Endangered and Threatened Wildlife and Plants; Threatened Species Status for Eastern Black Rail With a Section 4(d) Rule, 63764-63803 [2020-19661]

Download as PDF 63764 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations 843–727–4707. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800–877–8339. SUPPLEMENTARY INFORMATION: DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R4–ES–2018–0057; FF09E21000 FXES11110900000 201] RIN 1018–BD21 Endangered and Threatened Wildlife and Plants; Threatened Species Status for Eastern Black Rail With a Section 4(d) Rule Fish and Wildlife Service, Interior. ACTION: Final rule. AGENCY: We, the U.S. Fish and Wildlife Service (Service), determine threatened species status for the eastern black rail (Laterallus jamaicensis jamaicensis) under the Endangered Species Act of 1973 (Act), as amended. Accordingly, we list the eastern black rail, a bird subspecies known from as many as 35 States, the District of Columbia, Puerto Rico, Canada, Brazil, and several countries in the Caribbean and Central America, as a threatened species under the Act. The effect of this regulation will be to add this subspecies to the List of Endangered and Threatened Wildlife. We also finalize a rule under the authority of section 4(d) of the Act that provides measures that are necessary and advisable to provide for the conservation of the eastern black rail. We have determined that designation of critical habitat for the eastern black rail is not prudent. DATES: This rule is effective November 9, 2020. ADDRESSES: This final rule is available on the internet at http:// www.regulations.gov in Docket No. FWS–R4–ES–2018–0057 and at the South Carolina Ecological Services Field Office. Comments and materials we received, as well as supporting documentation we used in preparing this rule, are available for public inspection in the docket on http:// www.regulations.gov. Comments, materials, and documentation that we considered in this rulemaking will also be available by appointment, during normal business hours at: U.S. Fish and Wildlife Service South Carolina Ecological Services Field Office, 176 Croghan Spur Road, Suite 200, Charleston, SC 29407; telephone 843– 727–4707. FOR FURTHER INFORMATION CONTACT: Tom McCoy, Field Supervisor, South Carolina Ecological Services Field Office, 176 Croghan Spur Road, Suite 200, Charleston, SC 29407; telephone khammond on DSKJM1Z7X2PROD with RULES3 SUMMARY: VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 Executive Summary Why we need to publish a rule. Under the Act, a species may warrant protection through listing if it is endangered or threatened throughout all or a significant portion of its range. Listing a species as an endangered or threatened species can only be completed by issuing a rule. What this document does. This rule will list the eastern black rail (Laterallus jamaicensis jamaicensis) as a threatened species and provide measures under section 4(d) of the Act that are tailored to our current understanding of the conservation needs of the eastern black rail. The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species based on any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that habitat loss and destruction, sea level rise and tidal flooding, incompatible land management, and increasing storm intensity and frequency are the primary threats to this subspecies. Peer review and public comment. We prepared a species status assessment report (SSA report) for the eastern black rail (Service 2019). The SSA report represents a compilation and assessment of the best scientific and commercial information available concerning the status of the eastern black rail, including the past, present, and future factors influencing the subspecies (Service 2019, entire). We solicited independent peer review of the SSA report by 10 individuals with expertise in rail biology and ecology and in species modeling; we received comments from 5 of the 10 reviewers. The reviewers were generally supportive of our approach and made suggestions and comments that strengthened our analysis. We also considered all comments and information received during the comment period. The SSA report and other materials relating to this rule can be found at http://www.regulations.gov under Docket No. FWS–R4–ES–2018– 0057. PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 Previous Federal Actions Please refer to the proposed listing rule for the eastern black rail (83 FR 50610) for a detailed description of previous Federal actions concerning this species. Background A thorough review of the taxonomy, life history, and ecology of the eastern black rail is presented in the SSA report (Service 2019, entire). Please refer to the proposed listing rule for the eastern black rail (83 FR 50610, October 9, 2018) for a summary of species information. Summary of Biological Status and Threats We completed a comprehensive assessment of the biological status of the eastern black rail, and prepared a report of the assessment (SSA report; Service 2019, entire), which provides a thorough account of the subspecies’ overall viability. Below, we summarize the key results and conclusions of the SSA report, which can be viewed under Docket No. FWS–R4–ES–2018–0057 at http://www.regulations.gov. To assess eastern black rail viability, we used the three conservation biology principles of resiliency, representation, and redundancy (together, ‘‘the three Rs,’’ (3Rs)) (Shaffer and Stein 2000, pp. 306–310). Briefly, resiliency refers to the ability of a species to withstand environmental and demographic stochasticity (for example, wet or dry years); representation refers to the ability of the species to adapt over time to long-term changes in the environment (for example, climate change); and redundancy refers to the ability of the species to withstand catastrophic events (for example, hurricanes). In general, the more redundant and resilient a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the eastern black rail’s ecological requirements for survival and reproduction at the individual, population, and subspecies levels, and described the beneficial and risk factors influencing the subspecies’ viability. We delineated analysis units for the eastern black rail based on environmental variables (aquifer permeability, slope, mean precipitation, mean potential evapotranspiration, and percent sand in soil). We used 8,281 point localities from combined datasets (i.e., eBird, Center for Conservation Biology, University of Oklahoma, and additional research partners) from 1980 E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations through 2017, to delineate the analysis units for the eastern black rail. We named the analysis units using standard topographic and ecological landmarks: New England, Mid-Atlantic Coastal Plain, Appalachians, Southeast Coastal Plain, Southwest Coastal Plain, Central Lowlands, and Great Plains. Based on available data, we have concluded that the New England, Appalachians, and Central Lowlands analysis units are effectively extirpated. While these three analysis units historically did not support abundances of the eastern black rail as high as the other four analysis units, an evaluation of the current status information, including the paucity of current records, negative survey results, and the demonstrated range contraction throughout these areas, supports our conclusion that the eastern black rail is effectively extirpated from these analysis units. The remaining four analysis units, the Mid-Atlantic Coastal Plain, Southeast Coastal Plain, Southwest Coastal Plain, and Great Plains, have records of current populations of eastern black rails. To assess resiliency, we analyzed occupancy within the analysis units through the creation of a dynamic occupancy model. We used data from repeated presence/absence surveys across the range of the eastern black rail to estimate the probability of presence at a site and related the occupancy probability to environmental covariates of interest (wettest month precipitation, temperature range, annual mean temperature, coldest month mean temperature, presence/absence of fire ants, and State identification). The lower the occupancy probability in an analysis unit, the less resiliency that analysis unit exhibits. We found the four extant analysis units (Southeast Coastal Plain, Mid-Atlantic Coastal Plain, Great Plains, and Southwest Coastal Plain) to have very low occupancy probabilities ranging from 0.099 to 0.25. The results also indicated fairly high site extinction probabilities with accompanying low site persistence. To assess representation, we used two metrics to estimate and predict representative units that reflect the subspecies’ adaptive capacity: Habitat variability and latitudinal variability. The eastern black rail exhibits adaptive potential by using similar habitat elements within different wetland types (habitat variability) within analysis units, i.e., higher elevation areas within wetlands with dense vegetation, moist soils, and shallow flood depths (Eddleman et al. 1988, p. 463; Nadeau and Conway 2015, p. 292). Therefore, the subspecies shows a level of adaptive capacity by using different wetland VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 types that contain the required habitat elements. Additionally, we used the metric of latitudinal variability to reflect the eastern black rail’s wide range across the contiguous United States. To maintain existing adaptive capacity, it is important to have resilient populations (analysis units) that exhibit habitat variability and latitudinal variability. To assess redundancy, we evaluated the current distribution of eastern black rail analysis units through their presentday spatial locations. To have high redundancy, the eastern black rail would need to have multiple resilient analysis units spread throughout its range. Current Condition of Eastern Black Rail Historically, the eastern black rail ranged across the eastern, central, and southern United States; historical records also exist from the Caribbean, Central America, Brazil, and Ontario, Canada. It occupied multiple areas of wetlands (including salt marshes, coastal prairies, and hay fields) throughout the range; approximately 90 percent of documented breeding-season occurrence records occurred at coastal locations and less than 10 percent were inland records, with more than 60 percent of the inland records occurring before 1950 (Watts 2016, entire). The eastern black rail also occupied multiple areas of wetlands within each analysis unit. Within the northeastern United States, historical (1836–2010) records document the eastern black rail as present during breeding months from Virginia to Massachusetts, with 70 percent of historical observations (773 records) in Maryland, Delaware, and New Jersey (Watts 2016, p. 22). Maryland, Delaware, and New Jersey are considered historical strongholds for eastern black rail in this region of the United States (the Northeast) as well as across the subspecies’ entire breeding range (Watts 2016, p. 22), due to the total number and frequency of observations reported over time. Virginia, New York, and Connecticut account for an additional 21 percent of the historical records (235 records) from the Northeast (Watts 2016, p. 22). Recent (2011–2016) records from the Northeast are low in number (64 records), with almost all records restricted to outer coastal habitats (Watts 2016, pp. 22, 24). The distribution of the recent records points toward a substantial southward contraction in the subspecies’ range of approximately 450 kilometers (280 miles), with vacated historical sites from 33 counties extending from the Newbury marshes in Massachusetts to PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 63765 Ocean County, New Jersey (Watts 2016, pp. 24, 119). Further, the distribution of the recent records has become patchy along the Atlantic coast, and an evaluation of the records within the 15 counties still currently occupied suggests an almost full collapse of the eastern black rail population in the Northeast (Watts 2016, p. 24). While the Appalachians and Central Lowlands analysis units supported less habitat for eastern black rails compared to the more coastal analysis units, interior occurrences were more common historically. Current population estimates for states with a large area occurring within the boundaries of the Appalachians analysis unit are effectively zero (Watts 2016, p. 19). Within that unit, an estimated 0 to 5 breeding pairs currently occur in Pennsylvania, and no breeding pairs are thought to occur in New York or West Virginia (Watts 2016, p. 19). Birds previously detected in the Appalachians analysis unit were found in small depressional wetlands within active pastures; other freshwater wetlands dominated by cattails, rushes, or sedges; and drainage ditches (Watts 2016, pp. 48, 74). While these wetland types still exist within the analysis unit and may support single individuals or a very low-density, scattered population (Watts 2016, pp. 48, 74), a substantial amount of this kind of habitat has been lost primarily due to the draining of freshwater wetlands for agricultural purposes. These estimates likely hold true for the interior portions of the other States within the Appalachians analysis unit (e.g., Georgia, Virginia) based on few current detections. Similar losses of habitat have occurred in the Central Lowlands analysis unit, and there are currently few detections of eastern black rails across this unit. Moreover, the current detections are not consistent from year to year even when habitat remains suitable. For example, Indiana Department of Natural Resources surveys for eastern black rails at multiple sites during the period 2010– 2016 yielded one detection at a single site previously known to support eastern black rails (Gillet 2017, unpublished data). In the Chesapeake Bay region, the distribution of eastern black rail has contracted, and the counts of birds have declined. A series of systematic surveys for eastern black rails has been conducted around the Chesapeake Bay since the early 1990s (Watts 2016, pp. 59, 67). Surveys estimated 140 individuals in the 1990–1992 survey period, decreasing to 24 individuals in 2007, and only 8 individuals in 2014, a decline of over 90 percent in less than E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 63766 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations 25 years (taking into account the number of survey points; Watts 2016, p. 59; Brinker 2017, unpublished data). Of 328 points surveyed in Virginia in 2007, researchers detected 15 birds; a second round of surveys in 2014 yielded 2 detections at 134 survey points (including all survey points with positive occurrences in 2007), equating to a 67 percent decline over 7 years (corrected from Watts to take into account the number of survey points; Wilson et al. 2015, p. 3; Watts 2016, pp. 67, 71;). Historically, the eastern black rail was also present during breeding months at inland and coastal locations throughout southeastern coastal States (the Southeast), a region that included North Carolina, South Carolina, Georgia, Florida, Tennessee, Mississippi, Alabama, Louisiana, and Texas (Watts 2016, pp. 75–76). Of these States, Texas, Florida, South Carolina, and North Carolina contained 89 percent of all historical observations (734 records) (Watts 2016, p. 77). The other States (Georgia, Tennessee, Mississippi, Alabama, and Louisiana) either do not have a history of supporting eastern black rails consistently or are considered to be on the peripheries of known breeding areas (Watts 2016, p. 77). Recently, there have been 180 records of eastern black rails during the breeding season, and at a coarse view, the same 4 southeastern States that substantially supported the subspecies historically still support the subspecies (Watts 2016, pp. 77, 79). However, North Carolina shows a severe decline in the number of occupied sites, with only four properties occupied in 2014– 2015, down from nine in 1992–1993 (Watts 2016, p. 80). Additional surveys in 2017 yielded no new occupied coastal sites, and no birds were detected at inland/freshwater sites from two surveys in 2018 (Watts et al. 2017, p. 3; Watts et al. 2018b, p. 3). South Carolina shows a limited distribution, with two known occupied areas (Wiest 2018, pers. comm.) and an estimated 50 to 100 breeding pairs (Watts 2016, p. 19), leaving Texas and Florida as the current strongholds for the Southeast. At the time of the 2016 coastal assessment, it was surmised that coastal Georgia may support a breeding population of unknown size (Watts 2016, pp. 93–95); however, a coastwide survey in 2017 at 409 survey points in Georgia yielded no detections of eastern black rails (Watts et al. 2018a, p. 3). Initial results from the 2018 field season in Georgia detected no black rails at inland or coastal locations; a total of 206 points had been visited (Watts et al. 2018a, p. 4). A small VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 population in inland Georgia was tracked during the breeding season from 1991 to 2010 until the population disappeared in 2011 for unknown reasons; observed young from this population remains the only evidence of definitive breeding in the State (Watts 2016, pp. 93–94; Sykes 2018, pers. comm.). Overall, across the Atlantic and Gulf Coasts, recent observations show poor presence inland and a widespread reduction in the number of sites used across coastal habitats (Watts 2016, p. 79). The history of the subspecies’ distribution in the interior continental United States is poorly known. Historical literature indicates that a wide range of interior States were occupied by the eastern black rail, either regularly or as vagrants (Smith-Patten and Patten 2012, entire). Eastern black rails are currently vagrants (casual or accidental) in Arkansas, Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, Nebraska, New Mexico, Ohio, and Wisconsin (Smith-Patten and Patten 2012, entire). Presently, eastern black rails are reliably located within the Arkansas River Valley of Colorado (presumed breeder in the State) and in southcentral Kansas (confirmed breeder in the State) (Smith-Patten and Patten 2012, pp. 9, 17; Butler et al. 2014, p. 22). In Colorado, the subspecies is encountered in spring and summer at Fort Lyon Wildlife Area, Bent’s Old Fort, Oxbow State Wildlife Area, Bristol, and John Martin Reservoir State Park (Smith-Patten and Patten 2012, p. 10). Surveys conducted between April 15 and June 15, 2018, in southeastern Colorado detected at least one black rail during repeat surveys at 39 of 115 points and 17 of 66 marshes surveyed (Rossi and Runge 2018, p. 6). In Kansas, available information on the occurrence of eastern black rail suggests eight counties have confirmed breeding records, but Quivira National Wildlife Refuge (NWR) is the only known site with consistent or regular breeding activities (Thompson et al. 2011, p. 123). In Oklahoma, occurrence mapping suggests that this subspecies had at a maximum a patchy historical distribution throughout the State. At present, it is possible that there is not sufficient suitable habitat or numbers of birds to constitute a true breeding population in Oklahoma (Smith-Patten and Patten 2018, p. 7). Eastern black rail analysis units currently have low to no resiliency in the contiguous United States (Service 2019, pp. 79–82). The Great Plains, Southwest Coastal Plain, and Southeast Coastal Plain analysis units have low resiliency based on the dynamic PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 occupancy model results, which indicate very low occupancy probabilities in each modeled analysis unit: 0.25 in the Southwest Coastal Plain, 0.13 in the Great Plains, and 0.099 in the Southeast Coastal Plain. The Mid-Atlantic Coastal Plain analysis unit currently exhibits very low resiliency for the eastern black rail. It supports fewer birds and has fewer occupied habitat patches than the Southeast Coastal Plain analysis unit. The remaining three analysis units, New England, Appalachians, and Central Lowlands, currently demonstrate no resiliency. These three units historically did not support abundances of the eastern black rail as high as the other four analysis units. There are currently insufficient detections to model these units; recent detections (2011 to present) are fewer than 20 birds for each analysis unit. An evaluation of current status information yields that eastern black rails are effectively extirpated from portions of the New England, Appalachians, and Central Lowlands analysis units that were once occupied. Lastly, resiliency is unknown for the Central America and Caribbean portion of the eastern black rail’s range. However, the sparsity of historical and current records, including nest records, indicates that resiliency outside of the contiguous United States is likely low. All recent sightings in Central America and the Caribbean have been of adult eastern black rails; there are no reports of nests, chicks, or juveniles. To assess current representation, we evaluated both habitat variability and latitudinal variability. When considering habitat variability, we determined the eastern black rail has a level of adaptive potential by using similar habitats elements (i.e., higher elevation areas within wetlands with dense vegetation, moist soils, and shallow flood depth) within different wetland types within analysis units. However, there may be unknown factors that influence and affect the eastern black rail’s use of wetland habitat, as not all apparently suitable wetland habitat is currently occupied. While the New England, Appalachians, and Central Lowlands analysis units have experienced wetland habitat loss and fragmentation, wetland habitats continue to be present on the landscape. However, the eastern black rail is not being found in these three analysis units with any consistency or by detections representing more than single individuals. Historically, the eastern black rail had a wide distribution and exhibited latitudinal variability. Currently, as discussed above, three of E:\FR\FM\08OCR3.SGM 08OCR3 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 the analysis units (New England, Appalachians, and Central Lowlands) are effectively extirpated, and, therefore, this latitudinal variability (higher latitudes) has effectively been lost to the subspecies. Therefore, even though the eastern black rail still occurs at varying latitudes, we conclude that the subspecies currently has reduced representation across its range. Despite having a wide distribution, the eastern black rail currently has low redundancy across its range. With the loss of three analysis units in upper latitudes of the range, the subspecies has reduced ability to withstand catastrophic events, such as hurricanes and tropical storms, which could impact the lower latitudinal analysis units. Given the lack of habitat connectivity, and patchy and localized distribution, it would be difficult for the subspecies to recover from a catastrophic event in one or more analysis units. Risk Factors for Eastern Black Rail The Act directs us to determine whether any species is an endangered species or a threatened species because of any factors affecting its continued existence. Under section 4(a)(1) of the Act, we may list a species based on (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species’ continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects. We use the term ‘‘threat’’ to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term ‘‘threat’’ includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term ‘‘threat’’ may encompass—either together or separately—the source of the action or condition or the action or condition itself. The mere identification of any threat(s) does not necessarily mean that the species meets the statutory VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 definition of an ‘‘endangered species’’ or a ‘‘threatened species.’’ In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species—such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an ‘‘endangered species’’ or a ‘‘threatened species’’ only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future. We reviewed the potential risk factors (i.e., threats or stressors) that are affecting the eastern black rail now and into the future. In this rule, we will discuss in detail only those threats that we conclude are driving the status and future viability of the species. The primary threats to eastern black rail are: (1) Habitat fragmentation and conversion, resulting in the loss of wetland habitats across the range (Factor A); (2) sea level rise and tidal flooding (Factors A and E); (3) land management practices (i.e., incompatible fire management practices, grazing, and haying/mowing/other mechanical treatment activities) (Factors A and E); and (4) stochastic events (e.g., extreme flooding, hurricanes) (Factor E). Human disturbance, such as birders using excessive playback calls of black rail vocalizations (Factor B), is also a concern for the species. Additional stressors to the species (including oil and chemical spills and environmental contaminants (Factor E); disease, specifically West Nile virus (Factor C); and predation and altered food webs resulting from invasive species (fire ants, feral pigs, nutria, mongoose, and exotic reptiles) introductions (Factor C)) are discussed in the SSA report (Service 2019, entire). However, although these additional stressors may be having localized impacts, they are not the primary drivers of the status of the subspecies, and so we do not discuss them in detail in this document. We also reviewed the conservation efforts being undertaken for the subspecies. The existing regulatory mechanisms do not address threats to the eastern black PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 63767 rail such that it does not warrant listing under the Act (Factor D). Habitat Fragmentation and Conversion The eastern black rail is a wetlanddependent bird requiring dense emergent cover (i.e., vegetation) and extremely shallow water depths (typically ≤3 cm) over a portion of the wetland-upland interface to support its resource needs. Grasslands and their associated palustrine (freshwater) and estuarine wetland habitats have experienced significant loss and conversion since European settlement (Hannah et al. 1995, pp. 137, 151; Noss et al. 1995, pp. 57–76, 80–84; Bryer et al. 2000, p. 232). Approximately 50 percent (greater than 100 million acres) of the wetlands in the conterminous United States have been lost over the past 200 years; the primary cause of this loss was conversion for agricultural purposes (Dahl 1990, p. 9). Wetland losses for the States within the eastern black rail’s historical range have been from 9 percent to 90 percent, with a mean of 52 percent (Dahl 1990, p. 6). Similarly, most of the native grassland/ prairie habitats associated with eastern black rail habitat have been lost since European settlement (Sampson and Knopf 1994, pp. 418–421). The eastern black rail also uses the transition zone (ecotone) between emergent wetlands and upland grasslands. These transitional areas are critical to eastern black rails, as they provide refugia during high-water events caused by precipitation or tidal flooding. These habitat types have also experienced significant declines over time (Sampson and Knopf 1994, pp. 418–421), with many areas within the eastern black rail’s historical range losing over 90 percent of their prairie habitat. Most of this loss can be attributed to agricultural conversion (Sampson and Knopf 1994, pp. 419– 420). Many of the freshwater wetlands associated with these grasslands were emergent and ephemeral in nature, and would have supported eastern black rails. For example, in Texas, between the 1950s and 1990s, 235,000 acres, or 29 percent, of freshwater wetlands within Gulf coastal prairie were converted primarily to upland agriculture and other upland land uses (Moulton et al. 1997, p. 5). This value does not include the numbers of upland prairie acres that were also converted. Despite regulatory efforts to minimize the loss of wetland habitats, losses and alterations continue to occur to habitats occupied by the eastern black rail. Marshes continue to face substantial impacts from dikes, impoundments, canals, altered freshwater inflows, E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 63768 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations erosion, relative sea level rise, tidal barriers, tropical storm events, and other natural and human-induced factors (Turner 1990, entire; Kennish 2001, entire; Adam 2002, entire; Tiner 2003, p. 513; Gedan et al. 2009, entire). Estuarine emergent wetland losses are mostly attributable to conversion to open water through erosion (Dahl and Stedman 2013, p. 37), while freshwater emergent wetland losses appear to be the result of development (Dahl and Stedman 2013, p. 35). Marine and estuarine wetlands along the northern Gulf of Mexico have been negatively impacted by development, including energy development and coastal storms (Dahl 2011, p. 47). Because the rail is a wetland-dependent subspecies, the loss and alteration of palustrine and estuarine wetlands and associated grassland habitats have a negative impact. Within the range of the eastern black rail, land use in the United States has affected and continues to affect groundwater and surface water resources (Johnston 1997, entire; McGuire 2014, pp. 1–2, 7, 9; Barfield 2016, pp. 2–4; Juracek and Eng 2017, pp. 1, 11–16). The conversion of wetland habitat, largely for agricultural use, was mentioned above. However, habitat conversion and land use directly and indirectly affect water resources, largely tied to the interaction of groundwater and surface water resources (Sophocleous 2002, entire; Tiner 2003, p. 495; Glazer and Likens 2012, entire; Konikow 2015, entire; U.S. Geological Survey (USGS) 2016, unpaginated). Where groundwater resources are hydraulically connected to surface water resources, these connections can either be unconfined (water table) or confined (springs) aquifers. In unconfined aquifers, locations can support surface features such as wetlands or riparian habitats where groundwater is located near the land surface (Haag and Lee 2010, pp. 16–19, 21–24). Lowering of groundwater through withdrawals via wells or ditches can cause wetlands to shrink or become dry. Withdrawals of confined aquifers can lead to the drying of springs and associated wetland habitats (Weber and Perry 2006, p. 1255; Metz 2011, p. 2). In the central and southcentral United States, high groundwater use, largely attributed to cropland irrigation and other human activities, may affect the long-term sustainability of water resources, including causing wetland loss (McGuire 2014, entire; Juracek 2015, entire; Juracek and Eng 2017, entire; VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 Juracek et al. 2017, entire; Perkin et al. 2017, entire). Human modifications to the environment have led to significant changes in vegetation. Some of these modifications include water withdrawals and the construction of levees, drainage canals, and dams. Changes to native vegetation can result in changes to the structure of the habitat (e.g., conversion from emergent to scrub-shrub wetlands, wetland into upland habitat, or vice-versa), as well as the introduction of invasive plant species (e.g., Phragmites australis; Crain et al. 2009, p. 157). Given the narrow habitat preferences of the eastern black rail (i.e., very shallow water and dense emergent vegetation), small changes in the plant community can easily result in habitat that is not suitable for the subspecies. Subsidence (lowering of the earth’s surface) is caused by the withdrawal of liquids from below the ground’s surface, which relieves supporting hydraulic pressure of liquids by the long-term compression of unconsolidated, geologically deposited sediments, or by other geologic processes (White and Tremblay 1995, entire; Day et al. 2011, p. 645; Karegar et al. 2016, p. 3129). Localized subsidence can occur with groundwater withdrawals where withdrawal rates are greater than the aquifer recharge rates (White and Tremblay 1995, pp. 794–804; Morton et al. 2006, p. 271) or where liquids associated with hydrocarbon extraction have caused the lowering of ground elevations (Morton et al. 2006, p. 263). On the Atlantic coast, an area of rapid subsidence exists between Virginia and South Carolina, where the rate of subsidence has doubled due to increased groundwater withdrawals (Karegar et al. 2016, pp. 3131–3132). An extreme example of subsidence in the United States is along the Gulf of Mexico coast, where both subsurface liquid withdrawal and sediment consolidation have significant influence on coastal wetland habitats (Turner 1990, pp. 93–94, 96, 98; White and Tremblay 1995, pp. 795–804; Morton et al. 2006, entire). Subsidence combined with sea level rise is referred to as relative sea level rise, and the Gulf of Mexico has the highest relative sea level rise rates in the conterminous United States, leading to significant losses in wetland habitats (National Oceanic and Atmospheric Administration (NOAA) 2018, unpaginated). Subsidence can affect the eastern black rail and its habitat in both fresh and tidal wetlands. Vegetated wetland habitats used by the eastern black rail can be converted to unvegetated open PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 water or mudflats through drowning of vegetation or erosion from increased wave energy. Locations with higher subsidence rates can experience increased tidal flooding sooner than areas with lower subsidence rates (Sweet et al. 2014, pp. 10–13). The effect of increased tidal flooding will change black rail habitat over time (i.e., marsh migration) but can have direct impacts on black rail reproduction when flooding occurs during the breeding season (Erwin et al. 2006, entire; Pol et al. 2010, pp. 724–728). Extensive drainage features have been created or modified in the United States, primarily to reduce flooding to protect agricultural land or infrastructure. These include excavation of drainage ditches, channelization of rivers and streams, construction of levees and berms, tidal restrictions, and diversions of waterways. Extensive areas of Florida were channelized in an effort to drain wetlands in the early 1900s (Renken et al. 2005, pp. 37–56). Most, if not all, of the coastal plain in Texas contains existing drainage features that were either created or modified to reduce flooding of agricultural lands and associated communities. These features can reduce or eliminate the hydroperiod to sustain associated wetlands by removing water rapidly off the landscape (Blann et al. 2009, pp. 919– 924). In glaciated geographies such as the Midwest, drain tiles and other methods have been used to drain wetlands to improve conditions for agricultural production (Blann et al. 2009, pp. 911–915). Approximately 90 percent of the salt marshes on the northeast United States coast have been ditched to control mosquitoes (Bourn and Cottam 1950, p. 15; Crain et al. 2009, pp. 159–161). Ditching increases the area of the marsh that is inundated as well as drained (Daiber 1986, in Crain et al.. 2009, p. 160; Crain et al. 2009, p. 160). Levees have been constructed in flood-prone areas to minimize damage to crops and local communities. Levees can modify the duration, intensity, and frequencies of hydroperiods associated with riparian and tidal wetlands and thus change the nature and quality of wetland habitat, including that used by marsh-dependent species (Walker et al. 1987, pp. 197–198; Bryant and Chabreck 1998, p. 421; Kuhn et al. 1999, p. 624; Kennish 2001, p. 734; Adam 2002, p. 46). They also facilitate the movement patterns of mesopredators and improve their access to wetland habitats (Frey and Conover 2006, pp. 1115–1118). Navigation channels and their management have had extensive impacts to tidal wetlands (e.g., in E:\FR\FM\08OCR3.SGM 08OCR3 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 Louisiana). These channels can modify the vegetation community of associated wetlands and can increase the frequency of extreme high tide or high flow events by providing a more direct connection to the influencing water body (Turner 1990, pp. 97–98; Bass and Turner 1997, pp. 901–902; Kennish 2001, pp. 734– 737). Tidal restrictions, such as water control structures, bridges, and culverts built for the purposes of flood protection, restricting salt water intrusion, and modification of vegetation, have also affected coastal salt marshes. All of these alterations to drainage affect the hydrology, sediment and nutrient transport, and salinities of wetland habitats used by the eastern black rail, which in turn affect the habitat’s composition and structure. These changes can lead to instability in the duration and intensity of hydroperiods, affect associated vegetation communities, and impact the ability of marsh habitats to adapt to changing conditions. This situation affects the ability of the habitat to support populations of the eastern black rail, by exposing eastern black rails to unsuitable water regimes or converted habitats. Sea Level Rise and Tidal Flooding Representative concentration pathways (RCPs) are the current set of scenarios used for generating projections of climate change; for further discussion, please see the SSA report (Service 2019, entire). Recent studies project global mean sea level rise to occur within the range of 0.35 to 0.95 meters (m) (1.14 to 3.11 feet (ft)) for RCP 4.5, and within the range of 0.5 to 1.3 m (1.64 to 4.27 ft) for RCP 8.5, by 2100 (Sweet et al. 2017b, p. 13). The Northeast Atlantic and western Gulf of Mexico coasts are projected to have amplified relative sea level rise greater than the global average under almost all future sea level rise scenarios through 2100 (Sweet et al. 2017b, p. 43). Sea level rise will amplify coastal flooding associated with both high tide floods and storm surge (Buchanan et al. 2017, p. 6). High tide flooding currently has a negative impact on coastal ecosystems, and annual occurrences of high tide flooding have increased fiveto ten-fold since the 1960s (Reidmiller et al. 2018, p. 728). In addition, extreme coastal flood events are projected to increase in frequency and duration, and the annual number of days impacted by nuisance flooding is increasing, along the Atlantic and Gulf Coasts (Sweet et al. 2017b, p. 23). Storm surges from tropical storms will travel farther inland. VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 Along the Texas Gulf Coast, relative sea level rise is twice as large as the global average (Reidmiller et al. 2018, p. 969). Over the past 100 years, local sea level rise has been between 12.7 and 43.2 cm (5 to 17 in), resulting in an average loss of 73 hectares (180 acres) of coastline per year, and future sea level rise is projected to be higher than the global average (Runkle et al. 2017b, p. 4; Reidmiller et al. 2018, p. 972). In South Carolina, sea level has risen by 3.3 cm (1.3 in) per decade, nearly double the global average, and the number of tidal flood days has increased (Runkle et al. 2017c, p. 4). Projected sea level rise for South Carolina is higher than the global average, with some projections indicating sea level rise of 1.2 m (3.9 ft) by 2100 (Runkle et al. 2017c, p. 4). The number of tidal flood days are projected to increase and are large under both high and low emissions scenarios (Runkle et al. 2017c, p. 4). Similarly, in Florida, sea level rise has resulted in an increased number of tidal flooding days, which are projected to increase into the future (Runkle et al. 2017a, p. 4). Even with sea level rise, some tidal wetlands may persist at slightly higher elevations (i.e., ‘‘in place’’) for a few decades, depending on whether plant primary productivity and soil accretion (which involves multiple factors such as plant growth and decomposition rates, buildup of organic matter, and deposition of sediment) can keep pace with the rate of sea level rise, thus avoiding ‘‘drowning’’ (Kirwan et al. 2016, entire). Under all future projections, however, the rate of sea level rise increases over time (Sweet et al. 2017a, pp. 342–345). A global analysis found that in many locations salt marsh elevation change did not keep pace with sea level rise in the last century and even less so in the past two decades, and concluded that the rate of sea level rise in most areas will overwhelm the capacity of salt marshes to persist (Crosby et al. 2016, entire). Under this analysis, based on RCP 4.5 and RCP 8.5 scenarios and assuming continuation of the average rate of current accretion, projected marsh drowning along the Atlantic coast at late century (2081–2100) ranges from about 75 to 90 percent (Crosby et al. 2016, p. 96, figure 2). The accretion balance (reported accretion rate minus local sea level rise) is negative for all analyzed sites in the Louisiana Gulf Coast and for all but one site in the mid-Atlantic area (figures 3c and 3d in Crosby et al. 2016, p. 97); both of these areas are part of the range of the eastern black rail. Sea level rise will reduce the availability of suitable habitat for the PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 63769 eastern black rail and overwhelm habitat persistence. Sea level rise and its effects (e.g., increased flooding and inundation, salt water intrusion) may affect the persistence of coastal or wetland plant species that provide habitat for the eastern black rail (Warren and Niering 1993, p. 96; Morris et al. 2002, p. 2876). Increased high tide flooding from sea level rise, as well as the increase in the intensity and frequency of flooding events, will further impact habitat and directly impact eastern black rails through nest destruction and egg loss (Sweet et al. 2017b, pp. 35–44). Land Management Practices (Fire Management, Haying, Mowing, and Other Mechanical Treatment Activities, and Grazing) Fire Management Fire suppression has been detrimental to habitats used by the eastern black rail by allowing encroachment of woody plants. Without fire or alternate methods of disturbing grassland and emergent wetland vegetation such as mowing or rotational grazing, the amount of preferred habitat for eastern black rails is expected to continue to decrease in some regions due to encroachment by woody vegetation, such as coastal Texas (Grace et al. 2005, p. 39). Therefore, prescribed (controlled) fire is one tool to maintain and restore habitat for this subspecies at the desired seral stage (intermediate stages of ecological succession). While fire is needed for the maintenance of seral stages for multiple rail species, the timing and frequency of the burns, as well as the specific vegetation types targeted, can lead to undesirable effects on rail habitats in some cases (Eddleman et al. 1988, pp. 464–465). Burning salt marshes during drought or while the marshes are not flooded can result in root damage to valuable cover plants (Nyman and Chabreck 1995, p. 138). Controlled burning of peat, or accumulated organic litter, when marshes are dry has resulted in marsh conversion to open water due to the loss of peat soils. Variations in soil type supporting the same plant species may lead to differing recovery times post-burn, and therefore potentially unanticipated delays in the recovery of black rail habitat (McAtee et al. 1979, p. 375). Simply shifting the season of burn may alter plant species dominance and the associated structure available to the eastern black rail, as is seen with spring fire conversion of chairmaker’s bulrush (Schoenoplectus americanus) to salt meadow cordgrass E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 63770 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations (Spartina patens) (Nyman and Chabreck 1995, p. 135). Prescribed fire at any time of the year may result in mortality to adult and juvenile birds, as well as eggs and chicks during the breeding season. Fall and winter burns are more likely to avoid reproductive season impacts (Nyman and Chabreck 1995, p. 138). When burning is needed during the nesting season (for example, brush control), loss of eggs and chicks can be reduced by limiting the proportion of eastern black rail habitat to be burned within a management boundary. Incorporating additional best management practices (BMPs) such as leaving unburned refugia within a controlled burn and planning burn rotations so that adjacent suitable habitat is present to accommodate these rails post-burn, are important at all times of the year to reduce mortality of birds. Fire pattern can have profound effects on birds. Controlled burns can result in indirect rail mortality, as avian predators attracted to smoke are able to capture rails escaping these fires (Grace et al. 2005, p. 6). Because eastern black rails typically prefer concealment rather than flight to escape threats, the birds may attempt to escape to areas not affected by fire, such as wetter areas or adjacent areas not under immediate threat. Ring, expansive, or rapidly moving fires are therefore not conducive to rail survival (Grace et al. 2005, p. 9; Legare et al. 1998, p. 114). On the other hand, controlled burns designed to include unburned patches of cover (refugia) may positively influence eastern black rail survival. For example, in Florida, a mosaic of unburned vegetation patches (refugia) 0.1 to 2.0 ac in size facilitated eastern black rail survival during a 1,600-ac controlled burn during the late summer, whereas a controlled burn of a 2,400-ac marsh during the winter resulted in direct mortality of 34 eastern black rails when refugia areas were not provided (Legare et al. 1998, p. 114; Legare 2018, pers. comm.). Prescribed fires that include patches of unburned habitat (refugia) scattered throughout provide escape cover for wildlife, including, but not limited to, eastern black rails (Legare et al. 1998, p. 114). Unburned strips of vegetation bordering the inside perimeters of burn units also are believed helpful as escape cover from both fire and avian predators (Grace et al. 2005, p. 35). Coastal marshes that are burned in staggered rotations to create a mosaic of different seral stages or are burned less frequently will continue to provide cover for marsh species, such as VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 the eastern black rail (Block et al. 2016, p. 16). Haying, Mowing, and Other Mechanical Treatment Activities Haying, mowing, and other mechanical treatment activities are used throughout the range of the eastern black rail. Mechanical treatment activities maintain grasslands by reducing woody vegetation encroachment, which may provide suitable habitat for eastern black rails. However, these practices can have detrimental impacts to wildlife when used too frequently or at the wrong time of year (Beintema and Muskens 1987, p. 755; Bollinger et al. 1990, p. 148; Arbeiter et al. 2017, pp. 554–566). For example, at Quivira NWR in Kansas, haying at a frequency of once or twice per year resulted in no occupancy of hayed habitats by eastern black rails during the following year (Kane 2011, pp. 31–33). Further, haying or mowing timed to avoid sensitive stages of the life cycle (nesting and molt period) would be less detrimental to eastern black rails (Kane 2011, p. 33). Eastern black rails reproduce from approximately midMarch through September across a latitudinal gradient, and mechanical treatment activities during this time period disturbs eastern black rail adults and can potentially crush eggs and chicks. As with fire, when mechanical treatment activities are alternated to allow mosaics of treated and untreated habitat at all times, the site can continue to support cover-dependent wildlife (Tyler et al. 1998, pp. 45–49; Kleijn et al. 2010, pp. 476, 484; Arbeiter et al. 2017, pp. 562–566). Grazing Grazing, predominately by cattle, occurs on public and private lands throughout the range of the eastern black rail. Because eastern black rails occupy drier areas in wetlands and require dense cover, these birds are believed to be more susceptible to grazing impacts than other rallids (Eddleman et al. 1988, p. 463). Based on current knowledge of grazing and eastern black rail occupancy, the specific timing, duration, and intensity of grazing will result in varying impacts to the eastern black rail and its habitat. Light-to-moderate grazing may be compatible with eastern black rail occupancy under certain conditions, while intensive or heavy grazing is likely to have negative effects on eastern black rails and the quality of their habitat, specifically if the dense overhead cover that the bird requires is removed. It may benefit black rail habitat (or at least not be detrimental) PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 when herbaceous plant production is stimulated (Allen-Diaz et al. 2004, p. 147) and the necessary overhead cover is maintained. In Kansas, eastern black rails were documented in habitats receiving rotational grazing during the nesting season that preserved vegetation canopy cover (Kane 2011, pp. 33–34). Black rails occur in habitats receiving light-to-moderate grazing (i.e., Kane 2011; Richmond et al. 2012; Tolliver 2017). These results suggest that such grazing is an option for providing disturbance, which may promote black rail occupancy. However, cattle grazing at high intensities may not favor black rail occupancy, as heavy grazing or overgrazing reduces the wetland vegetation canopy cover (Richmond et al. 2010, p. 92). In addition to the loss of vegetation cover and height (Chabreck 1968, p. 56; Whyte and Cain 1981, p. 66; Kirby et al. 1986, p. 496; Yeargan 2001, p. 87; Martin 2003, p. 22), grazing may also have direct negative effects on eastern black rails by livestock disturbing nesting birds or trampling birds and nests (Beintema and Muskens 1987, p. 755; Eddleman et al. 1988, p. 463; Jensen et al. 1990, pp. 73–74; Durham and Afton 2003, p. 438; Mandema et al. 2013, pp. 412–415). Heavy disturbance from grazing can also lead to a decline in eastern black rail habitat quality through soil erosion (Walker and Heitschmidt 1986, pp. 428, 430; Warren et al. 1986a, p. 486; Weltz and Wood 1986, p. 263), decreased sediment accumulation and increased soil compaction (Andresen et al. 1990, p. 146; Esselink et al. 2002, p. 27), diminished water infiltration (Warren et al. 1986b, p. 500), and increased salinities eventually leading to habitat conversion (Esselink et al. 2002, p. 28). Stochastic Events (Extreme Weather Events) Extreme weather effects, such as storms associated with frontal boundaries or tropical disturbances, can also directly affect eastern black rail survival and reproduction, and can result in direct mortality. Tropical storms and hurricanes are projected to increase in intensity and precipitation rates along the North Atlantic coast and Gulf Coast (Bender et al. 2010, p. 458; Kossin et al. 2017, pp. 259–260). The frequency of Category 4 and 5 tropical storms is predicted to increase despite an overall decrease in the number of disturbances (Bender et al. 2010, pp. 457–458). Storms of increased intensity, which will have stronger winds, higher storm surge, and increased flooding, cause significant damage to coastal habitats by destroying vegetation and E:\FR\FM\08OCR3.SGM 08OCR3 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 food sources, as well as resulting in direct mortality of birds. For example, Hurricane Harvey flooded San Bernard NWR in Texas with storm surge, which was followed by runoff flooding from extreme rainfall. This saltmarsh, occupied by eastern black rails, was inundated for several weeks (Woodrow 2017, pers. comm.). Increases in storm frequency, coupled with sea level rise, may result in increased predation exposure of adults and juveniles if they emerge from their preferred habitat of dense vegetation (Takekawa et al. 2006, p. 184). Observations show predation upon California black rails during high tides when the birds had minimal vegetation cover in the flooded marsh (Evens and Page 1986, p. 108). Weather extremes associated with climate change can have direct effects on the eastern black rail, leading to reduced survival of eggs, chicks, and adults. Indirect effects on the eastern black rail are likely to occur through a variety of means, including long-term degradation of both inland and coastal wetland habitats. Other indirect effects may include loss of forage base of wetland-dependent organisms. Warmer and drier conditions will most likely reduce overall habitat quality for the eastern black rail. Because eastern black rails tolerate a narrow range of water levels and variation within those water levels, drying as a result of extended droughts may result in habitat becoming unsuitable, either on a permanent or temporary basis (Watts 2016, p. 120). Extreme drought or flooding conditions may also decrease bird fitness or reproductive success by reducing the availability of the invertebrate prey base (Hands et al. 1989, p. 5; Davidson 1992, p. 129). Lower rates of successful reproduction and recruitment lead to further overall declines in population abundance and resiliency to withstand stochastic events such as extreme weather events. The vulnerability of the eastern black rail to the effects of climate change depends on the degree to which the subspecies is susceptible to, and unable to cope with, adverse environmental changes due to long-term weather trends and more extreme weather events. Human Disturbance Human disturbance can stress wildlife, resulting in changes in distribution, behavior, demography, and population size (Gill 2007, p. 10). Activities such as birding and hiking, have been shown to disturb breeding and nesting birds. Disturbance may result in nest abandonment, increased predation, and decreased reproductive success, and in behavioral changes in VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 non-breeding birds. Singing activity of breeding male birds declined in sites that experienced human intrusion, although the response varied among species and level of intrusion (Gutzwiller et al. 1994, p. 35). At the Tishomingo NWR in Oklahoma, recreational disturbances of migratory waterbirds accounted for 87 percent of all disturbances (followed by natural disturbances (10 percent) and unknown disturbances (3 percent)) (Schummer and Eddleman 2003, p. 789). Many birders strive to add rare birds to their ‘‘life list,’’ a list of every bird species identified within a birder’s lifetime. Locations of rare birds are often posted online on local birding forums or eBird, leading to an increased number of people visiting the location in an attempt to see or hear the bird. Due to its rarity, the eastern black rail is highly sought after by birders (Beans and Niles 2003, p. 96). Devoted birders may go out of their way to add an eastern black rail to their life list (McClain 2016, unpaginated). The efforts of birders to locate and identify rare birds, such as the eastern black rail, can have both positive and negative impacts on the bird and its habitat. Birders play an especially important role in contributing to citizen science efforts, such as the eBird online database, and have helped further our understanding of species’ distributions and avian migration ecology in crucial ways (Sullivan et al. 2014, entire). Birders have provided valuable location information for eastern black rails that might have otherwise gone undetected and have made these records publicly available (see eBird’s black rail account; eBird 2017, unpaginated). While amateur and professional birding have made important contributions to our understanding of rare species like the eastern black rail, some birders may be more likely to pursue a sighting of a rare bird, as they may perceive the benefits of observing the bird to outweigh the impacts to the bird (Bireline 2005, pp. 55–57). As a result, methods may be employed to increase the likelihood of observing a rare bird, including the use of vocalized calls or audio recordings, as is the case for eastern black rails, or approaching birds in order to get a sighting (Beans and Niles 2003, p. 96; Bireline 2005, p. 55). These methods have the potential to disturb nesting birds or trample nests or eggs, and may lead to increased predation (Beans and Niles 2003, p. 96). With the prevalence of smartphones, the use of playback calls has increased as recordings of birds are readily available on the internet, and birding websites and geographic site managers PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 63771 (State, Federal, or nongovernmental organizations) often provide guidance on the use of playback calls (Sibley 2001, unpaginated). The American Birding Association’s Code of Birding Ethics encourages limited use of recordings and other methods of attracting birds, and recommends that birders never use such methods in heavily birded areas or for attracting any species that is endangered, threatened, of special concern, or rare in the local area (American Birding Association 2018, unpaginated). While most birders likely follow these ethical guidelines, using playback calls of eastern black rail vocalizations in attempts to elicit responses from the birds and potentially lure them into view is commonly done outside of formal eastern black rail surveys (eBird 2017, unpaginated). Due to the rarity of the eastern black rail, a few cases of trespassing are known from people looking for the bird (e.g., Kerlinger and Wiedner 1990, p. 62). Trespassing has been documented on private lands and in areas on public lands specifically closed to the public to protect nesting eastern black rails (Hand 2017, pers. comm.; Roth 2018, pers. comm.). Trespassing may not only disturb the bird, but can also result in trampling of the bird’s habitat, as well as of eggs and nests. Some State resource managers and researchers have expressed concern that releasing locations of eastern black rail detections may increase human disturbance and harassment of the subspecies. The potential for human disturbance varies by site and is likely less of an issue for areas that are remote and difficult to access. Synergistic Effects It is likely that several stressors are acting synergistically or additively on the subspecies. The combination of multiple stressors may be more harmful than a single stressor acting alone. For the eastern black rail, a combination of stressors result in habitat loss, reduced survival, reduced productivity, and other negative impacts on the subspecies. Sea level rise, coupled with increased tidal flooding, results in the loss of the high marsh habitat required by the subspecies. Land management activities, such as prescribed burning, that are conducted without maintaining dense overhead cover or providing refugia in eastern black rail habitat will further exacerbate impacts. If these combined stressors occur too often within and across generations, they will limit the ability of the subspecies to maintain occupancy at habitat sites, which may become lost or unsuitable for the subspecies and limit its ability to E:\FR\FM\08OCR3.SGM 08OCR3 63772 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations colonize other previously occupied sites or new sites. For example, tidal marshes in Dorchester County, Maryland, in the Chesapeake Bay (specifically the areas of Blackwater NWR and Elliott Island) served as one of the most well-known former strongholds for the eastern black rail (Watts 2016, p. 22). These marshes have and continue to experience marsh erosion from sea level rise, prolonged flooding, a lack of a sufficient sediment supply, and land subsidence, as well as habitat destruction from nutria (Myocastor coypus; now eradicated) and establishment of the invasive common reed (Phragmites australis). On Elliott Island, high decadal counts of eastern black rails have declined from the hundreds in the 1950s to no birds detected in recent years (from 2012– 2015 the peak count was a single bird, and no birds were detected in 2016) (Watts 2016, pp. 61–62). khammond on DSKJM1Z7X2PROD with RULES3 Regulations and Conservation Efforts Federal Protections The Migratory Bird Treaty Act of 1918 (MBTA; 16 U.S.C. 703 et seq.) provides specific protection for the eastern black rail, which is a migratory bird under the statute. The MBTA makes it illegal, unless permitted by Federal regulation, ‘‘by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, [or] any part, nest, or egg of any such bird . . . ’’ (16 U.S.C. 703(a)). Through issuance of permits for scientific collecting of migratory birds, the Service ensures that best practices are implemented for the careful capture and handling of eastern black rails during banding operations and other research activities. However, the December 22, 2017, Solicitor’s Opinion, Opinion M–37050, concludes that consistent with the text, history, and purpose of the MBTA, the statute’s prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same apply only to direct and affirmative actions that have as their purpose the taking or killing of migratory birds, their nests, or their eggs. Therefore, take of an eastern black rail, its chicks, or its eggs that is incidental to another lawful activity does not violate the MBTA. Furthermore, the MBTA does not address the major stressors affecting the VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 eastern black rail, which include habitat alteration and sea level rise. Given that only intentional take is prohibited under the MBTA and the habitat-based stressors to the black rail are not regulated, this law does not provide sufficient substantive protections to the eastern black rail. Section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) and section 10 of the Rivers and Harbors Appropriation Act of 1899 (33 U.S.C. 403) are intended to protect jurisdictional wetlands from excavation and filling activities. The U.S. Army Corps of Engineers (USACE), in conjunction with the U.S. Environmental Protection Agency, administers permits that require avoidance, minimization, and compensation for projects affecting wetlands. Projects that cannot avoid impacts to wetlands must compensate for their impacts through a restoration enhancement or preservation action for the equivalent functional loss. Mitigation banks are often used, in which actions at a specific location compensate for impacts in a considerably wider service area. However, the wetland types affected are not always the same types that are restored or enhanced, and there is considerable uncertainty that current mitigation practices would support the presence of black rails. State Protections The black rail is listed as endangered under State law by seven States within the subspecies’ range: Delaware, Illinois, Indiana, Maryland, New Jersey, New York, and Virginia. The species was formerly listed as endangered in Connecticut, but was considered extirpated during the last listing review based on extant data and was subsequently delisted. Protections are afforded to wildlife listed as either endangered or threatened by a State, but those protections vary by State. Although we have no information as to the effectiveness of these State regulations as they pertain to the conservation of the eastern black rail, one benefit of being State-listed is to bring heightened public awareness of the bird’s existence. In Delaware, the importation, transportation, possession, or sale of any endangered species or parts of endangered species is prohibited, except under license or permit (title 7 of the Delaware Code, sections 601–605). Illinois also prohibits the possession, take, transport, selling, and purchasing, or giving, of a listed species, and allows incidental taking only upon approval of a conservation plan (Illinois Compiled Statutes, chapter 520, sections 10/1–10/ PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 11). Indiana prohibits any form of possession of listed species, including taking, transporting, purchasing, or selling, except by permit (title 14 of the Indiana Code, article 22, chapter 34, sections 1–16 (I.C. 14–22–34–1 through 16)). Listed species may be removed, captured, or destroyed only if the species is causing property damage or is a danger to human health (I.C. 14–22– 34–16). Similar prohibitions on the possession of a listed species in any form, except by permit or license, are in effect in Maryland (Code of Maryland, Natural Resources, section 10–2A–01– 09), New Jersey (title 23 of the New Jersey Statutes, sections 2A–1 to 2A– 15), New York (New York’s Environmental Conservation Law, article 11, title 5, section 11–0535; title 6 of the New York Codes, Rules and Regulations, chapter I, part 182, sections 182.1–182.16), and Virginia (Code of Virginia, title 29.1, section 29.1, sections 563–570 (29.1–563–570)). Violations of these statutes typically are considered misdemeanors, generally resulting in fines or forfeiture of the species or parts of the species and the equipment used to take the species. Some States also have provisions for nongame wildlife and habitat preservation programs (e.g., title 7 of the Delaware Code, sections 201–204; Code of Maryland, Natural Resources, section 1–705). For example, in Maryland, the State Chesapeake Bay and Endangered Species Fund (Code of Maryland, Natural Resources, section 1– 705) provides funds to promote the conservation, propagation, and habitat protection of nongame, threatened, or endangered species. Black rail is listed as a ‘‘species in need of conservation’’ in Kansas, which requires conservation measures to attempt to keep the species from becoming a State-listed endangered or threatened species (Kansas Department of Wildlife, Parks and Tourism 2018, unpaginated). Black rail also is listed as a species of ‘‘special concern’’ in North Carolina and requires monitoring (North Carolina Wildlife Resources Commission 2014, p. 6). The species is identified as a ‘‘species of greatest conservation need’’ in 19 State wildlife action plans as of 2015 (USGS 2017, unpaginated). However, no specific conservation measures for black rail are associated with these listings, and most are unlikely to address habitat alteration or sea level rise. Other Conservation Efforts The Atlantic Coast Joint Venture (ACJV) recently decided to focus efforts on coastal marsh habitat and adopted three flagship species, one being the E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations eastern black rail, to direct conservation attention in this habitat. As part of this initiative, the ACJV-led Black Rail Working Group (BLRA WG) has drafted population goals for the eastern black rail and is drafting a Black Rail Conservation Plan (ACJV BLRA WG 2018, 2019, entire). An initial workshop to start development of the Conservation Plan took place in October 2018. Workshop participants identified five highest priority strategies to conserve the species in the Atlantic Flyway: (1) Create new habitat, (2) promote improved impoundment management, (3) develop and promote black railfriendly fire best management practices, (4) develop and promote black railfriendly agricultural practices, and (5) develop a landowner assurances program (ACJV BLRA WG 2019, entire). The Conservation Plan is expected to be completed in 2020. ACJV staff are also in the early stages of coordinating several other black rail-specific projects, namely, a species distribution map and an adaptive management tool. In addition, staff are working with partners on a Salt Marsh Bird Conservation Plan, which identifies stressors to Atlantic Coast tidal marshes and the efforts needed to conserve these habitats to maintain bird populations (ACJV 2019, entire). A draft of the plan has been developed, and a final plan is expected late 2019. The Gulf Coast Joint Venture (GCJV) has had the eastern black rail listed as a priority species since 2007 (GCJV 2005, unpaginated). As a priority species, the black rail is provided consideration during the review of North American Wetland Conservation grant applications (Vermillion 2018, pers. comm.). Although detailed planning for the eastern black rail is not yet complete, the subspecies is considered in coastal marsh habitat delivery efforts discussed by GCJV Initiative Teams. Eastern black rails are believed to benefit from a plethora of coastal marsh habitat delivery efforts of GCJV partners, including projects authorized under the North American Wetland Conservation Act (16 U.S.C. 4401 et seq.), the Coastal Wetlands Planning, Protection and Restoration Act (16 U.S.C. 3951 et seq.), and the Service’s Coastal Program, as well as management actions on State and Federal refuges and wildlife management areas. Eastern black rails will benefit when projects conserve, enhance, or restore suitable wetland habitat and BMPs, such as the use of prescribed burns and brush-clearing activities, are employed to account for the subspecies. VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 In November 2016, the Texas Parks and Wildlife Department (TPWD), in partnership with the Texas Comptroller’s Office, initiated the Texas Black Rail Working Group (Shackelford 2018, pers. comm.). The main purpose of the group is to provide a forum for collaboration between researchers and stakeholders to share information about what is known about the species, identify information needs, and support conservation actions. The group has held two in-person meetings thus far: January 10, 2017, and August 9–10, 2018, and produced two newsletters and a conservation planning report (Horndeski and Shackelford 2017, entire; Horndeski 2018a, 2018b, entire). Future Scenarios As discussed above, we define viability as the ability of a species to sustain populations in the wild over time. To help address uncertainty associated with the degree and extent of potential future stressors and their impacts on the eastern black rail’s needs, we applied the 3Rs using five plausible future scenarios. We devised these five scenarios by identifying information on the primary stressors anticipated to affect the subspecies into the future: Habitat loss, sea level rise, groundwater loss, and incompatible land management practices. These scenarios represent a realistic range of plausible future scenarios for the eastern black rail. We used the results of our occupancy model to create a dynamic siteoccupancy, projection model that allowed us to explore future conditions under these scenarios for the MidAtlantic, Great Plains, Southeast Coastal Plain, and Southwest Coastal Plain analysis units. We did not project future scenarios for the New England, Appalachian, or Central Lowlands analysis units because, as discussed earlier in this document, we consider these analysis units to be currently effectively extirpated and do not anticipate that this situation will change in the future. Our projection model incorporated functions to account for changes in habitat condition (positive and negative) and habitat loss over time. The habitat loss function was a simple reduction in the total number of possible eastern black rail sites at each time step in the simulation by a randomly drawn percentage that was specified under different scenarios to represent habitat loss due to development or sea level rise. We used the change in ‘‘developed’’ land cover from the National Land Cover Database (Homer et al. 2015, entire) to derive an annual rate of change in each region, PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 