposition 
to the actions under consideration without providing supporting 
information, although noted, will not be considered in making a 
determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is a threatened or endangered 
species must be made ``solely on the basis of the best scientific and 
commercial data available.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the Web site. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov. 
Please include sufficient information with your comments to allow us to 
verify any scientific or commercial information you include.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Midwest Regional Office (see FOR FURTHER INFORMATION 
CONTACT).

Previous Federal Actions

    For a complete list of previous Federal actions, see the proposed 
rule to list the northern long-eared bat (78 FR 61046). On October 2, 
2013, we published in the Federal Register a proposed rule to list the 
northern long-eared bat as an endangered species under the Act. The 
proposed rule had a 60-day comment period, ending on December 2, 2013. 
On December 2, 2013, we extended this comment period through January 2, 
2014 (78 FR 72058). On June 30, 2014, we announced a 6-month extension 
of the final determination on the proposed listing rule for northern 
long-eared bat, and we reopened the public comment period on the 
proposed rule for 60 days, until August 29, 2014 (79 FR 36698). On 
November 18, 2014, we again opened the comment period for an additional 
30 days, which closed on December 18, 2014 (79 FR 68657). During the 
comment period we received one request for a public hearing, which was 
held in Sundance, Wyoming, on December 2, 2014.

Background

    On October 2, 2013, the Service proposed to list the northern long-
eared bat as an endangered species. To date, we solicited public 
comment on this proposal on three separate occasions, totaling 180 
days. Through these public comment periods, we received numerous 
comments and additional information suggesting we evaluate listing the 
northern long-eared bat as a threatened species with a species-specific 
rule under section 4(d) of the Act excepting specific forms of take. 
The Service has not yet made a final listing decision regarding the 
status of the northern long-eared bat (e.g., not warranted, threatened, 
or endangered); however, in our review of public comments we did 
determine that if threatened status is warranted, a species- specific 
rule under section 4(d) of the Act rule may be advisable. Therefore, 
this document consists of: (1) A proposed rule under section 4(d) of 
the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531 et 
seq.), that outlines the prohibitions, and exceptions to those 
prohibitions, necessary and advisable to provide for the conservation 
of the northern long-eared bat; and (2) a reopening of the comment 
period for the proposed rule to list the northern long-eared bat as an 
endangered species under the Act.
    Unlike the Act's provisions regarding endangered species, the Act 
does not specify particular prohibitions, or exceptions to those 
prohibitions, for threatened species. Instead, under section 4(d) of 
the Act, the Secretary of the Interior has the discretion to issue such 
regulations as she deems necessary and advisable to provide for the 
conservation of such species, including discretion to prohibit by 
regulation, with respect to any threatened species, any act prohibited 
under section 9(a)(1) of the Act. By delegation from the Secretary, the 
Service has exercised this discretion to promulgate regulations that 
apply general take and other prohibitions (50 CFR 17.31) to threatened 
species, while allowing exceptions to those prohibitions as authorized 
by permit (50 CFR 17.32). Alternately, the Service may issue a rule 
under section 4(d) of the Act that establishes specific prohibitions 
and exceptions that are tailored to the specific conservation needs of 
a particular species (see 50 CFR 17.31(c)).

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In such cases, some of the prohibitions and authorizations under 50 CFR 
17.31 and 17.32 may be appropriate for the species and incorporated 
into the rule, but the 4(d) rule will also include provisions that are 
tailored to the specific conservation needs of the threatened species 
and may be more or less restrictive than the general provisions at 50 
CFR 17.31. The final species-specific 4(d) rule will contain all the 
applicable prohibitions and exceptions.
    This document discusses only those topics directly relevant to the 
proposed 4(d) rule for the northern long-eared bat. For more 
information on the northern long-eared bat and its habitat, please 
refer to the October 2, 2013, proposed listing rule, (78 FR 61046), 
which is available online at https://www.regulations.gov (at Docket 
Number FWS-R5-ES-2011-0024) or from the Midwest Regional Office (see 
FOR FURTHER INFORMATION CONTACT).