63773 and we used NOAA climate change and sea level rise projections to estimate probable coastal marsh habitat loss rates; storm surge was not modeled directly (Parris et al. 2012, entire; Sweet et al. 2017b, entire). In the Great Plains analysis unit, we used ground water loss rates, instead of sea level rise data, to represent permanent habitat loss in the region. The overall groundwater depletion rate was based on the average over 108 years (1900–2008) (Konikow 2013, entire). Our five scenarios reflected differing levels of sea level rise and land management, and the combined effects of both. These future scenarios forecast site occupancy for the eastern black rail out to 2100, with time steps at 2043 and 2068 (25 and 50 years from present, respectively). Each scenario evaluates the response of the eastern black rail to changes in three primary risks we identified for the subspecies: Habitat loss, sea level rise, and land management (grazing, fire, and haying). The trends of urban development and agricultural development remain the same, i.e., follow the current trend, for all five scenarios. We ran 5,000 replicates of the model for each scenario. For a detailed discussion of the projection model methodology and the five scenarios, please refer to the SSA report (Service 2019, entire). The model predicted declines in all analysis units across all five plausible future scenarios. Specifically, they predicted a high probability of complete extinction for all four analysis units under all five scenarios by 2068. The model predicted that, depending on the scenario, the Southeast Coastal Plain and Mid-Atlantic Coastal Plain analysis units would reach complete extinction between 35 and 50 years from the present; the Great Plains analysis unit would reach complete extinction between 15 to 25 years from the present; and the Southwest Coastal Plain analysis unit would reach complete extinction between 45 to 50 years from the present. Most predicted occupancy declines were driven by habitat loss rates that were input into each scenario. The model results exhibited little sensitivity to changes in the habitat quality components in the simulations for the range of values that we explored. For a detailed discussion of the model results for the five scenarios, please refer to the SSA report (Service 2019, entire). Under our future scenarios, the MidAtlantic Coastal Plain, Great Plains, Southwest Coastal Plain, and Southeast Coastal Plain analysis units generally exhibited a consistent downward trend in the proportion of sites remaining E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 63774 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations occupied after the first approximately 25 years for all scenarios. Given that most of the predicted declines in eastern black rail occupancy were driven by habitat loss rates, and future projections of habitat loss are expected to continue and be exacerbated by sea level rise or groundwater loss, resiliency of the four remaining analysis units is expected to decline further. We expect all eastern black rail analysis units to have no resiliency by 2068, as all are likely to be extirpated by that time. We have no reason to expect the resiliency of eastern black rail outside the contiguous United States to improve in such a manner that will substantially contribute to its viability within the contiguous U.S. portion of the subspecies’ range. Limited historical and current data, including nest records, indicate that resiliency outside of the contiguous United States will continue to be low into the future, or decline if habitat loss or other threats continue to impact these areas. We evaluated representation by analyzing the latitudinal variability and habitat variability of the eastern black rail. Under our future scenarios, the Great Plains analysis unit is projected to be extinct within the next 15 to 25 years, which will result in the loss of that higher latitudinal representative unit for the subspecies. In addition, the three remaining analysis units (MidAtlantic Coastal Plain, Southwest Coastal Plain, and Southeast Coastal Plain) are predicted to decline and reach extinction within the next 50 years. Thus, the subspecies’ representation will continue to decline. The eastern black rail will have very limited redundancy in the future. The Great Plains analysis unit will likely be extirpated in 15 to 25 years, leading to further reduction in redundancy and resulting in only coastal populations of the eastern black rail remaining. Having only coastal analysis units remaining (and with even lower resiliency than at present) will further limit the ability of the eastern black rail to withstand catastrophic events, such as flooding from hurricanes and tropical storms. Please refer to the SSA report (Service 2019, entire) for a more detailed discussion of our evaluation of the biological status of the eastern black rail, the influences that may affect its continued existence, and the modeling efforts undertaken to further inform our analysis. Summary of Changes From the Proposed Rule This final rule incorporates changes to our proposed rule based on the comments we received, as discussed VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 below in the Summary of Comments and Recommendations. Based on these comments, we also incorporated as appropriate new information into our SSA report, including updated survey information from Colorado, North Carolina, and Georgia. Small, nonsubstantive changes and corrections were made throughout the document in response to comments. However, the information we received during the public comment period on the proposed rule did not change our determination that the eastern black rail is a threatened species. The information also did not cause us to revise our determination that designation of critical habitat for the eastern black rail is not prudent. We received substantive comments on the proposed 4(d) rule and have made changes to this rule as a result of the public comments received. Below is a summary of substantive changes made to the final listing rule and 4(d) rule: • Based on information received on South Dakota, we removed it from the list of States where eastern black rail is considered a vagrant. • In the preamble to the 4(d) rule, we provided a description of ‘‘dense overhead cover’’ for the eastern black rail and identified three methods of assessing this cover. • In the preamble to the 4(d) rule, we defined a ‘‘management boundary’’ to include individual landholdings, such as a National Wildlife Refuge boundary, or as being formed through landscapelevel agreements across landholdings of different or contiguous ownerships. • In the 4(d) rule and its preamble, we removed the seasonal restrictions and provided clarification on the BMPs identified under the fire management activities. Based on the comments received, we removed the prohibition of prescribed burn activities when these activities take place during the nesting, brooding, and post-breeding flightless molt period. We recognize the importance of using prescribed fire as a management tool for restoring and maintaining habitats on public and private lands and realize that, in order to meet specific management goals, flexibility is needed with regard to the timing of prescribed fire application. For example, a prescribed burn during the growing season may be necessary to target invasive vegetation. We also acknowledge that prescribed burns conducted at any time of the year that do not provide for escape routes and refugia may result in negative impacts to eastern black rails. Under the final 4(d) rule, incidental take of eastern black rails resulting from prescribed fires is prohibited unless BMPs that minimize negative effects of the prescribed burn PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 on the eastern black rail are employed and a portion of occupied dense cover for the rail is maintained within management boundaries. We received comments requesting that we provide more information or clarification on the BMPs to use when conducting prescribed burns in eastern black rail habitat. We received feedback on the BMPs from fire practitioners within the Service who have experience managing for prescribed fire within eastern black rail habitat. We determined that at least 50 percent of the eastern black rail habitat within the management boundary should provide dense overhead cover required by the species within one calendar year, and we revised the 4(d) preamble and rule accordingly. In order to accommodate smaller landholdings, we are excepting landholdings smaller than 640 acres from maintaining 50 percent of eastern black rail habitat in any given calendar year, as we realize it could be challenging to manage for this percentage on small parcels of land. We clarified examples of tactics that can be used to provide unburned refugia and escape routes for the eastern black rail and identified that unburned refugia patches should be no smaller than 100 square feet. • In the 4(d) preamble and rule, we clarified the exception for the haying, mowing, and other mechanical treatment activities as to existing infrastructure that may be included in the exception. We clarified that existing infrastructure includes existing firebreaks, roads, rights-of-way, levees, dikes, fence lines, airfields, and surface water irrigation infrastructure (e.g., head gates, ditches, canals, water control structures and culverts). • In the 4(d) preamble and rule, we added an exception for incidental take that results from mechanical treatment activities that are done during the nesting or brooding periods with the purpose of controlling woody encroachment or other invasive plant species to restore degraded habitat. • In the 4(d) rule and preamble, we removed the reference to ‘‘intensive or heavy grazing’’ in the prohibition. Based on a review of public comments, the terms ‘‘light,’’ ‘‘moderate,’’ and ‘‘heavy’’ grazing caused confusion. Eastern black rails may be found in grazed areas as long as dense overhead cover remains to provide them with suitable habitat. Therefore, grazing densities should maintain the dense overhead cover required by the eastern black rail and allow for the long-term maintenance of habitat conditions required by the subspecies. Because eastern black rails E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations require this dense overhead cover yearround, and not just during the nesting, brood-rearing, or flightless molt period, we removed the seasonal restriction on grazing activities. The final 4(d) rule prohibits incidental take resulting from only those grazing activities on public lands, either individually or cumulatively with other land management activities, that do not maintain the dense overhead cover required by the subspecies in at least 50 percent of eastern black rail habitat. • We added a prohibition to the 4(d) rule that prohibits incidental take of the eastern black rail that results from longterm or permanent conversion, fragmentation, and damage of persistent emergent wetland habitat and the contiguous wetland-upland transition zone to other habitat types or land uses. We received public comments requesting that we consider prohibiting activities, such as road construction, residential, commercial, and industrial development, commercial development, and oil and natural gas exploration and extraction, including seismic lines, as these may have negative impacts on the eastern black rail and its habitat. In our SSA report and proposed and final rule for the eastern black rail, we identified habitat loss and fragmentation as an ongoing and future threat to the subspecies. We agree that protecting the persistent emergent wetland habitat and contiguous wetland-upland transition zone is necessary and advisable for the conservation of the eastern black rail. • We added an exception to the 4(d) rule for incidental take of eastern black rails that may result from prescribed burns, grazing activities, and mechanical treatment activities that take place in existing moist soil management units or prior converted croplands, such as impoundments for rice or other cereal grains. We received public comments requesting that we consider an exception for these types of units. Some individual managed wetland units have an established history of intensive vegetation and soil management, which may include burning during the growing season on an annual or nearly annual basis (e.g., moist soil management). In contrast to emergent wetlands, these wetland units have established objectives to maintain unvegetated (e.g., mudflat), sparsely vegetated, and/or primarily annual plant communities that may not provide vegetative cover during a substantial portion of the growing season. • We added an exception to the 4(d) rule for incidental take that may result from efforts to control wildfires and an exception for incidental take resulting from the establishment of new VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 firebreaks (for example, to protect wildlands or manmade infrastructure) and new fence lines. Both of these activities allow for management that will benefit the conservation of the eastern black rail and its habitat, as well as provide for public safety. Summary of Comments and Recommendations In the proposed rule published on October 9, 2018 (83 FR 50610), we requested that all interested parties submit written comments on the proposal by December 10, 2018. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. A newspaper notice inviting general public comments was published in the USA Today on October 15, 2018. We did not receive any requests for a public hearing. All substantive information provided during the comment period has either been incorporated directly into the SSA report or this final determination or addressed below. Peer Reviewer Comments In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from knowledgeable individuals with scientific expertise that included familiarity with the eastern black rail and its habitat, biological needs, and threats. During development of the SSA report, we reached out to 10 peer reviewers and received responses from 5. We reviewed all comments received from the peer reviewers for substantive issues and new information regarding the eastern black rail. All comments were incorporated into the SSA report prior to the proposed rule. The reviewers were generally supportive of our approach and made suggestions and comments that strengthened our analysis. Peer reviewer comments are addressed in the following summary and incorporated into the SSA report and this final rule as appropriate. 1. Comment: One peer reviewer suggested we include additional discussion on the functional aspects of slope and hydrology in our Habitat Description provided in the SSA report. The commenter stated that this section focused almost entirely on floristics and the section would benefit from more discussion of habitat structure. Response: The Habitat Description section describes the floristic communities associated with the presence of eastern black rails. These floristic communities have associated relationships with slope and hydrology, PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 63775 which may vary across the range of the species. We have updated the SSA to include more information on habitat structure, including slope and hydrology in eastern black rail habitat. 2. Comment: One peer reviewer requested that we add a summary of the information on the rapid declines of eastern black rail populations. Response: We have added this information to chapter 2 of the SSA report. 3. Comment: One peer reviewer requested that we add a figure to show the analysis units where the eastern black rail is considered extirpated. Response: We include a map in the SSA report that identifies the five analysis units. In the report’s text, we identify the three analysis units that we consider to be effectively extirpated: New England, Appalachians, and Central Lowlands due to recent low numbers of detections and documented extirpations from previously occupied areas. 4. Comment: One peer reviewer requested that we provide a ‘minimum number’ of eastern black rails in the analysis units. This reviewer stated that it would highlight how dire the situation is for this subspecies across all of its range. The reviewer noted that the subspecies has been extirpated from a large percentage of its range and has declined by over 90 percent in areas that were former strongholds. Response: We added a table to the SSA report that provides population estimates (reported as the number of breeding pairs) for eastern black rail in the northeast and southeast United States. We also provided additional discussion in chapter 2 of the SSA report on population declines. 5. Comment: One peer reviewer requested that we provide a more detailed description of the projection model and the data that drive the model. Response: We expanded the discussion in the SSA report and the Appendices. 6. Comment: One peer reviewer commented that the current condition analysis underestimated the range of habitat the eastern black rail has used and will accept. According to the reviewer, eastern black rails have historically nested in a range of situations along the coast and inland that are connected by some physical characteristics. The peer reviewer stated that most of the recent survey data came from coastal marshes, which represents a subset of what the species has used, and so may underestimate resiliency. Response: We respectfully disagree with this comment. The eastern black E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 63776 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations rail has a very small home range. There is currently substantial habitat available that is not being used at locations where we know the bird is present. The fact that habitats are not being fully used indicates that there is a lack of ‘‘resiliency’’ for the population under current conditions. The limiting factor does not appear to be habitat. Further, our current condition analysis was informed by our analysis units, which were developed using data from South Carolina, Florida, Texas, and Kansas. 7. Comment: One peer reviewer commented that the eastern black rail has historically shown a pattern of colonization that puts it in the pioneer category, that is, it can take advantage of habitat patches that are ephemeral. While the eastern black rail may require a narrow niche in terms of vegetation structure and hydrology, it does appear capable of finding locations that have these preferred habitat characteristics. Response: We added a discussion of this adaptive potential into the SSA report in chapter 4. 8. Comment: One peer reviewer noted that some eastern black rails are migratory, but acknowledged that this cannot really be incorporated into a dynamic occupancy model. However, the reviewer suggested we note this in our discussion of the model. Response: We agree that some eastern black rails are migratory. However, we note that we are trying to understand how populations might change and it is likely that individual birds would breed in the same place. Eastern black rails that reside in northern latitudes migrate and overwinter at locations further south (Butler 2017). Since little is known about migration behavior and site fidelity of migrants, migration is not considered a factor in these analyses. 9. Comment: One peer reviewer asked why we used slope as a covariate in the development of our analysis units and whether we considered using elevation. Response: The variation in elevation was very small, and we did not have enough information on elevation to find a relationship. In essence, the variables were colinear and elevation varied by little if at all. Slope, however, while colinear with elevation, had a wide range of values. In the end, elevation was not a useful variable for the analysis. 10. Comment: One peer reviewer identified a dataset from North Carolina that provides data on eastern black rails from the historical ‘high use’ part of the State, as well as two datasets from Maryland and New Jersey, and suggested we consider incorporating these data into our dynamic occupancy model to inform the analysis of the Mid- VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 Atlantic analysis unit. A second peer reviewer also identified the Maryland dataset and asked why these data were not incorporated into the dynamic occupancy model. Response: Our occupancy analyses used to evaluate current condition required at least two consecutive years of survey data; therefore, the Maryland survey data were not used in our model, as these data were not collected in successive years. However, we used the Maryland dataset to calculate psi (detection) and occupancy for a single season and incorporated this information into our SSA report. These data were from the same sites surveyed three times over ∼25 years (Brinker 2014, unpublished data). The Maryland sites saw a decline in estimated occupancy from ∼0.25 to 0.03, giving credence to the inference that occupancy has declined for eastern black rails in the Mid-Atlantic Coastal Plain analysis unit. Similarly, the New Jersey and North Carolina datasets referred to by the commenter did not have successive years of surveys; however, the contemporary State data were used in the development of our analysis units (the data were insufficient for the dynamic occupancy analysis). 11. Comment: One peer reviewer noted that when developing the covariate analysis we do not have the high-resolution data, such as water depth data that has a resolution of 1 centimeter or vegetation data associated with the hydrology, that would provide the resolution really needed for this species and produce meaningful insights. Response: We did not get these types of data (e.g., water depth or vegetation) from available reports. In fact, we often had to use remotely-sensed information to help inform the model. The covariates might be considered coarse given that these variables had to be remotely sensed; however, these data were not collected during the studies across all sites, so this was the best available information. It should be noted that water depth is weather dependent and can change at any time, so we do not believe that a more resolute data set of ±1 centimeter would be meaningful. It is reasonable to desire higher resolution, i.e., vegetation, in order to enhance our understanding; however, we conclude that the results are meaningful. We do note in our current condition occupancy analysis that the occupancy data indicated only the null model (i.e., a model with no covariates) or a simple, year-specific model was the best model or equally as good. However, the occupancy and extinction risk analyses were useful, PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 even if we cannot predict at a local scale why any individual site might disappear. 12. Comment: One peer reviewer asked how the occupancy modeling results were influenced by the selection of the survey data inputted into the model. For example, how would the results differ if survey points were used from areas that lacked black rails as opposed to locations where black rails are known to occur? Response: Our assessment of current condition and future condition is based on the occupancy, colonization, and extirpation estimates from the repeated survey data, which rely on adequate site selection for black rail surveys in order for the results to be useful in making inferences about current and future population status. Improper site selection could introduce negative bias on model estimates (i.e., decrease occupancy, decrease colonization) and thus lead to pessimistic assessment of current and future status. However, these survey points were specifically selected to target black rail habitat and sites where black rails had been previously observed. Surveyors used the best available information on black rail habitat preferences and set their survey points accordingly. 13. Comment: One peer reviewer noted that the datasets used in the dynamic occupancy model were based on point-count networks. As noted in the SSA report, the availability of such surveys is limited for the eastern black rail. The peer reviewer suggests an occupancy analysis based on marsh patches, rather than point counts, as it would allow for longer time series and a greater geographic area for analysis. Response: In order to undertake an occupancy analysis based on marsh patches, we would need to come up with a definition of what constituted a patch, and these would likely not be equal in size across the range of the bird. Points have a distinct spatial definition that is repeatable. Additionally, we followed the National Marshbird Monitoring Plan, which uses a point-count approach. While developing an analysis based on marsh patches may allow for the use of longer time series and larger geographic areas, there would be an associated incorporation of error through defining marsh patches and extrapolation. The approach used directly relies on survey results, and, given the limited number of observations, using patches would have resulted in more temporal samples but fewer point samples. 14. Comment: One peer reviewer commented that land cover, vegetation type, land-use/modification, extent of E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations hydrologic disruption, or percentage change in wetland area may be more suitable variables to use in the projection model to predict extinction and colonization probability of eastern black rails. Response: Other analysis already available showed that temperature was an important covariate. We included temperature to reflect those existing analyses. Precipitation was used because it was colinear with wetland water depth and wetland spatial extent for this species. Some of these variables were used in the projection modeling, as well. Assumptions of both models were clearly articulated in the SSA report. 15. Comment: One peer reviewer stated that the definition of a site is missing. This peer reviewer commented that the site-occupancy projection model does not consider site isolation, which limits eastern black rail colonization, and site size, which is a factor related to extinction. Response: The definition of ‘‘site’’ was added to both the data analysis portion of the Appendix and to the simulation modeling portion (in the SSA report). The projection model was not spatially explicit; adding site isolation could potentially increase extinction risk at a local site and reduce colonization. 16. Comment: One peer reviewer requested clarification on how occupancy and resilience were related and if we were equating occupancy with resiliency. Response: Given data availability, eastern black rail resiliency was estimated using the probability of occupancy at the analysis unit-level. Resiliency describes the ability of a population to withstand stochastic disturbance. Stochastic events are those arising from random factors such as weather, flooding, or fire. Resiliency is positively related to population size and growth rate and may be influenced by connectivity among populations. Generally speaking, populations need enough individuals, within habitat patches of adequate area and quality, to maintain survival and reproduction in spite of disturbance. Resiliency is measured using metrics that describe analysis unit condition and habitat; in the case of the eastern black rail, we used occupancy within the analysis units to assess resiliency. 17. Comment: One peer reviewer asked what would happen to our assessment of viability if our assessment had included types of habitat that eastern black rails can use that have not been sampled, such as the types of sites where black rails are found in California or the Front Range of Colorado. VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 Response: The projection models are entirely dependent on the data used to estimate occupancy and extinction dynamics. Our assessment included habitat types such as those found in California or Colorado (i.e., inland palustrine marshes). The values we used to project future conditions used regional rates of wetland loss where available for emergent wetlands and did not distinguish between emergent wetland types. Federal Agency Comments 18. Comment: A Federal agency recommended including the following on the list of mowing and mechanical treatment activity exemptions in the 4(d) rule as they are unlikely to occur in suitable eastern black rail habitat: Permanently flooded areas/open water exceeding [e.g., less than 6 cm]; paved areas; cropland (i.e., areas planted to annual row crops, such as corn and soybeans including hay in rotation); forest; and pasture or areas mowed, hayed, or grazed too frequently or intensively to allow development of dense emergent wetland vegetation. Response: Incidental take associated with activities in habitats not suitable for the eastern black rail is not prohibited. While there is a chance that an individual eastern black rail may be present in such non-suitable habitats, it is the intent of this rule to focus the prohibitions in areas where eastern black rail occupancy is likely and where eastern black rails are present. Therefore, we are not adding a list of unsuitable habitats to the list of exceptions for haying, mowing, and other mechanical treatment activities because it is not necessary. 19. Comment: A Federal agency requested that we provide, in the exemptions section of the 4(d) rule, a list of land uses or habitat types where the eastern black rail is likely to be present. Response: Section 2.4.2 of the SSA report describes the vegetation associations used by the eastern black rail. For more specific information, we encourage interested parties to contact the local Service field office. 20. Comment: One Federal agency commented that BMPs should aim to discourage eastern black rail occupancy, as opposed to limiting exemptions when infrastructure and human health or safety is the sole concern. Response: We did not include measures to discourage eastern black rail occupancy, as these types of activities would not promote conservation of the species. 21. Comment: A Federal agency asked that the Service provide seasonal PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 63777 windows corresponding to the critical time periods during which activities are prohibited under the 4(d) rule. Response: We revised the 4(d) rule to allow the use of prescribed fire and grazing during any time of year. Incidental take resulting from haying, mowing and other mechanical treatment activities is prohibited, with exceptions, in persistent emergent wetlands during the nesting and brood-rearing periods. We have provided additional information on critical time periods for the eastern black rail in the SSA report (Service 2019, entire). 22. Comment: One Federal agency commented that a blanket restriction on burning during the natural fire season in South Florida may reduce habitat suitability for other threatened and endangered species. One commenter recommended that the 4(d) rule exempt take of birds in South Florida that results from all prescribed fire being undertaken for all natural resource management, in recognition of the fact that fire is a natural and integral component of managing the ecosystems upon which black rails and countless other species occupy. Response: Under the final 4(d) rule, incidental take of eastern black rails due to prescribed fire is prohibited unless BMPs that minimize negative effects of the prescribed burn on the eastern black rail are employed. If these practices are followed, prescribed burning is permissible year-round under the 4(d) rule. This is similar to recovery efforts for fire-adapted threatened and endangered species such as the Florida grasshopper sparrow, which involve precautions designed to limit mortality of eggs and chicks due to prescribed fire activities. The identified practices are necessary and advisable for the conservation of the eastern black rail and, if followed, should minimize take of the eastern black rail and allow for population growth and maintenance. The 4(d) rule provides land managers the flexibility to address habitat management goals while maintaining suitable habitat for eastern black rails. 23. Comment: One Federal agency commented that we should focus on the vegetative conditions desired when using prescribed fire for the eastern black rail rather than the methods and techniques used. Response: Most grassland and marshland habitats are maintained through a disturbance regime with natural and anthropogenic fires being a primary disturbance agent. Survey results and field observations indicate that habitat is currently available that would support the eastern black rail but is unoccupied. Therefore, measures that E:\FR\FM\08OCR3.SGM 08OCR3 63778 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations minimize mortality and improve survival are important if populations are expected to grow and spread to available habitats. For these reasons, we determined that the 4(d) rule must address methods and techniques used, as we find that this is necessary and advisable to provide for the conservation of the eastern black rail. The preamble of the 4(d) rule does discuss the dense overhead cover required by the eastern black rail and provides three examples of how to measure this cover. 24. Comment: One Federal agency and one State requested that activities to control nuisance and/or invasive wildlife, e.g., hazing or pyrotechnics at airports, aerial shooting of feral swine, beaver and nutria trapping, and removal of beaver dams, be added to the exceptions from prohibitions. Response: Incidental take of eastern black rails that results from activities to control nuisance and/or invasive wildlife is not prohibited by the 4(d) rule and, therefore, does not need to be listed under the exceptions from prohibitions. These activities include pyrotechnics at airports, aerial shooting of feral swine, beaver and nutria trapping, and removal of beaver dams. khammond on DSKJM1Z7X2PROD with RULES3 State Comments Listing 25. Comment: Three States and two public commenters expressed concerns regarding the limited information surrounding the species’ and management needs overall, as well as in the SSA analysis and the listing and 4(d) rules. Commenters either requested that listing of the eastern black rail be delayed, or stated that a listing determination could not be made until more data were collected on the species. Response: We are required to make our determination based on the best scientific and commercial data available at the time of our rulemaking, except in cases where the Secretary finds that there is substantial disagreement regarding the sufficiency or accuracy of the available data relevant to the determination. In such a case, under section 4(b)(6)(B)(i) of the Act, the Secretary may extend the 1-year period to make a final determination by up to 6 months for the purposes of soliciting additional data. In this case, we did not extend our final determination on the listing status of the eastern black rail because we determined that there was no substantial disagreement regarding the sufficiency or accuracy of the available threats information. We considered the best scientific and commercial data available regarding the VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 eastern black rail to evaluate its potential status under the Act. We solicited peer review of our evaluation of the available data, and our peer reviewers supported our analysis. That said, science is a cumulative process, and the body of knowledge is evergrowing. In light of this, the Service will always take new research into consideration. If such research supports amendment or revision of this rule in the future, the Service will modify the rule consistent with the Act. 26. Comment: One State stated that there is little evidence to suggest eastern black rails can be reliably found at any location in Kansas other than Quivira National Wildlife Refuge. Another commenter stated that there is little evidence to suggest eastern black rails can be reliably found at Cheyenne Bottoms. Both commenters requested that the final rule reflect this information. Response: We reviewed the best available information on the occurrences of eastern black rail in Kansas. This information indicates that eight counties have confirmed breeding records in Kansas, but Quivira National Wildlife Refuge is the only known site with consistent or regular breeding activities (Thompson et al. 2011, p. 123). We have revised the SSA report accordingly. 27. Comment: One State commenter stated that the single accepted record for South Dakota was rejected by the South Dakota Rare Bird Records Committee; therefore, no verified occurrence records of the subspecies occur in South Dakota. Response: The reference to South Dakota has been removed from the final listing rule and from the corresponding sentence in the SSA. 28. Comment: One State and one other commenter stated that eastern black rail estimates for Texas are underestimates and public and private lands have ample area for eastern black rail. One commenter stated that the listing of the eastern black rail should be limited to the portions of the range where decline has been documented. This commenter stated that the species is declining in other parts of the range but is not imperiled on the Texas Gulf Coast. One commenter stated that the SSA used only Watts’ data on subspecies abundance in Texas and excluded that provided by Tolliver (2017). This commenter also stated that eastern black rail estimates for Texas are underestimates, commenting that because the Texas coast is largely privately owned with sites managed similarly as described in Tolliver (2017), it is safe to assume that the Texas PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 population of eastern black rails is higher than suggested in the SSA report. Response: We analyzed occurrence records from Watts (2016), Smith-Patten and Patten (2012), and eBird, as well as from formal black rail surveys (e.g., Tolliver 2017) in the SSA. The best available science as detailed in the SSA report documents 300–5,830 black rails known to exist along the Texas Gulf Coast (Tolliver et al. 2017). These estimates were made prior to Hurricane Harvey, which flooded vast areas of Texas coastal marshes for several weeks. Accordingly, we recognize that the estimates in Tolliver et al. (2017) may overestimate the current numbers of eastern black rails on the Texas coast in the protected areas that were surveyed. However, the occupancy rates provided by Tolliver et al. (2019) were obtained from sites known to be dependable for the species and data were collected by trained observers. The low occupancy rates indicate that not all available habitat is being used because so few individuals remain; these populations are not at density-dependent levels, i.e., the habitat is not full or at carrying capacity. Note that the Tolliver et al. (2017) report stated that, while the researchers did extrapolate abundance of birds at survey points to perceived habitat available within the study sites, they cautioned against viewing this information as hard estimates of population size due to inherent flaws in making broad-scale extrapolations of this type. Site occupancy modeling detailed in the SSA projects that this species will disappear without human intervention. While this species may exist at undocumented locations on the Texas Gulf Coast, we have received no records of large numbers of previously undocumented eastern black rails for this portion of the range and have no scientific basis for assuming that they are present. Further, while there may be habitat on private lands outside of conservation lands that do support black rails, we have no data to indicate that the amount of suitable habitat on private lands is significant, nor was data that supports this claim provided during the public comment period. It would not be appropriate to assume that the public lands evaluated by Tolliver 2017 and private lands are managed the same and that the population estimates for Texas are actually higher than what is suggested in the SSA report. While habitat can be assessed through remote sensing methods, its quality is extremely difficult to assess using this method. The quality of the habitat (dense overhead herbaceous cover) is necessary to support eastern black rail occupancy. E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations No data support the assumption that areas outside of those studied by Tolliver 2017 (and Tolliver et al. 2017 and 2019) support similar numbers of rails. Decisions under the Act cannot be made on a State-by-State basis, but at the species, subspecies, or distinct population segment (DPS) level. For the eastern black rail, we have determined that the subspecies warrants listing as a threatened species throughout its range based on current threats and how those threats are likely to impact the subspecies into the future. 29. Comment: Several States and other commenters stated that the eastern black rail geographic range should include only areas where the species occurs regularly (annually or near annually), and should avoid identifying jurisdictions (e.g., States) where eastern black rail is considered to be a vagrant. One State noted that the Service does not explain or provide justification as to why it accepted several additional reports as ‘‘credible’’ in Nebraska even though previous authors (Bray et al. 1986, Sharpe et al. 2001, Smith-Patten and Patten 2012, Silcock and Jorgensen 2018) and the Nebraska Ornithological Union Records Committee rejected most of these records and deemed them unacceptable, and that only records accepted by the State rare bird committee should be used. The State commenters specifically requested removal of entire States or large portions of their States, and requested that listing of the eastern black rail not confer any requirements for any Federal or State agency or private landowners in those areas. Commenters also recommended that the final rule rely only on accepted and verified records of eastern black rail when determining the species’ range, in particular for migratory birds that breed in the interior United States. Response: In both the proposed and final rules, we have defined the eastern black rail’s range based on the best available data; however, we recognize that scientific understanding of this species’ range will likely continue to improve over time. We recognize that Nebraska has limited detections of eastern black rails and the small likelihood that Nebraska holds any breeding populations. The Service may define a species’ range using State boundaries or other geographically appropriate scale. How range is defined depends on characteristics of the species’ biology and how it is listed (i.e., as species/subspecies or a DPS). A species’ or subspecies’ range is typically described at the State or country scale. We defined the eastern black rail’s range based on the data from reliable VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 published scientific literature, submitted manuscripts, species’ experts, and occurrence data. Range descriptions do not imply any limitations on the application of the prohibitions in the Act or implementing rules. Such prohibitions apply to all individuals of the species, wherever found [emphasis added]. Therefore, whether a specific State or geographic area is included or excluded from the textual description or maps of the eastern black rail’s range, the subspecies would be protected under the Act wherever it may be found, for as long as it remains listed. Further, the Act protects individuals of the species wherever they occur, regardless if they are considered vagrant in their occurrence. Conversely, if the species is not present in areas within the range states, no protections or restrictions would apply to those areas. 30. Comment: One State commented that invasive species such as nonnative Phragmites and nutria should be identified as threats to the eastern black rail. Response: Our SSA report for the eastern black rail discusses the impacts of invasive species, including nonnative plants and nutria, on the eastern black rail. See Service 2019 (chapter 3). 31. Comment: One State commented that human disturbance is not a significant threat in North Carolina due to the remote nature of the habitat and the bird’s nocturnal habits. Response: The comment is noted; however, the evaluation of threats for this subspecies were done both at the analysis unit and the range-wide scale and reflect evidence that human disturbance can and does impact eastern black rail. 32. Comment: One State commented that the Service should consider the use of DPSs given the broad range of the eastern black rail and differences in potential threats, habitat types, and life cycles (migratory versus non-migratory) to those populations. Response: The petition to list the eastern black rail requested that we consider whether listing is warranted for the species. In conducting status reviews, we generally follow a step-wise process where we begin with a rangewide evaluation, and only consider the status of other listable entities if the species does not warrant listing rangewide. Furthermore, the Service is to exercise its authority with regard to DPSs ‘‘sparingly and only when the biological evidence indicates that such action is warranted’’ (Senate Report 151, 96th Congress, 1st Session). For the eastern black rail, we have determined that the subspecies warrants listing as a threatened species throughout its range, PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 63779 so there was no need to identify or list a DPS. Species Status Assessment (SSA) 33. Comment: Two States and several public commenters provided additional information concerning the historical and current status, range, distribution, and population size of the eastern black rail within the contiguous United States. Response: In our SSA report, we have updated the Historical and Current Range and Distribution section to reflect additional information for Colorado, Delaware, Georgia, Maryland, and North Carolina. 34. Comment: Two States and one public commenter stated that there is a scarcity of data used for the Great Plains Analysis Unit in the SSA. One commenter stated that using general marshbird survey data from Kansas is not appropriate. Response: The best available scientific and commercial information for this species was used to inform extinction probabilities. Data from black railspecific surveys were not available for the Great Plains Analysis Unit; therefore, the general marshbird survey data from Kansas, which include eastern black rail detections, represent the best available scientific information. The general marshbird dataset was sufficient for occupancy modeling to be completed for this analysis unit. Further, the occupancy probabilities appeared to be well estimated since the standard error estimates for most parameters were less than the estimated mean (i.e., the coefficient of variations are less than 1.0). 35. Comment: Two States encouraged the Service to apply more critical scrutiny to historical observations of eastern black rail that are used in the SSA, especially those from the interior portion of the range, and only include verified and substantial observations. Response: The SSA report summarizes several past assessments, including Watts (2016) and SmithPatten and Patten (2012), and identifies how those reports classified the eastern black rail. In collecting data points from different sources to assess the eastern black rail across its entire contiguous United States range, we went through a rigorous process to ensure validity of these data. We assessed datasets using different criteria for the analysis unit and occupancy modeling (occupancy modeling is described in section 4.2 of the SSA report). Latitude and longitude data provided by each research group and State wildlife agency was crosschecked with site identification codes. We visually assessed the proximity of points with identical site identification E:\FR\FM\08OCR3.SGM 08OCR3 63780 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations codes by entering the points’ latitude and longitude in the open-source geographic information systems program QGIS (QGIS Development Team 2009, unpaginated). We considered eastern black rail occurrences that occurred within a 200– 250-meter radius within a season as a single occurrence (presence point) at a single site in a single year. The radius was applied to the data points to remove spatial autocorrelation to provide a robust dataset for the occupancy modeling. Each point was identified by a unique identification number rather than specific locality for all analyses to ensure privacy of the data. 36. Comment: One State suggested that the Service consider how survey effort or methodology might have influenced the figures on page 25 of the SSA. Response: The figures used to describe the county-level occurrences were slightly modified from Watts (2016) based on more recent survey results. The county-level maps illustrate occurrence and are not intended to illustrate abundance. These maps did not need to be adjusted for survey effort or differing methodologies, as occurrence is not a measure of abundance. Survey effort for eastern black rails has actually increased over the last decade based on protocols developed by Conway (2011) and others for secretive marsh birds as well as an increased interest in secretive marsh bird conservation. Despite the increase in surveys, documented occurrences of eastern black rail continue to decrease in most States. khammond on DSKJM1Z7X2PROD with RULES3 Critical Habitat 37. Comment: One State commented that if critical habitat is designated, it would be beneficial if it provides protection for extensive high marsh area but does not preclude beneficial management activities. Another State commented that any critical habitat designation must be based on the best available science and consider sea level rise, marsh habitat types, and tidal regimes. Several other States, and one organization, recommended that we not designate critical habitat for the eastern black rail. Response: As discussed below (see Comment 39 and Critical Habitat), we have determined that designation of critical habitat would not be prudent for the eastern black rail. 38. Comment: We received comments from three States, one organization, and one other commenter recommending that we work with eBird to add eastern black rail to the sensitive species list. VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 Response: On May 3, 2019, the Service sent a letter to the Project Leader for eBird requesting that the eastern black rail be designated as a Sensitive Species in eBird. On May 23, 2019, we received a response from eBird indicating that eBird designated the eastern black rail as a Sensitive Species. 39. Comment: One State and several public commenters disagreed with the Service’s determination that critical habitat is not prudent, or otherwise suggested that we reconsider this determination. Four commenters supported our not prudent determination. Comments in opposition to our not prudent determination were largely based on the potential benefits of designating critical habitat and skepticism that increased risk and harm to the eastern black rail would occur with designation, as birders already know the types of habitat occupied by eastern black rails and can locate remaining populations. One commenter stated that a critical habitat designation would provide added assurances to private and public land managers. One commenter requested designating all known occupied habitat as critical habitat as well as considering designating additional areas for habitat restoration and inland migration. Response: We recognize that designation of critical habitat can provide benefits to listed species; however, for the eastern black rail, increased threats caused by designation outweigh the benefits (see 83 FR 50627– 50628, October 9, 2018, for further discussion). We do not dispute the arguments of the commenters who suggested that birders may have enough information to be able to locate eastern black rail populations, particularly given the use of social media. We acknowledge that general location information is provided within the rule, and more specific location information can be found through other sources. However, we maintain that designation of critical habitat would more widely publicize known occupied locations of the eastern black rail and its essential habitat, thereby exacerbating the threat of disturbance, habitat destruction, or other harm from humans. 4(d) Rule 40. Comment: One State and another commenter requested that the 4(d) rule include a definition of ‘‘present’’ as well as specifics regarding timing, frequency, and methodology of surveys. The State also requested that the rule describe the details of survey methods. One State and another commenter questioned whether there is an accepted survey protocol for the eastern black rail. One PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 State requested including in the 4(d) rule a monitoring requirement that at a minimum establishes presence/absence of the subspecies within the affected area prior to burning during the nesting or molt period. Response: Eastern black rails are considered present when they are detected using visual, aural, or other means of detection. The Service will be providing guidance on survey methodology acceptable and appropriate for determining presence. However, these will not be included in the final 4(d) rule because methods may change as technology advances and methods to detect presence are significantly different than those used to determine other biological variables such as estimates of abundance or population size. Researchers are in the early stages of assessing the current survey protocols used for black rails and will be investigating the feasibility of developing a single standardized or semi-standardized survey protocol. Until the survey protocol assessment is completed,we recommend that surveyors use the survey methods currently employed by their State wildlife agency for black rails (e.g., Watts et al. 2017). Many States use a protocol specific for black rails that has been modified from the Standardized North American Marsh Bird Monitoring Protocol (Conway 2011). The Service and partners are reviewing existing protocols and will be providing in the future additional recommended methods to assess absence/presence. 41. Comment: One State commented that it was unclear if properties located outside of eastern black rail habitat are exempt from the habitat management restrictions. Four States and several other commenters requested that the 4(d) rule apply only in areas where eastern black rails are known to occur and breed regularly. One State suggested the 4(d) rule should be applied only to wetlands that support or are reasonably likely to support breeding or wintering eastern black rails. One State asked the Service to reconsider the requirement in the 4(d) rule that interior States comply with BMPs outside of the reproductive period when black rails are not present. Another State commented that the prohibitions should not apply to northern interior States when the eastern black rail is not seasonally present. One commenter suggested that the 4(d) rule apply only to areas where eastern black rails have been documented within the past 5 years. One commenter requested the Service consider regional application of the 4(d) rule, as opposed to a range-wide application of the prohibitions. One E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations commenter responded that land management practices should receive prohibitions only on public lands where eastern black rails have been seen or heard within the previous 10 days and fire should receive prohibitions only when relative humidity is <20% and wind speed is >20 mph. This commenter stated that prohibitions should not apply across the entire range. Response: The prohibitions and exceptions to the prohibitions identified in the 4(d) rule are considered necessary and advisable for the conservation of the eastern black rail. The activities identified in the 4(d) rule may result in incidental take of the bird if they are conducted in areas where the bird is present. These activities may take place across the range of the bird and are not limited to one specific geographic area or specific areas where eastern black rails regularly occur and breed. Therefore, the prohibitions and exceptions to the prohibitions that may result in incidental take of the eastern black rail apply across the range of the bird. If eastern black rails do not occur in an area that an activity, such as prescribed fire or mechanical treatment, is taking place, then no eastern black rails would be in a position to be taken; thus, the take prohibitions do not apply. If suitable habitat is present and eastern black rails may occur in the area, we recommend that surveys be conducted to inform the presence of eastern black rails, and we will provide future guidance on survey methodology. If habitat is unsuitable for the eastern black rail, such as forested areas or row crops, it is unlikely they will occur there. We are not limiting the 4(d) rule to locations where the eastern black rail has been seen or heard only within the previous 10 days; because the eastern black rail is a secretive bird, this measure may not provide enough protection to ensure that the species is not taken. We do not find that the prohibitions should apply only when relative humidity is less than 20 percent and wind speed is greater than 20 mph, as these conditions will vary across the range of the species and such a restriction will not support conservation of the species. 42. Comment: One State commented that restrictions under the 4(d) rule for the eastern black rail would reduce the State’s ability to manage for the mottled duck. One commenter disagreed that mowing, disking, or other brushclearing activities would have a measurable impact on eastern black rail recruitment and survival. The commenter also stated that these tools are essential wetland management tools for the mottled duck. VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 Response: There is considerable overlap between nesting habitat for eastern black rail and mottled ducks along the Gulf Coast. Mottled ducks, like the eastern black rail, use tall grass and require cover (Stutzenbaker 1988, pp. 72–81). Peak nesting for the mottled duck occurs in March, April, and May on the upper Texas Gulf Coast, but birds may nest January through August (Stutzenbaker 1988, p. 70). As this species requires approximately a month between initiation of egg-laying and hatching (Bielefeld et al. 2010, unpaginated), disruptions to nesting activity early in the season have the potential to greatly delay brood production following re-nesting attempts. Mottled ducks and other species of migratory birds may benefit from less burning activity during their peak nesting months. Either absence of grazing or the presence of light-intensity grazing is beneficial to mottled duck nesting habitat, while heavy grazing is not beneficial (Stutzenbaker 1988, pp. 72–81; Durham and Afton 2003, p. 440). As the 4(d) rule for eastern black rail does not restrict grazing at any period during the year as long as the grazing activity supports the maintenance of appropriate dense overhead cover, we anticipate no conflicts between grazing activities designed to manage mottled duck nesting habitat and eastern black rail habitat. Mechanical treatment activities are prohibited during the nesting and brooding season for the eastern black rail, and this prohibition will avoid incidental take of eastern black rails (via nest destruction and chick mortality) and will likely benefit nesting mottled ducks, as well. The 4(d) rule does not prohibit prescribed burns within (or outside) the sensitive period. The 4(d) rule enables the use of land management tools, such as prescribed burns and mechanical treatment activities, for waterfowl management and may also have positive impacts on the mottled duck. 43. Comment: We were advised by one State, the Central Flyway Council, and three other commenters that prescribed fire, grazing, and haying, mowing, and mechanical treatment activities are needed to conserve eastern black rails and their habitat and are not incompatible with eastern black rails. One commenter said that land management practices are not detrimental to the species. Response: Prescribed fire, grazing, haying, mowing, and mechanical treatment activities are positive techniques that can enhance and maintain eastern black rail habitat. However, any of these techniques may PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 63781 be used in a manner that will result in loss of eastern black rail individuals and reproductive potential. Throughout the SSA report (Service 2018 and Service 2019) and the proposed listing rule (83 FR 50610, October 9, 2018), the Service does not treat prescribed fire, grazing, haying, mowing, or mechanical treatment activities as incompatible land management practices. Please see sections 3.4.1–3.4.3 of the SSA report, where we review these management actions in a thorough fashion and pages 50618–50619 of the proposed rule, where we identify both the benefits and potential concerns to consider when using these practices: For example, if a prescribed fire does not ensure refugia are maintained for the subspecies or if grazing activities remove the dense overhead cover required by the eastern black rail. While active management is needed to maintain habitat for the eastern black rail and other species, incidental take associated with these activities should not prevent local population growth and recruitment in order to have an overall beneficial effect for the species. The final 4(d) rule allows for flexibility in applying prescribed burns, grazing, and haying, mowing and other mechanical treatment activities while also providing measures that are necessary and advisable to conserve the eastern black rail. 44. Comment: One State requested that the Service include current and relevant BMPs for each 4(d) rule prohibition, such as the Saltmarsh Conservation Business Plan, the Black Rail Conservation Plan, and State Wildlife Action Plans. The State requested that if no BMPs exist, we include a provision that supports the future development of BMPs. Response: The 4(d) rule includes guidelines for land management actions, such as prescribed burns and grazing activities. It does not refer to the specific conservation plans identified by the commenter, as some of these may be in draft form at the time of this rule and may be revised in the future, and others may not have specific BMPs that are tied to the activities identified in the 4(d) rule. However, we encourage the continued development of these plans, as they will also provide for the conservation of the eastern black rail. 45. Comment: One State commented that seasonal prohibitions may affect their ability to manage conservation lands and suggested the restrictions be reduced by 4 to 6 weeks in the spring and 2 weeks in the fall. Response: The Service agrees with the comment and has revised the prohibitions in the 4(d) rule to remove the seasonal restrictions for prescribed E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 63782 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations burns and grazing. As modified, these prohibitions still promote habitat management activities while also conserving the eastern black rail. 46. Comment: One State commented that a more reasonable timeframe of the beginning of the nesting season in Oklahoma and Kansas would be mid to late May. The State also commented that several of the records currently classified as evidence of probable nesting are more likely to be of migrants. One State requested guidance as to when eastern black rails initiate the breeding, nesting, and molting period across North Carolina, as this will help facilitate fire planning. Response: The Service appreciates the comments and recognizes that there is latitudinal variability with the nesting, brooding, and flightless molt periods across the range of the eastern black rail. We have expanded our discussion of the timing of the breeding, nesting, and molting period in the SSA report (Service 2019). 47. Comment: One State commented that the 4(d) rule proposed to apply broad management prohibitions on various forms of wetland management, and expressed concern that it would not be able to adequately manage its wetlands under the proposed 4(d) rule. Response: The Service has modified the 4(d) rule to provide flexibility to land managers while also ensuring the rule is necessary and advisable for the conservation of the eastern black rail. Seasonal constraints are minimized as long as a portion of dense cover habitat is maintained. Exceptions are also included for specific types of wetland management operations, such as mechanical treatment of woody vegetation in degraded habitat and moist soil unit management activities. 48. Comment: Three States and one commenter requested more flexibility in prescribed fire timing and scale than contained in the proposed rule. One commenter requested greater specificity as to the time of year that prescribed fire may take place in the various regions where the eastern black rail is distributed. One commenter interpreted the 4(d) rule as prohibiting the use of all fire. Another commenter commented that the fire prohibitions in the proposed rule would take away or limit use of prescribed burning. Three States and eight other commenters stated that the 4(d) rule should allow growing season fire, citing concerns for brush control and their ability to meet habitat management goals. They also commented that prohibitions during the growing season would limit their ability to provide and maintain habitat for eastern black rail and other species due VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 to timing restrictions, impacted burn return intervals, and ignition restrictions. One of these commenters also suggested that fire should be allowed year round. One State commented that the time period of the prohibitions in the 4(d) rule conflicts with management for other species of conservation concern, such as the Florida grasshopper sparrow and the bald eagle. For example, growing season fires are important to reduce woody encroachment and maintain habitat for the Florida grasshopper sparrow. Also, reducing woody encroachment in dry prairie and its embedded marshes also maintains the open conditions needed by the Federally-listed crested caracara and State-designated threatened Florida sandhill crane. Response: Under the final 4(d) rule, fire is allowed year-round within a framework designed to promote eastern black rail population growth and maintenance at the site level. We agree that brush encroachment is a concern for eastern black rail habitat management. We revised the 4(d) rule to allow incidental take of eastern black rails resulting from prescribed fires throughout the year, as long as identified practices are followed. Employing these practices will minimize incidental take of eastern black rails and provide for long-term habitat needs for the eastern black rail and other cover-dependent species. Under the practices identified in the 4(d) rule, practitioners should ensure that habitat always remains to provide for eastern black rail population growth and maintenance at the site level. Under the 4(d) rule, burning within one calendar year within a management boundary of any ownership should leave in place at least 50 percent of the dense overhead cover habitat available for eastern black rails. This practice will reduce mortality while still allowing for fire application throughout the year. The conditions described in the rule allow site managers to maintain a mosaic of seral stages on their managed landscape that support many different species that may have slightly different needs including the eastern black rail. The 4(d) rule does not assign burn return intervals; rather, this is left to the discretion of the site manager. Ignition tactics, rates of spread, and flame lengths should allow for wildlife escape routes and avoid trapping birds in a fire. The 4(d) rule provides guidelines for burning using techniques that do not trap and kill eastern black rails. The 4(d) rule also includes guidelines for providing refugia during prescribed fires for this subspecies. PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 49. Comment: One State commented that the SSA identified a possible risk of increased frequent wildfires as a result of increased drought or lightning strikes. The State commented that the 4(d) rule should be revised to encourage prescribed fire at times that would reduce the potential for catastrophic, unplanned fires. Response: We have revised the 4(d) rule to remove the seasonal restrictions on prescribed burns. The 4(d) rule allows incidental take resulting from prescribed fires throughout the year, as long as identified practices are followed. Reducing the potential for catastrophic unplanned fires can still be achieved by employing controlled fires where eastern black rails are present. This strategy also allows maintenance of needed habitat that promotes population maintenance and growth for eastern black rail. 50. Comment: One State and one public commenter commented that burn return intervals were not identified for their region or would be affected by the 4(d) rule. Response: The Service has modified the 4(d) rule to allow prescribed fire to take place any time during the year when using practices that minimize the take of eastern black rails. Fire return frequencies in areas known to support eastern black rails should be infrequent to a degree that suitable habitat is available for several years to breeding individuals and yet frequent enough to maintain suitable eastern black rail habitat. These fire return frequencies may vary across the species’ range and, therefore, should be determined by site managers. 51. Comment: The Central Flyway Council and one commenter requested more information as to how fire prohibitions apply during the nonbreeding season for States with migratory populations such as Colorado, Kansas, and Oklahoma. One State commented that the fire prohibitions should not apply to northern interior States during the nonbreeding season when eastern black rails are not there. One State commenter commented that restricting prescribed fire to the winter season may increase risk, including predation risk, to eastern black rails in Florida. Response: The Service has modified the 4(d) rule to allow prescribed fire to take place any time during the year when practices that minimize the take of eastern black rails are used. This provision includes retaining habitat in untreated areas that supports the dense overhead cover required by the eastern black rail. This approach allows managers to continue habitat E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations management efforts important to the eastern black rail while supporting its life-cycle needs. The fire prohibition in the 4(d) rule does not apply during the nonbreeding season to areas that only support eastern black rails during the breeding season, as there would not be incidental take of the bird. However, we encourage land managers to maintain suitable habitat for the eastern black rail in known breeding areas if the area does undergo fire treatment during the nonbreeding season. 52. Comment: One State commented that the BMPs outlined in the proposed 4(d) rule may conflict with wildfire risk mitigation and may not work in coastal marsh settings. The commenter requested technical assistance from the Service to continue to meet obligations to mitigate wildfire risk for coastal communities in a way that aligns with the spirit and intent of the ESA protections for the eastern black rail. Response: The 4(d) prohibition and identified BMPs on prescribed fire were constructed with input from prescribed fire professionals throughout the range of the subspecies, including four regions of the Service. These personnel found the prohibitions realistic and clearly constructed from a fire professional’s perspective. The Service will gladly provide technical assistance in implementing the 4(d) rule upon request. 53. Comment: One State commenter advised that eastern black rails use fire dependent habitats and these habitats require an appropriate amount of fire to maintain. One State commenter advised that fire planning should provide critical cover for the breeding season and consider fire impacts to the invertebrate prey base. More information is needed on overwintering and stopover use of mid-Atlantic marshes where fire is used outside the breeding seasons in order to assess impacts during these time periods. Response: We agree that habitats occupied by the eastern black rail are fire dependent and may require fire to maintain them (for further discussion, please see the SSA report, section 3.4 (Service 2019)). The 4(d) rule has been modified to ensure that birds are provided sufficient habitat that provides suitable overhead cover during the year for the breeding and non-breeding season. The Service agrees that more research and study will improve our knowledge and understanding of the eastern black rail. 54. Comment: One State requested clarity on prescribed fire refugia size. Response: In the final 4(d) rule, we have clarified the minimal refugia size and the amount of area within a VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 prescribed fire unit for unburned refugia. As outlined below, unburned patches should be no smaller than 100 square feet. 55. Comment: One State commented that the eastern black rail is documented to re-nest after the loss of an early nest and that the loss of an early nest may reduce, but not preclude, successful annual recruitment. The State commented that, therefore, a failure to apply fire with the appropriate seasonal considerations will result in the eventual loss of the habitat necessary for breeding. Response: Eastern black rails can renest after nest failure. However, for many species of birds including some rallids, re-nesting attempts are less productive than the initial nesting effort. Additionally, displaced adults would have to relocate to untreated sites and establish new territories after a fire. The 4(d) rule allows prescribed fire during the breeding season of the eastern black rail, while ensuring at least half of nesting habitat is untreated and available for established nesting adults and for birds displaced by prescribed fire events, i.e., areas supporting dense overhead cover are maintained. The 4(d) rule allows site managers to maintain a mosaic of seral stages on their managed landscape that support many different species that may have slightly different needs, including the eastern black rail. This approach allows managers to continue habitat management efforts important to the eastern black rail while supporting its life-cycle needs. 56. Comment: One State commented that, if heavy grazing results in the degradation of known black rail habitat on public lands, the 4(d) rule should include a provision that includes a nonet-loss habitat restoration/mitigation requirement. Response: We have revised the 4(d) rule to remove the terms ‘‘light to moderate grazing’’ and ‘‘heavy grazing.’’ The rule prohibits incidental take that results from grazing activities on public lands that occur on eastern black rail habitat and, that individually or cumulatively with other land management practices, do not maintain at least 50 percent of eastern black rail habitat, i.e., dense overhead cover, in any given calendar year within a management boundary. 57. Comment: One State requested that all grazing activities, regardless of intensity, conducted on public lands should include a monitoring requirement prior to the initiation of grazing and after grazing has occurred. The purpose of the before and after monitoring is to confirm the presence/ PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 63783 absence of the subspecies within the affected area and to help establish the costs and benefits of grazing on local eastern black rail populations. Response: Public land site managers may use any of a wide range of methods to assess and evaluate site conditions. These can include pre- and posttreatment assessments of relevant information such as black rail presence/ absence or occupancy, or plant species composition and structure. This is a key aspect of Strategic Habitat Conservation Planning (https://www.fws.gov/science/ doc/SHCFactSheet1008pdf.pdf), which provides continual feedback on the effectiveness of any conservation action. We are not including a monitoring requirement in the 4(d) rule because the methods and techniques may change over time based on improved knowledge. 58. Comment: One State commented that grazing can be a very effective means of removing invasive plant species. The State commented that if survey efforts for eastern black rails increase beyond the traditional salt marsh habitats in the region, eastern black rails may be discovered in areas like bog turtle wetlands where grazing is the most efficient and effective tool to control invasive plant species and maintain freshwater habitats. Response: We recognize that grazing can be used as a management tool. The rule allows for the use of grazing as a tool as long as at least 50 percent of eastern black rail habitat, i.e., dense overhead cover, is maintained within management boundaries in any given calendar year. 59. Comment: One State commenter advised that there is no evidence that properly managed cattle would result in take or deleterious impacts to the eastern black rail. They further stated that excessive grazing would be detrimental but rarely occurs on the Texas coast due to its highly productive conditions. They added that herbivory of muskrat, snow goose, and cattle benefits the system that includes eastern black rail habitat, citing Miller et al. 1996 and Bhattacharjee et al. 2007. Response: We agree that take of or deleterious impacts to the eastern black rail would not be expected from properly maintained grazing activities that maintain dense overhead cover for the bird. However, we disagree that detrimental effects of excessive grazing are offset by highly productive conditions in Texas. While herbivory may promote diversity, it does not always lead to benefits for all species of wildlife, including the eastern black rail. At a Texas refuge, Miller et al. (1996) found that herbivory by geese E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 63784 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations and cattle can lead to mudflat and open water habitats and loss of emergent marsh and recommended the removal of cattle from sensitive areas (p. 474). In a separate salt marsh in Galveston County, Texas, two studies found that total vegetative cover was significantly reduced by grazing (Yeargan 2001, entire; Martin 2003, entire). In addition, both found that the greatest grazing impacts occurred at higher elevations in upper marshes. In Louisiana marshes, the destruction of chairmaker’s bulrush (Scirpus olneyi) due to heavy grazing has been documented (Chabreck 1968, entire). Diversity of plants increased to pre-disturbance conditions after a multiple-year period of deferred disturbance (Bhattacharjee et al. 2007, p. 23). They recommended that grazing and or fire may be used as a disturbance mechanism if the resulting condition is a desired management goal (p. 23). They do not describe disturbance as being beneficial but rather a method to exert a change in the vegetation community. 60. Comment: One State suggested that the grazing prohibition from midMarch through September 30 contained in the 4(d) rule may not fit all cases. This State suggested that the Service consider a shorter prohibition on grazing, coupled with BMPs. For example, cattle stocking densities that closely match historical, natural grazing densities as determined by the Natural Resources Conservation Service likely could be used throughout the year without significant detrimental impacts to the eastern black rail and would likely provide a net benefit. Another State asked that the Service consider eliminating the restriction of ‘‘intensive or heavy grazing should be avoided between mid-March and September 30th’’ or at least provide further details as to how regionally specific grazing recommendations will be defined throughout the eastern black rail’s range. Response: We have revised the 4(d) rule to allow for grazing year-round as long as at least 50 percent of eastern black rail habitat, i.e., dense overhead cover, is maintained in any given calendar year. Generally, favorable grazing intensity leaves overhead cover intact within eastern black rail habitat. Because of differences in plant communities and climate within and between regions of the species’ range, it is not possible to assign specific stocking densities in terms of grazing animal density for a specific site within the 4(d) rule. Cover targets and assessment methods will be provided in guidance documents, and site managers will be responsible for managing grazing densities. VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 61. Comment: One State asked that the 4(d) rule define ‘‘public lands’’ and clarify which public lands will be subject to the grazing prohibition in the 4(d) rule. Response: Public lands covered by this prohibition are those lands under governmental management whose intended purpose is to conserve wildlife and/or natural habitats for the general public. This definition includes Federal, State, and locally managed lands. Public lands whose intended purpose may be recreational sports, (e.g., soccer, baseball, etc.), operational management, or other civic purposes are not subject to the rule. 62. Comment: One State and one commenter indicated that although grazers may trample nests, eggs, young chicks, or incubating adults, it seems unlikely that adult or older juveniles would be easily trampled under light to moderate grazing. Response: We agree that trampling of adult birds may happen less frequently at lighter stocking densities. The primary concern with grazing is the removal of dense overhead cover that this subspecies requires for nesting and to avoid predation. 63. Comment: Two States and a Federal agency requested that we define intense, heavy, moderate, and light grazing. One commenter requested that we define ‘intensive or heavy grazing’ in terms of Animal Unit Months. Response: The prohibition of incidental take associated with grazing activities in the 4(d) rule has been revised and applies only to grazing activities on public lands that do not support the maintenance of at least 50 percent of appropriate dense overhead cover habitat for the eastern black rail in any given calendar year. Favorable grazing intensity leaves overhead cover intact within eastern black rail habitat. Because of differences in plant communities and climate within and between regions, it is not possible to assign specific stocking densities in terms of grazing animal density for a specific site within the 4(d) rule. Cover targets and assessment methods will be provided in guidance documents, and site managers will be responsible for managing grazing densities. 64. Comment: One State commented that if grazing, mowing, and haying are used in moderation and under BMPs, these practices could also be used to create better eastern black rail habitat. Response: We agree that some land management practices can be used to enhance habitat required by the species. The species prefers wet grasslands and emergent marshes that are dominated by herbaceous vegetation. These habitats PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 often require some level of disturbance to reset their successional stage, and this disturbance may be achieved from grazing, mowing, or haying activities. 65. Comment: One State requested more flexibility in mechanical treatment timing and scale than contained in the proposed 4(d) rule. Multiple commenters requested that we clarify or expand the exception for incidental take of eastern black rails that results from mowing, haying, or other mechanical treatment activities that are conducted during the brooding or nesting period and are maintenance activities to ensure safety or operational needs of existing infrastructure. One commenter requested clarity regarding exceptions to the rule associated with maintenance of existing rights-of-way for electric and other transmission corridors such as pipelines as well as their respective structures such as pump stations or transfer stations. One commenter requested that maintenance of irrigation infrastructure be excepted from the 4(d) rule. One commenter requested that we except maintenance, safety, and operational needs associated with existing electric infrastructure from prohibitions. Response: We recognize haying, mowing or other mechanical treatment activities may need to be used for maintenance requirements to ensure safety and operational needs for existing infrastructure, and these activities may need to take place during the nesting or brooding periods. We added exceptions to the final 4(d) rule for incidental take resulting from mechanical treatment activities that occur during the nesting and brooding periods, and that are maintenance requirements to ensure safety and operational needs of existing infrastructure. These include maintenance of existing firebreaks, roads, rights-of-way, levees, dikes, fence lines, airfields, and surface water irrigation infrastructure (e.g., head gates, ditches, canals, water control structures, and culverts). Also excepted is incidental take resulting from mechanical treatment activities done during the nesting or brooding periods with the purpose of controlling woody encroachment or other invasive plant species to restore degraded habitat for eastern black rails. Mechanical treatment activities outside of the nesting and brooding period are not prohibited. We find that this approach addresses infrastructure and habitat maintenance needs while promoting eastern black rail population growth and maintenance at the site level. 66. Comment: One State requested management flexibility to manage wetlands for a variety of species as well E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations as to conserve important latesuccessional cattail and bulrush habitats for black rails. Cattail management is critical to open up monotypic cattail marshes, and a variety of techniques are needed in different seasons. This State uses mowing, mechanical treatment, and herbicide treatment in early summer through winter. Response: The incidental take prohibition for mowing and mechanical treatment activities has been modified to apply only during the nesting and brood-rearing period. This provision should provide ample opportunity in late summer to early fall to treat cattail and bulrush marshes and reset their seral stage. The use of herbicides is not prohibited under the 4(d) rule. 67. Comment: Two States and two commenters opposed the timing restrictions for haying, mowing, and other mechanical treatment activities. One State requested more flexibility in the timing. One commenter did not feel that this activity will have measurable impacts on eastern black rail recruitment and survival. Response: Several exceptions to the rule apply to the haying, mowing, and other mechanical treatment activities that may occur during the brooding or nesting season, including maintenance of existing infrastructure and control of woody encroachment. The impact of these activities on grassland and marshland nesting birds has been well documented (see discussion in the SSA report (Service 2019)). Incidental take of eastern black rails from mowing, haying, and other mechanical treatment activities that take place outside of the brooding or nesting season is not prohibited. However, where prohibitions apply, it is important to recognize that the loss of eggs or chicks affects recruitment into and growth of the population. Population recruitment and growth are crucial to the recovery of the subspecies. 68. Comment: One State suggested that we add a requirement for monitoring prior to the initiation of mechanical treatment activities to determine if the eastern black rail is present. Response: The determination of whether eastern black rails are present is the responsibility of those undertaking the activity. A variety of methods may be used to assess whether the eastern black rail is present. The Service will be providing guidance and recommendations on different methods to determine the presence of eastern black rails. 69. Comment: One State and two commenters indicated that prohibitions in the proposed rule may prevent VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 control of nonnative plant species, such as Phragmites, and thus may impact eastern black rail habitat and its recovery. Response: We added an exception to the rule to allow incidental take of eastern black rails that result from mowing, haying, and other mechanical treatment activities during the brooding or nesting season, that occurs during the control of woody encroachment and other invasive plant species to restore degraded habitat. Incidental take of eastern black rails from mowing, haying, and other mechanical treatment activities that take place outside of the brooding or nesting season is not prohibited. 70. Comment: One State and three commenters suggested that we did not fully consider the impacts of development (such as urbanization, construction, or oil and gas activities) and other activities that result in the loss of suitable habitat for the eastern black rail. These comments requested that we consider additional provisions in our 4(d) rule to address activities that result in the loss or degradation of eastern black rail habitat. Response: We appreciate these comments and have included a prohibition in the 4(d) rule that prohibits incidental take resulting from long-term or permanent damage, fragmentation, or conversion of persistent emergent wetlands and the contiguous wetland-upland transition zone to other habitat types (such as open water) or land uses that do not support eastern black rail. 71. Comment: One State and one commenter questioned why the Service did not propose prohibitions under the 4(d) rule that addressed sea level rise and tidal flooding. Response: Although sea level rise and tidal flooding are threats to the eastern black rail’s habitat, we cannot tie these activities to one specific regulated entity. Prohibiting take incidental to an otherwise lawful activity, such as prescribed fire, allows the Service to identify an entity that is conducting the activity (e.g., a Refuge conducting a prescribed burn) and regulate this entity through the prohibitions and exceptions in the 4(d) rule. Prohibiting take of eastern black rails incidental to tidal flooding or sea level rise would not allow us to regulate an identified entity. Therefore, addressing the threats of sea level rise and tidal flooding are outside the scope of this 4(d) rule. 72. Comment: One State commenter requested that several habitat management activities be excepted from incidental take. These included prescribed fire between October 1 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 63785 through April 15, water level management within impoundments, control of invasive plants using herbicides and/or mechanical means, removal of sediments from existing structures, and restoration activities under USACE Nationwide Permit (NWP) 27. Response: The Service has revised the 4(d) rule to allow prescribed fire anytime during the year as long as best practices as outlined in the rule are used. The Service has also excepted from the prohibitions of the rule existing moist soil unit management sites, invasive species control activities, and maintenance of existing water infrastructure. However, activities and projects that are eligible for NWP 27 may or may not have adverse impacts on the eastern black rail. Therefore, activities under NWP 27 are not categorically excepted under the 4(d) rule. Each individual activity must be evaluated to determine whether the prohibitions and exceptions under the rule apply. 73. Comment: One State requested that the Service consider how the 4(d) rule would impact the ability to employ known management methods that benefit eastern black rail habitat and support functional ecosystems. Restrictions should not unduly impact the ability to test habitat creation/ restoration methods in an adaptive management framework, especially given our large knowledge gaps for this secretive species. Response: The Service has modified the 4(d) rule to accommodate habitat management activities that limit incidental take of the bird and maintain wetland habitat for the eastern black rail and other wildlife species. Land managers will maintain flexibility under the 4(d) rule to conduct activities that support functional ecosystems, while also minimizing take of the eastern black rail. Land managers may pilot habitat creation and restoration methods in the future. If these activities have a Federal nexus, the land manager will be required to consult with the Service on the activity, as is required by section 7 of the Act. 74. Comment: One State was concerned that the creation of wetlines as an alternative to firebreaks will not be allowed under the 4(d) rule. Response: Maintenance of existing firebreaks and the establishment of new firebreaks are excepted under the 4(d) rule. This exception includes temporary breaks in the form of wetlines or compaction lines. 75. Comment: One State commented that moist soil management is important on public and private lands for recovery E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 63786 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations and that impoundments may help with marsh migration management. Response: In the 4(d) rule, incidental take resulting from mechanical treatment activities in existing moist soil management units is excepted. 76. Comment: One State requested that airfields be added to the list of existing infrastructure under the exceptions from prohibitions for incidental take resulting from haying, mowing, or other mechanical treatment activities. Response: We agree and have added airfields to the list of existing infrastructure excepted from the prohibitions of the 4(d) rule. 77. Comment: One State commenter requested that mosquito surveillance and larvicide and adulticide applications be excepted. Another commenter requested that public health mosquito control applications be excepted from the 4(d) rule. Response: Incidental take of eastern black rails resulting from these activities is not prohibited under the 4(d) rule, so an exception is not needed. 78. Comment: One State requested reassurance that prohibitions in the 4(d) rule will not hinder coastal restoration work, particularly with the current inability to fully delineate locations of high marsh in the bird’s range. Response: The Service recognizes the importance of coastal restoration efforts and that these activities may prove beneficial to the eastern black rail. Coastal restoration projects may have both temporary and permanent effects on eastern black rails. While not all coastal restoration projects benefit the eastern black rail, some do and can support recovery of the species. The Service recognizes the challenges facing this species and will not arbitrarily hinder restoration activities that may benefit the eastern black rail and its habitat. See Comment 79 for section 7 requirements. 79. Comment: One State and one public commenter requested clarification regarding their section 7 responsibilities under the Act. One commenter asked which public lands will be required to complete section 7 consultation. Response: Section 7(a)(2) of the Act requires all Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of a listed species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service. This requirement does not change when a 4(d) rule is VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 implemented. In accordance with our regulations found at 50 CFR 402.14 and the Services’ Consultation Handbook, it is the action agency’s responsibility to determine whether any action ‘‘may affect’’ listed species or critical habitat, and if it may, additional consultation is required. Therefore, when an action agency determines its proposed action will not affect a listed species, no further consultation with the Service is required. If the species will not be exposed directly or indirectly to the proposed action or any resulting environmental changes, an agency should conclude ‘‘no effect’’ and document the finding; this completes the section 7 process. For example, if suitable habitat is not present in the action area and the project does not otherwise present a risk to the species, an action agency can conclude ‘‘no effect’’ and document their finding. When an action agency determines its proposed action ‘‘may affect’’ a listed species, all standard consultation procedures apply unless a programmatic consultation approach is developed. For example, if an action is anticipated to result in adverse effects (regardless of whether the effects will result in prohibited or excepted take) to the species, formal consultation is required. While the basic consultation procedures apply, any resulting biological opinions are different in that there are no incidental take statements or associated reasonable and prudent measures and terms and conditions for forms of take that are not prohibited by the 4(d) rule. 80. Comment: One State commented that the 4(d) rule would negatively affect eastern black rail conservation by being a disincentive for more research. Response: When this final rule is effective, there are several mechanisms to allow for research for the eastern black rail. In accordance with our regulations found at 50 CFR 17.32(a), we may issue a permit for any activity otherwise prohibited with regard to threatened wildlife; permits issued under this section must be for one of the following purposes: Scientific purposes, or the enhancement of propagation or survival, or economic hardship, or zoological exhibition, or educational purposes, or special purposes consistent with the Act. Further, any employee or agent of the Service, of the National Marine Fisheries Service, or of a State conservation agency that is operating a conservation program for the eastern black rail pursuant to the terms of a cooperative agreement with the Service in accordance with section 6(c) of the Act, who is designated by his agency for such purposes, may, when acting in the course of his official duties, take eastern PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 black rails. We anticipate that the listing of the eastern black rail will necessitate further research that generates knowledge needed to conserve the species, and we encourage States and other partners to continue with research efforts that contribute to conservation. 81. Comment: The Central Flyway Council and one public commenter stated that the Service should fund additional research and explore options to avoid limiting future research as a result of the 4(d) rule. Response: Research that is conducted for the purpose of recovery of a species is an activity that can be authorized under section 10 of the Act, normally referred to as a recovery permit, or can be conducted by certain State conservation agencies by virtue of their authority under section 6 of the Act. Additional research will be important for recovery of the eastern black rail, and thus the Service will continue to support such actions. Public Comments Listing 82. Comment: A commenter stated that the literature has knowledge gaps regarding how black rails and their habitat are affected by management practices and how agencies should proceed with management in different geographic regions. Response: Current literature, graduate research projects, and project reports have consistently concluded that eastern black rail occupancy increases with increasing overhead cover (see Kane 2011, Butler et al. 2015, Tolliver et al. 2019). Land management actions that do not leave overhead cover in place for eastern black rail and ensure that such cover is always present within a land management boundary, may impact the bird. During the breeding season, actions that remove overhead cover or destroy nests will impact egg and chick survival. As more research on eastern black rails and management impacts is completed, our understanding of this issue will continue to expand; however, our rule is based on the best available science. 83. Comment: A commenter asked how relevant scientific data from the Texas Gulf Coast were used in making the listing recommendation. Response: The Service employed an active outreach effort soliciting any information regarding the eastern black rail. This effort took place at the initiation (July 2017) of and during the development of the SSA. This effort included letter requests for information as well as verbal requests at various times throughout the process; requests E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations were made to Federal agencies, State conservation and land management agencies, national Convention on International Trade in Endangered Species of Wild Fauna and Flora authorities, universities, nongovernmental conservation organizations, and species experts. The data we obtained relative to Texas included books, scientific publications, dissertations and theses, governmental documents, personal interviews, survey datasheets and websites that house information. These sources of information were reviewed and used to inform the SSA analysis and report. See ADDRESSES, above, for information regarding how to access the materials used in preparing the rule or to review the Literature Cited of the SSA report (Service 2019). 84. Comment: One commenter stated that listing will cause excessive management problems to private landowners in Louisiana. One commenter stated that the listing of the eastern black rail will affect agriculture and that these effects should be taken into consideration. Response: For listing actions, the Act requires that we make determinations ‘‘solely on the basis of the best available scientific and commercial data available’’ (16 U.S.C. 1533(b)(1)(A)). The Act does not allow us to consider the impacts of listing on economics or human activities, whether over the short term, long term, or cumulatively. Therefore, we may not consider information concerning economic or management impacts when making listing determinations. It should be noted that Louisiana has few documented occurrences of eastern black rail and these occurrences are concentrated in and around southwest Louisiana (Johnson and Lehman 2019b, entire). With such limited occurrences, we do not anticipate the listing rule will have a widespread impact on agriculture or private landowners. Further, our 4(d) rule excepts incidental take of eastern black rails from activities in existing moist soil management units or prior converted croplands (e.g., impoundments for rice or other cereal grain production). 85. Comment: Two commenters questioned the quality of information used in decision-making, and whether adequate surveys exist to inform the listing decision. Response: In accordance with section 4 of the Act, we are required to determine whether a species warrants listing on the basis of the best scientific and commercial data available at the time we make our determination. Further, our Policy on Information VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 Standards under the 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 (www.fws.gov/ informationquality/), provide criteria and guidance, and establish procedures to ensure that our decisions are based on 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 determining whether a species warrants listing as an endangered or threatened species. Primary or original information sources are those that are closest to the subject being studied, as opposed to those that cite, comment on, or build upon primary sources. However, the Act and our regulations do not require us to use only peer-reviewed literature, but instead they require us to use the ‘‘best scientific and commercial data available’’ in a listing determination. We use information from many different sources, including articles in peerreviewed journals, scientific status surveys and studies completed by qualified individuals, Master’s thesis research that has been reviewed but not published in a journal, other unpublished governmental and nongovernmental reports, reports prepared by industry, personal communication about management or other relevant topics, conservation plans developed by States and counties, biological assessments, other unpublished materials, experts’ opinions or personal knowledge, and other sources. We have relied on published articles, unpublished research, digital data publicly available on the internet, and the expert opinion of subject biologists to make a final listing determination for the eastern black rail. We collected and used data from eBird (these records included historical records, observations from birders, and survey-collected data through 2017). The Center for Conservation Biology dataset provided an integrated dataset for U.S. coastal states, including surveys, literature, and museum records; these data are through 2016. The University of Oklahoma— Oklahoma Biological Survey dataset provided a similar integrated dataset of the interior United States through 2012. Sixteen research groups and States provide monitoring and inventory datasets with records through 2017. We also received updated survey PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 63787 information from some sources, including several States between the proposed and final rules. Also, in accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited peer review from knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. Additionally, we requested comments or information from other concerned governmental agencies, Native American Tribes, the scientific community, industry, and any other interested parties concerning the proposed rule. Comments and information we received helped inform this final rule. 86. Comment: One commenter suggested it would help to support a listing recommendation if we were able to differentiate our analysis units based on genetic information and genetic differences among eastern black rail populations. Response: We agree that genetic information on the eastern black rail would help inform our understanding of this subspecies. However, at the time of the listing, genetic information on the eastern black rail was not available. We are required to make our listing determinations on the best available scientific and commercial data at the time the determination is made (see response to Comment 93, above). 87. Comment: Two commenters stated their views that the species should be listed as endangered. Response: We do not find that the eastern black rail is currently in danger of extinction throughout its range. Although the eastern black rail has experienced reductions in its numbers and seen a range contraction, this subspecies is still relatively widespread in terms of its geographic extent. The current condition of the subspecies still provides for resiliency, redundancy, and representation such that it is not currently at risk of extinction throughout its range (see Determination section). The commenters did not provide any new information regarding threats to the eastern black rail or its current status that was not already considered in the SSA report or proposed rule. One commenter cited the proposed rule and SSA report to support their argument of listing the eastern black rail as an endangered species. With no new information to consider, our conclusion regarding the status of the eastern black rail remains the same. E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 63788 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations SSA Report 88. Comment: Two commenters stated that we did not consult Tolliver (2017) or Tolliver et al. (2019) (referred to as Tolliver 2018 and Tolliver et al. 2018 in comment letters) in the Federal Register document and/or in the Species Status Assessment. Three commenters stated eastern black rail colonization is not affected by fire and recruitment increases in recently burned areas. Commenters cited Tolliver (2018) as a supporting document. Response: We referenced Tolliver (2017) in the Federal Register document for the proposed listing and in the Species Status Assessment Version 1.2. Tolliver et al. (2019) was first published online October 15, 2018, and in print on January 13, 2019, both occurring after the publication of the proposed listing rule (9 October 2018) and completion of SSA Version 1.2 (June 2018). Tolliver et al. (2019) is the peer-reviewed journal article based on Tolliver’s 2017 master’s thesis. In addition, there is Tolliver et al. (2017), which is a final performance report for a grant submitted to TPWD. We consulted the two existing documents generated by Tolliver during our preparation of the SSA Version 1.2 (Tolliver 2017 and Tolliver et al. 2017) and have updated SSA Version 1.3 to reflect the new Tolliver publication (Tolliver et al. 2019). The effects of fire frequency or intensity were not considered by Tolliver et al. (2019, p. 322). Further, they state that some of the survey points used in their study were found on boundaries between burned and unburned management units. This finding leads to uncertainty regarding the accuracy of treatment (fire or grazing) assignments to vocalizing eastern black rails for the data analysis in their paper. They recommend that future studies include fire intensity, frequency, and an assessment of the influence of point placement (within units or between them) when assessing occupancy and abundance. When summarizing their conclusions or formulating their abstract, they do not relay any information about fire effects on the population states examined; instead they emphasize their findings of cover dependence for this species. While the authors speculated on colonization and recruitment following fire, their data treatment did not allow them to draw firm conclusions from their analyses. Therefore, we do not agree with the commenters’ statements that recently burned areas are found to support recruitment increases and that colonization is not affected by fire, as these statements are contrary to the VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 Tolliver et al. (2019) findings that this species is most abundant in densely vegetated grasslands. 89. Comment: One commenter stated that the Service did not quantify occupancy in New England and presumed low resiliency and low representation. The commenter states that Watts contradicts this presumption. Response: Information presented by Watts (2016, p. 19) shows recent estimates of zero breeding pairs for Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, and New York. He also shows range contractions in the Northeast in figures 5 and 6, which present maps of Northeast counties with all (1836–2016) and current (2011–2016) credible records of eastern black rails during the breeding period (pp. 21 and 23). In 2015, the State of Connecticut concluded that the black rail was extirpated from the State and removed the species from the State’s endangered species list. This information supports our conclusions of low resiliency and low representation for the New England Analysis Unit. 90. Comment: A commenter claims Watts’ estimates of eastern black rail are guesses rather than estimates, and guesses are not good science. Response: Watts used the best information available to estimate eastern black rail population size on a state-bystate basis. The estimates are the result of a critical assessment of the most recent information available on the subspecies in each state, including the results of targeted black rail surveys and of general marshbird surveys, knowledge of available habitat, and consultation with state ornithologists and other marshbird experts (Watts 2016, p. 4–10). While the estimates were not quantitatively derived, the approach is appropriate and thorough for compiling and summarizing all diverse sources of information available on the status and distribution of the eastern black rail for the geographical areas covered by the report. 91. Comment: One commenter remarked on the occurrence of eastern black rail outside of the contiguous United States, stating that there is no known record of black rail for Barbados. The bird has ventured on rare occasions as far south as Antigua and Guadeloupe, but not Barbados. Response: In our SSA report, we have updated the Historical and Current Range and Distribution section to state that there are no known records of eastern black rail for Barbados and rare records for Antigua and Guadeloupe. 92. Comment: One commenter stated that differences in two time points can PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 be due to simple stochastic processes rather than true trends. The commenter stated that one needs at least three data points to infer trends. Response: This concern was addressed by the dynamic occupancy modeling techniques that we used. While, in general, the commenter is correct that the changes over two observation periods can be stochastic; dynamic occupancy modeling approach accounts for this and uses multiple sites and detection probability to estimate colonization and extinction. Three or more data points will result in more precise estimates, but the modeling framework allows us to use data from just two. 93. Comment: One commenter stated that claiming a change from 15 detections on 328 survey points in 2007 to 2 detections on 135 survey points in 2014 is an 85 percent decline is incorrect, because the claim does not account for survey effort. Response: The correct value should be a decline of 68 percent since the number of survey points had changed between 2007 and 2014. This value has been updated in the rule and the SSA report. 94. Comment: One commenter stated that the Service did not examine trends in true abundance when examining the status of the eastern black rail. The commenter stated that the Service only used changes in raw numbers of counted rails to estimate trends. Response: There are no statistically valid abundance estimates for assessing trend over time over the full range of the species. Some data might be useful for assessing localized trends, but we could not use those local trends to infer population trend across the entire range of the species. The standard required by the ESA is the best available scientific and commercial information available, and that standard is what was used for the analysis. 95. Comment: One commenter stated that the Service did not account for variations in call rate or for detection probabilities in the data used. Response: Our models estimated detectability and accounted for variability over space and time. In addition, we tried to relate those probabilities to covariates; however, no covariates were useful predictors of detection probability. 96. Comment: A commenter questioned how occupancy is used to predict long-term persistence. Response: The specific procedure for determining extinction risk to analysis units is laid out in the SSA, specifically chapters 4 and 5 and appendices A and B. We took locations of known occupancy and assessed how E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations environmental variables at those locations would influence that known occupancy location’s ability to support eastern black rails over time (persistence). We used probabilistic distributions based on different rates of change (wetland loss rates, relative sea level rise projections, land management practices, etc.) and projected these rates for each environmental variable. These rates of change included a range of scenarios that evaluated habitat availability and quality with regard to the eastern black rail. 97. Comment: One commenter requested clarification on the terms ‘‘resiliency, redundancy, and representation (3Rs)’’ and how these were applied in our SSA analysis. This commenter indicated there was apparently overlap between the three terms. The commenter also asked for clarity on how low, very low, and no resiliency are defined in the SSA report. This same commenter stated that the Service had only evaluated occupancy to inform our 3Rs analysis. Response: In general, resiliency reflects the ability of populations to withstand stochastic variation, such as random fluctuations in demographic rates. Redundancy reflects the species’ ability to withstand catastrophic events, such as a hurricane or oil spill, and representation reflects a species’ adaptive capacity. In a practical sense there is often overlap in resiliency, redundancy, and representation in the Species Status Assessment process. For eastern black rail, resiliency was measured at the analysis unit scale for this subspecies, in part, because of the difficulty in establishing true population boundaries. The Service used two metrics to estimate and predict representative units that reflect the subspecies’ adaptive capacity: (1) Habitat variability and (2) latitudinal variability. There was no information related to genetic diversity to inform adaptive capacity for the subspecies. As the commenter noted, we did suggest overlap in resiliency and representation because, as noted in the SSA, to maintain existing adaptive capacity, it is important to have resilient populations (analysis units) that exhibit habitat variability and latitudinal variability. While typically we think of redundancy as the number and distribution of populations within representation units, because of the difficulty in delineating populations, analysis units are the only scale at which we can reflect the subspecies’ ability to withstand stochastic events. In general, species (and subspecies) that are welldistributed across their historical range are considered less susceptible to VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 extinction and more likely to be viable than species confined to a small portion of their range (Carroll et al. 2010, entire; Redford et al. 2011, entire). Occupancy analysis informed both the 3Rs and extinction probability for the subspecies. We have added further discussion in the SSA report to provide clarification on how we applied the 3Rs. 98. Comment: One commenter stated that our future projections of habitat loss for eastern black rail are flawed because the model assumed a 10 percent loss rate of habitat per year, and there would not be any habitat left in 10 years. Response: This comment reflects a misunderstanding about the loss function used in the model. The loss rate was not an absolute loss rate of 10 percent per year. It was a 10 percent loss of remaining habitat available each year, so the rate actually decreases over time. It is a decay curve not a linear decay. In our future scenario modeling, we incorporated functions to account for habitat quality and possible habitat loss over time. The habitat loss function was a simple reduction in the total number of possible black rail sites at each time step in the simulation by a randomly drawn percentage (a beta distributed random variable) that was specified under different simulation scenarios to represent habitat loss due to development (urbanization) or sea level rise. We used the change in ‘‘developed’’ land cover from NLCD data to derive an annual rate of change in each region and we used NOAA climate change and sea level rise predictions to estimate probable coastal marsh habitat loss rates. In the Great Plain AU, groundwater loss rates were used, instead of sea level rise data, to represent permanent non-urbanization habitat loss in the region. 99. Comment: One commenter stated that our future projections of habitat loss for eastern black rail are flawed because we assumed that the rate of marsh loss due to sea level rise will be greater than the rate of marsh creation. This commenter also stated we assumed sea level rise will only destroy marsh and provided citations for relevant literature supporting net increases in tidal marsh over time. Response: We recognize that there are scientific differences of opinion on many aspects of climate change, including the role of natural variability in climate and the uncertainties involved with climate change projections and how local ecosystems may respond, such as tidal marsh responses to sea level rise. We relied on synthesis documents (e.g., Parris et al. 2012; Sweet et al. 2017; Runkle et al. PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 63789 2017a, 2017b, 2017c; Reidmiller et al. 2018) that present the consensus view of a very large number of experts on climate change, including sea level rise, from around the world. Additionally, we relied on downscaled sea level rise projections (Sweet et al. 2017). We recognize the salt marsh elevation in some locations may be able to keep pace with sea level rise (e.g., Kirwan et al. 2016, Raabe and Stumpf 2016, Schieder et al. 2018); however, the rate of sea level rise in many areas will overwhelm the capacity of salt marshes to persist (Crosby et al. 2016), and marsh migration will not be possible where hardened shorelines exist (Torio and Chmura 2013). We have found that these latter reports, as well as the scientific papers used in those reports or resulting from those reports, represent the best available scientific information we can use to inform our decision and have relied upon them and provided citations within our analysis. Overall, sea level rise is projected to lead to substantial losses of salt marsh habitat, and new salt marsh creation is not expected to keep pace. 100. Comment: One commenter stated that a study done by the Texas Comptroller’s Office suggests that the black rail has a stronghold along the Upper Coast of Texas, especially in Chambers and Jefferson Counties. The commenter stated that with nearly 160,000 acres of Federal and Stateowned property in Chambers and Jefferson Counties that is prime black rail habitat, it stands to reason that the population in that area could change the listing determination. Response: The study, supported by the Texas Comptroller of Public Accounts and the TPWD, estimated that during 2015 there were between 183 and 2,414 eastern black rails present at Anahuac NWR (Tolliver et al. 2017, p. 18). The refuge is approximately 34,000 acres (13,759 hectares) in size; however, the refuge area estimated to support eastern black rails was between 11,345 to 15,716 acres (4,591 to 6,360 hectares) (Tolliver et al. 2017, p. 18). This area is roughly 33 to 46 percent of the refuge, demonstrating that not all 160,000 acres of conservation lands in Chambers and Jefferson Counties would necessarily support eastern black rails. It is not appropriate to presume that eastern black rails are present and supported by all 160,000 acres. Surveys to estimate habitat occupancy indicate very low occupancy rates for this species. This finding means that the available habitat is not fully occupied by the species due to their low numbers. See Comments 28 and 96 for additional discussion. E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 63790 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations 101. Comment: One commenter asked how altering land management practices during the nesting and molting period will increase population numbers. Response: When numbers within a population are very low, changes in management that affect survival of both young and adults can have significant effects on population numbers because each adult’s reproductive potential and nest survival matter more to overall population dynamics. This scenario is often best thought of in the extinction vortex paradigm (Gilpin and Soule 1986, entire; Fagan and Holmes 2006, entire) where the loss of every individual can have a substantial impact on the population. 102. Comment: A commenter stated that potential threats resulting from mosquito control activities are speculative and should be considered alongside the threats mosquitos pose to humans and wildlife. Response: For listing actions, section 4(a)(1) of the Act requires that we determine whether any species is an endangered species or threatened species because of any of the following factors that affect the species, including: The present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its continued existence. It does not allow us to consider such information as the threats mosquitoes pose to humans and wildlife. At this time, there is no information regarding the impacts of pesticides used for mosquito control on the eastern black rail. 103. Comment: One commenter stated that there is a difference in agricultural pesticide application and mosquito control methodologies and that product application parameters and conclusions drawn in the SSA report regarding pesticides do not apply to mosquito control products. The comment states that permethrin, a product commonly used in aerial adult mosquito control applications is considered low toxicity to birds and cites a 2009 fact sheet from the National Pesticide Information Center. Response: The SSA report discusses pesticide use to control mosquitoes and its potential impacts to the prey base of eastern black rail. The SSA report does not assert that permethrin is causing a direct effect on the eastern black rail; however, it does identify as a concern the widespread use of pesticides to control mosquitoes in marshes that are used by eastern black rails and the VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 potential impacts of these chemicals to the prey base of the subspecies. 104. Comment: One commenter stated that there is no evidence to support mosquitocide impacts to the eastern black rail or to their trophic structure effects. Response: The SSA concluded that ‘‘while there are hotspots for environmental contaminants, there is no evidence of specific threats that might affect the subspecies and demonstrate a population level response. Indirect effects to eastern black rails such as impacts to forage base from certain pesticides require further study.’’ The conclusion drawn relates to all contaminants, not just mosquitocide, which was only referenced with regard to the fact that it might affect prey (see previous comment); however, the conclusion drawn was that there was no evidence of a specific threat that might affect the subspecies. 105. Comment: One commenter questioned why the Service did not consider oil and gas exploration and extraction, including seismic exploration, as a threat to eastern black rails. Response: Section 3.1 (Habitat Fragmentation and Conversion) of the SSA report discusses the status and trend information for wetlands. While not explicit, these trends of wetland conversion include impacts of oil and gas activities. Additional information was added to Section 3.3 (Altered Hydrology) regarding specific types of activities associated with oil and gas development that modify hydrology and exacerbate wetland conversion or loss. Further, we revised the 4(d) rule to prohibit incidental take resulting from long-term or permanent habitat conversion that captures permanent damage to habitat where eastern black rails are present, which would include oil and gas activities. In addition, all jurisdictional wetlands affected by such activities are already covered under existing regulations. Public land site managers may negotiate the terms of access (including timing, the use of monitors, and equipment to be operated as well as other specifics) and damage concerns ahead of seismic activity or any other related access. They may also arrange compensatory actions for damages of any kind agreed to in advance of project initiation. The managers of public lands often do not own the mineral rights beneath their boundaries and in those cases may not deny access to the owners of those rights. 106. Comment: One commenter stated that our statements about the possible negative effects on eastern black rail PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 from flooding caused by Hurricane Harvey are speculation and not fact, and asked that we acknowledge this sentiment. Response: The SSA report and the proposed rule referenced Hurricane Harvey’s aftermath to illustrate that flooding during hurricane events may be prolonged and extensive and impact the subspecies. Extensive flooding from Hurricane Harvey was documented at occupied sites of eastern black rail across the Texas coast, and thus we do not consider the hurricane’s effects as speculative. 107. Comment: A commenter recommended that the Service provide additional guidelines for determining what human activities and behaviors in suitable habitat are threats to this subspecies. Two commenters provided suggestions for restoration or recovery efforts for the eastern black rail. For example, one commenter asked that we consider the impact of invasive species, such as feral swine and nutria, to eastern black rail recovery. One commenter requested additional guidelines be developed on appropriate human activity and behaviors within eastern black rail habitat. Response: We will consider additional guidelines in developing a recovery plan or any potential future consultation guidelines for the subspecies. Critical Habitat 108. Comment: One commenter from the American Mosquito Control Association provided information on how the designation of critical habitat would compromise mosquito control measures and negatively impact public health. Response: We are not designating critical habitat for the eastern black rail (see Comments 37–39 above and Critical Habitat discussion below). 109. Comment: Several commenters suggested that the Service designate critical habitat for the eastern black rail and focus on cooperative educational efforts for the eastern black rail among birders, States, and non-governmental partners, such as State ornithological societies. One commenter stated that these efforts could help maximize citizen science value while minimizing disturbance. Commenters indicated that birders contribute significantly to understanding the distribution of the eastern black rail. Response: The Service recognizes the important contributions birders have made to our understanding of bird species, including the eastern black rail. Even though we are not designating critical habitat, we intend to incorporate E:\FR\FM\08OCR3.SGM 08OCR3 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations education efforts and outreach information to a variety of stakeholders as a component of the recovery plan for this species. khammond on DSKJM1Z7X2PROD with RULES3 4(d) Rule 110. Comment: One commenter responded that departures from traditional ranch burning and grazing in place for hundreds of years (along the Gulf Coast) could adversely affect plants, animals, elevations and so on. The commenter also said that the 4(d) rule risks damages to healthy grasslands used by other species. Response: The evolution of the plants, animals, and the ecology of the habitats within the eastern black rail’s range took place over a much more extended period of time than the timeframe being referenced by the commenter and without the presence of fenced domestic cattle or modern fire management. Stambaugh’s (2014) literature review compiles the results of historical fire regime research and suggests that most coastal habitat in Texas used by the eastern black rail may have burned naturally as infrequently as once every 11 to 15 years. The authors summarize that burn intervals for most of Texas spanned 1 to 12 years. The 4(d) rule allows for up to 50 percent of available eastern black rail habitat to be burned in any given calendar year such that the other 50 percent of habitat within the management boundary remains present on the landscape and suitable for eastern black rails. This provision allows for maintenance of eastern black rail habitat, as well as population growth and maintenance. The 4(d) rule does not prohibit grazing, which is an important habitat management tool that stimulates herbaceous plant production and may help maintain the necessary overhead vegetation cover for eastern black rails and other native species, as long as dense overhead cover is maintained for the eastern black rail in at least 50 percent of the habitat. Grazing activities that maintain dense overhead cover are allowed during all times of year on suitable occupied eastern black rail habitat on public lands, and grazing activities on private lands are unaffected. We do not expect the 4(d) grazing prohibition to result in adverse impacts to plants, animals, and elevations, since grazing is not restricted at any time. 111. Comment: One commenter expressed concerns that fire prohibitions threaten communities. Response: The construction of new firebreaks, and the maintenance of existing ones, are excepted in the 4(d) rule, as are responses to wildfire. VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 112. Comment: One commenter advised that prescribed fire plans should be specific to location and supported by the best possible science. Response: We agree that fire plans should be specific to location and have endeavored to keep the practices outlined in the 4(d) rule general enough to allow site managers to determine the appropriate techniques that will enable them to conserve eastern black rails and their habitats. We have used information from fire experts and land managers as well as experts in the behavior of eastern black rails in revising the 4(d) rule to provide what is necessary and advisable for the conservation of the eastern black rail while also providing flexibility for land managers. 113. Comment: One commenter recommended encouraging prescribed fire application in the fall rather than the spring and that the Service should provide financial incentives to do so. Response: The Service has modified the 4(d) rule to allow prescribed fire to take place any time during the year when using practices that minimize the take of eastern black rails. Further, the Service, as well as the U.S. Department of Agriculture’s Natural Resources Conservation Service, already have in place several programs that provide financial and technical support to private landowners interested in actions that support fish and wildlife resources. In addition, some State Fish and Wildlife agencies also provide wildliferelated technical assistance to private landowners. 114. Comment: Two commenters said that the Service ignored positive burn and grazing effects in its assessment of these activities, which promote eastern black rails in Texas. A second commenter stated that the Service ignored positive burn and grazing effects (as reported in Kane 2011 and other studies) in its assessment of these activities. Response: The Service presented the best available science on the effects of various land management practices on eastern black rail occurrence, highlighting the known favorable and unfavorable approaches for each one. Please see section 3.4.1 of the SSA for the discussion on fire effects, which includes Kane’s findings. For a discussion of grazing effects (including Kane’s findings), please see section 3.4.3 of the SSA. Although the Texas population estimates suggest that more eastern black rails are present there than in other portions of the range, all predictive modeling indicates that eastern black rails will be extirpated from Texas and the rest of its U.S. range PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 63791 before 2100 without human intervention. Therefore, we cannot conclude that land management practices that result in the removal or destruction of eastern black rail habitat have not taken a toll on a formerly much larger population in Texas, or in other parts of the range. We have revised the 4(d) rule to provide greater flexibility to land managers with the use of BMPs that are designed to promote population growth and maintenance of eastern black rails at the site level. 115. Comment: Two commenters stated there is no proof in peer-reviewed literature or otherwise that fire causes direct or indirect mortality to eastern black rails. One commenter stated that Legare 1998 was just a conference abstract with no way to validate its validity. Others stated that Grace et al. 2005 provided no evidence of direct mortality to rails from prescribed fire. One commenter asked to clarify why fast fires produce rail mortality and why this is significant. Response: The Service has sufficient evidence documenting the threat of fire mortality due to ignition and burn patterns that do not provide refugia or that trap eastern black rails between fire fronts. Photographic proof of the eastern black rail mortality detailed in Legare’s abstract was made available by the author to the Service during preparation of the SSA. This photograph accompanied by follow-up conversations with the author was accepted as evidence of direct mortality of eastern black rail from a prescribed fire event. We have incorporated this photograph into the SSA report. The fact that the Legare et al. (1998) abstract appears in conference proceedings and not peer-reviewed literature has no bearing on the existence of this mortality event. Entrapment issues during this fire event led to bird mortality and the National Wildlife Refuge where this event occurred has since modified their burning practices to avoid and minimize wildlife entrapment. The Refuge identified in this abstract now employs slow-moving fires and takes the maximum amount of time to burn, employs flanking fires, and divided their burn units into smaller units after the large mortality event (now burning half or a third of what they used to) (Legare 2019, pers. comm.). The recommendation is also provided by Grace et al. (2005, entire), is based on fundamental evidence, and is reasonable. A fast fire can lead to rail mortality when the fire spreads quickly enough to overcome individual birds attempting to escape it, or through asphyxiation. With regard to significance, when numbers within a E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 63792 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations population are very low, changes in management that affect survival of both young and adults can have significant effects on population numbers because each adult’s reproductive potential and nest survival matter more to overall population dynamics. This is often best thought of in the extinction vortex paradigm (Gilpin and Soule 1986, entire; Fagan and Holmes 2006, entire) where the loss of every individual can have substantial impact on the population. 116. Comment: One commenter supported the use of prescribed fire as a management tool and relayed that natural fires would have included fastmoving perimeter fires. The commenter also cited several references (Van’t Hul et al. 1997 and Rogers et al. 2013) to support limited detrimental impacts of prescribed burns to certain bird species. Response: The Service has modified the rule to allow prescribed fire to take place any time during the year while retaining habitat in untreated areas that supports dense overhead cover required by the eastern black rail. This approach allows managers to continue habitat management efforts important to the eastern black rail while supporting its life cycle needs. While historical fires may have been perimeter fires, historical conditions (abundant habitat and multiple population sources) no longer exist across the range of the eastern black rail and, therefore, the effects of these types of fires may have greater negative impacts today than they would have historically. It is important for fire managers to minimize the negative impacts to wildlife through the use of ignition tactics and timing. The papers referenced by the commenter did not evaluate the direct or indirect mortality associated with prescribed fire but instead studied habitat use. For example, Van’t Hul et al. 1997 found that the bird species studied returned to pre-burn levels after 2 years, with the exception of the sedge wren. The sedge wren is similar to the eastern black rail in that it requires dense herbaceous cover. The revised rule supports activities that provide for dense overhead cover required by the eastern black rail. 117. Comment: One commenter, citing McKee and Grace (2012), stated that fire prohibitions will lessen fire opportunities which in turn will lead to subsidence and diminished marsh health and greater impacts from sea level rise. The commenter advised against blanket restrictions for a wideranging species. Response: We do not find that an increased rate of subsidence will result from the prohibitions on prescribed fire VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 outlined in the 4(d) rule. Subsidence is a sinking of the landscape that occurs due to changes in or collapse of the subsurface layers of the earth; shifting of underground mines; or the extraction of underground fluids like water or oil (Geology.com 2019; USGS 2000). However, it is possible that various human acts can cause a net loss in elevation over time or offset losses due to subsidence or other factors. McKee and Grace (2012) state that prescribed burning of Spartina patens may decrease elevation losses by roughly 1 mm/year at McFaddin National Wildlife Refuge; however, their work at McFaddin and Blackwater NWRs involved sites that were subsiding and in poor sediment supply. This research has not been extended to other marshes, and the authors state that their results are not applicable to other marshes outside the Texas Chenier Plains Complex NWR or Blackwater NWR, as other marshes will vary in sediment supply, geologic setting, and disturbances from other factors. The study also calls for further research, as the net loss of elevation relative to fire regime is still not well understood (McKee and Grace 2012, p. 42). Where eastern black rails are present, burning may be done year round within guidelines designed to ensure habitat is always available and that the population growth and maintenance of this species is supported. In addition, incidental take of eastern black rails from otherwise prohibited activities can be exempted through either section 7 or section 10 of the Act. 118. Comment: One commenter stated that the proposed 4(d) rule would end all summer grazing on public lands. Response: The 4(d) rule does not end grazing on public lands. It has been further modified since the proposed version was released for comment, so that grazing will be allowed on public lands as long as the dense overhead cover required by the subspecies is maintained in at least 50 percent of the eastern black rail habitat within a management boundary. 