Provisions of the Proposed 4(d) Rule for the Northern Long-Eared Bat

    Under section 4(d) of the Act, the Secretary may publish a species-
specific rule that modifies the standard protections for threatened 
species with prohibitions and exceptions tailored to the conservation 
of the species that are determined to be necessary and advisable. Under 
this proposed 4(d) special rule, the Service proposes that all of the 
prohibitions under 50 CFR 17.31 and 17.32 will apply to the northern 
long-eared bat and are necessary and advisable to provide for the 
conservation of the species, except as noted below. The proposed rule 
under section 4(d) of the Act will not remove, or alter in any way, the 
consultation requirements under section 7 of the Act.
    As discussed in the October 2, 2013, proposed rule (78 FR 61046), 
the primary factor supporting the proposed determination of endangered 
species status for the northern long-eared bat is the disease, white-
nose syndrome (WNS). We further determined that other threat factors, 
including forest management activities, wind-energy development, 
habitat modification, destruction and disturbance, and other threats 
may have cumulative effects to the species in addition to WNS; however, 
they have not independently caused significant, population-level 
effects on the northern long-eared bat. Based upon information received 
during public comment periods, we are reanalyzing the species status to 
determine if listing as threatened is appropriate. Therefore, we are 
proposing this rule under section 4(d) of the Act and seeking public 
review and comment on it so in the event we determine that the northern 
long-eared bat meets the definition of a threatened species instead of 
an endangered species we can finalize this 4(d) rule, which provides 
exceptions to the prohibitions for some of these activities that cause 
cumulative effects, as we deem necessary and advisable for the 
conservation of the species concurrently with our final listing 
determination.
    We conclude that certain activities described in this section of 
the preamble, when conducted in accordance with the conservation 
measures identified herein, will provide protection for the northern 
long-eared bat during its most sensitive life stages. These activities 
are: Forest management activities, subject to certain time 
restrictions, maintenance and minimal expansion of existing rights-of-
way and transmission corridors (also subject to certain restrictions), 
native prairie management, other projects resulting in minimal tree 
removal, hazard tree removal, removal of bats from and disturbance 
within human structures, and capture, handling, attachment of radio 
transmitters, and tracking northern long-eared bats for a 1-year period 
following the effective date of the final rule. The Service proposes 
that incidental take that is caused by these activities implemented on 
private, State, tribal, and Federal lands will not be prohibited 
provided those activities abide by the conservation measures in the 
rule and are otherwise legal and conducted in accordance with 
applicable State, Federal, tribal, and local laws and regulations.

Buffer Zone Around WNS and Pseudogymnoascus destructans (the Fungus 
That Causes WNS) Positive Counties (WNS Buffer Zone)

    Currently, not all of the range of northern long-eared bat is 
affected by WNS. In the proposed listing (78 FR 61046), the Service 
concluded that the proposed status determination of endangered species 
was primarily based on the impacts from WNS, and that the other 
threats, when acting on the species alone, were not causing the species 
to be in danger of extinction. Given this information, the Service 
proposes that while all purposeful take will be prohibited with the 
exception of removal of bats from human dwellings and survey and 
research efforts conducted within a 1-year period following the 
effective date of the final rule. All other take incidental to other 
lawful activities will be allowed in those areas of the northern long-
eared bat range not in proximity to documented occurrence of WNS or 
Pseudogymnoascus destructans, as identified by the Service.
    Currently, WNS is mainly detected by surveillance at bat 
hibernacula. Thus, our direct detection of the disease is limited 
largely to wintering bat populations in the locations where they 
hibernate. However, bats are known to leave hibernacula and travel 
great distances, sometimes hundreds of miles, to summer roosts. 
Therefore, the impacts of the disease are not limited to the immediate 
vicinity around bat hibernacula, but have an impact on a landscape 
scale. For northern long-eared bats, as with all species, this means 
that the area of influence of WNS is much greater than the counties 
known to harbor affected hibernacula, resulting in impacts to a much 
larger section of the species' range. To fully represent the extent of 
WNS, we must also include these summer areas.
    Overall, northern long-eared bats are not considered to be long-
distance migrants, typically dispersing 40-50 miles (64-80 kilometers) 
from their hibernacula. However, other bat species that disperse much 
further distances are also vectors for WNS spread and may transmit the 
disease to northern long-eared bat populations. It has been suggested 
that the little brown bat (Myotis lucifugus), in particular, be 
considered a likely source of WNS spread across eastern North America. 
Little brown bats tend to migrate greater distances, particularly in 
the western portions of their range, with distances up to 350 miles 
(563 km) or more recorded (See Ellison 2008, p. 21; Norquay et al. 
2013, p. 510). In a recent study, reporting on bat band recoveries of 
little brown bats over a 21-year period, Norquay et al. (2013, pp. 509-
510) describe recaptures between hibernacula and summer roosts with a 
maximum distance of 344 miles (554 km) and a median distance of 288 
miles (463 km).
    For the purpose of this rule, the portion of the northern long-
eared bat range that is considered to be affected by WNS is that area 
within 150 miles (241 km) of the boundary of U.S. counties or Canadian 
districts where the fungus Pseudogymnoascus destructans or WNS has been 
detected. We acknowledge that 150 miles (241 km) does not capture the 
full range of potential WNS infection, but represents a compromise 
distance between the known migration distances of northern long-eared 
bats and little brown bats that is suitable for our purpose of 
estimating the extent of WNS infection on the northern long-eared bat. 
Anywhere outside of the geographic

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area defined by these parameters, northern long-eared bat populations 
will not be considered to be experiencing the impacts of WNS.
    The Service proposes to define the term ``WNS buffer zone'' as the 
portion of the range of the northern long-eared bat within 150 miles of 
the boundaries of U.S. counties or Canadian districts where the fungus 
Pseudogymnoascus destructans or WNS has been detected.
    For purposes of this proposed 4(d) rule, coordination with the 
local Service Ecological Services field office is recommended to 
determine whether specific locations fall within the WNS buffer zone. 
For more information about the current known extent of WNS and 150-mile 
(241-km) buffer, please see https://www.fws.gov/midwest/endangered/mammals/nlba/.

Conservation Measures

    The Service proposes that take incidental to certain activities 
conducted in accordance with the following habitat conservation 
measures, as applicable, will not be prohibited (i.e., excepted from 
the prohibitions):
    (i) Occur more than 0.25 mile (0.4 km) from a known, occupied 
hibernacula;
    (ii) Avoid cutting or destroying known, occupied maternity roost 
trees during the pup season (June 1-July 31); and
    (iii) Avoid clearcuts within 0.25 (0.4 km) mile of known, occupied 
maternity roost trees during the pup season (June 1-July 31).
    Note that activities that may cause take of northern long-eared bat 
that do not use these conservation measures may still be done, but only 
after consultation with the Service. This means that, while the 
resulting take from such activities is not excepted by this rule, the 
take may be authorized through other means provided in the Act (i.e., 
section 7 consultation or an incidental take permit).
    For purposes of this proposed rule and the conservation measures 
listed above, coordination with the local Service Ecological Services 
field office is recommended to determine the specific locations of the 
``known hibernacula'' and ``known maternity roosts.'' These locations 
will be informed by records in each State's Natural Heritage database, 
Service records, other databases, or other survey efforts. Hibernacula 
are generally defined as locations where one or more northern long-
eared bats have been detected during hibernation or outside during 
staging or swarming. Similarly, maternity roosts are generally defined 
through roost records in each State's Natural Heritage database, 
Service records, other databases, or other survey efforts for northern 
long-eared bat or other bat species.
    These conservation measures aim to protect the northern long-eared 
bat during its most sensitive life stages. Hibernacula are an essential 
habitat and should not be destroyed or modified (any time of year). In 
addition, there are periods of the year when northern long-eared bats 
are concentrated at and around their hibernacula (fall, winter, and 
spring). Northern long-eared bats are susceptible to disruptions near 
hibernacula in the fall, when they congregate to breed and increase fat 
stores, which are depleted from migration, before entering hibernation. 
During hibernation, northern long-eared bat winter colonies are 
susceptible to direct disturbance. Briefly in spring, northern long-
eared bats yet again use the habitat surrounding hibernacula to 
increase fat stores for migration to their summering grounds. This 
feeding behavior is particularly important for the females, who must 
obtain enough fat stores to carry not only themselves, but also their 
unborn pups, to their summer home range. In the summer maternity 
season, northern long-eared bat maternity colonies are especially 
vulnerable during the time after the pups are born, but before pups are 
able to fly (the non-volant period or pup season). During this time, 
pups are unable to flee danger without the assistance of their mothers, 
thus increasing the potential for activities affecting maternity roosts 
to kill and injure individual bats. Once the pups can fly, this risk is 
reduced because the pups will have the ability to flee their roost if 
it is being cut or otherwise damaged, potentially avoiding harm, 
injury, or mortality.
    The Service concludes that a 0.25-mile (0.4-km) buffer should be 
sufficient to protect most known, occupied hibernacula and hibernating 
colonies. This buffer will provide basic protection for the hibernacula 
and hibernating bats in winter from direct impacts, such as filling, 
excavation, blasting, noise, and smoke exposure. This buffer will also 
protect some roosting and foraging habitat around the hibernacula. 
Northern long-eared bats have been found up to 8.2 miles (13.2 km) from 
their hibernacula during the fall, although the majority of roosts were 
within 1.6 miles (2.6 km) (Lowe 2012, p. 32), using habitat within that 
area for roosting, foraging, and swarming. However, given that northern 
long-eared bats are not locally abundant and compose a small proportion 
of the total number of bats in any given hibernaculum (Barbour and 
Davis 1969, p. 77; Mills 1971, p. 625; Caire et al. 1979, p. 405; 
Caceres and Barclay 2000, pp. 2-3) and the species is rarely recorded 
in concentrations of more than 100 in a single hibernaculum (Barbour 
and Davis, 1969, p. 77), we do not expect that all of the habitat 
around a hibernaculum would be necessary for these purposes. Therefore, 
our best judgment is that protection of the habitat within 0.25 mile 
(0.4 km) of hibernacula should provide sufficient habitat to meet the 
needs of most hibernating populations.
    The Service concludes that, in addition to preservation of actual 
known maternity roosts, a 0.25-mile (0.4-km) buffer for all 
clearcutting activities will be sufficient to protect the habitat 
surrounding known maternity roosts during the pup season. This buffer 
will prevent the cutting of known occupied maternity roost trees during 
the pup season from clearcutting activities and protect some habitat 
for known maternity colonies. Northern long-eared bats in the summer 
have an approximate average maximum foraging distance of 1.5 miles (2.4 
km) from a roost tree (Sasse and Perkins, 1996, p. 95; Badin, 2014, p. 
76), and average home range size has been documented between 44-460 
acres (Lacki et al. 2009, p. 1169; Owen et al. 2003, p. 353; Carter and 
Feldhamer 2005, p. 264). Based on this information, our best judgment 
is that the amount of land within 0.25 mile (0.4 km) of a maternity 
roost, or 128 acres, will provide sufficient roosting, foraging, and 
commuting habitat to sustain most colonies for the duration of the pup 
season.