119. Comment: One commenter stated grazing is a useful tool and should be allowed on both private and public lands. Two commenters suggested that public lands with an approved grazing plan be allowed to continue grazing, as prescribed grazing can be an important habitat management tool. One commenter stated that ‘‘properly managed cattle’’ are not detrimental to eastern black rails. Response: We agree that grazing can be a useful management tool for resetting the seral stage to maintain suitable habitat for eastern black rail. PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 These types of grazing activities can be used as part of an ownership boundary’s overall plan to promote eastern black rail population growth and maintenance. The final 4(d) rule allows grazing on public lands as long as 50 percent of eastern black rail habitat, i.e., the dense overhead cover required by the eastern black rail, is maintained. We encourage land managers who use grazing in areas with eastern black rails to consider implementing a grazing plan that will ensure that dense overhead cover is maintained for the species. 120. Comment: One person reported that grazing (buffalo) and fire are part of Salt Bayou Plan, which restores habitat on the upper Texas Coast in Chambers County. Response: The Salt Bayou Watershed Restoration Plan (2013) does not identify the use of grazing or prescribed fire as actions to restore the watershed. 121. Comment: One commenter stated that grazing programs funded or permitted through the U.S. Department of Agriculture would be affected outside of public lands and would result in harmful changes to private land use practices. Response: The grazing prohibition in the 4(d) rule does not apply to private lands. As discussed in Comment 79, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of a listed species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service. This requirement does not change when a 4(d) rule is implemented. 122. Comment: One commenter stated that Kane (2011) shows the negative impacts of mowing or haying during sensitive seasons but is not sufficiently comprehensive to demonstrate the effects of not mowing or haying within seasons, across seasons, or across habitat types. The commenter recommended that the study be replicated throughout the species’ range so that it is certain these results are not localized or correlated to the Kane study site. Response: We agree that more research and study of the eastern black rail will improve our knowledge and understanding of the subspecies. 123. Comment: One commenter stated that he owned mineral rights under a Refuge and that the 4(d) rule would have devastating effects on oil and gas exploration and cause harm to families relying on this income. E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations Response: The 4(d) rule does not prohibit oil and gas activities or mineral extraction within the range of the eastern black rail. Incidental take resulting from activities that result in long-term or permanent conversion, fragmentation, or damage to persistent emergent wetland habitat and the contiguous wetland-upland transition zone to other habitat types or land uses is prohibited under the 4(d) rule. However, entities have other means to have take excepted, such as section 10 permits or section 7 incidental take authorization. The rule extends exemptions for maintenance of existing infrastructure. Entities engaging in oil and gas activities within jurisdictional wetlands, or in settings that are addressed by existing regulations, will be required to complete the same permitting process already in place prior to initiating work. Further, any activity that has a Federal nexus, that is an action that is authorized, funded, or carried out by a Federal agency, and may affect the eastern black rail, will require consultation with the Service. However, section 7 consultation requirements are triggered by the listing of a species and not a 4(d) rule. 124. Comment: One commenter requested that we include a prohibition to reduce the risk of predation by cats. Response: The impacts of feral and/or free-ranging domestic cats on wildlife has been well documented. These exotic felines can become problematic at the localized level and depress local wildlife populations. Our review of threats faced by the subspecies considered practices that could possibly affect substantial numbers of birds and influence population maintenance and growth. We did not find that the risk of predation by cats is a threat such that we should regulate incidental take of this activity under our 4(d) rule. 125. Comment: One commenter requested that new rights-of-way projects be excepted. Response: New rights-of-way projects will be required to consider their effects on the species; they are not excepted under the 4(d) rule. New rights-of-way may be planned in areas of currently occupied habitat and their construction may result in the take of eastern black rails. Therefore, we are not excepting new rights-of-way projects under the 4(d) rule. Recovery 126. Comment: Three commenters stated that an approved Recovery Plan should precede efforts to list the species. Response: According to the requirements in the Act, species are VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 listed prior to the initiation of recovery planning. Recovery actions will be decided upon during recovery planning. We are working on a recovery outline that will be made publically available within 30 days of the publication of this final rule. Additionally, a recovery plan and strategy will be developed with input from our conservation partners including States, Federal agencies, private and public landowners, and non-governmental organizations. The Service has already begun working on the development of a Black Rail Conservation Plan with the Atlantic Flyway branch of the Black Rail Working Group, coordinated by the Atlantic Coast Joint Venture. The Plan outlines five priority strategies for black rail recovery and conservation on the Atlantic Coast of the United States and the Gulf Coast of peninsular Florida. The Service has also participated in preliminary conservation planning with the Texas Black Rail Working Group, led by the Texas Parks and Wildlife Department in partnership with the Texas Comptroller’s Office. Planning documents from these efforts will be foundational to the recovery strategy that is developed over the next two to three years. Determination of Eastern Black Rail Status Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of ‘‘endangered species’’ or ‘‘threatened species.’’ The Act defines an ‘‘endangered species’’ as a species that is ‘‘in danger of extinction throughout all or a significant portion of its range,’’ and a ‘‘threatened species’’ as a species that is ‘‘likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.’’ The Act requires that we determine whether a species meets the definition of ‘‘endangered species’’ or ‘‘threatened species’’ because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. Status Throughout All of Its Range After evaluating threats to the subspecies and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we summarize our PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 63793 findings below. We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the eastern black rail. When viewing historical occurrences on the State level compared to what is known of present distribution, the range contraction (from Massachusetts to New Jersey) and site abandonment (patchy coastal distribution) noted by Watts (2016, entire) appear to be occurring throughout the eastern United States. Over the past 10 to 20 years, reports indicate that populations have declined by 75 percent or greater. North of South Carolina, occupancy has declined by 64 percent and the number of birds detected has declined by 89 percent, equating to a 9.2 percent annual rate of decline (Watts 2016, p. 1). In relative terms, regional strongholds still exist for this subspecies; however, the best available scientific data suggest that the remaining strongholds support a relatively small total population size, i.e., an estimated 1,299 individuals on the upper Texas coast within specific protected areas prior to Hurricane Harvey, and an estimated 355 to 815 breeding pairs on the Atlantic Coast from New Jersey to Florida (including the Gulf Coast of Florida) prior to multiple major hurricanes. There are no current population estimates from the interior States (Colorado, Kansas, or Oklahoma), although there are consistent populations of eastern black rails at Quivira NWR in Kansas and at least four sites in Colorado where the subspecies is encountered in the spring and summer. We have no information to indicate that the eastern black rail is present in large numbers in the Caribbean, Central America, or Brazil. Based on our review of the available science, we identified the current threats to eastern black rail. Habitat loss and degradation (Factor A) as a result of sea level rise along the coast and ground and surface water withdrawals are having a negative impact on the eastern black rail now and will continue to impact this subspecies into the future. Incompatible land management techniques (Factor E), such as the application of prescribed fire, haying, mowing, and grazing, have negative impacts on the bird and its habitat, especially when conducted at sensitive times, such as the breeding season or the flightless molt period. Stochastic events (Factor E), such as flood events and hurricanes, can have significant impacts on populations and the subspecies’ habitat. For example, the impacts of Hurricane Harvey on the Texas coastal populations of eastern black rail likely caused direct mortality E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 63794 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations as well as short-term habitat loss, as the hurricane occurred during the flightless molt period and resulted in the habitat being flooded for an extended period of time. Human disturbance (Factor B) to the eastern black rail occurs throughout the bird’s range and is driven by the bird’s rarity and interest by the birding community to add this bird to individual life lists. As we consider the future risk factors to the eastern black rail, we recognize that a complex interaction of factors have synergistic effects on the subspecies as a whole. In coastal areas, sea level rise, as well as increasing storm frequency and intensity and increased flood events (which are both associated with high tides and storms), will have both direct and indirect effects on the subspecies. Extensive patches of high marsh required for breeding are projected to be lost or converted to low marsh or open water as a result of sea level rise. Demand for groundwater is increasing, which will reduce soil moisture and surface water, and thus negatively impact wetland habitat. We expect to see localized subsidence, which can occur when groundwater withdrawal rates are greater than the aquifer recharge rates. Also, warmer and drier conditions (associated with projected drought increases) will reduce overall habitat quality for the eastern black rail. Further, incompatible land management (such as fire application and grazing) will continue to negatively impact the subspecies throughout its range, especially if done during the breeding season or flightless molt period. These stressors contribute to the subspecies’ occupancy at sites and thus its population numbers. Some stressors have already resulted in permanent or long-term habitat loss, such as the historical conversion of habitat to agriculture, while other factors may only affect sites temporarily, such as a fire or annually reduced precipitation. Even local but too frequent intermittent stressors, such as unusual high tides or prescribed fire, can cause reproductive failure or adult mortality, respectively, and thus reduce eastern black rail occupancy at a site and the ability of a site to allow for successful reproduction of individuals to recolonize available sites elsewhere. While these intermittent stressors allow for recolonization at sites, recolonization is based on productivity at other sites within a generational timescale for the subspecies. If these stressors, combined, occur too often within and across generations, they limit the ability of the subspecies to maintain occupancy at habitat sites and also limit its ability to VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 colonize other previously occupied sites or new sites. It is likely that several of these stressors are acting synergistically on the subspecies. Sea level changes, together with increasing peak tide events and higher peak flood events, wetland subsidence, past wetland filling and wetland draining, and incompatible land management (e.g., prescribed fire and grazing), all limit the ability of the eastern black rail to persist in place or to shift to newly lightly flooded, ‘‘justright’’ areas as existing habitats are impacted. These interacting threats all conspire to limit the ability of this subspecies to maintain and expand populations now and in the foreseeable future. Although the eastern black rail has experienced reductions in its numbers and seen a range contraction, this subspecies is still relatively widespread in terms of its geographic extent. It continues to maintain a level of representation in four analysis units, which demonstrates continued latitudinal variability across its range. These four analysis units are spread throughout most of the subspecies’ range, providing for some level of redundancy. Though the resiliency in the four currently occupied analysis units is low, Florida and Texas remain strongholds for the subspecies in the Southeast and Southwest. The current condition of the subspecies still provides for resiliency, redundancy, and representation such that it is not at risk of extinction now throughout its range. However, our estimates of future resiliency, redundancy, and representation for the eastern black rail are further reduced from the current condition, consistent with this analysis of future threats. Currently, three analysis units are effectively extirpated, and four analysis units that continue to support populations of the eastern black rail all have low levels of resiliency. Given the projected future decreases in resiliency for these four analysis units, the eastern black rail will become more vulnerable to extirpation from ongoing threats, consequently resulting in concurrent losses in representation and redundancy. The range of plausible future scenarios of the eastern black rail all predict extirpation for all four analysis units by mid-century (2068) with the Great Plains analysis units potentially becoming extirpated within 15 to 25 years (depending on the scenario). In short, our analysis of the subspecies’ current and future conditions show that the population and habitat factors used to determine the resiliency, representation, and redundancy for the subspecies will PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 continue to decline so that it is likely to become in danger of extinction throughout its range within the foreseeable future. Our implementing regulations at 50 CFR 424.11(d) set forth a framework within which we evaluate the foreseeable future on a case-by-case basis. The term foreseeable future extends only so far into the future as the Services can reasonably determine that both the future threats and the species’ responses to those threats are likely. The foreseeable future extends only so far as the predictions about the future are reliable. ‘‘Reliable’’ does not mean ‘‘certain’’; it means sufficient to provide a reasonable degree of confidence in the prediction. In the same way, a ‘‘reliable prediction’’ is also meant in a nontechnical, ordinary sense and not necessarily in a statistical sense. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species’ likely responses to those threats in view of its life-history characteristics. In cases where the available data allow for quantitative modeling or projections, the time horizon for such analyses does not necessarily dictate what constitutes the ‘‘foreseeable future’’ or set the specific threshold for determining when a species may be in danger of extinction. Rather, the foreseeable future can extend only as far as the Service can reasonably explain reliance on the available data to formulate a reliable prediction and avoid reliance on assumption, speculation, or preconception. Regardless of the type of data available underlying the Service’s analysis, the key to any analysis is a clear articulation of the facts, the rationale, and conclusions regarding foreseeability. We identify the foreseeable future for the eastern black rail to be 25 to 50 years from the present. We consider 25 to 50 years ‘‘foreseeable’’ in this case because this timeframe includes projections from our modeling efforts and takes into account the threats acting upon the eastern black rail and its habitat and how we consider the eastern black rail will respond to these threats in the future. For all five plausible scenarios, all analysis units exhibited a consistent downward trend in the proportion of sites remaining occupied after the first 25 years (by 2043), with extirpation for all analysis units by 2068. The Great Plains analysis unit is predicted to be extirpated by 2043. Given that future projections of habitat loss are expected to continue and be exacerbated by sea level rise and tidal flooding, resiliency E:\FR\FM\08OCR3.SGM 08OCR3 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 of the four remaining analysis units is expected to decline further over the next 25 to 50 years. We find that the eastern black rail is likely to become endangered throughout all of its range within the foreseeable future. It is facing threats across its range that have led to reduced resiliency, redundancy, and representation, and we expect the subspecies to continue to decline into the future. Thus, after assessing the best available information, we conclude that the eastern black rail is not currently in danger of extinction, but is likely to become in danger of extinction within the foreseeable future throughout all of its range. Status Throughout a Significant Portion of Its Range Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. The court in Center for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020) (Everson), vacated the aspect of the 2014 Significant Portion of its Range Policy (SPR Policy) (79 FR 37578) that provided that the Services do not undertake an analysis of significant portions of a species’ range if the species warrants listing as threatened throughout all of its range. Therefore, we proceed to evaluating whether the species is endangered in a significant portion of its range—that is, whether there is any portion of the species’ range for which both (1) the portion is significant; and, (2) the species is in danger of extinction in that portion. Depending on the case, it might be more efficient for us to address the ‘‘significance’’ question or the ‘‘status’’ question first. We can choose to address either question first. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the other question for that portion of the species’ range. Following the court’s holding in Everson, we now consider whether there are any significant portions of the species’ range where the species is in danger of extinction now (i.e., endangered). As discussed above and in our SSA report, there are little to no data to evaluate resiliency for the Central America and Caribbean portion of the eastern black rail’s range. For the purposes of considering portions of the eastern black rail’s range, we reviewed the analysis units we identified in the SSA report. Three of the analysis units we evaluated—Appalachians, Central Lowlands, and New England—are VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 effectively extirpated. These three units historically did not support abundances of eastern black rail as high as the other four analysis units and an evaluation of current status information yielded that the species is effectively extirpated from the portions of these units that were once occupied. We did not consider these three analysis units in our future scenario modeling, as we do not anticipate that these units will contribute to the future viability of the eastern black rail. Accordingly, when conducting our analysis to determine whether the species may be in danger of extinction in a significant portion of its range, we consider these portions to be lost historical range. Consistent with our SPR Policy, we do not base a determination to list a species on the status (extirpated) of the species in lost historical range. We already take into account the effects that the loss of these three units have on the current and future viability of the eastern black rail in our determination. As articulated in our SPR Policy, we conclude that this consideration is sufficient to account for the effects of loss of historical range, i.e., the Appalachians, Central Lowlands, and New England analysis units, when evaluating the current status of the eastern black rail, and a specific consideration of whether lost historical range constitutes a significant portion of the range is not necessary. We then considered the current status of the remaining analysis units—the Great Plains, Mid-Atlantic Coastal Plain, Southeast Coastal Plain, and Southwest Coastal Plain—to determine if any portion may be in danger of extinction now. We evaluated the Mid-Atlantic Coastal Plain and Southeast Coastal Plain as one portion, because we used the results from the Southeast Coastal Plain to help infer the current resiliency of the Mid-Atlantic Coastal Plain, these analysis units are adjacent to one another along the Atlantic coast, and we suspect that the birds within the MidAtlantic Coastal Plain overwinter in the Southeast Coastal Plain. As discussed in our SSA report and above, the eastern black rail’s current distribution is patchy across the range of the species. Our occupancy model results indicated that eastern black rail analysis units currently have low to very low resiliency across these portions based on the occupancy model results (Service 2019, pp. 94–95). The MidAtlantic Coastal Plain currently exhibits very low resiliency for eastern black rail as it supports fewer birds and occupied habitat patches than the Southeast Coastal Plain. Current estimates for the Mid-Atlantic and Southeast Coastal Plain (i.e., New Jersey to Florida) are PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 63795 355–815 breeding pairs (Watts 2016, p.19). The uncertainty surrounding these estimates varies from low to moderate; there is moderate uncertainty for states with more extensive marshes that preclude full survey coverage (e.g., New Jersey, Maryland; Watts 2016, pp. 19, 54, 64). South Carolina shows a limited distribution with two known occupied areas and an estimated 50–100 breeding pairs (Watts, 2016, p. 19). In Florida, birds are found in inland and coastal habitats on both the Atlantic and Gulf Coasts and the state is estimated to support between 200–500 breeding pairs (Watts, 2016, p. 19). Florida is considered the stronghold of this portion, although the eastern black rail remains distributed along the Atlantic Coast (in the Mid-Atlantic and Southeast Coastal Plain). The Southwest Coastal Plain also has a stronghold of birds, with an estimated 1,299 individuals on the upper Texas coast within specific protected areas prior to Hurricane Harvey (Tolliver et al. 2017, p. 18). The remaining Gulf Coast states support few to no birds during the breeding season. Alabama and Mississippi had a population estimate of zero breeding pairs and Louisiana supported an estimated zero to ten breeding pairs in 2016 (Watts, 2016, p. 19). However, recent first-time surveys conducted in Louisiana during the breeding and non-breeding seasons in 2017 and 2018 detected eastern black rails at 21 of 152 survey points (Johnson and Lehman, 2019b, p. 6), confirming a small year-round population in the state. In the Great Plains analysis unit there are no current population estimates from the interior States still known to support the species (i.e., Colorado and Kansas), but there are consistently detected populations of eastern black rails at a site in Kansas and along the Arkansas River Basin in southeastern Colorado. In 2018, the first formal repeat surveys were completed for the species in southeastern Colorado during the breeding season (Rossi and Runge 2018, entire). Surveys detected at least one black rail at 39 of 115 points and 17 of 66 marshes surveyed (Rossi and Runge 2018, p. 6). Detection probability estimates for dusk and night surveys were 0.413 (95% CI = 0.176¥0.698) and 0.552 (95% CI = 0.329¥0.756), respectfully, and the mean probability of eastern black rail occupancy (the probability that a site was occupied) in core habitat was 0.792 (95% CI = 0.562¥0.919) (Rossi and Runge 2018, p. 6–7). The 2018 detection and occupancy estimates for eastern black rails in Colorado are higher than those recently estimated for the upper Texas coast E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 63796 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations (Tolliver et al. 2019, entire), the species’ stronghold in the Southwest Coastal Plain analysis unit. When determining whether a species is endangered in any portion, there is often a temporal aspect of the analysis. We consider whether the species is presently on the brink of extinction, as opposed to likely to become so in the foreseeable future. This species faces significant habitat loss and conversion from different drivers, including development pressure, groundwater extraction, incompatible land management practices, and impacts from climate change (i.e., changes in temperature and precipitation events, sea level rise, and increases in tidal flooding). Most of the predicted declines in eastern black rail occupancy modeled in the SSA report were driven by habitat loss rates. Future projections of habitat loss are expected to continue and be exacerbated by sea level rise and other drivers. While the extent and severity of the major threats vary across the four remaining analysis units—the Great Plains, Mid-Atlantic Coastal Plain, Southeast Coastal Plain, and Southwest Coastal Plain—the species is likely to become an endangered species within the foreseeable future, 25 to 50 years from the present, and is not in danger of extinction now. The Southwest Coastal Plain analysis unit had the longest predicted time to potential extirpation, between 45 to 50 years from the present, while the Southeast Coastal Plain and the Mid-Atlantic Coastal Plain analysis units’ predicted time to probable extirpation is between 35 and 50 years from present depending on the scenario. The Great Plains analysis unit had the shortest time to potential extirpation, forecasting between 15 to 25 years from the present depending on the scenario. However, we determined the one scenario resulting in extirpation within 15 years is a worst-case scenario and is unlikely to be an accurate representation of the species viability in that portion. As noted above, there are no current population estimates from Great Plains analysis unit, but there are consistently detected populations of eastern black rails at a site in Kansas and along the Arkansas River Basin in southeastern Colorado. At the time of the SSA projection analysis, replicated survey data for Colorado were unavailable and data from Kansas (Hands 2009, entire) were used to represent the Great Plains analysis unit. While the Kansas dataset was from a survey for all secretive marshbirds and not a black rail-specific survey, the dataset included eastern black rail detections and represented the best VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 available scientific information at the time of the SSA analysis. However, more recent surveys indicate a higher occupancy rate for portions of the Great Plains (Rossi and Runge 2018, entire). Given our review of the current condition of the eastern black rail, the additional information from the 2018 surveys in the Great Plains, and our future projection models, we conclude that, while the species is likely to become in danger of extinction within each of these portions within the foreseeable future, we do not find that these portions are in danger of extinction now. Thus, there are no portions of the species’ range where the species has a different status from its range-wide status. Therefore, no portion of the species’ range provides a basis for determining that the species is in danger of extinction in a significant portion of its range, and we determine that the species is likely to become in danger of extinction within the foreseeable future throughout all of its range. This is consistent with the courts’ holdings in Desert Survivors v. Department of the Interior, No. 16–cv–01165–JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017). Determination of Status Our review of the best available scientific and commercial information indicates that the eastern black rail meets the definition of a threatened species. Therefore, we are listing the eastern black rail as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act. Available Conservation Measures Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies; private organizations; and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below. The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species’ decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, selfsustaining, and functioning components of their ecosystems. Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for reclassification from endangered to threatened (‘‘downlisting’’) or removal from the Lists of Endangered and Threatened Wildlife and Plants (‘‘delisting’’), and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our website (http://www.fws.gov/ endangered), or from our South Carolina Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands. E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations Following publication of this final listing rule, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the U.S. States and territories of Alabama, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Louisiana, Maryland, Massachusetts, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Texas, Virginia, U.S. Virgin Islands, and West Virginia would be eligible for Federal funds to implement management actions that promote the protection or recovery of the eastern black rail. Information on our grant programs that are available to aid species recovery can be found at: http:// www.fws.gov/grants. Please let us know if you are interested in participating in recovery efforts for this subspecies. Additionally, we invite you to submit any new information on this subspecies whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT). Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service. Federal agency actions within the eastern black rail’s habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 Federal lands administered by the U.S. Fish and Wildlife Service and National Park Service; issuance of section 404 Clean Water Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of Engineers; and construction and maintenance of roads or highways by the Federal Highway Administration. Final 4(d) Rule Background Section 4(d) of the Act states that the ‘‘Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation’’ of species listed as threatened. The U.S. Supreme Court has noted that very similar statutory language demonstrates a large degree of deference’ to the agency (see Webster v. Doe, 486 U.S. 592 (1988)). Conservation is defined in the Act to mean ‘‘the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the Act] are no longer necessary.’’ Additionally, section 4(d) of the Act states that the Secretary ‘‘may by regulation prohibit with respect to any threatened species any act prohibited under section 9(a)(1), in the case of fish or wildlife, or section 9(a)(2), in the case of plants.’’ Thus, regulations promulgated under section 4(d) of the Act provide the Secretary with wide latitude of discretion to select appropriate provisions tailored to the specific conservation needs of the threatened species. The statute grants particularly broad discretion to the Service when adopting the prohibitions under section 9. The courts have recognized the extent of the Secretary’s discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, courts have approved rules developed under section 4(d) that include a taking prohibition for threatened wildlife, or include a limited taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. Wash. 2002)). Courts have also approved 4(d) rules that do not address all of the threats a species faces (see State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when the Act was initially enacted, ‘‘once an animal is on the threatened list, the Secretary has an almost infinite number of options available to him with regard to the permitted activities for those species. He may, for example, permit taking, but not PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 63797 importation of such species, or he may choose to forbid both taking and importation but allow the transportation of such species,’’ (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973). The Service has developed a speciesspecific 4(d) rule that is designed to address the eastern black rail’s specific threats and conservation needs. Although the statute does not require the Service to make a ‘‘necessary and advisable’’ finding with respect to the adoption of specific prohibitions under section 9, we find that this rule as a whole satisfies the requirement in section 4(d) of the Act to issue regulations deemed necessary and advisable to provide for the conservation of the eastern black rail. As discussed under the Determination section, the Service has concluded that the eastern black rail is at risk of extinction within the foreseeable future due to continued wetland habitat loss, sea level changes, increasing storm frequency and intensity and increased flood events (which are both associated with high tides and storms), wetland subsidence, and land management practices (e.g., incompatible prescribed fire, grazing, and mechanical treatment activities). The provisions of this 4(d) rule would promote conservation of the eastern black rail by encouraging management of the landscape in ways that meet both land management considerations and the conservation needs of the eastern black rail. The provisions of this rule are one of many tools that the Service would use to promote the conservation of the eastern black rail. Provisions of the 4(d) Rule Under the Act, ‘‘take’’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Some of these provisions have been further defined in regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by direct and indirect impacts, intentionally or incidentally. As discussed under the Summary of Biological Status and Threats (above), multiple factors are affecting the status of the eastern black rail. A range of activities have the potential to impact the eastern black rail, including fire management, grazing, mechanical treatment activities, and long-term or permanent conversion, fragmentation, and damage of persistent emergent wetland habitat and the contiguous wetland-upland transition zone to other habitat types or land uses. Regulating incidental take from these activities would help preserve the species’ remaining populations and decrease E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 63798 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations synergistic, negative effects from other stressors. A major goal of the 4(d) rule is to minimize incidental take and to maintain the dense overhead cover that the subspecies needs. For the purposes of this rule, we define dense overhead cover as cover that exists in excess of the height of an eastern black rail, and is assessed from above in terms of herbaceous persistent emergent wetland plant cover (as defined by Cowardin et al. 1979, p. 20) versus non-vegetative cover of the ground, including bare ground itself. Eastern black rails typically occupy areas with overhead cover that permits little or no view of bare ground. This type of cover has been assessed by three different means for eastern black rails: (1) The visual estimate of overhead cover in a 50-m radius centered upon the point of interest (e.g., Roach and Barrett 2015, Tolliver et al. 2019); (2) a 10-cm graduated pole accompanied by percent cover estimates (Wiens pole; e.g., Kane 2011, Butler et al. 2015); and (3) a Robel pole and percent cover or plant density estimates (e.g., Butler et al. 2015, Rossi and Runge 2018, Haverland 2019). The latter two protocols included both vertical and horizontal assessments of cover. Roach and Barrett, Tolliver, Haverland, and Butler worked in Spartina-dominated estuarine wetlands, whereas Kane and Rossi and Runge worked in inland palustrine marshes. Plant height is generally ≤1 m in coastal habitats, but can be taller in occupied cattail and bulrush marshes (e.g., Legare and Eddleman 2001, p. 170; Culver and Lemly 2013, pp. 316–318). Under this 4(d) rule, incidental take resulting from fire management activities, grazing activities, and haying, mowing, and other mechanical treatment activities would be prohibited unless otherwise noted. Regardless of management tool, be it mowing, haying, other mechanical treatment activities, fire, or grazing, within a management boundary, a minimum of 50 percent of habitat (i.e., dense overhead cover) required by the eastern black rail should be maintained in any given calendar year. For example, if a single management boundary conducts burning and mechanical treatment activities, the cumulative treatment should not exceed 50 percent of total eastern black rail habitat within the boundary. We discourage disproportionately applying land management treatments to habitats during the breeding season because this will limit population growth and recruitment. Management boundaries can include individual landholdings, e.g., a National Wildlife Refuge VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 boundary, or be formed through landscape-level agreements across landholdings of different but contiguous ownerships. Fire Management Activities Prescribed fire is an essential management tool for re-initialization of vegetative succession and seral sequencing for restoring and maintaining habitats on public and private lands, which is important to ensure suitable habitat for maintaining populations of the eastern black rail. Wildland fire occurrence from both natural and human ignition sources can occur any time of the year across much of the eastern black rail’s distribution. Eastern black rails can survive fires that slowly progress in a way where individuals can move ahead of the flames and when areas of unburned refugia are available. Refugia can include wetter areas with emergent vegetation, areas with natural or created firebreaks, or areas not conducive to burning (e.g., wet or green areas in a burn unit). These refugia provide escape from the prescribed fire and predators. Prescribed fires that are conducted with large, fast-moving flame fronts and lines of fire merging into each other may result in trapping eastern black rails that may be killed directly by fire or indirectly through asphyxiation. While the application of prescribed fire may temporarily affect breeding success of individual eastern black rails, periodic burning supports appropriate seral stages and other beneficial features of the habitat conditions necessary for this species. Fire return frequencies in areas known to support eastern black rails should be infrequent to a degree that suitable habitat is available for several years to breeding individuals and yet frequent enough to maintain suitable eastern black rail habitat. These fire return frequencies may vary across the species’ range and, therefore, should be determined by site managers. Fire regimes should provide a broad range of habitat conditions, such as adequate breeding habitat and overhead cover, to support completion of the life cycle of individuals and that, overall, provide for population maintenance and growth. Strategies to accomplish this objective should minimize incidental take of eggs and chicks, where possible. If the prescribed fire occurs during the breeding and nesting season, adults that lose eggs and chicks would have the opportunity to re-nest in unaffected areas. Certain prescribed fire practices can result in unnecessary mortality of eastern black rail during both the breeding and non-breeding season. PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 The 4(d) rule prohibits incidental take of eastern black rails resulting from prescribed fires throughout the year, unless the practices described below, which would minimize incidental take of eastern black rails and provide for long-term habitat needs for the eastern black rail and other cover-dependent species, are followed. Practices include: • Regardless of the size of the area under management with prescribed fire, a broad range of habitat conditions should be maintained by burning on a rotational basis, which supports black rail population maintenance and growth. In any given calendar year, at least 50 percent of eastern black rail habitat within a management boundary should be maintained in order to provide the dense overhead cover required by the subspecies. This percentage does not apply to landholdings smaller than 640 acres. • Where eastern black rail are present, the application of prescribed fire uses tactics that provide unburned refugia allowing birds to survive a fire (e.g., using short flanking, backing fires, or similar approaches). Prescribed fire is applied under fuel and weather conditions (e.g., soil moisture and/or relative humidity) that are most likely to result in patchy persistence of unburned habitat to serve as refugia as well as provide dense overhead cover for protection from aerial predators. For each burn unit, as an objective approximately 10 percent of the burn unit should be distributed as small dispersed patches of unburned area. Unburned patches should be no smaller than 100 square feet. In addition to refugia dispersed in the interior of a burn unit, leaving unburned habitat along unit edges (such as those available on the outward side of roadside borrow ditches) may provide additional refugia for birds to shelter in prior to dispersing to adjacent suitable habitat. • Ignition tactics, rates of spread, and flame lengths should allow for wildlife escape routes and avoid trapping birds in a fire. The application of prescribed fire should avoid fires, such as ring and strip head fires, that have long, unbroken boundaries and/or that come together in a short period of time and which consume essentially all vegetation and prevent black rails from escaping a fire. If aerial ignition is the chosen tool, ignitions should be conducted in such a way that large, fastmoving fires are avoided. Special precautions should be taken when using aerial ignition, and using short flanking fires into prevailing wind to slow the rate of spread is recommended. For landholdings smaller than 640 acres, we are excepting these areas from E:\FR\FM\08OCR3.SGM 08OCR3 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 the practice to provide dense overhead cover in 50 percent of the eastern black rail habitat within the management boundary. The selection of 640 acres as a lower limit is based on the feasibility of meeting the percentage requirement on smaller land holdings. In many States where eastern black rails may occur, roads are often used as firebreaks and often form the perimeter of a ‘‘section’’ or square mile, i.e., 640 acres. Smaller land holdings may find achieving the percentage requirement difficult or infeasible and possibly unsafe. It is unlikely that all small land holdings within a geographic area that supports eastern black rails would be treated with prescribed fire at the same time. Further, other nearby land holdings may support eastern black rails where habitat is present. This provision of the 4(d) rule for fire management activities would promote conservation of the eastern black rail by encouraging continued management of the landscape in ways that meet management needs while simultaneously ensuring the continued survival and propagation of the eastern black rail and by providing suitable habitat. Haying, Mowing, and Other Mechanical Treatment Activities Haying and mowing can maintain eastern black rail habitat by reducing woody vegetation encroachment. Mechanical treatment activities include disking (using a disk, harrow, or other tractor-drawn implement) and brush clearing (using a variety of tools that may be attached to a tractor or a standalone device). While these practices can be used to enhance eastern black rail habitat, the timing and manner of implementation can impact recruitment and survival. Haying, mowing, and mechanical treatment activities in persistent emergent wetlands should be avoided during the nesting and brood-rearing periods where eastern black rails are present. We define persistent, emergent wetlands as areas where persistent emergent plants (i.e., erect, rooted, herbaceous hydrophytes, excluding mosses and lichens, that normally remain standing at least until the beginning of the next growing season) are the tallest life form with at least 30 percent areal coverage (Cowardin et al. 1979, pp. 11, 19–20). Persistent, emergent vegetation are typically perennial hydrophytic plants (e.g., Spartina sp., Juncus sp., Scirpus sp., Typha sp., Phragmites sp., Zizaniopsis sp., etc.; Federal Geographic Data Committee 2013, p. 33) that form dense stands and provide overhead cover and VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 primary nesting substrate for black rail and other secretive marsh birds. For more information on emergent wetlands, please visit the Service’s National Wetlands Inventory website: https://www.fws.gov/wetlands/. Haying, mowing, and mechanical treatment activities in persistent emergent wetlands that take place during critical time periods for eastern black rail (i.e., nest construction, egglaying, incubation, and parental care) can potentially lead to disturbance of nesting birds; destruction of nests; and mortality of eggs, chicks, juveniles, and adults. We recognize that there is latitudinal variability of these lifehistory events across the range of the eastern black rail. For example, in Texas, eastern black rails begin to nest in March, whereas in Kansas and Colorado nesting begins in May. Therefore, the timing of prohibitions would coincide with when the eastern black rail is using the habitat for nesting and brood-rearing. We recognize haying, mowing, or other mechanical treatment activities may need to be used for maintenance requirements to ensure safety and operational needs for existing infrastructure, and we understand that these maintenance activities may need to take place during the nesting or brooding periods. These include maintenance of existing firebreaks, roads, rights-of-way, levees, dikes, fence lines, airfields, and surface water irrigation infrastructure (e.g., head gates, ditches, canals, water control structures and culverts). Incidental take resulting from these activities are an exception to this prohibition. We also except incidental take that results from mechanical treatment activities that are done during the nesting or brooding periods with the purpose of controlling woody encroachment or other invasive plant species to restore degraded habitat. It is unlikely that eastern black rails will be occupying areas of unsuitable habitat, and mechanical treatment activities to remove woody vegetation or other invasive plant species may help restore habitat and allow for eastern black rail use in the future. Invasive species (both native [e.g., Baccharis halimifolia] and nonnative [e.g., Phragmites australis, Triadica sebifera]) have played a role by converting emergent systems into shrubor tree-dominated landscapes or monocultures. Given the narrow habitat preferences of the eastern black rail, i.e., very shallow water and dense emergent vegetation, small changes in plant community structure from woody encroachment or other invasive plant PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 63799 species can quickly result in unsuitable habitat for the eastern black rail. We do not prohibit incidental take from mowing, haying, or other mechanical treatment activities outside of the nesting or brood-rearing periods. However, we encourage land managers to employ voluntary BMPs outside of these time periods in emergent wetlands with eastern black rails present. BMPs for haying, mowing, and mechanical treatment activities include avoiding treatment of more than 50 percent of a contiguous block of habitat resources in emergent wetlands where eastern black rails are present; providing untreated (i.e., unmown or avoided) areas that provide refugia for species dependent on dense overhead vegetative cover, such as the eastern black rail, during years when treatments are conducted; and using temporary markers to identify where birds occur so that these areas may be avoided. This provision of the 4(d) rule for haying, mowing, and other mechanical treatment activities in persistent emergent wetlands would promote conservation of the eastern black rail by prohibiting incidental take of eastern black rail during the nesting and broodrearing period. Grazing Activities Based on current knowledge of grazing and eastern black rail occupancy, the specific timing, duration, and intensity of grazing will result in varying impacts to the eastern black rail and its habitat. Either no grazing or light-to-moderate grazing may be compatible with eastern black rail occupancy under certain conditions, while intensive or heavy grazing is likely to have negative effects on eastern black rails and the quality of their habitat. Intensive or heavy grazing may lead to the removal of required dense overhead cover, as well as disturbance of nesting birds and possible destruction of nests and mortality of eggs and chicks due to trampling. Grazing densities should maintain the dense overhead cover required by the eastern black rail and allow for the long-term maintenance of habitat conditions required by the eastern black rail. Grazing practices support other land use purposes and management goals, including resetting of grassland and marsh seral stages necessary to support habitat needs of various species. Grazing (such as short duration grazing) is sometimes used to delay seral stage succession as a surrogate for prescribed fire. We are limiting this prohibition to public lands whose intended purpose is wildlife and/or habitat conservation, E:\FR\FM\08OCR3.SGM 08OCR3 khammond on DSKJM1Z7X2PROD with RULES3 63800 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations given our knowledge of where grazing activities and the presence of eastern black rails overlap. The rationale for this approach is based on several factors. First, applying the prohibition to these public ownerships that have been established for wildlife or habitat conservation provides clarity to land managers who presently employ grazing as a management tool and to land managers who may consider using grazing as a management tool at a future date. Further, the Service and its Federal and State partners have significant efforts working with private landowners who conduct grazing activities on their lands to support conservation of other listed and at-risk wildlife species. For example, the Partners for Fish and Wildlife Program is working with private landowners on Attwater’s prairie chicken recovery in Texas. Preliminary results suggest that land management activities at this site, which include grazing prescriptions, may also support eastern black rails. These efforts provide public and private land managers with strategies and approaches that will support conservation and recovery of the eastern black rail. Although we are not proposing to prohibit incidental take resulting from grazing that maintains dense overhead cover, we recommend that land managers follow voluntary practices to support conservation of the eastern black rail and associated habitat. Voluntary practices to avoid negative impacts to the eastern black rail from grazing activities include the use of fences to exclude grazing from habitat where eastern black rails are present, and rotational grazing practices so that a mosaic pattern of cover density is present across fenced tracts of land. The rule prohibits incidental take resulting from grazing activities on public lands that, individually or cumulatively with other land management practices, do not maintain at least 50 percent of eastern black rail habitat, i.e., dense overhead cover, in any given calendar year within a management boundary. This provision of the 4(d) rule for grazing activities would promote conservation of the eastern black rail by encouraging land managers to continue managing the landscape in ways that meet their needs while simultaneously providing suitable habitat for the eastern black rail. We encourage the use of rotational and deferred grazing practices in an effort to reduce the duration of disturbance/ impacts to eastern black rails and their habitat. VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 Long-Term or Permanent Conversion, Fragmentation, and Damage of Persistent Emergent Wetland Habitat and Contiguous Wetland-Upland Transition Zone to Other Habitat Types or Land Uses The eastern black rail is a wetlanddependent bird requiring dense overhead cover and soils that are moist to saturated (occasionally dry) and interspersed with or adjacent to very shallow water (typically ≤3 cm) to support its resource needs. Eastern black rails occur across an elevational gradient that lies between low marsh and uplands. Their location across this gradient may vary depending on hydrologic conditions. The wetlandupland transition zone is a narrow band of habitat where wetlands and uplands intersect and contains vegetation types from both ecotones and are important to provide refugia during flooding events and minimize the risk of predation (Evens and Page 1986). For activities planned within the wetland-upland transition zone, we encourage you to contact the local Ecological Services Field Office (http://www.fws.gov/offices) to help evaluate the potential for take of eastern black rail. Although conservation measures to protect wetlands have resulted in meaningful decreases in the rate of wetland habitat loss, loss of emergent wetlands continues (Service 2019, entire). The most recent wetlands status and trends report indicates that estuarine emergent wetland losses are mostly attributable to conversion to open water through erosion (Dahl and Stedman 2013, p. 37), while freshwater emergent wetland losses appear to be the result of development (Dahl and Stedman 2013, p. 35). While we cannot prohibit incidental take that may result from the effects of climate change, such as sea level rise or erosion, we can ensure that incidental take of eastern black rails that results from conversion or fragmentation of wetlands and the contiguous wetland-upland transition zone outside of natural community shifts (e.g., due to wet and dry cycles), to other habitat types or land uses is prohibited. Conversion of this type may result from development and construction activities or from vehicular access when such access results in a permanent or long-term conversion or damage of the habitat. For example, track equipment or equipment with amphibious tires may leave behind ruts or depressions that exist permanently or for the long term. This prohibition addresses public comments received requesting that the Service include measures to address PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 impacts from infrastructure development and construction activities in eastern black rail habitat. Other Forms of Take This 4(d) rule provides for the conservation of the eastern black rail by prohibiting the following activities, except as otherwise authorized or permitted: Importing or exporting; purposeful take; possession and other acts with unlawfully taken specimens; delivering, receiving, transporting, or shipping in interstate or foreign commerce in the course of commercial activity; or selling or offering for sale in interstate or foreign commerce. We extend the Act’s section 9(a)(1)(A) and 9(a)(1)(D)–(F) prohibitions to the eastern black rail throughout its range. We may issue permits to carry out otherwise prohibited activities involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance propagation or survival, for economic hardship, for zoological exhibition, for educational purposes, for incidental taking, or for special purposes consistent with the purposes of the Act. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act. The Service recognizes the special and unique relationship with our state natural resource agency partners in contributing to conservation of listed species. State agencies often possess scientific data and valuable expertise on the status and distribution of endangered, threatened, and candidate species of wildlife and plants. State agencies, because of their authorities and their close working relationships with local governments and landowners, are in a unique position to assist the Services in implementing all aspects of the Act. In this regard, section 6 of the Act provides that the Services shall cooperate to the maximum extent practicable with the States in carrying out programs authorized by the Act. Therefore, any qualified employee or agent of a State conservation agency that is a party to a cooperative agreement with the Service in accordance with section 6(c) of the Act, who is designated by his or her agency for such purposes, would be able to conduct activities designed to conserve the eastern black rail that may result in otherwise prohibited take without additional authorization. E:\FR\FM\08OCR3.SGM 08OCR3 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 Other Exceptions to Prohibitions We recognize that some individual managed wetland units have an established history of intensive vegetation and soil management, which may include burning, during the growing season on an annual or nearly annual basis (e.g., moist soil management). In contrast to the definition of persistent emergent wetlands provided above, these wetland units have established objectives to maintain unvegetated (e.g., mudflat), sparsely vegetated, and/or primarily annual plant communities that may not provide vegetative cover during a substantial portion of the growing season. For example, prior converted croplands that support active production of rice and other cereal grains do not provide suitable habitat for eastern black rail and are, therefore, excepted. These and other wetland units with established management practices to provide habitat conditions other than those described in our definition of persistent emergent wetlands are an exception to this prohibition. We are excepting incidental take resulting from actions taken to control wildfires. There are also incidental take exceptions for construction of new firebreaks (for example, to protect wildlands or manmade infrastructure) and fence lines, as these are needed when management units are subdivided or new property is acquired. Both of these activities allow for improved targeted management that benefits the habitat needs of eastern black rails and provide for public safety. Nothing in this 4(d) rule changes in any way the recovery planning provisions of section 4(f) of the Act, the consultation requirements under section 7 of the Act, or the ability of the Service to enter into partnerships for the management and protection of the eastern black rail. However, interagency cooperation may be further streamlined through planned programmatic consultations for the species between Federal agencies and the Service. We ask the public, particularly State agencies and other interested stakeholders that may be affected by the 4(d) rule, to contact us regarding additional guidance and methods that the Service could provide or use, respectively, to streamline the implementation of this 4(d) rule (see ADDRESSES, above). Critical Habitat Background Critical habitat is defined in section 3 of the Act as: VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features: (a) Essential to the conservation of the species, and (b) Which may require special management considerations or protection; and (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Conservation, as defined at section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by nonFederal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat. Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 63801 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 are based on 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. Prudency Determination Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary designate critical habitat at the time the species is determined to be endangered or threatened. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary may, but is not required to, determine that a designation would not be prudent in the following circumstances: (i) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species; (ii) The present or threatened destruction, modification, or curtailment of a species’ habitat or range is not a threat to the species, or threats to the species’ habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act; (iii) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States; (iv) No areas meet the definition of critical habitat; or (v) The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available. In the proposed listing rule (83 FR 50610, October 9, 2018), we determined that designation of critical habitat for the eastern black rail would not be prudent. However, we invited public comment and requested information on the threats of taking or other human activity, particularly by birders, on the eastern black rail and its habitat, and the extent to which designation might E:\FR\FM\08OCR3.SGM 08OCR3 63802 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations increase those threats, as well as the possible benefits of critical habitat designation to the eastern black rail. During the comment period, we did not receive any substantive comments, or any comments that would require us to change the not prudent determination or our rationale for it (see 83 FR 50627– 50628). Therefore, we restate our conclusion that the designation of critical habitat is not prudent, in accordance with 50 CFR 424.12(a)(1), because the eastern black rail and its habitat face a threat by overzealous birders, and designation can reasonably be expected to increase the degree of these threats to the subspecies and its habitat by making location information more readily available. Required Determinations 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, 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). Government-to-Government Relationship With Tribes In accordance with the President’s memorandum of April 29, 1994 Common name * * Rail, eastern black .......... * * * * * Laterallus jamaicensis jamaicensis. * 3. Amend § 17.41 by adding paragraph (f) to read as follows: khammond on DSKJM1Z7X2PROD with RULES3 Special rules—birds. * * * * * (f) Eastern black rail (Laterallus jamaicensis jamaicensis). (1) Prohibitions. The following activities with the eastern black rail are prohibited: (i) Purposeful take, including capture, handling, or other activities. VerDate Sep<11>2014 18:35 Oct 07, 2020 * Wherever found .............. Jkt 253001 * Frm 00040 Fmt 4701 Authors The primary authors of this proposed rule are the staff members of the Species Assessment Team, U.S. Fish and Wildlife Service. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Regulation Promulgation Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: ■ Authority: 16 U.S.C. 1361–1407; 1531– 1544; and 4201–4245, unless otherwise noted. 2. Amend § 17.11(h) by adding an entry for ‘‘Rail, eastern black’’ to the List of Endangered and Threatened Wildlife in alphabetical order under BIRDS to read as follows: ■ § 17.11 Endangered and threatened wildlife. * * * (h) * * * * * T * * * * * 85 FR [INSERT FEDERAL REGISTER PAGE WHERE THE DOCUMENT BEGINS], 10/8/ 2020; 50 CFR 17.41(f).4d * Sfmt 4700 * Listing citations and applicable rules (ii) Incidental take resulting from the following activities: (A) Prescribed burn activities, unless best management practices that minimize negative effects of the prescribed burn on the eastern black rail are employed. Best management practices include: (1) Regardless of the size of the area under management with prescribed fire, a broad range of habitat conditions should be maintained by burning on a rotational basis, which supports black PO 00000 Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Status * BIRDS * ■ § 17.41 Where listed * * * References Cited A complete list of references cited in this rule is available on the internet at http://www.regulations.gov in Docket No. FWS–R4–ES–2018–0057 and upon request from the South Carolina Scientific name * * (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. Although we have no records of the eastern black rail occurring on tribal lands, the range of the eastern black rail overlaps with tribal lands. At the time of the proposed rule, we contacted Tribal leaders and Natural Resource Coordinators for those Tribes residing within the subspecies’ range. We did not receive any comments on the proposed rule from these Tribes. * * rail population maintenance and growth. In any given calendar year, at least 50 percent of the eastern black rail habitat within the management boundary should be maintained in order to provide the dense overhead cover required by the subspecies. Management boundaries can include individual landholdings, e.g., a National Wildlife Refuge boundary, or be formed through landscape-level agreements across landholdings of different but contiguous ownerships. This percentage does not E:\FR\FM\08OCR3.SGM 08OCR3 Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES3 apply to landholdings smaller than 640 acres. (2) Where eastern black rail are present, the application of prescribed fire uses tactics that provide unburned refugia allowing birds to survive a fire (e.g., using short flanking, backing fires, or similar approaches). Prescribed fire is applied under fuel and weather conditions (e.g., soil moisture and/or relative humidity) that are most likely to result in patchy persistence of unburned habitat to serve as refugia from fire and predators. (3) Ignition tactics, rates of spread, and flame lengths should allow for wildlife escape routes to avoid trapping birds in a fire. The application of prescribed fire should avoid fires, such as ring and strip head fires, that have long, unbroken boundaries and/or that come together in a short period of time and that consume essentially all vegetation and prevent black rails from escaping a fire. If aerial ignition is the chosen tool, ignitions should be conducted in such a way that large, fastmoving fires are avoided. (B) Mowing, haying, and other mechanical treatment activities in persistent emergent wetlands when the activity occurs during the nesting or brooding periods, except in accordance with paragraph (f)(2)(iii) of this section. (C) Grazing activities on public lands that occur on eastern black rail habitat and, that individually or cumulatively with other land management practices, do not maintain at least 50 percent of eastern black rail habitat, i.e., dense VerDate Sep<11>2014 18:35 Oct 07, 2020 Jkt 253001 overhead cover, in any given calendar year within a management boundary. (D) Long-term or permanent damage, fragmentation, or conversion of persistent emergent wetlands and the contiguous wetland-upland transition zone to other habitat types (such as open water) or land uses that do not support eastern black rail. (iii) Possession and other acts with unlawfully taken eastern black rails. It is unlawful to possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any eastern black rail that was taken in violation of section 9(a)(1)(B) and (C) of the Act or State laws. (iv) Import or export, as set forth at § 17.21(b) for endangered wildlife. (v) Possess and conduct other acts with unlawfully taken specimens, as set forth at § 17.21(d)(1) for endangered wildlife. (vi) Engage in interstate or foreign commerce in the course of commercial activity, as set forth at § 17.21(e) for endangered wildlife. (vii) Sell or offer for sale, as set forth at § 17.21(f) for endangered wildlife. (2) Exceptions from prohibitions. (i) All of the provisions of § 17.32 apply to the eastern black rail. (ii) Any employee or agent of the Service, of the National Marine Fisheries Service, or of a State conservation agency that is operating a conservation program for the eastern black rail pursuant to the terms of a cooperative agreement with the Service in accordance with section 6(c) of the Act, who is designated by his agency for PO 00000 Frm 00041 Fmt 4701 Sfmt 9990 63803 such purposes, may, when acting in the course of his official duties, take eastern black rails. (iii) Incidental take resulting from haying, mowing, or other mechanical treatment activities in persistent emergent wetlands that occur during the nesting and brooding periods is allowed if those activities: (A) Are maintenance requirements to ensure safety and operational needs, including maintaining existing infrastructure such as firebreaks, roads, rights-of-way, levees, dikes, fence lines, airfields, and surface water irrigation infrastructure (e.g., head gates, ditches, canals, water control structures, and culverts); or (B) Occur during the control of woody encroachment and other invasive plant species to restore degraded habitat. (iv) Incidental take resulting from actions taken to control wildfires is allowed. (v) Incidental take resulting from the establishment of new firebreaks (for example, to protect wildlands or manmade infrastructure) and new fence lines is allowed. (vi) Incidental take resulting from prescribed burns, grazing, and mowing or other mechanical treatment activities in existing moist soil management units or prior converted croplands (e.g., impoundments for rice or other cereal grain production) is allowed. Aurelia Skipwith, Director, U.S. Fish and Wildlife Service. [FR Doc. 2020–19661 Filed 10–7–20; 8:45 am] BILLING CODE 4333–15–P E:\FR\FM\08OCR3.SGM 08OCR3