Forest Management

    The Service proposes that incidental take that is caused by forest 
management, when carried out in accordance with the conservation 
measures, will not be prohibited. Forest management includes the suite 
of activities used to maintain and manage forest ecosystems, including, 
but not limited to, timber harvest and other silvicultural treatments, 
prescribed burning, invasive species control, wildlife openings, and 
temporary roads. Such activities should also adhere to any applicable 
State water quality best management practices, where they exist. 
Although forest ecosystems may include non-forested land cover types, 
such as wetlands and upland openings, this category of activities 
generally maintains forested landcover. We do not consider conversion 
of a mixed forest into an intensively managed monoculture pine 
plantation as forest management covered under this

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proposed rule, as typically these types of monoculture pine plantations 
provide very poor-quality bat habitat.
    Where northern long-eared bats are present when these forest 
management activities are performed, bats could be exposed to habitat 
alteration or loss or direct disturbance (i.e., heavy machinery) or 
removal of maternity roost trees (i.e., harvest). In general, however, 
the northern long-eared bat is considered to have more flexible habitat 
requirements than other bat species (Carter and Feldhamer 2005, pp. 
265-266; Timpone et al. 2010, pp. 120-121), and most types of forest 
management should provide suitable habitat for the species over the 
long term (with the exception of conversion to monoculture pine forest, 
as discussed above). Based upon information obtained during previous 
comment periods on the proposed rule to list the bat as an endangered 
species, approximately 2 percent of forests in States within the range 
of the northern long-eared bat are impacted by forest management 
activities annually (Boggess et al, 2014, p. 9). Of this amount, in any 
given year a smaller fraction of forested habitat is impacted during 
the active season when pups and female bats are most vulnerable. These 
impacts are addressed by the above conservation measures proposed for 
inclusion in this rule.
    Therefore, we anticipate that habitat modifications resulting from 
activities that manage forests would not significantly affect the 
conservation of the northern long-eared bat. Further, although 
activities performed during the species' active season (roughly April 
through October) may directly kill or injure individuals, 
implementation of the conservation measures provided for in the 
proposed rule will limit overall take by protecting currently known 
populations during their more vulnerable life stages.

Maintenance and Limited Expansion of Existing Rights-of-Way and 
Transmission Corridors

    The Service proposes that incidental take that is caused by 
activities for the purpose of maintenance and limited expansion of 
existing rights-of-way and transmission corridors, when carried out in 
accordance with the conservation measures, will not be prohibited 
(i.e., will be excepted from the prohibitions). Rights-of-way (ROW) and 
transmission corridors are in place for activities such as 
transportation (i.e., highways, railways), utility transmission lines, 
and energy delivery (pipelines), though they are not limited to just 
these types of corridors. The Service proposes that take of the 
northern long-eared bat will not be prohibited provided the take is 
incidental to activities within the following categories:
    (1) Routine maintenance within an existing corridor or ROW, carried 
out in accordance with the previous described conservation measures.
    (2) Expansion of a corridor or ROW by up to 100 feet (30 m) from 
the edge of an existing cleared corridor or ROW, carried out in 
accordance with the previously described conservation measures.
    General routine maintenance is designed to limit vegetation growth, 
within an existing footprint, so that operations can continue smoothly. 
These activities may include tree trimming or removal, mowing, and 
herbicide spraying. However, depending on the purpose of the corridor 
or ROW, maintenance may only be performed infrequently and trees and 
shrubs may encroach into, or be allowed to grow within, the ROW until 
such a time as maintenance is required. Expansion of these areas 
requires removal of vegetation along the existing ROW to increase 
capacity (e.g., road widening).
    Northern long-eared bats can occupy various species and sizes of 
trees when roosting. Because of their wide variety of habitat use when 
roosting and foraging, it is possible that they may be using trees 
within or near existing ROWs. Therefore, vegetation removal within or 
adjacent to an existing ROW may remove maternity roost trees and 
foraging habitat. Individuals may also temporarily abandon the areas, 
avoiding the physical disturbance until the work is complete. While ROW 
corridors can be large in overall distance, due to the small scale of 
the habitat alteration involved in maintenance of the existing 
footprint, potential take is limited. No new forest fragmentation is 
expected as this expands existing open corridors. We also expect that 
excepting take prohibitions from ROW maintenance and limited expansion 
will encourage co-location of new linear projects within existing 
corridors. We conclude that the overall impact of ROW maintenance and 
limited expansion activities is not expected to adversely affect 
conservation and recovery efforts for the species.

Prairie Management

    The Service proposes that incidental take that is caused by 
activities for the purpose of prairie management, when carried out in 
accordance with the conservation measures, will not be prohibited 
(i.e., will be excepted from the prohibitions). In some areas of the 
northern long-eared bat range, tree and shrub species are overtaking 
prairie areas. Landowners and agencies working to establish or conserve 
prairies have to remove trees and brush in order to maintain 
grasslands. Maintenance activities include cutting, mowing, burning, or 
herbicide use on woody vegetation to minimize encroachment into 
prairies (Grassland Heritage Foundation Web site, accessed December 23, 
2014). If these prairies are not managed, they can eventually become 
shrub or forest lands sometimes in as few as 40 years (Briggs et al. 
2002 and Ratajczak et. al 2001). We conclude that the overall impact of 
prairie management is not expected to adversely affect conservation and 
recovery efforts for the species.

Projects Resulting in Minimal Tree Removal

    The Service proposes that incidental take that results from 
projects causing minimal tree removal, when carried out in accordance 
with the conservation measures, will not be prohibited (i.e., will be 
excepted from the prohibitions). Throughout the millions of acres of 
forest habitat in the northern long-eared bat range, many activities 
involve cutting or removal of individual or limited numbers of trees, 
but do not significantly change the overall nature and function of the 
local forested habitat. Some of these activities include firewood 
cutting, shelterbelt renovation, removal of diseased trees, tree 
removal for other small projects (i.e., culvert replacement), habitat 
restoration for fish and wildlife conservation, and backyard 
landscaping. These ongoing activities can occur throughout the northern 
long-eared bat range, but we do not believe they materially affect the 
local forest habitat for this species and in some cases increase 
habitat availability in the long term. We conclude that the overall 
impact of projects causing minimal tree removal is not expected to 
adversely affect conservation and recovery efforts for the species.