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[Federal Register Volume 85, Number 196 (Thursday, October 8, 2020)]
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Endangered and Threatened Wildlife and Plants; Threatened Species 
Status for Eastern Black Rail With a Section 4(d) Rule; Final Rule

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50 CFR Part 17

[Docket No. FWS-R4-ES-2018-0057; FF09E21000 FXES11110900000 201]
RIN 1018-BD21


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status for Eastern Black Rail With a Section 4(d) Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
threatened species status for the eastern black rail (Laterallus 
jamaicensis jamaicensis) under the Endangered Species Act of 1973 
(Act), as amended. Accordingly, we list the eastern black rail, a bird 
subspecies known from as many as 35 States, the District of Columbia, 
Puerto Rico, Canada, Brazil, and several countries in the Caribbean and 
Central America, as a threatened species under the Act. The effect of 
this regulation will be to add this subspecies to the List of 
Endangered and Threatened Wildlife. We also finalize a rule under the 
authority of section 4(d) of the Act that provides measures that are 
necessary and advisable to provide for the conservation of the eastern 
black rail. We have determined that designation of critical habitat for 
the eastern black rail is not prudent.

DATES: This rule is effective November 9, 2020.

ADDRESSES: This final rule is available on the internet at http://www.regulations.gov in Docket No. FWS-R4-ES-2018-0057 and at the South 
Carolina Ecological Services Field Office. Comments and materials we 
received, as well as supporting documentation we used in preparing this 
rule, are available for public inspection in the docket on http://www.regulations.gov. Comments, materials, and documentation that we 
considered in this rulemaking will also be available by appointment, 
during normal business hours at: U.S. Fish and Wildlife Service South 
Carolina Ecological Services Field Office, 176 Croghan Spur Road, Suite 
200, Charleston, SC 29407; telephone 843-727-4707.

FOR FURTHER INFORMATION CONTACT: Tom McCoy, Field Supervisor, South 
Carolina Ecological Services Field Office, 176 Croghan Spur Road, Suite 
200, Charleston, SC 29407; telephone 843-727-4707. Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal Relay 
Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, a species may warrant 
protection through listing if it is endangered or threatened throughout 
all or a significant portion of its range. Listing a species as an 
endangered or threatened species can only be completed by issuing a 
rule.
    What this document does. This rule will list the eastern black rail 
(Laterallus jamaicensis jamaicensis) as a threatened species and 
provide measures under section 4(d) of the Act that are tailored to our 
current understanding of the conservation needs of the eastern black 
rail.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species based on any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that habitat loss and 
destruction, sea level rise and tidal flooding, incompatible land 
management, and increasing storm intensity and frequency are the 
primary threats to this subspecies.
    Peer review and public comment. We prepared a species status 
assessment report (SSA report) for the eastern black rail (Service 
2019). The SSA report represents a compilation and assessment of the 
best scientific and commercial information available concerning the 
status of the eastern black rail, including the past, present, and 
future factors influencing the subspecies (Service 2019, entire). We 
solicited independent peer review of the SSA report by 10 individuals 
with expertise in rail biology and ecology and in species modeling; we 
received comments from 5 of the 10 reviewers. The reviewers were 
generally supportive of our approach and made suggestions and comments 
that strengthened our analysis. We also considered all comments and 
information received during the comment period. The SSA report and 
other materials relating to this rule can be found at http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0057.

Previous Federal Actions

    Please refer to the proposed listing rule for the eastern black 
rail (83 FR 50610) for a detailed description of previous Federal 
actions concerning this species.

Background

    A thorough review of the taxonomy, life history, and ecology of the 
eastern black rail is presented in the SSA report (Service 2019, 
entire). Please refer to the proposed listing rule for the eastern 
black rail (83 FR 50610, October 9, 2018) for a summary of species 
information.

Summary of Biological Status and Threats

    We completed a comprehensive assessment of the biological status of 
the eastern black rail, and prepared a report of the assessment (SSA 
report; Service 2019, entire), which provides a thorough account of the 
subspecies' overall viability. Below, we summarize the key results and 
conclusions of the SSA report, which can be viewed under Docket No. 
FWS-R4-ES-2018-0057 at http://www.regulations.gov.
    To assess eastern black rail viability, we used the three 
conservation biology principles of resiliency, representation, and 
redundancy (together, ``the three Rs,'' (3Rs)) (Shaffer and Stein 2000, 
pp. 306-310). Briefly, resiliency refers to the ability of a species to 
withstand environmental and demographic stochasticity (for example, wet 
or dry years); representation refers to the ability of the species to 
adapt over time to long-term changes in the environment (for example, 
climate change); and redundancy refers to the ability of the species to 
withstand catastrophic events (for example, hurricanes). In general, 
the more redundant and resilient a species is and the more 
representation it has, the more likely it is to sustain populations 
over time, even under changing environmental conditions. Using these 
principles, we identified the eastern black rail's ecological 
requirements for survival and reproduction at the individual, 
population, and subspecies levels, and described the beneficial and 
risk factors influencing the subspecies' viability.
    We delineated analysis units for the eastern black rail based on 
environmental variables (aquifer permeability, slope, mean 
precipitation, mean potential evapotranspiration, and percent sand in 
soil). We used 8,281 point localities from combined datasets (i.e., 
eBird, Center for Conservation Biology, University of Oklahoma, and 
additional research partners) from 1980

[[Page 63765]]

through 2017, to delineate the analysis units for the eastern black 
rail. We named the analysis units using standard topographic and 
ecological landmarks: New England, Mid-Atlantic Coastal Plain, 
Appalachians, Southeast Coastal Plain, Southwest Coastal Plain, Central 
Lowlands, and Great Plains. Based on available data, we have concluded 
that the New England, Appalachians, and Central Lowlands analysis units 
are effectively extirpated. While these three analysis units 
historically did not support abundances of the eastern black rail as 
high as the other four analysis units, an evaluation of the current 
status information, including the paucity of current records, negative 
survey results, and the demonstrated range contraction throughout these 
areas, supports our conclusion that the eastern black rail is 
effectively extirpated from these analysis units. The remaining four 
analysis units, the Mid-Atlantic Coastal Plain, Southeast Coastal 
Plain, Southwest Coastal Plain, and Great Plains, have records of 
current populations of eastern black rails.
    To assess resiliency, we analyzed occupancy within the analysis 
units through the creation of a dynamic occupancy model. We used data 
from repeated presence/absence surveys across the range of the eastern 
black rail to estimate the probability of presence at a site and 
related the occupancy probability to environmental covariates of 
interest (wettest month precipitation, temperature range, annual mean 
temperature, coldest month mean temperature, presence/absence of fire 
ants, and State identification). The lower the occupancy probability in 
an analysis unit, the less resiliency that analysis unit exhibits. We 
found the four extant analysis units (Southeast Coastal Plain, Mid-
Atlantic Coastal Plain, Great Plains, and Southwest Coastal Plain) to 
have very low occupancy probabilities ranging from 0.099 to 0.25. The 
results also indicated fairly high site extinction probabilities with 
accompanying low site persistence.
    To assess representation, we used two metrics to estimate and 
predict representative units that reflect the subspecies' adaptive 
capacity: Habitat variability and latitudinal variability. The eastern 
black rail exhibits adaptive potential by using similar habitat 
elements within different wetland types (habitat variability) within 
analysis units, i.e., higher elevation areas within wetlands with dense 
vegetation, moist soils, and shallow flood depths (Eddleman et al. 
1988, p. 463; Nadeau and Conway 2015, p. 292). Therefore, the 
subspecies shows a level of adaptive capacity by using different 
wetland types that contain the required habitat elements. Additionally, 
we used the metric of latitudinal variability to reflect the eastern 
black rail's wide range across the contiguous United States. To 
maintain existing adaptive capacity, it is important to have resilient 
populations (analysis units) that exhibit habitat variability and 
latitudinal variability.
    To assess redundancy, we evaluated the current distribution of 
eastern black rail analysis units through their present-day spatial 
locations. To have high redundancy, the eastern black rail would need 
to have multiple resilient analysis units spread throughout its range.

Current Condition of Eastern Black Rail

    Historically, the eastern black rail ranged across the eastern, 
central, and southern United States; historical records also exist from 
the Caribbean, Central America, Brazil, and Ontario, Canada. It 
occupied multiple areas of wetlands (including salt marshes, coastal 
prairies, and hay fields) throughout the range; approximately 90 
percent of documented breeding-season occurrence records occurred at 
coastal locations and less than 10 percent were inland records, with 
more than 60 percent of the inland records occurring before 1950 (Watts 
2016, entire). The eastern black rail also occupied multiple areas of 
wetlands within each analysis unit.
    Within the northeastern United States, historical (1836-2010) 
records document the eastern black rail as present during breeding 
months from Virginia to Massachusetts, with 70 percent of historical 
observations (773 records) in Maryland, Delaware, and New Jersey (Watts 
2016, p. 22). Maryland, Delaware, and New Jersey are considered 
historical strongholds for eastern black rail in this region of the 
United States (the Northeast) as well as across the subspecies' entire 
breeding range (Watts 2016, p. 22), due to the total number and 
frequency of observations reported over time. Virginia, New York, and 
Connecticut account for an additional 21 percent of the historical 
records (235 records) from the Northeast (Watts 2016, p. 22). Recent 
(2011-2016) records from the Northeast are low in number (64 records), 
with almost all records restricted to outer coastal habitats (Watts 
2016, pp. 22, 24). The distribution of the recent records points toward 
a substantial southward contraction in the subspecies' range of 
approximately 450 kilometers (280 miles), with vacated historical sites 
from 33 counties extending from the Newbury marshes in Massachusetts to 
Ocean County, New Jersey (Watts 2016, pp. 24, 119). Further, the 
distribution of the recent records has become patchy along the Atlantic 
coast, and an evaluation of the records within the 15 counties still 
currently occupied suggests an almost full collapse of the eastern 
black rail population in the Northeast (Watts 2016, p. 24).
    While the Appalachians and Central Lowlands analysis units 
supported less habitat for eastern black rails compared to the more 
coastal analysis units, interior occurrences were more common 
historically. Current population estimates for states with a large area 
occurring within the boundaries of the Appalachians analysis unit are 
effectively zero (Watts 2016, p. 19). Within that unit, an estimated 0 
to 5 breeding pairs currently occur in Pennsylvania, and no breeding 
pairs are thought to occur in New York or West Virginia (Watts 2016, p. 
19). Birds previously detected in the Appalachians analysis unit were 
found in small depressional wetlands within active pastures; other 
freshwater wetlands dominated by cattails, rushes, or sedges; and 
drainage ditches (Watts 2016, pp. 48, 74). While these wetland types 
still exist within the analysis unit and may support single individuals 
or a very low-density, scattered population (Watts 2016, pp. 48, 74), a 
substantial amount of this kind of habitat has been lost primarily due 
to the draining of freshwater wetlands for agricultural purposes. These 
estimates likely hold true for the interior portions of the other 
States within the Appalachians analysis unit (e.g., Georgia, Virginia) 
based on few current detections. Similar losses of habitat have 
occurred in the Central Lowlands analysis unit, and there are currently 
few detections of eastern black rails across this unit. Moreover, the 
current detections are not consistent from year to year even when 
habitat remains suitable. For example, Indiana Department of Natural 
Resources surveys for eastern black rails at multiple sites during the 
period 2010-2016 yielded one detection at a single site previously 
known to support eastern black rails (Gillet 2017, unpublished data).
    In the Chesapeake Bay region, the distribution of eastern black 
rail has contracted, and the counts of birds have declined. A series of 
systematic surveys for eastern black rails has been conducted around 
the Chesapeake Bay since the early 1990s (Watts 2016, pp. 59, 67). 
Surveys estimated 140 individuals in the 1990-1992 survey period, 
decreasing to 24 individuals in 2007, and only 8 individuals in 2014, a 
decline of over 90 percent in less than

[[Page 63766]]

25 years (taking into account the number of survey points; Watts 2016, 
p. 59; Brinker 2017, unpublished data). Of 328 points surveyed in 
Virginia in 2007, researchers detected 15 birds; a second round of 
surveys in 2014 yielded 2 detections at 134 survey points (including 
all survey points with positive occurrences in 2007), equating to a 67 
percent decline over 7 years (corrected from Watts to take into account 
the number of survey points; Wilson et al. 2015, p. 3; Watts 2016, pp. 
67, 71;).
    Historically, the eastern black rail was also present during 
breeding months at inland and coastal locations throughout southeastern 
coastal States (the Southeast), a region that included North Carolina, 
South Carolina, Georgia, Florida, Tennessee, Mississippi, Alabama, 
Louisiana, and Texas (Watts 2016, pp. 75-76). Of these States, Texas, 
Florida, South Carolina, and North Carolina contained 89 percent of all 
historical observations (734 records) (Watts 2016, p. 77). The other 
States (Georgia, Tennessee, Mississippi, Alabama, and Louisiana) either 
do not have a history of supporting eastern black rails consistently or 
are considered to be on the peripheries of known breeding areas (Watts 
2016, p. 77).
    Recently, there have been 180 records of eastern black rails during 
the breeding season, and at a coarse view, the same 4 southeastern 
States that substantially supported the subspecies historically still 
support the subspecies (Watts 2016, pp. 77, 79). However, North 
Carolina shows a severe decline in the number of occupied sites, with 
only four properties occupied in 2014-2015, down from nine in 1992-1993 
(Watts 2016, p. 80). Additional surveys in 2017 yielded no new occupied 
coastal sites, and no birds were detected at inland/freshwater sites 
from two surveys in 2018 (Watts et al. 2017, p. 3; Watts et al. 2018b, 
p. 3). South Carolina shows a limited distribution, with two known 
occupied areas (Wiest 2018, pers. comm.) and an estimated 50 to 100 
breeding pairs (Watts 2016, p. 19), leaving Texas and Florida as the 
current strongholds for the Southeast. At the time of the 2016 coastal 
assessment, it was surmised that coastal Georgia may support a breeding 
population of unknown size (Watts 2016, pp. 93-95); however, a 
coastwide survey in 2017 at 409 survey points in Georgia yielded no 
detections of eastern black rails (Watts et al. 2018a, p. 3). Initial 
results from the 2018 field season in Georgia detected no black rails 
at inland or coastal locations; a total of 206 points had been visited 
(Watts et al. 2018a, p. 4). A small population in inland Georgia was 
tracked during the breeding season from 1991 to 2010 until the 
population disappeared in 2011 for unknown reasons; observed young from 
this population remains the only evidence of definitive breeding in the 
State (Watts 2016, pp. 93-94; Sykes 2018, pers. comm.). Overall, across 
the Atlantic and Gulf Coasts, recent observations show poor presence 
inland and a widespread reduction in the number of sites used across 
coastal habitats (Watts 2016, p. 79).
    The history of the subspecies' distribution in the interior 
continental United States is poorly known. Historical literature 
indicates that a wide range of interior States were occupied by the 
eastern black rail, either regularly or as vagrants (Smith-Patten and 
Patten 2012, entire). Eastern black rails are currently vagrants 
(casual or accidental) in Arkansas, Illinois, Indiana, Iowa, Michigan, 
Minnesota, Missouri, Nebraska, New Mexico, Ohio, and Wisconsin (Smith-
Patten and Patten 2012, entire). Presently, eastern black rails are 
reliably located within the Arkansas River Valley of Colorado (presumed 
breeder in the State) and in southcentral Kansas (confirmed breeder in 
the State) (Smith-Patten and Patten 2012, pp. 9, 17; Butler et al. 
2014, p. 22). In Colorado, the subspecies is encountered in spring and 
summer at Fort Lyon Wildlife Area, Bent's Old Fort, Oxbow State 
Wildlife Area, Bristol, and John Martin Reservoir State Park (Smith-
Patten and Patten 2012, p. 10). Surveys conducted between April 15 and 
June 15, 2018, in southeastern Colorado detected at least one black 
rail during repeat surveys at 39 of 115 points and 17 of 66 marshes 
surveyed (Rossi and Runge 2018, p. 6). In Kansas, available information 
on the occurrence of eastern black rail suggests eight counties have 
confirmed breeding records, but Quivira National Wildlife Refuge (NWR) 
is the only known site with consistent or regular breeding activities 
(Thompson et al. 2011, p. 123). In Oklahoma, occurrence mapping 
suggests that this subspecies had at a maximum a patchy historical 
distribution throughout the State. At present, it is possible that 
there is not sufficient suitable habitat or numbers of birds to 
constitute a true breeding population in Oklahoma (Smith-Patten and 
Patten 2018, p. 7).
    Eastern black rail analysis units currently have low to no 
resiliency in the contiguous United States (Service 2019, pp. 79-82). 
The Great Plains, Southwest Coastal Plain, and Southeast Coastal Plain 
analysis units have low resiliency based on the dynamic occupancy model 
results, which indicate very low occupancy probabilities in each 
modeled analysis unit: 0.25 in the Southwest Coastal Plain, 0.13 in the 
Great Plains, and 0.099 in the Southeast Coastal Plain. The Mid-
Atlantic Coastal Plain analysis unit currently exhibits very low 
resiliency for the eastern black rail. It supports fewer birds and has 
fewer occupied habitat patches than the Southeast Coastal Plain 
analysis unit. The remaining three analysis units, New England, 
Appalachians, and Central Lowlands, currently demonstrate no 
resiliency. These three units historically did not support abundances 
of the eastern black rail as high as the other four analysis units. 
There are currently insufficient detections to model these units; 
recent detections (2011 to present) are fewer than 20 birds for each 
analysis unit. An evaluation of current status information yields that 
eastern black rails are effectively extirpated from portions of the New 
England, Appalachians, and Central Lowlands analysis units that were 
once occupied. Lastly, resiliency is unknown for the Central America 
and Caribbean portion of the eastern black rail's range. However, the 
sparsity of historical and current records, including nest records, 
indicates that resiliency outside of the contiguous United States is 
likely low. All recent sightings in Central America and the Caribbean 
have been of adult eastern black rails; there are no reports of nests, 
chicks, or juveniles.
    To assess current representation, we evaluated both habitat 
variability and latitudinal variability. When considering habitat 
variability, we determined the eastern black rail has a level of 
adaptive potential by using similar habitats elements (i.e., higher 
elevation areas within wetlands with dense vegetation, moist soils, and 
shallow flood depth) within different wetland types within analysis 
units. However, there may be unknown factors that influence and affect 
the eastern black rail's use of wetland habitat, as not all apparently 
suitable wetland habitat is currently occupied. While the New England, 
Appalachians, and Central Lowlands analysis units have experienced 
wetland habitat loss and fragmentation, wetland habitats continue to be 
present on the landscape. However, the eastern black rail is not being 
found in these three analysis units with any consistency or by 
detections representing more than single individuals. Historically, the 
eastern black rail had a wide distribution and exhibited latitudinal 
variability. Currently, as discussed above, three of

[[Page 63767]]

the analysis units (New England, Appalachians, and Central Lowlands) 
are effectively extirpated, and, therefore, this latitudinal 
variability (higher latitudes) has effectively been lost to the 
subspecies. Therefore, even though the eastern black rail still occurs 
at varying latitudes, we conclude that the subspecies currently has 
reduced representation across its range.
    Despite having a wide distribution, the eastern black rail 
currently has low redundancy across its range. With the loss of three 
analysis units in upper latitudes of the range, the subspecies has 
reduced ability to withstand catastrophic events, such as hurricanes 
and tropical storms, which could impact the lower latitudinal analysis 
units. Given the lack of habitat connectivity, and patchy and localized 
distribution, it would be difficult for the subspecies to recover from 
a catastrophic event in one or more analysis units.