Hazardous Tree Removal

    The Service proposes that incidental take that is caused by removal 
and management of hazardous trees will not be prohibited (i.e., will be 
excepted from the prohibitions). Removal of hazardous trees is 
typically done as deemed necessary for human safety or for the 
protection of human facilities. Hazardous trees typically have defects 
in their roots, trunk, or branches that make them likely to fall, with 
the likelihood of causing personal injury or property damage. The 
limited removal of these hazardous trees may be widely dispersed but 
limited, and should result in very minimal incidental take of

[[Page 2376]]

northern long-eared bat. Therefore, the Service proposes that take 
incidental to the removal of hazardous trees will not be prohibited. We 
recommend that, wherever possible, removal of hazardous trees be done 
during the winter, when these trees will not be occupied by bats. We 
conclude that the overall impact of removing hazardous trees is not 
expected to adversely affect conservation and recovery efforts for the 
species.

Removal of Bats From and Disturbance Within Human Dwellings

    The Service proposes that take that is caused by removal of bats 
from and disturbance within human dwellings will not be prohibited 
(i.e., will be excepted from the prohibitions), provided those actions 
comply with all applicable State laws. Northern long-eared bats have 
further been documented roosting in human-made structures, such as 
buildings, barns, a park pavilion, sheds, cabins, under eaves of 
buildings, behind window shutters, and in bat houses (Mumford and Cope 
1964, p. 72; Barbour and Davis 1969, p. 77; Cope and Humphrey 1972, p. 
9; Amelon and Burhans 2006, p. 72; Whitaker and Mumford 2009, p. 209; 
Timpone et al. 2010, p. 119; Joe Kath 2013, pers. comm.). We conclude 
that the overall impact of bat removal from human dwellings is not 
expected to adversely affect conservation and recovery efforts for the 
species. In addition, we provide the following recommendations:
    (A) Minimize use of pesticides (e.g., rodenticides) and avoid use 
of sticky traps in and around structures with roosting bats.
    (B) If bats (of any species) are using structures (e.g., barns or 
other outbuildings) as roosts, and these structures are proposed for 
removal, removal should be performed outside of the summer maternity 
season, unless there are human health or safety concerns associated 
with the structure. Contact a nuisance wildlife specialist for humane 
exclusion techniques.

Capture, Handling, Attachment of Radio Transmitters, and Tracking 
Northern Long-Eared Bats for 1 Year

    For a limited period of 1 year from the effective date of this 
rule, the Service proposes that purposeful take that is caused by the 
authorized capture, handling, attachment of radio transmitters, and 
tracking of northern long-eared bats by individuals permitted to 
conduct these same activities for other listed bats will be excepted 
from the prohibitions. One method of determining presence/probable 
absence of northern long-eared bats is to conduct mist-netting at 
summer sites or harp trapping at hibernacula. Gathering of this 
information is essential to monitor the distribution and status of 
northern long-eared bats over time. In addition, northern long-eared 
bats are often captured incidentally to survey and study efforts 
targeted at other bat species (e.g., Indiana bats). It is necessary and 
advisable for the conservation of northern long-eared bats to provide 
an exception for the purposeful take associated with these normal 
survey activities conducted by qualified individuals to promote and 
encourage the gathering of information following standard procedures 
(including decontamination) as these data will help us conserve and 
recover this species. To receive an exception, proponents must have an 
existing research permit under section 10(a)(1)(A) of the Act (or 
similar State collector's permit applications in the northeast region 
of the Service) for other listed bat species. The rationale for this 
limited time period is that a final listing decision is expected at the 
start of the bat field season, and it will be difficult to amend all 
permits in time for this year.
    The Service concludes, for the reasons specified above, that all of 
the conservation measures, prohibitions, and exceptions identified 
herein individually and cumulatively are necessary and advisable for 
the conservation of the northern long-eared bat and will promote the 
conservation of the species across its range.
    Table 1 (below) summarizes the details of the species-specific 
proposed 4(d) rule for the northern long-eared bat.

----------------------------------------------------------------------------------------------------------------
 Is the area affected                                                     Take exceptions
  by WNS (WNS  buffer    Take prohibitions at 50  --------------------------------------------------------------
        zone)?             CFR 17.31 and 17.32               Purposeful                      Incidental
----------------------------------------------------------------------------------------------------------------
No....................  All apply, with the        Actions with the intent to      Any incidental take of
                         following exceptions       remove northern long-eared      northern long-eared bats
                         listed here.               bats from within human          resulting from otherwise
                                                    dwellings and that comply       lawful activities.
                                                    with all applicable State
                                                    regulations.
                                                   Actions relating to capture,
                                                    handling, attachment of radio
                                                    transmitters, and tracking of
                                                    northern long-eared bats by
                                                    individuals permitted to
                                                    conduct these same activities
                                                    for other bats, for a period
                                                    of 1 year following the
                                                    effective date of the final
                                                    rule.
Yes...................  All apply, with the        Actions with the intent to      Implementation of forest
                         following exceptions       remove northern long-eared      management, maintenance and
                         listed here.               bats from within human          expansion of existing rights-
                                                    dwellings and that comply       of-way and transmission
                                                    with all applicable State       corridors, native prairie
                                                    regulations.                    management, and minimal tree
                                                                                    removal projects that:
                                                                                    Occur more than 0.25
                                                                                    mile (0.4 km) from a known,
                                                                                    occupied hibernacula;
                                                                                    avoid cutting or
                                                                                    destroying known, occupied
                                                                                    maternity roost trees during
                                                                                    the pup season (June 1-July
                                                                                    31); and
                                                                                    avoid clearcuts
                                                                                    within 0.25 (0.4 km) miles
                                                                                    of known, occupied maternity
                                                                                    roost trees during the pup
                                                                                    season (June 1-July 31).

[[Page 2377]]

 
                                                   Actions relating to capture,    Removal of hazard trees for
                                                    handling, attachment of radio   the protection of human life
                                                    transmitters, and tracking of   and property.
                                                    northern long-eared bat by
                                                    individuals permitted to
                                                    conduct these same activities
                                                    for other bats, for a period
                                                    of 1 year following the
                                                    effective date of the final
                                                    rule.
----------------------------------------------------------------------------------------------------------------

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of such review is to ensure 
that our determination of status for this species is based on 
scientifically sound data, assumptions, and analyses. We will send peer 
reviewers copies of this proposed rule concurrent with publication in 
the Federal Register. We will invite these peer reviewers to comment, 
during the reopening of the public comment period, on our use and 
interpretation of the science used in developing our proposed rule to 
list the northern long-eared bat and this proposed rule under section 
4(d) of the Act.
    We will consider all comments and information we receive during the 
comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 
proposal.

Required Determinations

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must: (a) Be logically 
organized; (b) use the active voice to address readers directly; (c) 
use clear language rather than jargon; (d) be divided into short 
sections and sentences; and (e) use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the proposed rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.)

    This rule does not contain any collections of information that 
require approval by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act. This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor and 
a person is not required to respond to a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act of 1969, need not be prepared in connection 
with listing a species as an endangered or threatened species under the 
Endangered Species Act. We published a notice outlining our reasons for 
this determination in the Federal Register on October 25, 1983 (48 FR 
49244). We intend to incorporate this proposed rule under section 4(d) 
of the Act into our final determination concerning the listing of the 
species or withdrawal of the proposal if new information is provided 
that supports that decision.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes.
    By letter dated July 29, 2014, we contacted known federally 
recognized tribal governments throughout the historical range of the 
northern long-eared bat. We sought their input on our development of a 
proposed rule to list the northern long-eared bat and encouraged them 
to contact the Midwest Regional Office or Regional Native American 
contacts if any portion of our request was unclear or to request 
additional information. We did not receive any comments regarding this 
request.