Risk Factors for Eastern Black Rail

    The Act directs us to determine whether any species is an 
endangered species or a threatened species because of any factors 
affecting its continued existence. Under section 4(a)(1) of the Act, we 
may list a species based on (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence. These factors represent broad 
categories of natural or human-caused actions or conditions that could 
have an effect on a species' continued existence. In evaluating these 
actions and conditions, we look for those that may have a negative 
effect on individuals of the species, as well as other actions or 
conditions that may ameliorate any negative effects or may have 
positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    The mere identification of any threat(s) does not necessarily mean 
that the species meets the statutory definition of an ``endangered 
species'' or a ``threatened species.'' In determining whether a species 
meets either definition, we must evaluate all identified threats by 
considering the expected response by the species, and the effects of 
the threats--in light of those actions and conditions that will 
ameliorate the threats--on an individual, population, and species 
level. We evaluate each threat and its expected effects on the species, 
then analyze the cumulative effect of all of the threats on the species 
as a whole. We also consider the cumulative effect of the threats in 
light of those actions and conditions that will have positive effects 
on the species--such as any existing regulatory mechanisms or 
conservation efforts. The Secretary determines whether the species 
meets the definition of an ``endangered species'' or a ``threatened 
species'' only after conducting this cumulative analysis and describing 
the expected effect on the species now and in the foreseeable future. 
We reviewed the potential risk factors (i.e., threats or stressors) 
that are affecting the eastern black rail now and into the future. In 
this rule, we will discuss in detail only those threats that we 
conclude are driving the status and future viability of the species. 
The primary threats to eastern black rail are: (1) Habitat 
fragmentation and conversion, resulting in the loss of wetland habitats 
across the range (Factor A); (2) sea level rise and tidal flooding 
(Factors A and E); (3) land management practices (i.e., incompatible 
fire management practices, grazing, and haying/mowing/other mechanical 
treatment activities) (Factors A and E); and (4) stochastic events 
(e.g., extreme flooding, hurricanes) (Factor E). Human disturbance, 
such as birders using excessive playback calls of black rail 
vocalizations (Factor B), is also a concern for the species. Additional 
stressors to the species (including oil and chemical spills and 
environmental contaminants (Factor E); disease, specifically West Nile 
virus (Factor C); and predation and altered food webs resulting from 
invasive species (fire ants, feral pigs, nutria, mongoose, and exotic 
reptiles) introductions (Factor C)) are discussed in the SSA report 
(Service 2019, entire). However, although these additional stressors 
may be having localized impacts, they are not the primary drivers of 
the status of the subspecies, and so we do not discuss them in detail 
in this document. We also reviewed the conservation efforts being 
undertaken for the subspecies. The existing regulatory mechanisms do 
not address threats to the eastern black rail such that it does not 
warrant listing under the Act (Factor D).

Habitat Fragmentation and Conversion

    The eastern black rail is a wetland-dependent bird requiring dense 
emergent cover (i.e., vegetation) and extremely shallow water depths 
(typically <=3 cm) over a portion of the wetland-upland interface to 
support its resource needs. Grasslands and their associated palustrine 
(freshwater) and estuarine wetland habitats have experienced 
significant loss and conversion since European settlement (Hannah et 
al. 1995, pp. 137, 151; Noss et al. 1995, pp. 57-76, 80-84; Bryer et 
al. 2000, p. 232). Approximately 50 percent (greater than 100 million 
acres) of the wetlands in the conterminous United States have been lost 
over the past 200 years; the primary cause of this loss was conversion 
for agricultural purposes (Dahl 1990, p. 9). Wetland losses for the 
States within the eastern black rail's historical range have been from 
9 percent to 90 percent, with a mean of 52 percent (Dahl 1990, p. 6). 
Similarly, most of the native grassland/prairie habitats associated 
with eastern black rail habitat have been lost since European 
settlement (Sampson and Knopf 1994, pp. 418-421).
    The eastern black rail also uses the transition zone (ecotone) 
between emergent wetlands and upland grasslands. These transitional 
areas are critical to eastern black rails, as they provide refugia 
during high-water events caused by precipitation or tidal flooding. 
These habitat types have also experienced significant declines over 
time (Sampson and Knopf 1994, pp. 418-421), with many areas within the 
eastern black rail's historical range losing over 90 percent of their 
prairie habitat. Most of this loss can be attributed to agricultural 
conversion (Sampson and Knopf 1994, pp. 419-420). Many of the 
freshwater wetlands associated with these grasslands were emergent and 
ephemeral in nature, and would have supported eastern black rails. For 
example, in Texas, between the 1950s and 1990s, 235,000 acres, or 29 
percent, of freshwater wetlands within Gulf coastal prairie were 
converted primarily to upland agriculture and other upland land uses 
(Moulton et al. 1997, p. 5). This value does not include the numbers of 
upland prairie acres that were also converted.
    Despite regulatory efforts to minimize the loss of wetland 
habitats, losses and alterations continue to occur to habitats occupied 
by the eastern black rail. Marshes continue to face substantial impacts 
from dikes, impoundments, canals, altered freshwater inflows,

[[Page 63768]]

erosion, relative sea level rise, tidal barriers, tropical storm 
events, and other natural and human-induced factors (Turner 1990, 
entire; Kennish 2001, entire; Adam 2002, entire; Tiner 2003, p. 513; 
Gedan et al. 2009, entire). Estuarine emergent wetland losses are 
mostly attributable to conversion to open water through erosion (Dahl 
and Stedman 2013, p. 37), while freshwater emergent wetland losses 
appear to be the result of development (Dahl and Stedman 2013, p. 35). 
Marine and estuarine wetlands along the northern Gulf of Mexico have 
been negatively impacted by development, including energy development 
and coastal storms (Dahl 2011, p. 47). Because the rail is a wetland-
dependent subspecies, the loss and alteration of palustrine and 
estuarine wetlands and associated grassland habitats have a negative 
impact.
    Within the range of the eastern black rail, land use in the United 
States has affected and continues to affect groundwater and surface 
water resources (Johnston 1997, entire; McGuire 2014, pp. 1-2, 7, 9; 
Barfield 2016, pp. 2-4; Juracek and Eng 2017, pp. 1, 11-16). The 
conversion of wetland habitat, largely for agricultural use, was 
mentioned above. However, habitat conversion and land use directly and 
indirectly affect water resources, largely tied to the interaction of 
groundwater and surface water resources (Sophocleous 2002, entire; 
Tiner 2003, p. 495; Glazer and Likens 2012, entire; Konikow 2015, 
entire; U.S. Geological Survey (USGS) 2016, unpaginated).
    Where groundwater resources are hydraulically connected to surface 
water resources, these connections can either be unconfined (water 
table) or confined (springs) aquifers. In unconfined aquifers, 
locations can support surface features such as wetlands or riparian 
habitats where groundwater is located near the land surface (Haag and 
Lee 2010, pp. 16-19, 21-24). Lowering of groundwater through 
withdrawals via wells or ditches can cause wetlands to shrink or become 
dry. Withdrawals of confined aquifers can lead to the drying of springs 
and associated wetland habitats (Weber and Perry 2006, p. 1255; Metz 
2011, p. 2). In the central and southcentral United States, high 
groundwater use, largely attributed to cropland irrigation and other 
human activities, may affect the long-term sustainability of water 
resources, including causing wetland loss (McGuire 2014, entire; 
Juracek 2015, entire; Juracek and Eng 2017, entire; Juracek et al. 
2017, entire; Perkin et al. 2017, entire).
    Human modifications to the environment have led to significant 
changes in vegetation. Some of these modifications include water 
withdrawals and the construction of levees, drainage canals, and dams. 
Changes to native vegetation can result in changes to the structure of 
the habitat (e.g., conversion from emergent to scrub-shrub wetlands, 
wetland into upland habitat, or vice-versa), as well as the 
introduction of invasive plant species (e.g., Phragmites australis; 
Crain et al. 2009, p. 157). Given the narrow habitat preferences of the 
eastern black rail (i.e., very shallow water and dense emergent 
vegetation), small changes in the plant community can easily result in 
habitat that is not suitable for the subspecies.
    Subsidence (lowering of the earth's surface) is caused by the 
withdrawal of liquids from below the ground's surface, which relieves 
supporting hydraulic pressure of liquids by the long-term compression 
of unconsolidated, geologically deposited sediments, or by other 
geologic processes (White and Tremblay 1995, entire; Day et al. 2011, 
p. 645; Karegar et al. 2016, p. 3129). Localized subsidence can occur 
with groundwater withdrawals where withdrawal rates are greater than 
the aquifer recharge rates (White and Tremblay 1995, pp. 794-804; 
Morton et al. 2006, p. 271) or where liquids associated with 
hydrocarbon extraction have caused the lowering of ground elevations 
(Morton et al. 2006, p. 263). On the Atlantic coast, an area of rapid 
subsidence exists between Virginia and South Carolina, where the rate 
of subsidence has doubled due to increased groundwater withdrawals 
(Karegar et al. 2016, pp. 3131-3132). An extreme example of subsidence 
in the United States is along the Gulf of Mexico coast, where both 
subsurface liquid withdrawal and sediment consolidation have 
significant influence on coastal wetland habitats (Turner 1990, pp. 93-
94, 96, 98; White and Tremblay 1995, pp. 795-804; Morton et al. 2006, 
entire). Subsidence combined with sea level rise is referred to as 
relative sea level rise, and the Gulf of Mexico has the highest 
relative sea level rise rates in the conterminous United States, 
leading to significant losses in wetland habitats (National Oceanic and 
Atmospheric Administration (NOAA) 2018, unpaginated).
    Subsidence can affect the eastern black rail and its habitat in 
both fresh and tidal wetlands. Vegetated wetland habitats used by the 
eastern black rail can be converted to unvegetated open water or 
mudflats through drowning of vegetation or erosion from increased wave 
energy. Locations with higher subsidence rates can experience increased 
tidal flooding sooner than areas with lower subsidence rates (Sweet et 
al. 2014, pp. 10-13). The effect of increased tidal flooding will 
change black rail habitat over time (i.e., marsh migration) but can 
have direct impacts on black rail reproduction when flooding occurs 
during the breeding season (Erwin et al. 2006, entire; Pol et al. 2010, 
pp. 724-728).
    Extensive drainage features have been created or modified in the 
United States, primarily to reduce flooding to protect agricultural 
land or infrastructure. These include excavation of drainage ditches, 
channelization of rivers and streams, construction of levees and berms, 
tidal restrictions, and diversions of waterways. Extensive areas of 
Florida were channelized in an effort to drain wetlands in the early 
1900s (Renken et al. 2005, pp. 37-56). Most, if not all, of the coastal 
plain in Texas contains existing drainage features that were either 
created or modified to reduce flooding of agricultural lands and 
associated communities. These features can reduce or eliminate the 
hydroperiod to sustain associated wetlands by removing water rapidly 
off the landscape (Blann et al. 2009, pp. 919-924). In glaciated 
geographies such as the Midwest, drain tiles and other methods have 
been used to drain wetlands to improve conditions for agricultural 
production (Blann et al. 2009, pp. 911-915). Approximately 90 percent 
of the salt marshes on the northeast United States coast have been 
ditched to control mosquitoes (Bourn and Cottam 1950, p. 15; Crain et 
al. 2009, pp. 159-161). Ditching increases the area of the marsh that 
is inundated as well as drained (Daiber 1986, in Crain et al.. 2009, p. 
160; Crain et al. 2009, p. 160).
    Levees have been constructed in flood-prone areas to minimize 
damage to crops and local communities. Levees can modify the duration, 
intensity, and frequencies of hydroperiods associated with riparian and 
tidal wetlands and thus change the nature and quality of wetland 
habitat, including that used by marsh-dependent species (Walker et al. 
1987, pp. 197-198; Bryant and Chabreck 1998, p. 421; Kuhn et al. 1999, 
p. 624; Kennish 2001, p. 734; Adam 2002, p. 46). They also facilitate 
the movement patterns of mesopredators and improve their access to 
wetland habitats (Frey and Conover 2006, pp. 1115-1118). Navigation 
channels and their management have had extensive impacts to tidal 
wetlands (e.g., in

[[Page 63769]]

Louisiana). These channels can modify the vegetation community of 
associated wetlands and can increase the frequency of extreme high tide 
or high flow events by providing a more direct connection to the 
influencing water body (Turner 1990, pp. 97-98; Bass and Turner 1997, 
pp. 901-902; Kennish 2001, pp. 734-737). Tidal restrictions, such as 
water control structures, bridges, and culverts built for the purposes 
of flood protection, restricting salt water intrusion, and modification 
of vegetation, have also affected coastal salt marshes.
    All of these alterations to drainage affect the hydrology, sediment 
and nutrient transport, and salinities of wetland habitats used by the 
eastern black rail, which in turn affect the habitat's composition and 
structure. These changes can lead to instability in the duration and 
intensity of hydroperiods, affect associated vegetation communities, 
and impact the ability of marsh habitats to adapt to changing 
conditions. This situation affects the ability of the habitat to 
support populations of the eastern black rail, by exposing eastern 
black rails to unsuitable water regimes or converted habitats.

Sea Level Rise and Tidal Flooding

    Representative concentration pathways (RCPs) are the current set of 
scenarios used for generating projections of climate change; for 
further discussion, please see the SSA report (Service 2019, entire). 
Recent studies project global mean sea level rise to occur within the 
range of 0.35 to 0.95 meters (m) (1.14 to 3.11 feet (ft)) for RCP 4.5, 
and within the range of 0.5 to 1.3 m (1.64 to 4.27 ft) for RCP 8.5, by 
2100 (Sweet et al. 2017b, p. 13). The Northeast Atlantic and western 
Gulf of Mexico coasts are projected to have amplified relative sea 
level rise greater than the global average under almost all future sea 
level rise scenarios through 2100 (Sweet et al. 2017b, p. 43).
    Sea level rise will amplify coastal flooding associated with both 
high tide floods and storm surge (Buchanan et al. 2017, p. 6). High 
tide flooding currently has a negative impact on coastal ecosystems, 
and annual occurrences of high tide flooding have increased five- to 
ten-fold since the 1960s (Reidmiller et al. 2018, p. 728). In addition, 
extreme coastal flood events are projected to increase in frequency and 
duration, and the annual number of days impacted by nuisance flooding 
is increasing, along the Atlantic and Gulf Coasts (Sweet et al. 2017b, 
p. 23). Storm surges from tropical storms will travel farther inland.
    Along the Texas Gulf Coast, relative sea level rise is twice as 
large as the global average (Reidmiller et al. 2018, p. 969). Over the 
past 100 years, local sea level rise has been between 12.7 and 43.2 cm 
(5 to 17 in), resulting in an average loss of 73 hectares (180 acres) 
of coastline per year, and future sea level rise is projected to be 
higher than the global average (Runkle et al. 2017b, p. 4; Reidmiller 
et al. 2018, p. 972). In South Carolina, sea level has risen by 3.3 cm 
(1.3 in) per decade, nearly double the global average, and the number 
of tidal flood days has increased (Runkle et al. 2017c, p. 4). 
Projected sea level rise for South Carolina is higher than the global 
average, with some projections indicating sea level rise of 1.2 m (3.9 
ft) by 2100 (Runkle et al. 2017c, p. 4). The number of tidal flood days 
are projected to increase and are large under both high and low 
emissions scenarios (Runkle et al. 2017c, p. 4). Similarly, in Florida, 
sea level rise has resulted in an increased number of tidal flooding 
days, which are projected to increase into the future (Runkle et al. 
2017a, p. 4).
    Even with sea level rise, some tidal wetlands may persist at 
slightly higher elevations (i.e., ``in place'') for a few decades, 
depending on whether plant primary productivity and soil accretion 
(which involves multiple factors such as plant growth and decomposition 
rates, buildup of organic matter, and deposition of sediment) can keep 
pace with the rate of sea level rise, thus avoiding ``drowning'' 
(Kirwan et al. 2016, entire). Under all future projections, however, 
the rate of sea level rise increases over time (Sweet et al. 2017a, pp. 
342-345). A global analysis found that in many locations salt marsh 
elevation change did not keep pace with sea level rise in the last 
century and even less so in the past two decades, and concluded that 
the rate of sea level rise in most areas will overwhelm the capacity of 
salt marshes to persist (Crosby et al. 2016, entire). Under this 
analysis, based on RCP 4.5 and RCP 8.5 scenarios and assuming 
continuation of the average rate of current accretion, projected marsh 
drowning along the Atlantic coast at late century (2081-2100) ranges 
from about 75 to 90 percent (Crosby et al. 2016, p. 96, figure 2). The 
accretion balance (reported accretion rate minus local sea level rise) 
is negative for all analyzed sites in the Louisiana Gulf Coast and for 
all but one site in the mid-Atlantic area (figures 3c and 3d in Crosby 
et al. 2016, p. 97); both of these areas are part of the range of the 
eastern black rail.
    Sea level rise will reduce the availability of suitable habitat for 
the eastern black rail and overwhelm habitat persistence. Sea level 
rise and its effects (e.g., increased flooding and inundation, salt 
water intrusion) may affect the persistence of coastal or wetland plant 
species that provide habitat for the eastern black rail (Warren and 
Niering 1993, p. 96; Morris et al. 2002, p. 2876). Increased high tide 
flooding from sea level rise, as well as the increase in the intensity 
and frequency of flooding events, will further impact habitat and 
directly impact eastern black rails through nest destruction and egg 
loss (Sweet et al. 2017b, pp. 35-44).

Land Management Practices (Fire Management, Haying, Mowing, and Other 
Mechanical Treatment Activities, and Grazing)

Fire Management
    Fire suppression has been detrimental to habitats used by the 
eastern black rail by allowing encroachment of woody plants. Without 
fire or alternate methods of disturbing grassland and emergent wetland 
vegetation such as mowing or rotational grazing, the amount of 
preferred habitat for eastern black rails is expected to continue to 
decrease in some regions due to encroachment by woody vegetation, such 
as coastal Texas (Grace et al. 2005, p. 39). Therefore, prescribed 
(controlled) fire is one tool to maintain and restore habitat for this 
subspecies at the desired seral stage (intermediate stages of 
ecological succession).
    While fire is needed for the maintenance of seral stages for 
multiple rail species, the timing and frequency of the burns, as well 
as the specific vegetation types targeted, can lead to undesirable 
effects on rail habitats in some cases (Eddleman et al. 1988, pp. 464-
465). Burning salt marshes during drought or while the marshes are not 
flooded can result in root damage to valuable cover plants (Nyman and 
Chabreck 1995, p. 138). Controlled burning of peat, or accumulated 
organic litter, when marshes are dry has resulted in marsh conversion 
to open water due to the loss of peat soils. Variations in soil type 
supporting the same plant species may lead to differing recovery times 
post-burn, and therefore potentially unanticipated delays in the 
recovery of black rail habitat (McAtee et al. 1979, p. 375). Simply 
shifting the season of burn may alter plant species dominance and the 
associated structure available to the eastern black rail, as is seen 
with spring fire conversion of chairmaker's bulrush (Schoenoplectus 
americanus) to salt meadow cordgrass

[[Page 63770]]

(Spartina patens) (Nyman and Chabreck 1995, p. 135).
    Prescribed fire at any time of the year may result in mortality to 
adult and juvenile birds, as well as eggs and chicks during the 
breeding season. Fall and winter burns are more likely to avoid 
reproductive season impacts (Nyman and Chabreck 1995, p. 138). When 
burning is needed during the nesting season (for example, brush 
control), loss of eggs and chicks can be reduced by limiting the 
proportion of eastern black rail habitat to be burned within a 
management boundary. Incorporating additional best management practices 
(BMPs) such as leaving unburned refugia within a controlled burn and 
planning burn rotations so that adjacent suitable habitat is present to 
accommodate these rails post-burn, are important at all times of the 
year to reduce mortality of birds.
    Fire pattern can have profound effects on birds. Controlled burns 
can result in indirect rail mortality, as avian predators attracted to 
smoke are able to capture rails escaping these fires (Grace et al. 
2005, p. 6). Because eastern black rails typically prefer concealment 
rather than flight to escape threats, the birds may attempt to escape 
to areas not affected by fire, such as wetter areas or adjacent areas 
not under immediate threat. Ring, expansive, or rapidly moving fires 
are therefore not conducive to rail survival (Grace et al. 2005, p. 9; 
Legare et al. 1998, p. 114). On the other hand, controlled burns 
designed to include unburned patches of cover (refugia) may positively 
influence eastern black rail survival. For example, in Florida, a 
mosaic of unburned vegetation patches (refugia) 0.1 to 2.0 ac in size 
facilitated eastern black rail survival during a 1,600-ac controlled 
burn during the late summer, whereas a controlled burn of a 2,400-ac 
marsh during the winter resulted in direct mortality of 34 eastern 
black rails when refugia areas were not provided (Legare et al. 1998, 
p. 114; Legare 2018, pers. comm.). Prescribed fires that include 
patches of unburned habitat (refugia) scattered throughout provide 
escape cover for wildlife, including, but not limited to, eastern black 
rails (Legare et al. 1998, p. 114). Unburned strips of vegetation 
bordering the inside perimeters of burn units also are believed helpful 
as escape cover from both fire and avian predators (Grace et al. 2005, 
p. 35). Coastal marshes that are burned in staggered rotations to 
create a mosaic of different seral stages or are burned less frequently 
will continue to provide cover for marsh species, such as the eastern 
black rail (Block et al. 2016, p. 16).
Haying, Mowing, and Other Mechanical Treatment Activities
    Haying, mowing, and other mechanical treatment activities are used 
throughout the range of the eastern black rail. Mechanical treatment 
activities maintain grasslands by reducing woody vegetation 
encroachment, which may provide suitable habitat for eastern black 
rails. However, these practices can have detrimental impacts to 
wildlife when used too frequently or at the wrong time of year 
(Beintema and Muskens 1987, p. 755; Bollinger et al. 1990, p. 148; 
Arbeiter et al. 2017, pp. 554-566). For example, at Quivira NWR in 
Kansas, haying at a frequency of once or twice per year resulted in no 
occupancy of hayed habitats by eastern black rails during the following 
year (Kane 2011, pp. 31-33). Further, haying or mowing timed to avoid 
sensitive stages of the life cycle (nesting and molt period) would be 
less detrimental to eastern black rails (Kane 2011, p. 33). Eastern 
black rails reproduce from approximately mid-March through September 
across a latitudinal gradient, and mechanical treatment activities 
during this time period disturbs eastern black rail adults and can 
potentially crush eggs and chicks. As with fire, when mechanical 
treatment activities are alternated to allow mosaics of treated and 
untreated habitat at all times, the site can continue to support cover-
dependent wildlife (Tyler et al. 1998, pp. 45-49; Kleijn et al. 2010, 
pp. 476, 484; Arbeiter et al. 2017, pp. 562-566).
Grazing
    Grazing, predominately by cattle, occurs on public and private 
lands throughout the range of the eastern black rail. Because eastern 
black rails occupy drier areas in wetlands and require dense cover, 
these birds are believed to be more susceptible to grazing impacts than 
other rallids (Eddleman et al. 1988, p. 463). Based on current 
knowledge of grazing and eastern black rail occupancy, the specific 
timing, duration, and intensity of grazing will result in varying 
impacts to the eastern black rail and its habitat. Light-to-moderate 
grazing may be compatible with eastern black rail occupancy under 
certain conditions, while intensive or heavy grazing is likely to have 
negative effects on eastern black rails and the quality of their 
habitat, specifically if the dense overhead cover that the bird 
requires is removed. It may benefit black rail habitat (or at least not 
be detrimental) when herbaceous plant production is stimulated (Allen-
Diaz et al. 2004, p. 147) and the necessary overhead cover is 
maintained. In Kansas, eastern black rails were documented in habitats 
receiving rotational grazing during the nesting season that preserved 
vegetation canopy cover (Kane 2011, pp. 33-34). Black rails occur in 
habitats receiving light-to-moderate grazing (i.e., Kane 2011; Richmond 
et al. 2012; Tolliver 2017). These results suggest that such grazing is 
an option for providing disturbance, which may promote black rail 
occupancy. However, cattle grazing at high intensities may not favor 
black rail occupancy, as heavy grazing or overgrazing reduces the 
wetland vegetation canopy cover (Richmond et al. 2010, p. 92).
    In addition to the loss of vegetation cover and height (Chabreck 
1968, p. 56; Whyte and Cain 1981, p. 66; Kirby et al. 1986, p. 496; 
Yeargan 2001, p. 87; Martin 2003, p. 22), grazing may also have direct 
negative effects on eastern black rails by livestock disturbing nesting 
birds or trampling birds and nests (Beintema and Muskens 1987, p. 755; 
Eddleman et al. 1988, p. 463; Jensen et al. 1990, pp. 73-74; Durham and 
Afton 2003, p. 438; Mandema et al. 2013, pp. 412-415). Heavy 
disturbance from grazing can also lead to a decline in eastern black 
rail habitat quality through soil erosion (Walker and Heitschmidt 1986, 
pp. 428, 430; Warren et al. 1986a, p. 486; Weltz and Wood 1986, p. 
263), decreased sediment accumulation and increased soil compaction 
(Andresen et al. 1990, p. 146; Esselink et al. 2002, p. 27), diminished 
water infiltration (Warren et al. 1986b, p. 500), and increased 
salinities eventually leading to habitat conversion (Esselink et al. 
2002, p. 28).

Stochastic Events (Extreme Weather Events)

    Extreme weather effects, such as storms associated with frontal 
boundaries or tropical disturbances, can also directly affect eastern 
black rail survival and reproduction, and can result in direct 
mortality. Tropical storms and hurricanes are projected to increase in 
intensity and precipitation rates along the North Atlantic coast and 
Gulf Coast (Bender et al. 2010, p. 458; Kossin et al. 2017, pp. 259-
260). The frequency of Category 4 and 5 tropical storms is predicted to 
increase despite an overall decrease in the number of disturbances 
(Bender et al. 2010, pp. 457-458). Storms of increased intensity, which 
will have stronger winds, higher storm surge, and increased flooding, 
cause significant damage to coastal habitats by destroying vegetation 
and

[[Page 63771]]

food sources, as well as resulting in direct mortality of birds. For 
example, Hurricane Harvey flooded San Bernard NWR in Texas with storm 
surge, which was followed by runoff flooding from extreme rainfall. 
This saltmarsh, occupied by eastern black rails, was inundated for 
several weeks (Woodrow 2017, pers. comm.). Increases in storm 
frequency, coupled with sea level rise, may result in increased 
predation exposure of adults and juveniles if they emerge from their 
preferred habitat of dense vegetation (Takekawa et al. 2006, p. 184). 
Observations show predation upon California black rails during high 
tides when the birds had minimal vegetation cover in the flooded marsh 
(Evens and Page 1986, p. 108).
    Weather extremes associated with climate change can have direct 
effects on the eastern black rail, leading to reduced survival of eggs, 
chicks, and adults. Indirect effects on the eastern black rail are 
likely to occur through a variety of means, including long-term 
degradation of both inland and coastal wetland habitats. Other indirect 
effects may include loss of forage base of wetland-dependent organisms. 
Warmer and drier conditions will most likely reduce overall habitat 
quality for the eastern black rail. Because eastern black rails 
tolerate a narrow range of water levels and variation within those 
water levels, drying as a result of extended droughts may result in 
habitat becoming unsuitable, either on a permanent or temporary basis 
(Watts 2016, p. 120). Extreme drought or flooding conditions may also 
decrease bird fitness or reproductive success by reducing the 
availability of the invertebrate prey base (Hands et al. 1989, p. 5; 
Davidson 1992, p. 129). Lower rates of successful reproduction and 
recruitment lead to further overall declines in population abundance 
and resiliency to withstand stochastic events such as extreme weather 
events. The vulnerability of the eastern black rail to the effects of 
climate change depends on the degree to which the subspecies is 
susceptible to, and unable to cope with, adverse environmental changes 
due to long-term weather trends and more extreme weather events.

Human Disturbance

    Human disturbance can stress wildlife, resulting in changes in 
distribution, behavior, demography, and population size (Gill 2007, p. 
10). Activities such as birding and hiking, have been shown to disturb 
breeding and nesting birds. Disturbance may result in nest abandonment, 
increased predation, and decreased reproductive success, and in 
behavioral changes in non-breeding birds. Singing activity of breeding 
male birds declined in sites that experienced human intrusion, although 
the response varied among species and level of intrusion (Gutzwiller et 
al. 1994, p. 35). At the Tishomingo NWR in Oklahoma, recreational 
disturbances of migratory waterbirds accounted for 87 percent of all 
disturbances (followed by natural disturbances (10 percent) and unknown 
disturbances (3 percent)) (Schummer and Eddleman 2003, p. 789).
    Many birders strive to add rare birds to their ``life list,'' a 
list of every bird species identified within a birder's lifetime. 
Locations of rare birds are often posted online on local birding forums 
or eBird, leading to an increased number of people visiting the 
location in an attempt to see or hear the bird. Due to its rarity, the 
eastern black rail is highly sought after by birders (Beans and Niles 
2003, p. 96). Devoted birders may go out of their way to add an eastern 
black rail to their life list (McClain 2016, unpaginated). The efforts 
of birders to locate and identify rare birds, such as the eastern black 
rail, can have both positive and negative impacts on the bird and its 
habitat. Birders play an especially important role in contributing to 
citizen science efforts, such as the eBird online database, and have 
helped further our understanding of species' distributions and avian 
migration ecology in crucial ways (Sullivan et al. 2014, entire). 
Birders have provided valuable location information for eastern black 
rails that might have otherwise gone undetected and have made these 
records publicly available (see eBird's black rail account; eBird 2017, 
unpaginated).
    While amateur and professional birding have made important 
contributions to our understanding of rare species like the eastern 
black rail, some birders may be more likely to pursue a sighting of a 
rare bird, as they may perceive the benefits of observing the bird to 
outweigh the impacts to the bird (Bireline 2005, pp. 55-57). As a 
result, methods may be employed to increase the likelihood of observing 
a rare bird, including the use of vocalized calls or audio recordings, 
as is the case for eastern black rails, or approaching birds in order 
to get a sighting (Beans and Niles 2003, p. 96; Bireline 2005, p. 55). 
These methods have the potential to disturb nesting birds or trample 
nests or eggs, and may lead to increased predation (Beans and Niles 
2003, p. 96).
    With the prevalence of smartphones, the use of playback calls has 
increased as recordings of birds are readily available on the internet, 
and birding websites and geographic site managers (State, Federal, or 
nongovernmental organizations) often provide guidance on the use of 
playback calls (Sibley 2001, unpaginated). The American Birding 
Association's Code of Birding Ethics encourages limited use of 
recordings and other methods of attracting birds, and recommends that 
birders never use such methods in heavily birded areas or for 
attracting any species that is endangered, threatened, of special 
concern, or rare in the local area (American Birding Association 2018, 
unpaginated). While most birders likely follow these ethical 
guidelines, using playback calls of eastern black rail vocalizations in 
attempts to elicit responses from the birds and potentially lure them 
into view is commonly done outside of formal eastern black rail surveys 
(eBird 2017, unpaginated). Due to the rarity of the eastern black rail, 
a few cases of trespassing are known from people looking for the bird 
(e.g., Kerlinger and Wiedner 1990, p. 62). Trespassing has been 
documented on private lands and in areas on public lands specifically 
closed to the public to protect nesting eastern black rails (Hand 2017, 
pers. comm.; Roth 2018, pers. comm.). Trespassing may not only disturb 
the bird, but can also result in trampling of the bird's habitat, as 
well as of eggs and nests. Some State resource managers and researchers 
have expressed concern that releasing locations of eastern black rail 
detections may increase human disturbance and harassment of the 
subspecies. The potential for human disturbance varies by site and is 
likely less of an issue for areas that are remote and difficult to 
access.

Synergistic Effects

    It is likely that several stressors are acting synergistically or 
additively on the subspecies. The combination of multiple stressors may 
be more harmful than a single stressor acting alone. For the eastern 
black rail, a combination of stressors result in habitat loss, reduced 
survival, reduced productivity, and other negative impacts on the 
subspecies. Sea level rise, coupled with increased tidal flooding, 
results in the loss of the high marsh habitat required by the 
subspecies. Land management activities, such as prescribed burning, 
that are conducted without maintaining dense overhead cover or 
providing refugia in eastern black rail habitat will further exacerbate 
impacts. If these combined stressors occur too often within and across 
generations, they will limit the ability of the subspecies to maintain 
occupancy at habitat sites, which may become lost or unsuitable for the 
subspecies and limit its ability to

[[Page 63772]]

colonize other previously occupied sites or new sites. For example, 
tidal marshes in Dorchester County, Maryland, in the Chesapeake Bay 
(specifically the areas of Blackwater NWR and Elliott Island) served as 
one of the most well-known former strongholds for the eastern black 
rail (Watts 2016, p. 22). These marshes have and continue to experience 
marsh erosion from sea level rise, prolonged flooding, a lack of a 
sufficient sediment supply, and land subsidence, as well as habitat 
destruction from nutria (Myocastor coypus; now eradicated) and 
establishment of the invasive common reed (Phragmites australis). On 
Elliott Island, high decadal counts of eastern black rails have 
declined from the hundreds in the 1950s to no birds detected in recent 
years (from 2012-2015 the peak count was a single bird, and no birds 
were detected in 2016) (Watts 2016, pp. 61-62).

Regulations and Conservation Efforts

Federal Protections
    The Migratory Bird Treaty Act of 1918 (MBTA; 16 U.S.C. 703 et seq.) 
provides specific protection for the eastern black rail, which is a 
migratory bird under the statute. The MBTA makes it illegal, unless 
permitted by Federal regulation, ``by any means or in any manner, to 
pursue, hunt, take, capture, kill, attempt to take, capture, or kill, 
possess, offer for sale, sell, offer to barter, barter, offer to 
purchase, purchase, deliver for shipment, ship, export, import, cause 
to be shipped, exported, or imported, deliver for transportation, 
transport or cause to be transported, carry or cause to be carried, or 
receive for shipment, transportation, carriage, or export, any 
migratory bird, [or] any part, nest, or egg of any such bird . . . '' 
(16 U.S.C. 703(a)). Through issuance of permits for scientific 
collecting of migratory birds, the Service ensures that best practices 
are implemented for the careful capture and handling of eastern black 
rails during banding operations and other research activities. However, 
the December 22, 2017, Solicitor's Opinion, Opinion M-37050, concludes 
that consistent with the text, history, and purpose of the MBTA, the 
statute's prohibitions on pursuing, hunting, taking, capturing, 
killing, or attempting to do the same apply only to direct and 
affirmative actions that have as their purpose the taking or killing of 
migratory birds, their nests, or their eggs. Therefore, take of an 
eastern black rail, its chicks, or its eggs that is incidental to 
another lawful activity does not violate the MBTA. Furthermore, the 
MBTA does not address the major stressors affecting the eastern black 
rail, which include habitat alteration and sea level rise. Given that 
only intentional take is prohibited under the MBTA and the habitat-
based stressors to the black rail are not regulated, this law does not 
provide sufficient substantive protections to the eastern black rail.
    Section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) and 
section 10 of the Rivers and Harbors Appropriation Act of 1899 (33 
U.S.C. 403) are intended to protect jurisdictional wetlands from 
excavation and filling activities. The U.S. Army Corps of Engineers 
(USACE), in conjunction with the U.S. Environmental Protection Agency, 
administers permits that require avoidance, minimization, and 
compensation for projects affecting wetlands. Projects that cannot 
avoid impacts to wetlands must compensate for their impacts through a 
restoration enhancement or preservation action for the equivalent 
functional loss. Mitigation banks are often used, in which actions at a 
specific location compensate for impacts in a considerably wider 
service area. However, the wetland types affected are not always the 
same types that are restored or enhanced, and there is considerable 
uncertainty that current mitigation practices would support the 
presence of black rails.
State Protections
    The black rail is listed as endangered under State law by seven 
States within the subspecies' range: Delaware, Illinois, Indiana, 
Maryland, New Jersey, New York, and Virginia. The species was formerly 
listed as endangered in Connecticut, but was considered extirpated 
during the last listing review based on extant data and was 
subsequently delisted. Protections are afforded to wildlife listed as 
either endangered or threatened by a State, but those protections vary 
by State. Although we have no information as to the effectiveness of 
these State regulations as they pertain to the conservation of the 
eastern black rail, one benefit of being State-listed is to bring 
heightened public awareness of the bird's existence.
    In Delaware, the importation, transportation, possession, or sale 
of any endangered species or parts of endangered species is prohibited, 
except under license or permit (title 7 of the Delaware Code, sections 
601-605). Illinois also prohibits the possession, take, transport, 
selling, and purchasing, or giving, of a listed species, and allows 
incidental taking only upon approval of a conservation plan (Illinois 
Compiled Statutes, chapter 520, sections 10/1-10/11). Indiana prohibits 
any form of possession of listed species, including taking, 
transporting, purchasing, or selling, except by permit (title 14 of the 
Indiana Code, article 22, chapter 34, sections 1-16 (I.C. 14-22-34-1 
through 16)). Listed species may be removed, captured, or destroyed 
only if the species is causing property damage or is a danger to human 
health (I.C. 14-22-34-16).
    Similar prohibitions on the possession of a listed species in any 
form, except by permit or license, are in effect in Maryland (Code of 
Maryland, Natural Resources, section 10-2A-01-09), New Jersey (title 23 
of the New Jersey Statutes, sections 2A-1 to 2A-15), New York (New 
York's Environmental Conservation Law, article 11, title 5, section 11-
0535; title 6 of the New York Codes, Rules and Regulations, chapter I, 
part 182, sections 182.1-182.16), and Virginia (Code of Virginia, title 
29.1, section 29.1, sections 563-570 (29.1-563-570)). Violations of 
these statutes typically are considered misdemeanors, generally 
resulting in fines or forfeiture of the species or parts of the species 
and the equipment used to take the species. Some States also have 
provisions for nongame wildlife and habitat preservation programs 
(e.g., title 7 of the Delaware Code, sections 201-204; Code of 
Maryland, Natural Resources, section 1-705). For example, in Maryland, 
the State Chesapeake Bay and Endangered Species Fund (Code of Maryland, 
Natural Resources, section 1-705) provides funds to promote the 
conservation, propagation, and habitat protection of nongame, 
threatened, or endangered species.
    Black rail is listed as a ``species in need of conservation'' in 
Kansas, which requires conservation measures to attempt to keep the 
species from becoming a State-listed endangered or threatened species 
(Kansas Department of Wildlife, Parks and Tourism 2018, unpaginated). 
Black rail also is listed as a species of ``special concern'' in North 
Carolina and requires monitoring (North Carolina Wildlife Resources 
Commission 2014, p. 6). The species is identified as a ``species of 
greatest conservation need'' in 19 State wildlife action plans as of 
2015 (USGS 2017, unpaginated). However, no specific conservation 
measures for black rail are associated with these listings, and most 
are unlikely to address habitat alteration or sea level rise.
Other Conservation Efforts
    The Atlantic Coast Joint Venture (ACJV) recently decided to focus 
efforts on coastal marsh habitat and adopted three flagship species, 
one being the

[[Page 63773]]

eastern black rail, to direct conservation attention in this habitat. 
As part of this initiative, the ACJV-led Black Rail Working Group (BLRA 
WG) has drafted population goals for the eastern black rail and is 
drafting a Black Rail Conservation Plan (ACJV BLRA WG 2018, 2019, 
entire). An initial workshop to start development of the Conservation 
Plan took place in October 2018. Workshop participants identified five 
highest priority strategies to conserve the species in the Atlantic 
Flyway: (1) Create new habitat, (2) promote improved impoundment 
management, (3) develop and promote black rail-friendly fire best 
management practices, (4) develop and promote black rail-friendly 
agricultural practices, and (5) develop a landowner assurances program 
(ACJV BLRA WG 2019, entire). The Conservation Plan is expected to be 
completed in 2020. ACJV staff are also in the early stages of 
coordinating several other black rail-specific projects, namely, a 
species distribution map and an adaptive management tool. In addition, 
staff are working with partners on a Salt Marsh Bird Conservation Plan, 
which identifies stressors to Atlantic Coast tidal marshes and the 
efforts needed to conserve these habitats to maintain bird populations 
(ACJV 2019, entire). A draft of the plan has been developed, and a 
final plan is expected late 2019.
    The Gulf Coast Joint Venture (GCJV) has had the eastern black rail 
listed as a priority species since 2007 (GCJV 2005, unpaginated). As a 
priority species, the black rail is provided consideration during the 
review of North American Wetland Conservation grant applications 
(Vermillion 2018, pers. comm.). Although detailed planning for the 
eastern black rail is not yet complete, the subspecies is considered in 
coastal marsh habitat delivery efforts discussed by GCJV Initiative 
Teams. Eastern black rails are believed to benefit from a plethora of 
coastal marsh habitat delivery efforts of GCJV partners, including 
projects authorized under the North American Wetland Conservation Act 
(16 U.S.C. 4401 et seq.), the Coastal Wetlands Planning, Protection and 
Restoration Act (16 U.S.C. 3951 et seq.), and the Service's Coastal 
Program, as well as management actions on State and Federal refuges and 
wildlife management areas. Eastern black rails will benefit when 
projects conserve, enhance, or restore suitable wetland habitat and 
BMPs, such as the use of prescribed burns and brush-clearing 
activities, are employed to account for the subspecies.
    In November 2016, the Texas Parks and Wildlife Department (TPWD), 
in partnership with the Texas Comptroller's Office, initiated the Texas 
Black Rail Working Group (Shackelford 2018, pers. comm.). The main 
purpose of the group is to provide a forum for collaboration between 
researchers and stakeholders to share information about what is known 
about the species, identify information needs, and support conservation 
actions. The group has held two in-person meetings thus far: January 
10, 2017, and August 9-10, 2018, and produced two newsletters and a 
conservation planning report (Horndeski and Shackelford 2017, entire; 
Horndeski 2018a, 2018b, entire).