References Cited

    A complete list of all references cited in this proposed rule is 
available on the Internet at https://www.regulations.gov at Docket No. 
FWS-R5-ES-2011-0024 or upon request from the Endangered Species Chief, 
Midwest Regional Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Midwest Regional Office (see FOR FURTHER INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, and Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to further amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as proposed to 
be amended at 78 FR 61046 (October 2, 2013) as follows:

[[Page 2378]]

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless 
otherwise noted.
0
2. Amend Sec.  17.11(h) by adding an entry for ``Bat, northern long-
eared'' to the List of Endangered and Threatened Wildlife in 
alphabetical order under Mammals to read as set forth below:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                         Species                                                   Vertebrate population
----------------------------------------------------------     Historic range       where endangered or       Status        When     Critical   Special
            Common name                Scientific name                                  threatened                         listed    habitat     rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
              Mammals
 
                                                                      * * * * * * *
Bat, northern long-eared..........  (Myotis                U.S.A. (AL, AR, CT,    Entire................  T              .........         NA   17.40(n)
                                     septentrionalis).      DE, DC, GA, IL, IN,
                                                            IA, KS, KY, LA, ME,
                                                            MD, MA, MI, MN, MS,
                                                            MO, MT, NE, NH, NJ,
                                                            NY, NC, ND, OH, OK,
                                                            PA, RI, SC, SD, TN,
                                                            VT, VA, WV, WI, WY);
                                                            Canada (AB, BC, LB,
                                                            MB, NB, NF, NS, NT,
                                                            ON, PE, QC, SK, YT).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.40 by adding paragraph (n) to read as follows:


Sec.  17.40  Special rules--mammals.

* * * * *
    (n) Northern long-eared bat (Myotis septentrionalis). The 
provisions of this rule are based upon the occurrence of white-nose 
syndrome (WNS), a disease affecting many U.S. bat populations. The term 
``WNS buffer zone'' identifies the portion of the range of the northern 
long-eared bat within 150 miles of the boundaries of U.S. counties or 
Canadian districts where the fungus Pseudogymnoascus destructans or WNS 
has been detected. For current information regarding the WNS buffer 
zone, contact your local Service field office. Field office contact 
information may be obtained from the Service regional offices, the 
addresses of which are listed in 50 CFR 2.2.
    (1) Outside the WNS buffer zone, the following provisions apply to 
the northern long-eared bat:
    (i) Prohibitions. Except as noted in paragraphs (n)(1)(ii)(A) and 
(B) of this section, all the prohibitions and provisions of Sec. Sec.  
17.31 and 17.32 apply to the northern long-eared bat.
    (ii) Exceptions from prohibitions.
    (A) Purposeful take:
    (1) Take resulting from actions taken to remove northern long-eared 
bats from within human dwellings, if the actions comply with all 
applicable State regulations.
    (2) Take resulting from actions relating to capture, handling, 
attachment of radio transmitters, and tracking of northern long-eared 
bats by individuals permitted to conduct these same activities for 
other species of bat listed in Sec.  17.11(h) until [INSERT DATE 1 YEAR 
AFTER EFFECTIVE DATE OF FINAL RULE].
    (B) Any incidental (non-purposeful) take of northern long-eared 
bats resulting from otherwise lawful activities.
    (2) Inside the WNS buffer zone, the following provisions apply to 
the northern long-eared bat:
    (i) Prohibitions. Except as noted in paragraphs (n)(2)(ii)(A) and 
(B) of this section, all prohibitions and provisions of Sec. Sec.  
17.31 and 17.32 apply to the northern long-eared bat.
    (ii) Exceptions from prohibitions. Take of northern long-eared bat 
is not prohibited in the following circumstances:
    (A) Purposeful take:
    (1) Take resulting from actions taken to remove northern long-eared 
bats from within human dwellings, if the actions comply with all 
applicable State regulations.
    (2) Take resulting from actions relating to capture, handling, 
attachment of radio transmitters, and tracking of northern long-eared 
bats by individuals permitted to conduct these same activities for 
other species of bat listed in Sec.  17.11(h) until [INSERT DATE 1 YEAR 
AFTER EFFECTIVE DATE OF FINAL RULE].
    (B) Incidental take:
    (1) Implementation of forest management, maintenance and expansion 
of existing rights-of-way and transmission corridors, native prairie 
management, and minimal tree removal projects that:
    (i) Occur more than 0.25 mile (0.4 km) from a known, occupied 
hibernacula;
    (ii) Avoid cutting or destroying known, occupied maternity roost 
trees during the pup season (June 1-July 31); and
    (iii) Avoid clearcuts within 0.25 (0.4 km) mile of known, occupied 
maternity roost trees during the pup season (June 1-July 31).
    (2) Removal of hazardous trees for the protection of human life and 
property.
* * * * *

    Dated: January 12, 2015.
Daniel M. Ashe,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2015-00644 Filed 1-15-15; 8:45 am]
BILLING CODE 4310-55-P