Future Scenarios

    As discussed above, we define viability as the ability of a species 
to sustain populations in the wild over time. To help address 
uncertainty associated with the degree and extent of potential future 
stressors and their impacts on the eastern black rail's needs, we 
applied the 3Rs using five plausible future scenarios. We devised these 
five scenarios by identifying information on the primary stressors 
anticipated to affect the subspecies into the future: Habitat loss, sea 
level rise, groundwater loss, and incompatible land management 
practices. These scenarios represent a realistic range of plausible 
future scenarios for the eastern black rail.
    We used the results of our occupancy model to create a dynamic 
site-occupancy, projection model that allowed us to explore future 
conditions under these scenarios for the Mid-Atlantic, Great Plains, 
Southeast Coastal Plain, and Southwest Coastal Plain analysis units. We 
did not project future scenarios for the New England, Appalachian, or 
Central Lowlands analysis units because, as discussed earlier in this 
document, we consider these analysis units to be currently effectively 
extirpated and do not anticipate that this situation will change in the 
future. Our projection model incorporated functions to account for 
changes in habitat condition (positive and negative) and habitat loss 
over time. The habitat loss function was a simple reduction in the 
total number of possible eastern black rail sites at each time step in 
the simulation by a randomly drawn percentage that was specified under 
different scenarios to represent habitat loss due to development or sea 
level rise. We used the change in ``developed'' land cover from the 
National Land Cover Database (Homer et al. 2015, entire) to derive an 
annual rate of change in each region, and we used NOAA climate change 
and sea level rise projections to estimate probable coastal marsh 
habitat loss rates; storm surge was not modeled directly (Parris et al. 
2012, entire; Sweet et al. 2017b, entire). In the Great Plains analysis 
unit, we used ground water loss rates, instead of sea level rise data, 
to represent permanent habitat loss in the region. The overall 
groundwater depletion rate was based on the average over 108 years 
(1900-2008) (Konikow 2013, entire).
    Our five scenarios reflected differing levels of sea level rise and 
land management, and the combined effects of both. These future 
scenarios forecast site occupancy for the eastern black rail out to 
2100, with time steps at 2043 and 2068 (25 and 50 years from present, 
respectively). Each scenario evaluates the response of the eastern 
black rail to changes in three primary risks we identified for the 
subspecies: Habitat loss, sea level rise, and land management (grazing, 
fire, and haying). The trends of urban development and agricultural 
development remain the same, i.e., follow the current trend, for all 
five scenarios. We ran 5,000 replicates of the model for each scenario. 
For a detailed discussion of the projection model methodology and the 
five scenarios, please refer to the SSA report (Service 2019, entire).
    The model predicted declines in all analysis units across all five 
plausible future scenarios. Specifically, they predicted a high 
probability of complete extinction for all four analysis units under 
all five scenarios by 2068. The model predicted that, depending on the 
scenario, the Southeast Coastal Plain and Mid-Atlantic Coastal Plain 
analysis units would reach complete extinction between 35 and 50 years 
from the present; the Great Plains analysis unit would reach complete 
extinction between 15 to 25 years from the present; and the Southwest 
Coastal Plain analysis unit would reach complete extinction between 45 
to 50 years from the present. Most predicted occupancy declines were 
driven by habitat loss rates that were input into each scenario. The 
model results exhibited little sensitivity to changes in the habitat 
quality components in the simulations for the range of values that we 
explored. For a detailed discussion of the model results for the five 
scenarios, please refer to the SSA report (Service 2019, entire).
    Under our future scenarios, the Mid-Atlantic Coastal Plain, Great 
Plains, Southwest Coastal Plain, and Southeast Coastal Plain analysis 
units generally exhibited a consistent downward trend in the proportion 
of sites remaining

[[Page 63774]]

occupied after the first approximately 25 years for all scenarios. 
Given that most of the predicted declines in eastern black rail 
occupancy were driven by habitat loss rates, and future projections of 
habitat loss are expected to continue and be exacerbated by sea level 
rise or groundwater loss, resiliency of the four remaining analysis 
units is expected to decline further. We expect all eastern black rail 
analysis units to have no resiliency by 2068, as all are likely to be 
extirpated by that time. We have no reason to expect the resiliency of 
eastern black rail outside the contiguous United States to improve in 
such a manner that will substantially contribute to its viability 
within the contiguous U.S. portion of the subspecies' range. Limited 
historical and current data, including nest records, indicate that 
resiliency outside of the contiguous United States will continue to be 
low into the future, or decline if habitat loss or other threats 
continue to impact these areas.
    We evaluated representation by analyzing the latitudinal 
variability and habitat variability of the eastern black rail. Under 
our future scenarios, the Great Plains analysis unit is projected to be 
extinct within the next 15 to 25 years, which will result in the loss 
of that higher latitudinal representative unit for the subspecies. In 
addition, the three remaining analysis units (Mid-Atlantic Coastal 
Plain, Southwest Coastal Plain, and Southeast Coastal Plain) are 
predicted to decline and reach extinction within the next 50 years. 
Thus, the subspecies' representation will continue to decline.
    The eastern black rail will have very limited redundancy in the 
future. The Great Plains analysis unit will likely be extirpated in 15 
to 25 years, leading to further reduction in redundancy and resulting 
in only coastal populations of the eastern black rail remaining. Having 
only coastal analysis units remaining (and with even lower resiliency 
than at present) will further limit the ability of the eastern black 
rail to withstand catastrophic events, such as flooding from hurricanes 
and tropical storms.
    Please refer to the SSA report (Service 2019, entire) for a more 
detailed discussion of our evaluation of the biological status of the 
eastern black rail, the influences that may affect its continued 
existence, and the modeling efforts undertaken to further inform our 
analysis.

Summary of Changes From the Proposed Rule

    This final rule incorporates changes to our proposed rule based on 
the comments we received, as discussed below in the Summary of Comments 
and Recommendations. Based on these comments, we also incorporated as 
appropriate new information into our SSA report, including updated 
survey information from Colorado, North Carolina, and Georgia. Small, 
nonsubstantive changes and corrections were made throughout the 
document in response to comments. However, the information we received 
during the public comment period on the proposed rule did not change 
our determination that the eastern black rail is a threatened species. 
The information also did not cause us to revise our determination that 
designation of critical habitat for the eastern black rail is not 
prudent.
    We received substantive comments on the proposed 4(d) rule and have 
made changes to this rule as a result of the public comments received. 
Below is a summary of substantive changes made to the final listing 
rule and 4(d) rule:
     Based on information received on South Dakota, we removed 
it from the list of States where eastern black rail is considered a 
vagrant.
     In the preamble to the 4(d) rule, we provided a 
description of ``dense overhead cover'' for the eastern black rail and 
identified three methods of assessing this cover.
     In the preamble to the 4(d) rule, we defined a 
``management boundary'' to include individual landholdings, such as a 
National Wildlife Refuge boundary, or as being formed through 
landscape-level agreements across landholdings of different or 
contiguous ownerships.
     In the 4(d) rule and its preamble, we removed the seasonal 
restrictions and provided clarification on the BMPs identified under 
the fire management activities. Based on the comments received, we 
removed the prohibition of prescribed burn activities when these 
activities take place during the nesting, brooding, and post-breeding 
flightless molt period. We recognize the importance of using prescribed 
fire as a management tool for restoring and maintaining habitats on 
public and private lands and realize that, in order to meet specific 
management goals, flexibility is needed with regard to the timing of 
prescribed fire application. For example, a prescribed burn during the 
growing season may be necessary to target invasive vegetation. We also 
acknowledge that prescribed burns conducted at any time of the year 
that do not provide for escape routes and refugia may result in 
negative impacts to eastern black rails. Under the final 4(d) rule, 
incidental take of eastern black rails resulting from prescribed fires 
is prohibited unless BMPs that minimize negative effects of the 
prescribed burn on the eastern black rail are employed and a portion of 
occupied dense cover for the rail is maintained within management 
boundaries.
    We received comments requesting that we provide more information or 
clarification on the BMPs to use when conducting prescribed burns in 
eastern black rail habitat. We received feedback on the BMPs from fire 
practitioners within the Service who have experience managing for 
prescribed fire within eastern black rail habitat. We determined that 
at least 50 percent of the eastern black rail habitat within the 
management boundary should provide dense overhead cover required by the 
species within one calendar year, and we revised the 4(d) preamble and 
rule accordingly.
    In order to accommodate smaller landholdings, we are excepting 
landholdings smaller than 640 acres from maintaining 50 percent of 
eastern black rail habitat in any given calendar year, as we realize it 
could be challenging to manage for this percentage on small parcels of 
land. We clarified examples of tactics that can be used to provide 
unburned refugia and escape routes for the eastern black rail and 
identified that unburned refugia patches should be no smaller than 100 
square feet.
     In the 4(d) preamble and rule, we clarified the exception 
for the haying, mowing, and other mechanical treatment activities as to 
existing infrastructure that may be included in the exception. We 
clarified that existing infrastructure includes existing firebreaks, 
roads, rights-of-way, levees, dikes, fence lines, airfields, and 
surface water irrigation infrastructure (e.g., head gates, ditches, 
canals, water control structures and culverts).
     In the 4(d) preamble and rule, we added an exception for 
incidental take that results from mechanical treatment activities that 
are done during the nesting or brooding periods with the purpose of 
controlling woody encroachment or other invasive plant species to 
restore degraded habitat.
     In the 4(d) rule and preamble, we removed the reference to 
``intensive or heavy grazing'' in the prohibition. Based on a review of 
public comments, the terms ``light,'' ``moderate,'' and ``heavy'' 
grazing caused confusion. Eastern black rails may be found in grazed 
areas as long as dense overhead cover remains to provide them with 
suitable habitat. Therefore, grazing densities should maintain the 
dense overhead cover required by the eastern black rail and allow for 
the long-term maintenance of habitat conditions required by the 
subspecies. Because eastern black rails

[[Page 63775]]

require this dense overhead cover year-round, and not just during the 
nesting, brood-rearing, or flightless molt period, we removed the 
seasonal restriction on grazing activities. The final 4(d) rule 
prohibits incidental take resulting from only those grazing activities 
on public lands, either individually or cumulatively with other land 
management activities, that do not maintain the dense overhead cover 
required by the subspecies in at least 50 percent of eastern black rail 
habitat.
     We added a prohibition to the 4(d) rule that prohibits 
incidental take of the eastern black rail that results from long-term 
or permanent conversion, fragmentation, and damage of persistent 
emergent wetland habitat and the contiguous wetland-upland transition 
zone to other habitat types or land uses. We received public comments 
requesting that we consider prohibiting activities, such as road 
construction, residential, commercial, and industrial development, 
commercial development, and oil and natural gas exploration and 
extraction, including seismic lines, as these may have negative impacts 
on the eastern black rail and its habitat. In our SSA report and 
proposed and final rule for the eastern black rail, we identified 
habitat loss and fragmentation as an ongoing and future threat to the 
subspecies. We agree that protecting the persistent emergent wetland 
habitat and contiguous wetland-upland transition zone is necessary and 
advisable for the conservation of the eastern black rail.
     We added an exception to the 4(d) rule for incidental take 
of eastern black rails that may result from prescribed burns, grazing 
activities, and mechanical treatment activities that take place in 
existing moist soil management units or prior converted croplands, such 
as impoundments for rice or other cereal grains. We received public 
comments requesting that we consider an exception for these types of 
units. Some individual managed wetland units have an established 
history of intensive vegetation and soil management, which may include 
burning during the growing season on an annual or nearly annual basis 
(e.g., moist soil management). In contrast to emergent wetlands, these 
wetland units have established objectives to maintain unvegetated 
(e.g., mudflat), sparsely vegetated, and/or primarily annual plant 
communities that may not provide vegetative cover during a substantial 
portion of the growing season.
     We added an exception to the 4(d) rule for incidental take 
that may result from efforts to control wildfires and an exception for 
incidental take resulting from the establishment of new firebreaks (for 
example, to protect wildlands or manmade infrastructure) and new fence 
lines. Both of these activities allow for management that will benefit 
the conservation of the eastern black rail and its habitat, as well as 
provide for public safety.

Summary of Comments and Recommendations

    In the proposed rule published on October 9, 2018 (83 FR 50610), we 
requested that all interested parties submit written comments on the 
proposal by December 10, 2018. We also contacted appropriate Federal 
and State agencies, scientific experts and organizations, and other 
interested parties and invited them to comment on the proposal. A 
newspaper notice inviting general public comments was published in the 
USA Today on October 15, 2018. We did not receive any requests for a 
public hearing. All substantive information provided during the comment 
period has either been incorporated directly into the SSA report or 
this final determination or addressed below.

Peer Reviewer Comments

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinion from knowledgeable 
individuals with scientific expertise that included familiarity with 
the eastern black rail and its habitat, biological needs, and threats. 
During development of the SSA report, we reached out to 10 peer 
reviewers and received responses from 5. We reviewed all comments 
received from the peer reviewers for substantive issues and new 
information regarding the eastern black rail. All comments were 
incorporated into the SSA report prior to the proposed rule. The 
reviewers were generally supportive of our approach and made 
suggestions and comments that strengthened our analysis. Peer reviewer 
comments are addressed in the following summary and incorporated into 
the SSA report and this final rule as appropriate.
    1. Comment: One peer reviewer suggested we include additional 
discussion on the functional aspects of slope and hydrology in our 
Habitat Description provided in the SSA report. The commenter stated 
that this section focused almost entirely on floristics and the section 
would benefit from more discussion of habitat structure.
    Response: The Habitat Description section describes the floristic 
communities associated with the presence of eastern black rails. These 
floristic communities have associated relationships with slope and 
hydrology, which may vary across the range of the species. We have 
updated the SSA to include more information on habitat structure, 
including slope and hydrology in eastern black rail habitat.
    2. Comment: One peer reviewer requested that we add a summary of 
the information on the rapid declines of eastern black rail 
populations.
    Response: We have added this information to chapter 2 of the SSA 
report.
    3. Comment: One peer reviewer requested that we add a figure to 
show the analysis units where the eastern black rail is considered 
extirpated.
    Response: We include a map in the SSA report that identifies the 
five analysis units. In the report's text, we identify the three 
analysis units that we consider to be effectively extirpated: New 
England, Appalachians, and Central Lowlands due to recent low numbers 
of detections and documented extirpations from previously occupied 
areas.
    4. Comment: One peer reviewer requested that we provide a `minimum 
number' of eastern black rails in the analysis units. This reviewer 
stated that it would highlight how dire the situation is for this 
subspecies across all of its range. The reviewer noted that the 
subspecies has been extirpated from a large percentage of its range and 
has declined by over 90 percent in areas that were former strongholds.
    Response: We added a table to the SSA report that provides 
population estimates (reported as the number of breeding pairs) for 
eastern black rail in the northeast and southeast United States. We 
also provided additional discussion in chapter 2 of the SSA report on 
population declines.
    5. Comment: One peer reviewer requested that we provide a more 
detailed description of the projection model and the data that drive 
the model.
    Response: We expanded the discussion in the SSA report and the 
Appendices.
    6. Comment: One peer reviewer commented that the current condition 
analysis underestimated the range of habitat the eastern black rail has 
used and will accept. According to the reviewer, eastern black rails 
have historically nested in a range of situations along the coast and 
inland that are connected by some physical characteristics. The peer 
reviewer stated that most of the recent survey data came from coastal 
marshes, which represents a subset of what the species has used, and so 
may underestimate resiliency.
    Response: We respectfully disagree with this comment. The eastern 
black

[[Page 63776]]

rail has a very small home range. There is currently substantial 
habitat available that is not being used at locations where we know the 
bird is present. The fact that habitats are not being fully used 
indicates that there is a lack of ``resiliency'' for the population 
under current conditions. The limiting factor does not appear to be 
habitat. Further, our current condition analysis was informed by our 
analysis units, which were developed using data from South Carolina, 
Florida, Texas, and Kansas.
    7. Comment: One peer reviewer commented that the eastern black rail 
has historically shown a pattern of colonization that puts it in the 
pioneer category, that is, it can take advantage of habitat patches 
that are ephemeral. While the eastern black rail may require a narrow 
niche in terms of vegetation structure and hydrology, it does appear 
capable of finding locations that have these preferred habitat 
characteristics.
    Response: We added a discussion of this adaptive potential into the 
SSA report in chapter 4.
    8. Comment: One peer reviewer noted that some eastern black rails 
are migratory, but acknowledged that this cannot really be incorporated 
into a dynamic occupancy model. However, the reviewer suggested we note 
this in our discussion of the model.
    Response: We agree that some eastern black rails are migratory. 
However, we note that we are trying to understand how populations might 
change and it is likely that individual birds would breed in the same 
place. Eastern black rails that reside in northern latitudes migrate 
and overwinter at locations further south (Butler 2017). Since little 
is known about migration behavior and site fidelity of migrants, 
migration is not considered a factor in these analyses.
    9. Comment: One peer reviewer asked why we used slope as a 
covariate in the development of our analysis units and whether we 
considered using elevation.
    Response: The variation in elevation was very small, and we did not 
have enough information on elevation to find a relationship. In 
essence, the variables were colinear and elevation varied by little if 
at all. Slope, however, while colinear with elevation, had a wide range 
of values. In the end, elevation was not a useful variable for the 
analysis.
    10. Comment: One peer reviewer identified a dataset from North 
Carolina that provides data on eastern black rails from the historical 
`high use' part of the State, as well as two datasets from Maryland and 
New Jersey, and suggested we consider incorporating these data into our 
dynamic occupancy model to inform the analysis of the Mid-Atlantic 
analysis unit. A second peer reviewer also identified the Maryland 
dataset and asked why these data were not incorporated into the dynamic 
occupancy model.
    Response: Our occupancy analyses used to evaluate current condition 
required at least two consecutive years of survey data; therefore, the 
Maryland survey data were not used in our model, as these data were not 
collected in successive years. However, we used the Maryland dataset to 
calculate psi (detection) and occupancy for a single season and 
incorporated this information into our SSA report. These data were from 
the same sites surveyed three times over ~25 years (Brinker 2014, 
unpublished data). The Maryland sites saw a decline in estimated 
occupancy from ~0.25 to 0.03, giving credence to the inference that 
occupancy has declined for eastern black rails in the Mid-Atlantic 
Coastal Plain analysis unit. Similarly, the New Jersey and North 
Carolina datasets referred to by the commenter did not have successive 
years of surveys; however, the contemporary State data were used in the 
development of our analysis units (the data were insufficient for the 
dynamic occupancy analysis).
    11. Comment: One peer reviewer noted that when developing the 
covariate analysis we do not have the high-resolution data, such as 
water depth data that has a resolution of 1 centimeter or vegetation 
data associated with the hydrology, that would provide the resolution 
really needed for this species and produce meaningful insights.
    Response: We did not get these types of data (e.g., water depth or 
vegetation) from available reports. In fact, we often had to use 
remotely-sensed information to help inform the model. The covariates 
might be considered coarse given that these variables had to be 
remotely sensed; however, these data were not collected during the 
studies across all sites, so this was the best available information. 
It should be noted that water depth is weather dependent and can change 
at any time, so we do not believe that a more resolute data set of 
1 centimeter would be meaningful. It is reasonable to 
desire higher resolution, i.e., vegetation, in order to enhance our 
understanding; however, we conclude that the results are meaningful. We 
do note in our current condition occupancy analysis that the occupancy 
data indicated only the null model (i.e., a model with no covariates) 
or a simple, year-specific model was the best model or equally as good. 
However, the occupancy and extinction risk analyses were useful, even 
if we cannot predict at a local scale why any individual site might 
disappear.
    12. Comment: One peer reviewer asked how the occupancy modeling 
results were influenced by the selection of the survey data inputted 
into the model. For example, how would the results differ if survey 
points were used from areas that lacked black rails as opposed to 
locations where black rails are known to occur?
    Response: Our assessment of current condition and future condition 
is based on the occupancy, colonization, and extirpation estimates from 
the repeated survey data, which rely on adequate site selection for 
black rail surveys in order for the results to be useful in making 
inferences about current and future population status. Improper site 
selection could introduce negative bias on model estimates (i.e., 
decrease occupancy, decrease colonization) and thus lead to pessimistic 
assessment of current and future status. However, these survey points 
were specifically selected to target black rail habitat and sites where 
black rails had been previously observed. Surveyors used the best 
available information on black rail habitat preferences and set their 
survey points accordingly.
    13. Comment: One peer reviewer noted that the datasets used in the 
dynamic occupancy model were based on point-count networks. As noted in 
the SSA report, the availability of such surveys is limited for the 
eastern black rail. The peer reviewer suggests an occupancy analysis 
based on marsh patches, rather than point counts, as it would allow for 
longer time series and a greater geographic area for analysis.
    Response: In order to undertake an occupancy analysis based on 
marsh patches, we would need to come up with a definition of what 
constituted a patch, and these would likely not be equal in size across 
the range of the bird. Points have a distinct spatial definition that 
is repeatable. Additionally, we followed the National Marshbird 
Monitoring Plan, which uses a point-count approach. While developing an 
analysis based on marsh patches may allow for the use of longer time 
series and larger geographic areas, there would be an associated 
incorporation of error through defining marsh patches and 
extrapolation. The approach used directly relies on survey results, 
and, given the limited number of observations, using patches would have 
resulted in more temporal samples but fewer point samples.
    14. Comment: One peer reviewer commented that land cover, 
vegetation type, land-use/modification, extent of

[[Page 63777]]

hydrologic disruption, or percentage change in wetland area may be more 
suitable variables to use in the projection model to predict extinction 
and colonization probability of eastern black rails.
    Response: Other analysis already available showed that temperature 
was an important covariate. We included temperature to reflect those 
existing analyses. Precipitation was used because it was colinear with 
wetland water depth and wetland spatial extent for this species. Some 
of these variables were used in the projection modeling, as well. 
Assumptions of both models were clearly articulated in the SSA report.
    15. Comment: One peer reviewer stated that the definition of a site 
is missing. This peer reviewer commented that the site-occupancy 
projection model does not consider site isolation, which limits eastern 
black rail colonization, and site size, which is a factor related to 
extinction.
    Response: The definition of ``site'' was added to both the data 
analysis portion of the Appendix and to the simulation modeling portion 
(in the SSA report). The projection model was not spatially explicit; 
adding site isolation could potentially increase extinction risk at a 
local site and reduce colonization.
    16. Comment: One peer reviewer requested clarification on how 
occupancy and resilience were related and if we were equating occupancy 
with resiliency.
    Response: Given data availability, eastern black rail resiliency 
was estimated using the probability of occupancy at the analysis unit-
level. Resiliency describes the ability of a population to withstand 
stochastic disturbance. Stochastic events are those arising from random 
factors such as weather, flooding, or fire. Resiliency is positively 
related to population size and growth rate and may be influenced by 
connectivity among populations. Generally speaking, populations need 
enough individuals, within habitat patches of adequate area and 
quality, to maintain survival and reproduction in spite of disturbance. 
Resiliency is measured using metrics that describe analysis unit 
condition and habitat; in the case of the eastern black rail, we used 
occupancy within the analysis units to assess resiliency.
    17. Comment: One peer reviewer asked what would happen to our 
assessment of viability if our assessment had included types of habitat 
that eastern black rails can use that have not been sampled, such as 
the types of sites where black rails are found in California or the 
Front Range of Colorado.
    Response: The projection models are entirely dependent on the data 
used to estimate occupancy and extinction dynamics. Our assessment 
included habitat types such as those found in California or Colorado 
(i.e., inland palustrine marshes). The values we used to project future 
conditions used regional rates of wetland loss where available for 
emergent wetlands and did not distinguish between emergent wetland 
types.

Federal Agency Comments

    18. Comment: A Federal agency recommended including the following 
on the list of mowing and mechanical treatment activity exemptions in 
the 4(d) rule as they are unlikely to occur in suitable eastern black 
rail habitat: Permanently flooded areas/open water exceeding [e.g., 
less than 6 cm]; paved areas; cropland (i.e., areas planted to annual 
row crops, such as corn and soybeans including hay in rotation); 
forest; and pasture or areas mowed, hayed, or grazed too frequently or 
intensively to allow development of dense emergent wetland vegetation.
    Response: Incidental take associated with activities in habitats 
not suitable for the eastern black rail is not prohibited. While there 
is a chance that an individual eastern black rail may be present in 
such non-suitable habitats, it is the intent of this rule to focus the 
prohibitions in areas where eastern black rail occupancy is likely and 
where eastern black rails are present. Therefore, we are not adding a 
list of unsuitable habitats to the list of exceptions for haying, 
mowing, and other mechanical treatment activities because it is not 
necessary.
    19. Comment: A Federal agency requested that we provide, in the 
exemptions section of the 4(d) rule, a list of land uses or habitat 
types where the eastern black rail is likely to be present.
    Response: Section 2.4.2 of the SSA report describes the vegetation 
associations used by the eastern black rail. For more specific 
information, we encourage interested parties to contact the local 
Service field office.
    20. Comment: One Federal agency commented that BMPs should aim to 
discourage eastern black rail occupancy, as opposed to limiting 
exemptions when infrastructure and human health or safety is the sole 
concern.
    Response: We did not include measures to discourage eastern black 
rail occupancy, as these types of activities would not promote 
conservation of the species.
    21. Comment: A Federal agency asked that the Service provide 
seasonal windows corresponding to the critical time periods during 
which activities are prohibited under the 4(d) rule.
    Response: We revised the 4(d) rule to allow the use of prescribed 
fire and grazing during any time of year. Incidental take resulting 
from haying, mowing and other mechanical treatment activities is 
prohibited, with exceptions, in persistent emergent wetlands during the 
nesting and brood-rearing periods. We have provided additional 
information on critical time periods for the eastern black rail in the 
SSA report (Service 2019, entire).
    22. Comment: One Federal agency commented that a blanket 
restriction on burning during the natural fire season in South Florida 
may reduce habitat suitability for other threatened and endangered 
species. One commenter recommended that the 4(d) rule exempt take of 
birds in South Florida that results from all prescribed fire being 
undertaken for all natural resource management, in recognition of the 
fact that fire is a natural and integral component of managing the 
ecosystems upon which black rails and countless other species occupy.
    Response: Under the final 4(d) rule, incidental take of eastern 
black rails due to prescribed fire is prohibited unless BMPs that 
minimize negative effects of the prescribed burn on the eastern black 
rail are employed. If these practices are followed, prescribed burning 
is permissible year-round under the 4(d) rule. This is similar to 
recovery efforts for fire-adapted threatened and endangered species 
such as the Florida grasshopper sparrow, which involve precautions 
designed to limit mortality of eggs and chicks due to prescribed fire 
activities. The identified practices are necessary and advisable for 
the conservation of the eastern black rail and, if followed, should 
minimize take of the eastern black rail and allow for population growth 
and maintenance. The 4(d) rule provides land managers the flexibility 
to address habitat management goals while maintaining suitable habitat 
for eastern black rails.
    23. Comment: One Federal agency commented that we should focus on 
the vegetative conditions desired when using prescribed fire for the 
eastern black rail rather than the methods and techniques used.
    Response: Most grassland and marshland habitats are maintained 
through a disturbance regime with natural and anthropogenic fires being 
a primary disturbance agent. Survey results and field observations 
indicate that habitat is currently available that would support the 
eastern black rail but is unoccupied. Therefore, measures that

[[Page 63778]]

minimize mortality and improve survival are important if populations 
are expected to grow and spread to available habitats. For these 
reasons, we determined that the 4(d) rule must address methods and 
techniques used, as we find that this is necessary and advisable to 
provide for the conservation of the eastern black rail. The preamble of 
the 4(d) rule does discuss the dense overhead cover required by the 
eastern black rail and provides three examples of how to measure this 
cover.
    24. Comment: One Federal agency and one State requested that 
activities to control nuisance and/or invasive wildlife, e.g., hazing 
or pyrotechnics at airports, aerial shooting of feral swine, beaver and 
nutria trapping, and removal of beaver dams, be added to the exceptions 
from prohibitions.
    Response: Incidental take of eastern black rails that results from 
activities to control nuisance and/or invasive wildlife is not 
prohibited by the 4(d) rule and, therefore, does not need to be listed 
under the exceptions from prohibitions. These activities include 
pyrotechnics at airports, aerial shooting of feral swine, beaver and 
nutria trapping, and removal of beaver dams.

State Comments

Listing
    25. Comment: Three States and two public commenters expressed 
concerns regarding the limited information surrounding the species' and 
management needs overall, as well as in the SSA analysis and the 
listing and 4(d) rules. Commenters either requested that listing of the 
eastern black rail be delayed, or stated that a listing determination 
could not be made until more data were collected on the species.
    Response: We are required to make our determination based on the 
best scientific and commercial data available at the time of our 
rulemaking, except in cases where the Secretary finds that there is 
substantial disagreement regarding the sufficiency or accuracy of the 
available data relevant to the determination. In such a case, under 
section 4(b)(6)(B)(i) of the Act, the Secretary may extend the 1-year 
period to make a final determination by up to 6 months for the purposes 
of soliciting additional data. In this case, we did not extend our 
final determination on the listing status of the eastern black rail 
because we determined that there was no substantial disagreement 
regarding the sufficiency or accuracy of the available threats 
information. We considered the best scientific and commercial data 
available regarding the eastern black rail to evaluate its potential 
status under the Act. We solicited peer review of our evaluation of the 
available data, and our peer reviewers supported our analysis. That 
said, science is a cumulative process, and the body of knowledge is 
ever-growing. In light of this, the Service will always take new 
research into consideration. If such research supports amendment or 
revision of this rule in the future, the Service will modify the rule 
consistent with the Act.
    26. Comment: One State stated that there is little evidence to 
suggest eastern black rails can be reliably found at any location in 
Kansas other than Quivira National Wildlife Refuge. Another commenter 
stated that there is little evidence to suggest eastern black rails can 
be reliably found at Cheyenne Bottoms. Both commenters requested that 
the final rule reflect this information.
    Response: We reviewed the best available information on the 
occurrences of eastern black rail in Kansas. This information indicates 
that eight counties have confirmed breeding records in Kansas, but 
Quivira National Wildlife Refuge is the only known site with consistent 
or regular breeding activities (Thompson et al. 2011, p. 123). We have 
revised the SSA report accordingly.
    27. Comment: One State commenter stated that the single accepted 
record for South Dakota was rejected by the South Dakota Rare Bird 
Records Committee; therefore, no verified occurrence records of the 
subspecies occur in South Dakota.
    Response: The reference to South Dakota has been removed from the 
final listing rule and from the corresponding sentence in the SSA.
    28. Comment: One State and one other commenter stated that eastern 
black rail estimates for Texas are underestimates and public and 
private lands have ample area for eastern black rail. One commenter 
stated that the listing of the eastern black rail should be limited to 
the portions of the range where decline has been documented. This 
commenter stated that the species is declining in other parts of the 
range but is not imperiled on the Texas Gulf Coast. One commenter 
stated that the SSA used only Watts' data on subspecies abundance in 
Texas and excluded that provided by Tolliver (2017). This commenter 
also stated that eastern black rail estimates for Texas are 
underestimates, commenting that because the Texas coast is largely 
privately owned with sites managed similarly as described in Tolliver 
(2017), it is safe to assume that the Texas population of eastern black 
rails is higher than suggested in the SSA report.
    Response: We analyzed occurrence records from Watts (2016), Smith-
Patten and Patten (2012), and eBird, as well as from formal black rail 
surveys (e.g., Tolliver 2017) in the SSA. The best available science as 
detailed in the SSA report documents 300-5,830 black rails known to 
exist along the Texas Gulf Coast (Tolliver et al. 2017). These 
estimates were made prior to Hurricane Harvey, which flooded vast areas 
of Texas coastal marshes for several weeks. Accordingly, we recognize 
that the estimates in Tolliver et al. (2017) may overestimate the 
current numbers of eastern black rails on the Texas coast in the 
protected areas that were surveyed. However, the occupancy rates 
provided by Tolliver et al. (2019) were obtained from sites known to be 
dependable for the species and data were collected by trained 
observers. The low occupancy rates indicate that not all available 
habitat is being used because so few individuals remain; these 
populations are not at density-dependent levels, i.e., the habitat is 
not full or at carrying capacity. Note that the Tolliver et al. (2017) 
report stated that, while the researchers did extrapolate abundance of 
birds at survey points to perceived habitat available within the study 
sites, they cautioned against viewing this information as hard 
estimates of population size due to inherent flaws in making broad-
scale extrapolations of this type. Site occupancy modeling detailed in 
the SSA projects that this species will disappear without human 
intervention. While this species may exist at undocumented locations on 
the Texas Gulf Coast, we have received no records of large numbers of 
previously undocumented eastern black rails for this portion of the 
range and have no scientific basis for assuming that they are present. 
Further, while there may be habitat on private lands outside of 
conservation lands that do support black rails, we have no data to 
indicate that the amount of suitable habitat on private lands is 
significant, nor was data that supports this claim provided during the 
public comment period.
    It would not be appropriate to assume that the public lands 
evaluated by Tolliver 2017 and private lands are managed the same and 
that the population estimates for Texas are actually higher than what 
is suggested in the SSA report. While habitat can be assessed through 
remote sensing methods, its quality is extremely difficult to assess 
using this method. The quality of the habitat (dense overhead 
herbaceous cover) is necessary to support eastern black rail occupancy.

[[Page 63779]]

No data support the assumption that areas outside of those studied by 
Tolliver 2017 (and Tolliver et al. 2017 and 2019) support similar 
numbers of rails.
    Decisions under the Act cannot be made on a State-by-State basis, 
but at the species, subspecies, or distinct population segment (DPS) 
level. For the eastern black rail, we have determined that the 
subspecies warrants listing as a threatened species throughout its 
range based on current threats and how those threats are likely to 
impact the subspecies into the future.
    29. Comment: Several States and other commenters stated that the 
eastern black rail geographic range should include only areas where the 
species occurs regularly (annually or near annually), and should avoid 
identifying jurisdictions (e.g., States) where eastern black rail is 
considered to be a vagrant. One State noted that the Service does not 
explain or provide justification as to why it accepted several 
additional reports as ``credible'' in Nebraska even though previous 
authors (Bray et al. 1986, Sharpe et al. 2001, Smith-Patten and Patten 
2012, Silcock and Jorgensen 2018) and the Nebraska Ornithological Union 
Records Committee rejected most of these records and deemed them 
unacceptable, and that only records accepted by the State rare bird 
committee should be used. The State commenters specifically requested 
removal of entire States or large portions of their States, and 
requested that listing of the eastern black rail not confer any 
requirements for any Federal or State agency or private landowners in 
those areas. Commenters also recommended that the final rule rely only 
on accepted and verified records of eastern black rail when determining 
the species' range, in particular for migratory birds that breed in the 
interior United States.
    Response: In both the proposed and final rules, we have defined the 
eastern black rail's range based on the best available data; however, 
we recognize that scientific understanding of this species' range will 
likely continue to improve over time. We recognize that Nebraska has 
limited detections of eastern black rails and the small likelihood that 
Nebraska holds any breeding populations. The Service may define a 
species' range using State boundaries or other geographically 
appropriate scale. How range is defined depends on characteristics of 
the species' biology and how it is listed (i.e., as species/subspecies 
or a DPS). A species' or subspecies' range is typically described at 
the State or country scale.
    We defined the eastern black rail's range based on the data from 
reliable published scientific literature, submitted manuscripts, 
species' experts, and occurrence data. Range descriptions do not imply 
any limitations on the application of the prohibitions in the Act or 
implementing rules. Such prohibitions apply to all individuals of the 
species, wherever found [emphasis added]. Therefore, whether a specific 
State or geographic area is included or excluded from the textual 
description or maps of the eastern black rail's range, the subspecies 
would be protected under the Act wherever it may be found, for as long 
as it remains listed. Further, the Act protects individuals of the 
species wherever they occur, regardless if they are considered vagrant 
in their occurrence. Conversely, if the species is not present in areas 
within the range states, no protections or restrictions would apply to 
those areas.
    30. Comment: One State commented that invasive species such as 
nonnative Phragmites and nutria should be identified as threats to the 
eastern black rail.
    Response: Our SSA report for the eastern black rail discusses the 
impacts of invasive species, including nonnative plants and nutria, on 
the eastern black rail. See Service 2019 (chapter 3).
    31. Comment: One State commented that human disturbance is not a 
significant threat in North Carolina due to the remote nature of the 
habitat and the bird's nocturnal habits.
    Response: The comment is noted; however, the evaluation of threats 
for this subspecies were done both at the analysis unit and the range-
wide scale and reflect evidence that human disturbance can and does 
impact eastern black rail.
    32. Comment: One State commented that the Service should consider 
the use of DPSs given the broad range of the eastern black rail and 
differences in potential threats, habitat types, and life cycles 
(migratory versus non-migratory) to those populations.
    Response: The petition to list the eastern black rail requested 
that we consider whether listing is warranted for the species. In 
conducting status reviews, we generally follow a step-wise process 
where we begin with a range-wide evaluation, and only consider the 
status of other listable entities if the species does not warrant 
listing range-wide. Furthermore, the Service is to exercise its 
authority with regard to DPSs ``sparingly and only when the biological 
evidence indicates that such action is warranted'' (Senate Report 151, 
96th Congress, 1st Session). For the eastern black rail, we have 
determined that the subspecies warrants listing as a threatened species 
throughout its range, so there was no need to identify or list a DPS.

Species Status Assessment (SSA)

    33. Comment: Two States and several public commenters provided 
additional information concerning the historical and current status, 
range, distribution, and population size of the eastern black rail 
within the contiguous United States.
    Response: In our SSA report, we have updated the Historical and 
Current Range and Distribution section to reflect additional 
information for Colorado, Delaware, Georgia, Maryland, and North 
Carolina.
    34. Comment: Two States and one public commenter stated that there 
is a scarcity of data used for the Great Plains Analysis Unit in the 
SSA. One commenter stated that using general marshbird survey data from 
Kansas is not appropriate.
    Response: The best available scientific and commercial information 
for this species was used to inform extinction probabilities. Data from 
black rail-specific surveys were not available for the Great Plains 
Analysis Unit; therefore, the general marshbird survey data from 
Kansas, which include eastern black rail detections, represent the best 
available scientific information. The general marshbird dataset was 
sufficient for occupancy modeling to be completed for this analysis 
unit. Further, the occupancy probabilities appeared to be well 
estimated since the standard error estimates for most parameters were 
less than the estimated mean (i.e., the coefficient of variations are 
less than 1.0).
    35. Comment: Two States encouraged the Service to apply more 
critical scrutiny to historical observations of eastern black rail that 
are used in the SSA, especially those from the interior portion of the 
range, and only include verified and substantial observations.
    Response: The SSA report summarizes several past assessments, 
including Watts (2016) and Smith-Patten and Patten (2012), and 
identifies how those reports classified the eastern black rail. In 
collecting data points from different sources to assess the eastern 
black rail across its entire contiguous United States range, we went 
through a rigorous process to ensure validity of these data. We 
assessed datasets using different criteria for the analysis unit and 
occupancy modeling (occupancy modeling is described in section 4.2 of 
the SSA report). Latitude and longitude data provided by each research 
group and State wildlife agency was cross-checked with site 
identification codes. We visually assessed the proximity of points with 
identical site identification

[[Page 63780]]

codes by entering the points' latitude and longitude in the open-source 
geographic information systems program QGIS (QGIS Development Team 
2009, unpaginated). We considered eastern black rail occurrences that 
occurred within a 200-250-meter radius within a season as a single 
occurrence (presence point) at a single site in a single year. The 
radius was applied to the data points to remove spatial autocorrelation 
to provide a robust dataset for the occupancy modeling. Each point was 
identified by a unique identification number rather than specific 
locality for all analyses to ensure privacy of the data.
    36. Comment: One State suggested that the Service consider how 
survey effort or methodology might have influenced the figures on page 
25 of the SSA.
    Response: The figures used to describe the county-level occurrences 
were slightly modified from Watts (2016) based on more recent survey 
results. The county-level maps illustrate occurrence and are not 
intended to illustrate abundance. These maps did not need to be 
adjusted for survey effort or differing methodologies, as occurrence is 
not a measure of abundance. Survey effort for eastern black rails has 
actually increased over the last decade based on protocols developed by 
Conway (2011) and others for secretive marsh birds as well as an 
increased interest in secretive marsh bird conservation. Despite the 
increase in surveys, documented occurrences of eastern black rail 
continue to decrease in most States.

Critical Habitat

    37. Comment: One State commented that if critical habitat is 
designated, it would be beneficial if it provides protection for 
extensive high marsh area but does not preclude beneficial management 
activities. Another State commented that any critical habitat 
designation must be based on the best available science and consider 
sea level rise, marsh habitat types, and tidal regimes. Several other 
States, and one organization, recommended that we not designate 
critical habitat for the eastern black rail.
    Response: As discussed below (see Comment 39 and Critical Habitat), 
we have determined that designation of critical habitat would not be 
prudent for the eastern black rail.
    38. Comment: We received comments from three States, one 
organization, and one other commenter recommending that we work with 
eBird to add eastern black rail to the sensitive species list.
    Response: On May 3, 2019, the Service sent a letter to the Project 
Leader for eBird requesting that the eastern black rail be designated 
as a Sensitive Species in eBird. On May 23, 2019, we received a 
response from eBird indicating that eBird designated the eastern black 
rail as a Sensitive Species.
    39. Comment: One State and several public commenters disagreed with 
the Service's determination that critical habitat is not prudent, or 
otherwise suggested that we reconsider this determination. Four 
commenters supported our not prudent determination. Comments in 
opposition to our not prudent determination were largely based on the 
potential benefits of designating critical habitat and skepticism that 
increased risk and harm to the eastern black rail would occur with 
designation, as birders already know the types of habitat occupied by 
eastern black rails and can locate remaining populations. One commenter 
stated that a critical habitat designation would provide added 
assurances to private and public land managers. One commenter requested 
designating all known occupied habitat as critical habitat as well as 
considering designating additional areas for habitat restoration and 
inland migration.
    Response: We recognize that designation of critical habitat can 
provide benefits to listed species; however, for the eastern black 
rail, increased threats caused by designation outweigh the benefits 
(see 83 FR 50627-50628, October 9, 2018, for further discussion). We do 
not dispute the arguments of the commenters who suggested that birders 
may have enough information to be able to locate eastern black rail 
populations, particularly given the use of social media. We acknowledge 
that general location information is provided within the rule, and more 
specific location information can be found through other sources. 
However, we maintain that designation of critical habitat would more 
widely publicize known occupied locations of the eastern black rail and 
its essential habitat, thereby exacerbating the threat of disturbance, 
habitat destruction, or other harm from humans.

4(d) Rule

    40. Comment: One State and another commenter requested that the 
4(d) rule include a definition of ``present'' as well as specifics 
regarding timing, frequency, and methodology of surveys. The State also 
requested that the rule describe the details of survey methods. One 
State and another commenter questioned whether there is an accepted 
survey protocol for the eastern black rail. One State requested 
including in the 4(d) rule a monitoring requirement that at a minimum 
establishes presence/absence of the subspecies within the affected area 
prior to burning during the nesting or molt period.
    Response: Eastern black rails are considered present when they are 
detected using visual, aural, or other means of detection. The Service 
will be providing guidance on survey methodology acceptable and 
appropriate for determining presence. However, these will not be 
included in the final 4(d) rule because methods may change as 
technology advances and methods to detect presence are significantly 
different than those used to determine other biological variables such 
as estimates of abundance or population size. Researchers are in the 
early stages of assessing the current survey protocols used for black 
rails and will be investigating the feasibility of developing a single 
standardized or semi-standardized survey protocol. Until the survey 
protocol assessment is completed,we recommend that surveyors use the 
survey methods currently employed by their State wildlife agency for 
black rails (e.g., Watts et al. 2017). Many States use a protocol 
specific for black rails that has been modified from the Standardized 
North American Marsh Bird Monitoring Protocol (Conway 2011). The 
Service and partners are reviewing existing protocols and will be 
providing in the future additional recommended methods to assess 
absence/presence.
    41. Comment: One State commented that it was unclear if properties 
located outside of eastern black rail habitat are exempt from the 
habitat management restrictions. Four States and several other 
commenters requested that the 4(d) rule apply only in areas where 
eastern black rails are known to occur and breed regularly. One State 
suggested the 4(d) rule should be applied only to wetlands that support 
or are reasonably likely to support breeding or wintering eastern black 
rails. One State asked the Service to reconsider the requirement in the 
4(d) rule that interior States comply with BMPs outside of the 
reproductive period when black rails are not present. Another State 
commented that the prohibitions should not apply to northern interior 
States when the eastern black rail is not seasonally present. One 
commenter suggested that the 4(d) rule apply only to areas where 
eastern black rails have been documented within the past 5 years. One 
commenter requested the Service consider regional application of the 
4(d) rule, as opposed to a range-wide application of the prohibitions. 
One

[[Page 63781]]

commenter responded that land management practices should receive 
prohibitions only on public lands where eastern black rails have been 
seen or heard within the previous 10 days and fire should receive 
prohibitions only when relative humidity is <20% and wind speed is >20 
mph. This commenter stated that prohibitions should not apply across 
the entire range.
    Response: The prohibitions and exceptions to the prohibitions 
identified in the 4(d) rule are considered necessary and advisable for 
the conservation of the eastern black rail. The activities identified 
in the 4(d) rule may result in incidental take of the bird if they are 
conducted in areas where the bird is present. These activities may take 
place across the range of the bird and are not limited to one specific 
geographic area or specific areas where eastern black rails regularly 
occur and breed. Therefore, the prohibitions and exceptions to the 
prohibitions that may result in incidental take of the eastern black 
rail apply across the range of the bird. If eastern black rails do not 
occur in an area that an activity, such as prescribed fire or 
mechanical treatment, is taking place, then no eastern black rails 
would be in a position to be taken; thus, the take prohibitions do not 
apply. If suitable habitat is present and eastern black rails may occur 
in the area, we recommend that surveys be conducted to inform the 
presence of eastern black rails, and we will provide future guidance on 
survey methodology. If habitat is unsuitable for the eastern black 
rail, such as forested areas or row crops, it is unlikely they will 
occur there. We are not limiting the 4(d) rule to locations where the 
eastern black rail has been seen or heard only within the previous 10 
days; because the eastern black rail is a secretive bird, this measure 
may not provide enough protection to ensure that the species is not 
taken. We do not find that the prohibitions should apply only when 
relative humidity is less than 20 percent and wind speed is greater 
than 20 mph, as these conditions will vary across the range of the 
species and such a restriction will not support conservation of the 
species.
    42. Comment: One State commented that restrictions under the 4(d) 
rule for the eastern black rail would reduce the State's ability to 
manage for the mottled duck. One commenter disagreed that mowing, 
disking, or other brush-clearing activities would have a measurable 
impact on eastern black rail recruitment and survival. The commenter 
also stated that these tools are essential wetland management tools for 
the mottled duck.
    Response: There is considerable overlap between nesting habitat for 
eastern black rail and mottled ducks along the Gulf Coast. Mottled 
ducks, like the eastern black rail, use tall grass and require cover 
(Stutzenbaker 1988, pp. 72-81). Peak nesting for the mottled duck 
occurs in March, April, and May on the upper Texas Gulf Coast, but 
birds may nest January through August (Stutzenbaker 1988, p. 70). As 
this species requires approximately a month between initiation of egg-
laying and hatching (Bielefeld et al. 2010, unpaginated), disruptions 
to nesting activity early in the season have the potential to greatly 
delay brood production following re-nesting attempts.
    Mottled ducks and other species of migratory birds may benefit from 
less burning activity during their peak nesting months. Either absence 
of grazing or the presence of light-intensity grazing is beneficial to 
mottled duck nesting habitat, while heavy grazing is not beneficial 
(Stutzenbaker 1988, pp. 72-81; Durham and Afton 2003, p. 440). As the 
4(d) rule for eastern black rail does not restrict grazing at any 
period during the year as long as the grazing activity supports the 
maintenance of appropriate dense overhead cover, we anticipate no 
conflicts between grazing activities designed to manage mottled duck 
nesting habitat and eastern black rail habitat. Mechanical treatment 
activities are prohibited during the nesting and brooding season for 
the eastern black rail, and this prohibition will avoid incidental take 
of eastern black rails (via nest destruction and chick mortality) and 
will likely benefit nesting mottled ducks, as well. The 4(d) rule does 
not prohibit prescribed burns within (or outside) the sensitive period. 
The 4(d) rule enables the use of land management tools, such as 
prescribed burns and mechanical treatment activities, for waterfowl 
management and may also have positive impacts on the mottled duck.
    43. Comment: We were advised by one State, the Central Flyway 
Council, and three other commenters that prescribed fire, grazing, and 
haying, mowing, and mechanical treatment activities are needed to 
conserve eastern black rails and their habitat and are not incompatible 
with eastern black rails. One commenter said that land management 
practices are not detrimental to the species.
    Response: Prescribed fire, grazing, haying, mowing, and mechanical 
treatment activities are positive techniques that can enhance and 
maintain eastern black rail habitat. However, any of these techniques 
may be used in a manner that will result in loss of eastern black rail 
individuals and reproductive potential. Throughout the SSA report 
(Service 2018 and Service 2019) and the proposed listing rule (83 FR 
50610, October 9, 2018), the Service does not treat prescribed fire, 
grazing, haying, mowing, or mechanical treatment activities as 
incompatible land management practices. Please see sections 3.4.1-3.4.3 
of the SSA report, where we review these management actions in a 
thorough fashion and pages 50618-50619 of the proposed rule, where we 
identify both the benefits and potential concerns to consider when 
using these practices: For example, if a prescribed fire does not 
ensure refugia are maintained for the subspecies or if grazing 
activities remove the dense overhead cover required by the eastern 
black rail. While active management is needed to maintain habitat for 
the eastern black rail and other species, incidental take associated 
with these activities should not prevent local population growth and 
recruitment in order to have an overall beneficial effect for the 
species. The final 4(d) rule allows for flexibility in applying 
prescribed burns, grazing, and haying, mowing and other mechanical 
treatment activities while also providing measures that are necessary 
and advisable to conserve the eastern black rail.
    44. Comment: One State requested that the Service include current 
and relevant BMPs for each 4(d) rule prohibition, such as the Saltmarsh 
Conservation Business Plan, the Black Rail Conservation Plan, and State 
Wildlife Action Plans. The State requested that if no BMPs exist, we 
include a provision that supports the future development of BMPs.
    Response: The 4(d) rule includes guidelines for land management 
actions, such as prescribed burns and grazing activities. It does not 
refer to the specific conservation plans identified by the commenter, 
as some of these may be in draft form at the time of this rule and may 
be revised in the future, and others may not have specific BMPs that 
are tied to the activities identified in the 4(d) rule. However, we 
encourage the continued development of these plans, as they will also 
provide for the conservation of the eastern black rail.
    45. Comment: One State commented that seasonal prohibitions may 
affect their ability to manage conservation lands and suggested the 
restrictions be reduced by 4 to 6 weeks in the spring and 2 weeks in 
the fall.
    Response: The Service agrees with the comment and has revised the 
prohibitions in the 4(d) rule to remove the seasonal restrictions for 
prescribed

[[Page 63782]]

burns and grazing. As modified, these prohibitions still promote 
habitat management activities while also conserving the eastern black 
rail.
    46. Comment: One State commented that a more reasonable timeframe 
of the beginning of the nesting season in Oklahoma and Kansas would be 
mid to late May. The State also commented that several of the records 
currently classified as evidence of probable nesting are more likely to 
be of migrants. One State requested guidance as to when eastern black 
rails initiate the breeding, nesting, and molting period across North 
Carolina, as this will help facilitate fire planning.
    Response: The Service appreciates the comments and recognizes that 
there is latitudinal variability with the nesting, brooding, and 
flightless molt periods across the range of the eastern black rail. We 
have expanded our discussion of the timing of the breeding, nesting, 
and molting period in the SSA report (Service 2019).
    47. Comment: One State commented that the 4(d) rule proposed to 
apply broad management prohibitions on various forms of wetland 
management, and expressed concern that it would not be able to 
adequately manage its wetlands under the proposed 4(d) rule.
    Response: The Service has modified the 4(d) rule to provide 
flexibility to land managers while also ensuring the rule is necessary 
and advisable for the conservation of the eastern black rail. Seasonal 
constraints are minimized as long as a portion of dense cover habitat 
is maintained. Exceptions are also included for specific types of 
wetland management operations, such as mechanical treatment of woody 
vegetation in degraded habitat and moist soil unit management 
activities.
    48. Comment: Three States and one commenter requested more 
flexibility in prescribed fire timing and scale than contained in the 
proposed rule. One commenter requested greater specificity as to the 
time of year that prescribed fire may take place in the various regions 
where the eastern black rail is distributed. One commenter interpreted 
the 4(d) rule as prohibiting the use of all fire. Another commenter 
commented that the fire prohibitions in the proposed rule would take 
away or limit use of prescribed burning. Three States and eight other 
commenters stated that the 4(d) rule should allow growing season fire, 
citing concerns for brush control and their ability to meet habitat 
management goals. They also commented that prohibitions during the 
growing season would limit their ability to provide and maintain 
habitat for eastern black rail and other species due to timing 
restrictions, impacted burn return intervals, and ignition 
restrictions. One of these commenters also suggested that fire should 
be allowed year round. One State commented that the time period of the 
prohibitions in the 4(d) rule conflicts with management for other 
species of conservation concern, such as the Florida grasshopper 
sparrow and the bald eagle. For example, growing season fires are 
important to reduce woody encroachment and maintain habitat for the 
Florida grasshopper sparrow. Also, reducing woody encroachment in dry 
prairie and its embedded marshes also maintains the open conditions 
needed by the Federally-listed crested caracara and State-designated 
threatened Florida sandhill crane.
    Response: Under the final 4(d) rule, fire is allowed year-round 
within a framework designed to promote eastern black rail population 
growth and maintenance at the site level. We agree that brush 
encroachment is a concern for eastern black rail habitat management. We 
revised the 4(d) rule to allow incidental take of eastern black rails 
resulting from prescribed fires throughout the year, as long as 
identified practices are followed. Employing these practices will 
minimize incidental take of eastern black rails and provide for long-
term habitat needs for the eastern black rail and other cover-dependent 
species. Under the practices identified in the 4(d) rule, practitioners 
should ensure that habitat always remains to provide for eastern black 
rail population growth and maintenance at the site level. Under the 
4(d) rule, burning within one calendar year within a management 
boundary of any ownership should leave in place at least 50 percent of 
the dense overhead cover habitat available for eastern black rails. 
This practice will reduce mortality while still allowing for fire 
application throughout the year.
    The conditions described in the rule allow site managers to 
maintain a mosaic of seral stages on their managed landscape that 
support many different species that may have slightly different needs 
including the eastern black rail. The 4(d) rule does not assign burn 
return intervals; rather, this is left to the discretion of the site 
manager. Ignition tactics, rates of spread, and flame lengths should 
allow for wildlife escape routes and avoid trapping birds in a fire. 
The 4(d) rule provides guidelines for burning using techniques that do 
not trap and kill eastern black rails. The 4(d) rule also includes 
guidelines for providing refugia during prescribed fires for this 
subspecies.
    49. Comment: One State commented that the SSA identified a possible 
risk of increased frequent wildfires as a result of increased drought 
or lightning strikes. The State commented that the 4(d) rule should be 
revised to encourage prescribed fire at times that would reduce the 
potential for catastrophic, unplanned fires.
    Response: We have revised the 4(d) rule to remove the seasonal 
restrictions on prescribed burns. The 4(d) rule allows incidental take 
resulting from prescribed fires throughout the year, as long as 
identified practices are followed. Reducing the potential for 
catastrophic unplanned fires can still be achieved by employing 
controlled fires where eastern black rails are present. This strategy 
also allows maintenance of needed habitat that promotes population 
maintenance and growth for eastern black rail.
    50. Comment: One State and one public commenter commented that burn 
return intervals were not identified for their region or would be 
affected by the 4(d) rule.
    Response: The Service has modified the 4(d) rule to allow 
prescribed fire to take place any time during the year when using 
practices that minimize the take of eastern black rails. Fire return 
frequencies in areas known to support eastern black rails should be 
infrequent to a degree that suitable habitat is available for several 
years to breeding individuals and yet frequent enough to maintain 
suitable eastern black rail habitat. These fire return frequencies may 
vary across the species' range and, therefore, should be determined by 
site managers.
    51. Comment: The Central Flyway Council and one commenter requested 
more information as to how fire prohibitions apply during the 
nonbreeding season for States with migratory populations such as 
Colorado, Kansas, and Oklahoma. One State commented that the fire 
prohibitions should not apply to northern interior States during the 
nonbreeding season when eastern black rails are not there. One State 
commenter commented that restricting prescribed fire to the winter 
season may increase risk, including predation risk, to eastern black 
rails in Florida.
    Response: The Service has modified the 4(d) rule to allow 
prescribed fire to take place any time during the year when practices 
that minimize the take of eastern black rails are used. This provision 
includes retaining habitat in untreated areas that supports the dense 
overhead cover required by the eastern black rail. This approach allows 
managers to continue habitat

[[Page 63783]]

management efforts important to the eastern black rail while supporting 
its life-cycle needs. The fire prohibition in the 4(d) rule does not 
apply during the nonbreeding season to areas that only support eastern 
black rails during the breeding season, as there would not be 
incidental take of the bird. However, we encourage land managers to 
maintain suitable habitat for the eastern black rail in known breeding 
areas if the area does undergo fire treatment during the nonbreeding 
season.
    52. Comment: One State commented that the BMPs outlined in the 
proposed 4(d) rule may conflict with wildfire risk mitigation and may 
not work in coastal marsh settings. The commenter requested technical 
assistance from the Service to continue to meet obligations to mitigate 
wildfire risk for coastal communities in a way that aligns with the 
spirit and intent of the ESA protections for the eastern black rail.
    Response: The 4(d) prohibition and identified BMPs on prescribed 
fire were constructed with input from prescribed fire professionals 
throughout the range of the subspecies, including four regions of the 
Service. These personnel found the prohibitions realistic and clearly 
constructed from a fire professional's perspective. The Service will 
gladly provide technical assistance in implementing the 4(d) rule upon 
request.
    53. Comment: One State commenter advised that eastern black rails 
use fire dependent habitats and these habitats require an appropriate 
amount of fire to maintain. One State commenter advised that fire 
planning should provide critical cover for the breeding season and 
consider fire impacts to the invertebrate prey base. More information 
is needed on overwintering and stopover use of mid-Atlantic marshes 
where fire is used outside the breeding seasons in order to assess 
impacts during these time periods.
    Response: We agree that habitats occupied by the eastern black rail 
are fire dependent and may require fire to maintain them (for further 
discussion, please see the SSA report, section 3.4 (Service 2019)). The 
4(d) rule has been modified to ensure that birds are provided 
sufficient habitat that provides suitable overhead cover during the 
year for the breeding and non-breeding season. The Service agrees that 
more research and study will improve our knowledge and understanding of 
the eastern black rail.
    54. Comment: One State requested clarity on prescribed fire refugia 
size.
    Response: In the final 4(d) rule, we have clarified the minimal 
refugia size and the amount of area within a prescribed fire unit for 
unburned refugia. As outlined below, unburned patches should be no 
smaller than 100 square feet.
    55. Comment: One State commented that the eastern black rail is 
documented to re-nest after the loss of an early nest and that the loss 
of an early nest may reduce, but not preclude, successful annual 
recruitment. The State commented that, therefore, a failure to apply 
fire with the appropriate seasonal considerations will result in the 
eventual loss of the habitat necessary for breeding.
    Response: Eastern black rails can re-nest after nest failure. 
However, for many species of birds including some rallids, re-nesting 
attempts are less productive than the initial nesting effort. 
Additionally, displaced adults would have to relocate to untreated 
sites and establish new territories after a fire. The 4(d) rule allows 
prescribed fire during the breeding season of the eastern black rail, 
while ensuring at least half of nesting habitat is untreated and 
available for established nesting adults and for birds displaced by 
prescribed fire events, i.e., areas supporting dense overhead cover are 
maintained. The 4(d) rule allows site managers to maintain a mosaic of 
seral stages on their managed landscape that support many different 
species that may have slightly different needs, including the eastern 
black rail. This approach allows managers to continue habitat 
management efforts important to the eastern black rail while supporting 
its life-cycle needs.
    56. Comment: One State commented that, if heavy grazing results in 
the degradation of known black rail habitat on public lands, the 4(d) 
rule should include a provision that includes a no-net-loss habitat 
restoration/mitigation requirement.
    Response: We have revised the 4(d) rule to remove the terms ``light 
to moderate grazing'' and ``heavy grazing.'' The rule prohibits 
incidental take that results from grazing activities on public lands 
that occur on eastern black rail habitat and, that individually or 
cumulatively with other land management practices, do not maintain at 
least 50 percent of eastern black rail habitat, i.e., dense overhead 
cover, in any given calendar year within a management boundary.
    57. Comment: One State requested that all grazing activities, 
regardless of intensity, conducted on public lands should include a 
monitoring requirement prior to the initiation of grazing and after 
grazing has occurred. The purpose of the before and after monitoring is 
to confirm the presence/absence of the subspecies within the affected 
area and to help establish the costs and benefits of grazing on local 
eastern black rail populations.
    Response: Public land site managers may use any of a wide range of 
methods to assess and evaluate site conditions. These can include pre- 
and post-treatment assessments of relevant information such as black 
rail presence/absence or occupancy, or plant species composition and 
structure. This is a key aspect of Strategic Habitat Conservation 
Planning (https://www.fws.gov/science/doc/SHCFactSheet1008pdf.pdf), 
which provides continual feedback on the effectiveness of any 
conservation action. We are not including a monitoring requirement in 
the 4(d) rule because the methods and techniques may change over time 
based on improved knowledge.
    58. Comment: One State commented that grazing can be a very 
effective means of removing invasive plant species. The State commented 
that if survey efforts for eastern black rails increase beyond the 
traditional salt marsh habitats in the region, eastern black rails may 
be discovered in areas like bog turtle wetlands where grazing is the 
most efficient and effective tool to control invasive plant species and 
maintain freshwater habitats.
    Response: We recognize that grazing can be used as a management 
tool. The rule allows for the use of grazing as a tool as long as at 
least 50 percent of eastern black rail habitat, i.e., dense overhead 
cover, is maintained within management boundaries in any given calendar 
year.
    59. Comment: One State commenter advised that there is no evidence 
that properly managed cattle would result in take or deleterious 
impacts to the eastern black rail. They further stated that excessive 
grazing would be detrimental but rarely occurs on the Texas coast due 
to its highly productive conditions. They added that herbivory of 
muskrat, snow goose, and cattle benefits the system that includes 
eastern black rail habitat, citing Miller et al. 1996 and Bhattacharjee 
et al. 2007.
    Response: We agree that take of or deleterious impacts to the 
eastern black rail would not be expected from properly maintained 
grazing activities that maintain dense overhead cover for the bird. 
However, we disagree that detrimental effects of excessive grazing are 
offset by highly productive conditions in Texas. While herbivory may 
promote diversity, it does not always lead to benefits for all species 
of wildlife, including the eastern black rail. At a Texas refuge, 
Miller et al. (1996) found that herbivory by geese

[[Page 63784]]

and cattle can lead to mudflat and open water habitats and loss of 
emergent marsh and recommended the removal of cattle from sensitive 
areas (p. 474). In a separate salt marsh in Galveston County, Texas, 
two studies found that total vegetative cover was significantly reduced 
by grazing (Yeargan 2001, entire; Martin 2003, entire). In addition, 
both found that the greatest grazing impacts occurred at higher 
elevations in upper marshes. In Louisiana marshes, the destruction of 
chairmaker's bulrush (Scirpus olneyi) due to heavy grazing has been 
documented (Chabreck 1968, entire). Diversity of plants increased to 
pre-disturbance conditions after a multiple-year period of deferred 
disturbance (Bhattacharjee et al. 2007, p. 23). They recommended that 
grazing and or fire may be used as a disturbance mechanism if the 
resulting condition is a desired management goal (p. 23). They do not 
describe disturbance as being beneficial but rather a method to exert a 
change in the vegetation community.
    60. Comment: One State suggested that the grazing prohibition from 
mid-March through September 30 contained in the 4(d) rule may not fit 
all cases. This State suggested that the Service consider a shorter 
prohibition on grazing, coupled with BMPs. For example, cattle stocking 
densities that closely match historical, natural grazing densities as 
determined by the Natural Resources Conservation Service likely could 
be used throughout the year without significant detrimental impacts to 
the eastern black rail and would likely provide a net benefit. Another 
State asked that the Service consider eliminating the restriction of 
``intensive or heavy grazing should be avoided between mid-March and 
September 30th'' or at least provide further details as to how 
regionally specific grazing recommendations will be defined throughout 
the eastern black rail's range.
    Response: We have revised the 4(d) rule to allow for grazing year-
round as long as at least 50 percent of eastern black rail habitat, 
i.e., dense overhead cover, is maintained in any given calendar year. 
Generally, favorable grazing intensity leaves overhead cover intact 
within eastern black rail habitat. Because of differences in plant 
communities and climate within and between regions of the species' 
range, it is not possible to assign specific stocking densities in 
terms of grazing animal density for a specific site within the 4(d) 
rule. Cover targets and assessment methods will be provided in guidance 
documents, and site managers will be responsible for managing grazing 
densities.
    61. Comment: One State asked that the 4(d) rule define ``public 
lands'' and clarify which public lands will be subject to the grazing 
prohibition in the 4(d) rule.
    Response: Public lands covered by this prohibition are those lands 
under governmental management whose intended purpose is to conserve 
wildlife and/or natural habitats for the general public. This 
definition includes Federal, State, and locally managed lands. Public 
lands whose intended purpose may be recreational sports, (e.g., soccer, 
baseball, etc.), operational management, or other civic purposes are 
not subject to the rule.
    62. Comment: One State and one commenter indicated that although 
grazers may trample nests, eggs, young chicks, or incubating adults, it 
seems unlikely that adult or older juveniles would be easily trampled 
under light to moderate grazing.
    Response: We agree that trampling of adult birds may happen less 
frequently at lighter stocking densities. The primary concern with 
grazing is the removal of dense overhead cover that this subspecies 
requires for nesting and to avoid predation.
    63. Comment: Two States and a Federal agency requested that we 
define intense, heavy, moderate, and light grazing. One commenter 
requested that we define `intensive or heavy grazing' in terms of 
Animal Unit Months.
    Response: The prohibition of incidental take associated with 
grazing activities in the 4(d) rule has been revised and applies only 
to grazing activities on public lands that do not support the 
maintenance of at least 50 percent of appropriate dense overhead cover 
habitat for the eastern black rail in any given calendar year. 
Favorable grazing intensity leaves overhead cover intact within eastern 
black rail habitat. Because of differences in plant communities and 
climate within and between regions, it is not possible to assign 
specific stocking densities in terms of grazing animal density for a 
specific site within the 4(d) rule. Cover targets and assessment 
methods will be provided in guidance documents, and site managers will 
be responsible for managing grazing densities.
    64. Comment: One State commented that if grazing, mowing, and 
haying are used in moderation and under BMPs, these practices could 
also be used to create better eastern black rail habitat.
    Response: We agree that some land management practices can be used 
to enhance habitat required by the species. The species prefers wet 
grasslands and emergent marshes that are dominated by herbaceous 
vegetation. These habitats often require some level of disturbance to 
reset their successional stage, and this disturbance may be achieved 
from grazing, mowing, or haying activities.
    65. Comment: One State requested more flexibility in mechanical 
treatment timing and scale than contained in the proposed 4(d) rule. 
Multiple commenters requested that we clarify or expand the exception 
for incidental take of eastern black rails that results from mowing, 
haying, or other mechanical treatment activities that are conducted 
during the brooding or nesting period and are maintenance activities to 
ensure safety or operational needs of existing infrastructure. One 
commenter requested clarity regarding exceptions to the rule associated 
with maintenance of existing rights-of-way for electric and other 
transmission corridors such as pipelines as well as their respective 
structures such as pump stations or transfer stations. One commenter 
requested that maintenance of irrigation infrastructure be excepted 
from the 4(d) rule. One commenter requested that we except maintenance, 
safety, and operational needs associated with existing electric 
infrastructure from prohibitions.
    Response: We recognize haying, mowing or other mechanical treatment 
activities may need to be used for maintenance requirements to ensure 
safety and operational needs for existing infrastructure, and these 
activities may need to take place during the nesting or brooding 
periods. We added exceptions to the final 4(d) rule for incidental take 
resulting from mechanical treatment activities that occur during the 
nesting and brooding periods, and that are maintenance requirements to 
ensure safety and operational needs of existing infrastructure. These 
include maintenance of existing firebreaks, roads, rights-of-way, 
levees, dikes, fence lines, airfields, and surface water irrigation 
infrastructure (e.g., head gates, ditches, canals, water control 
structures, and culverts). Also excepted is incidental take resulting 
from mechanical treatment activities done during the nesting or 
brooding periods with the purpose of controlling woody encroachment or 
other invasive plant species to restore degraded habitat for eastern 
black rails. Mechanical treatment activities outside of the nesting and 
brooding period are not prohibited. We find that this approach 
addresses infrastructure and habitat maintenance needs while promoting 
eastern black rail population growth and maintenance at the site level.
    66. Comment: One State requested management flexibility to manage 
wetlands for a variety of species as well

[[Page 63785]]

as to conserve important late-successional cattail and bulrush habitats 
for black rails. Cattail management is critical to open up monotypic 
cattail marshes, and a variety of techniques are needed in different 
seasons. This State uses mowing, mechanical treatment, and herbicide 
treatment in early summer through winter.
    Response: The incidental take prohibition for mowing and mechanical 
treatment activities has been modified to apply only during the nesting 
and brood-rearing period. This provision should provide ample 
opportunity in late summer to early fall to treat cattail and bulrush 
marshes and reset their seral stage. The use of herbicides is not 
prohibited under the 4(d) rule.
    67. Comment: Two States and two commenters opposed the timing 
restrictions for haying, mowing, and other mechanical treatment 
activities. One State requested more flexibility in the timing. One 
commenter did not feel that this activity will have measurable impacts 
on eastern black rail recruitment and survival.
    Response: Several exceptions to the rule apply to the haying, 
mowing, and other mechanical treatment activities that may occur during 
the brooding or nesting season, including maintenance of existing 
infrastructure and control of woody encroachment. The impact of these 
activities on grassland and marshland nesting birds has been well 
documented (see discussion in the SSA report (Service 2019)). 
Incidental take of eastern black rails from mowing, haying, and other 
mechanical treatment activities that take place outside of the brooding 
or nesting season is not prohibited. However, where prohibitions apply, 
it is important to recognize that the loss of eggs or chicks affects 
recruitment into and growth of the population. Population recruitment 
and growth are crucial to the recovery of the subspecies.
    68. Comment: One State suggested that we add a requirement for 
monitoring prior to the initiation of mechanical treatment activities 
to determine if the eastern black rail is present.
    Response: The determination of whether eastern black rails are 
present is the responsibility of those undertaking the activity. A 
variety of methods may be used to assess whether the eastern black rail 
is present. The Service will be providing guidance and recommendations 
on different methods to determine the presence of eastern black rails.
    69. Comment: One State and two commenters indicated that 
prohibitions in the proposed rule may prevent control of nonnative 
plant species, such as Phragmites, and thus may impact eastern black 
rail habitat and its recovery.
    Response: We added an exception to the rule to allow incidental 
take of eastern black rails that result from mowing, haying, and other 
mechanical treatment activities during the brooding or nesting season, 
that occurs during the control of woody encroachment and other invasive 
plant species to restore degraded habitat. Incidental take of eastern 
black rails from mowing, haying, and other mechanical treatment 
activities that take place outside of the brooding or nesting season is 
not prohibited.
    70. Comment: One State and three commenters suggested that we did 
not fully consider the impacts of development (such as urbanization, 
construction, or oil and gas activities) and other activities that 
result in the loss of suitable habitat for the eastern black rail. 
These comments requested that we consider additional provisions in our 
4(d) rule to address activities that result in the loss or degradation 
of eastern black rail habitat.
    Response: We appreciate these comments and have included a 
prohibition in the 4(d) rule that prohibits incidental take resulting 
from long-term or permanent damage, fragmentation, or conversion of 
persistent emergent wetlands and the contiguous wetland-upland 
transition zone to other habitat types (such as open water) or land 
uses that do not support eastern black rail.
    71. Comment: One State and one commenter questioned why the Service 
did not propose prohibitions under the 4(d) rule that addressed sea 
level rise and tidal flooding.
    Response: Although sea level rise and tidal flooding are threats to 
the eastern black rail's habitat, we cannot tie these activities to one 
specific regulated entity. Prohibiting take incidental to an otherwise 
lawful activity, such as prescribed fire, allows the Service to 
identify an entity that is conducting the activity (e.g., a Refuge 
conducting a prescribed burn) and regulate this entity through the 
prohibitions and exceptions in the 4(d) rule. Prohibiting take of 
eastern black rails incidental to tidal flooding or sea level rise 
would not allow us to regulate an identified entity. Therefore, 
addressing the threats of sea level rise and tidal flooding are outside 
the scope of this 4(d) rule.
    72. Comment: One State commenter requested that several habitat 
management activities be excepted from incidental take. These included 
prescribed fire between October 1 through April 15, water level 
management within impoundments, control of invasive plants using 
herbicides and/or mechanical means, removal of sediments from existing 
structures, and restoration activities under USACE Nationwide Permit 
(NWP) 27.
    Response: The Service has revised the 4(d) rule to allow prescribed 
fire anytime during the year as long as best practices as outlined in 
the rule are used. The Service has also excepted from the prohibitions 
of the rule existing moist soil unit management sites, invasive species 
control activities, and maintenance of existing water infrastructure. 
However, activities and projects that are eligible for NWP 27 may or 
may not have adverse impacts on the eastern black rail. Therefore, 
activities under NWP 27 are not categorically excepted under the 4(d) 
rule. Each individual activity must be evaluated to determine whether 
the prohibitions and exceptions under the rule apply.
    73. Comment: One State requested that the Service consider how the 
4(d) rule would impact the ability to employ known management methods 
that benefit eastern black rail habitat and support functional 
ecosystems. Restrictions should not unduly impact the ability to test 
habitat creation/restoration methods in an adaptive management 
framework, especially given our large knowledge gaps for this secretive 
species.
    Response: The Service has modified the 4(d) rule to accommodate 
habitat management activities that limit incidental take of the bird 
and maintain wetland habitat for the eastern black rail and other 
wildlife species. Land managers will maintain flexibility under the 
4(d) rule to conduct activities that support functional ecosystems, 
while also minimizing take of the eastern black rail. Land managers may 
pilot habitat creation and restoration methods in the future. If these 
activities have a Federal nexus, the land manager will be required to 
consult with the Service on the activity, as is required by section 7 
of the Act.
    74. Comment: One State was concerned that the creation of wetlines 
as an alternative to firebreaks will not be allowed under the 4(d) 
rule.
    Response: Maintenance of existing firebreaks and the establishment 
of new firebreaks are excepted under the 4(d) rule. This exception 
includes temporary breaks in the form of wetlines or compaction lines.
    75. Comment: One State commented that moist soil management is 
important on public and private lands for recovery

[[Page 63786]]

and that impoundments may help with marsh migration management.
    Response: In the 4(d) rule, incidental take resulting from 
mechanical treatment activities in existing moist soil management units 
is excepted.
    76. Comment: One State requested that airfields be added to the 
list of existing infrastructure under the exceptions from prohibitions 
for incidental take resulting from haying, mowing, or other mechanical 
treatment activities.
    Response: We agree and have added airfields to the list of existing 
infrastructure excepted from the prohibitions of the 4(d) rule.
    77. Comment: One State commenter requested that mosquito 
surveillance and larvicide and adulticide applications be excepted. 
Another commenter requested that public health mosquito control 
applications be excepted from the 4(d) rule.
    Response: Incidental take of eastern black rails resulting from 
these activities is not prohibited under the 4(d) rule, so an exception 
is not needed.
    78. Comment: One State requested reassurance that prohibitions in 
the 4(d) rule will not hinder coastal restoration work, particularly 
with the current inability to fully delineate locations of high marsh 
in the bird's range.
    Response: The Service recognizes the importance of coastal 
restoration efforts and that these activities may prove beneficial to 
the eastern black rail. Coastal restoration projects may have both 
temporary and permanent effects on eastern black rails. While not all 
coastal restoration projects benefit the eastern black rail, some do 
and can support recovery of the species. The Service recognizes the 
challenges facing this species and will not arbitrarily hinder 
restoration activities that may benefit the eastern black rail and its 
habitat. See Comment 79 for section 7 requirements.
    79. Comment: One State and one public commenter requested 
clarification regarding their section 7 responsibilities under the Act. 
One commenter asked which public lands will be required to complete 
section 7 consultation.
    Response: Section 7(a)(2) of the Act requires all Federal agencies 
to ensure that activities they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of a listed species or 
destroy or adversely modify its critical habitat. If a Federal action 
may affect a listed species or its critical habitat, the responsible 
Federal agency must enter into consultation with the Service. This 
requirement does not change when a 4(d) rule is implemented. In 
accordance with our regulations found at 50 CFR 402.14 and the 
Services' Consultation Handbook, it is the action agency's 
responsibility to determine whether any action ``may affect'' listed 
species or critical habitat, and if it may, additional consultation is 
required. Therefore, when an action agency determines its proposed 
action will not affect a listed species, no further consultation with 
the Service is required. If the species will not be exposed directly or 
indirectly to the proposed action or any resulting environmental 
changes, an agency should conclude ``no effect'' and document the 
finding; this completes the section 7 process. For example, if suitable 
habitat is not present in the action area and the project does not 
otherwise present a risk to the species, an action agency can conclude 
``no effect'' and document their finding.
    When an action agency determines its proposed action ``may affect'' 
a listed species, all standard consultation procedures apply unless a 
programmatic consultation approach is developed. For example, if an 
action is anticipated to result in adverse effects (regardless of 
whether the effects will result in prohibited or excepted take) to the 
species, formal consultation is required. While the basic consultation 
procedures apply, any resulting biological opinions are different in 
that there are no incidental take statements or associated reasonable 
and prudent measures and terms and conditions for forms of take that 
are not prohibited by the 4(d) rule.
    80. Comment: One State commented that the 4(d) rule would 
negatively affect eastern black rail conservation by being a 
disincentive for more research.
    Response: When this final rule is effective, there are several 
mechanisms to allow for research for the eastern black rail. In 
accordance with our regulations found at 50 CFR 17.32(a), we may issue 
a permit for any activity otherwise prohibited with regard to 
threatened wildlife; permits issued under this section must be for one 
of the following purposes: Scientific purposes, or the enhancement of 
propagation or survival, or economic hardship, or zoological 
exhibition, or educational purposes, or special purposes consistent 
with the Act. Further, any employee or agent of the Service, of the 
National Marine Fisheries Service, or of a State conservation agency 
that is operating a conservation program for the eastern black rail 
pursuant to the terms of a cooperative agreement with the Service in 
accordance with section 6(c) of the Act, who is designated by his 
agency for such purposes, may, when acting in the course of his 
official duties, take eastern black rails. We anticipate that the 
listing of the eastern black rail will necessitate further research 
that generates knowledge needed to conserve the species, and we 
encourage States and other partners to continue with research efforts 
that contribute to conservation.
    81. Comment: The Central Flyway Council and one public commenter 
stated that the Service should fund additional research and explore 
options to avoid limiting future research as a result of the 4(d) rule.
    Response: Research that is conducted for the purpose of recovery of 
a species is an activity that can be authorized under section 10 of the 
Act, normally referred to as a recovery permit, or can be conducted by 
certain State conservation agencies by virtue of their authority under 
section 6 of the Act. Additional research will be important for 
recovery of the eastern black rail, and thus the Service will continue 
to support such actions.

Public Comments

Listing
    82. Comment: A commenter stated that the literature has knowledge 
gaps regarding how black rails and their habitat are affected by 
management practices and how agencies should proceed with management in 
different geographic regions.
    Response: Current literature, graduate research projects, and 
project reports have consistently concluded that eastern black rail 
occupancy increases with increasing overhead cover (see Kane 2011, 
Butler et al. 2015, Tolliver et al. 2019). Land management actions that 
do not leave overhead cover in place for eastern black rail and ensure 
that such cover is always present within a land management boundary, 
may impact the bird. During the breeding season, actions that remove 
overhead cover or destroy nests will impact egg and chick survival. As 
more research on eastern black rails and management impacts is 
completed, our understanding of this issue will continue to expand; 
however, our rule is based on the best available science.
    83. Comment: A commenter asked how relevant scientific data from 
the Texas Gulf Coast were used in making the listing recommendation.
    Response: The Service employed an active outreach effort soliciting 
any information regarding the eastern black rail. This effort took 
place at the initiation (July 2017) of and during the development of 
the SSA. This effort included letter requests for information as well 
as verbal requests at various times throughout the process; requests

[[Page 63787]]

were made to Federal agencies, State conservation and land management 
agencies, national Convention on International Trade in Endangered 
Species of Wild Fauna and Flora authorities, universities, non-
governmental conservation organizations, and species experts. The data 
we obtained relative to Texas included books, scientific publications, 
dissertations and theses, governmental documents, personal interviews, 
survey datasheets and websites that house information. These sources of 
information were reviewed and used to inform the SSA analysis and 
report. See ADDRESSES, above, for information regarding how to access 
the materials used in preparing the rule or to review the Literature 
Cited of the SSA report (Service 2019).
    84. Comment: One commenter stated that listing will cause excessive 
management problems to private landowners in Louisiana. One commenter 
stated that the listing of the eastern black rail will affect 
agriculture and that these effects should be taken into consideration.
    Response: For listing actions, the Act requires that we make 
determinations ``solely on the basis of the best available scientific 
and commercial data available'' (16 U.S.C. 1533(b)(1)(A)). The Act does 
not allow us to consider the impacts of listing on economics or human 
activities, whether over the short term, long term, or cumulatively. 
Therefore, we may not consider information concerning economic or 
management impacts when making listing determinations. It should be 
noted that Louisiana has few documented occurrences of eastern black 
rail and these occurrences are concentrated in and around southwest 
Louisiana (Johnson and Lehman 2019b, entire). With such limited 
occurrences, we do not anticipate the listing rule will have a 
widespread impact on agriculture or private landowners. Further, our 
4(d) rule excepts incidental take of eastern black rails from 
activities in existing moist soil management units or prior converted 
croplands (e.g., impoundments for rice or other cereal grain 
production).
    85. Comment: Two commenters questioned the quality of information 
used in decision-making, and whether adequate surveys exist to inform 
the listing decision.
    Response: In accordance with section 4 of the Act, we are required 
to determine whether a species warrants listing on the basis of the 
best scientific and commercial data available at the time we make our 
determination. Further, our Policy on Information Standards under the 
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 
(www.fws.gov/informationquality/), provide criteria and guidance, and 
establish procedures to ensure that our decisions are based on 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 determining whether a species warrants listing as an 
endangered or threatened species.
    Primary or original information sources are those that are closest 
to the subject being studied, as opposed to those that cite, comment 
on, or build upon primary sources. However, the Act and our regulations 
do not require us to use only peer-reviewed literature, but instead 
they require us to use the ``best scientific and commercial data 
available'' in a listing determination. We use information from many 
different sources, including articles in peer-reviewed journals, 
scientific status surveys and studies completed by qualified 
individuals, Master's thesis research that has been reviewed but not 
published in a journal, other unpublished governmental and 
nongovernmental reports, reports prepared by industry, personal 
communication about management or other relevant topics, conservation 
plans developed by States and counties, biological assessments, other 
unpublished materials, experts' opinions or personal knowledge, and 
other sources. We have relied on published articles, unpublished 
research, digital data publicly available on the internet, and the 
expert opinion of subject biologists to make a final listing 
determination for the eastern black rail.
    We collected and used data from eBird (these records included 
historical records, observations from birders, and survey-collected 
data through 2017). The Center for Conservation Biology dataset 
provided an integrated dataset for U.S. coastal states, including 
surveys, literature, and museum records; these data are through 2016. 
The University of Oklahoma--Oklahoma Biological Survey dataset provided 
a similar integrated dataset of the interior United States through 
2012. Sixteen research groups and States provide monitoring and 
inventory datasets with records through 2017. We also received updated 
survey information from some sources, including several States between 
the proposed and final rules.
    Also, in accordance with our peer review policy published on July 
1, 1994 (59 FR 34270), we solicited peer review from knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occurs, and 
conservation biology principles. Additionally, we requested comments or 
information from other concerned governmental agencies, Native American 
Tribes, the scientific community, industry, and any other interested 
parties concerning the proposed rule. Comments and information we 
received helped inform this final rule.
    86. Comment: One commenter suggested it would help to support a 
listing recommendation if we were able to differentiate our analysis 
units based on genetic information and genetic differences among 
eastern black rail populations.
    Response: We agree that genetic information on the eastern black 
rail would help inform our understanding of this subspecies. However, 
at the time of the listing, genetic information on the eastern black 
rail was not available. We are required to make our listing 
determinations on the best available scientific and commercial data at 
the time the determination is made (see response to Comment 93, above).
    87. Comment: Two commenters stated their views that the species 
should be listed as endangered.
    Response: We do not find that the eastern black rail is currently 
in danger of extinction throughout its range. Although the eastern 
black rail has experienced reductions in its numbers and seen a range 
contraction, this subspecies is still relatively widespread in terms of 
its geographic extent. The current condition of the subspecies still 
provides for resiliency, redundancy, and representation such that it is 
not currently at risk of extinction throughout its range (see 
Determination section). The commenters did not provide any new 
information regarding threats to the eastern black rail or its current 
status that was not already considered in the SSA report or proposed 
rule. One commenter cited the proposed rule and SSA report to support 
their argument of listing the eastern black rail as an endangered 
species. With no new information to consider, our conclusion regarding 
the status of the eastern black rail remains the same.

[[Page 63788]]

SSA Report

    88. Comment: Two commenters stated that we did not consult Tolliver 
(2017) or Tolliver et al. (2019) (referred to as Tolliver 2018 and 
Tolliver et al. 2018 in comment letters) in the Federal Register 
document and/or in the Species Status Assessment. Three commenters 
stated eastern black rail colonization is not affected by fire and 
recruitment increases in recently burned areas. Commenters cited 
Tolliver (2018) as a supporting document.
    Response: We referenced Tolliver (2017) in the Federal Register 
document for the proposed listing and in the Species Status Assessment 
Version 1.2. Tolliver et al. (2019) was first published online October 
15, 2018, and in print on January 13, 2019, both occurring after the 
publication of the proposed listing rule (9 October 2018) and 
completion of SSA Version 1.2 (June 2018). Tolliver et al. (2019) is 
the peer-reviewed journal article based on Tolliver's 2017 master's 
thesis. In addition, there is Tolliver et al. (2017), which is a final 
performance report for a grant submitted to TPWD. We consulted the two 
existing documents generated by Tolliver during our preparation of the 
SSA Version 1.2 (Tolliver 2017 and Tolliver et al. 2017) and have 
updated SSA Version 1.3 to reflect the new Tolliver publication 
(Tolliver et al. 2019).
    The effects of fire frequency or intensity were not considered by 
Tolliver et al. (2019, p. 322). Further, they state that some of the 
survey points used in their study were found on boundaries between 
burned and unburned management units. This finding leads to uncertainty 
regarding the accuracy of treatment (fire or grazing) assignments to 
vocalizing eastern black rails for the data analysis in their paper. 
They recommend that future studies include fire intensity, frequency, 
and an assessment of the influence of point placement (within units or 
between them) when assessing occupancy and abundance. When summarizing 
their conclusions or formulating their abstract, they do not relay any 
information about fire effects on the population states examined; 
instead they emphasize their findings of cover dependence for this 
species. While the authors speculated on colonization and recruitment 
following fire, their data treatment did not allow them to draw firm 
conclusions from their analyses. Therefore, we do not agree with the 
commenters' statements that recently burned areas are found to support 
recruitment increases and that colonization is not affected by fire, as 
these statements are contrary to the Tolliver et al. (2019) findings 
that this species is most abundant in densely vegetated grasslands.
    89. Comment: One commenter stated that the Service did not quantify 
occupancy in New England and presumed low resiliency and low 
representation. The commenter states that Watts contradicts this 
presumption.
    Response: Information presented by Watts (2016, p. 19) shows recent 
estimates of zero breeding pairs for Maine, New Hampshire, Vermont, 
Massachusetts, Rhode Island, Connecticut, and New York. He also shows 
range contractions in the Northeast in figures 5 and 6, which present 
maps of Northeast counties with all (1836-2016) and current (2011-2016) 
credible records of eastern black rails during the breeding period (pp. 
21 and 23). In 2015, the State of Connecticut concluded that the black 
rail was extirpated from the State and removed the species from the 
State's endangered species list. This information supports our 
conclusions of low resiliency and low representation for the New 
England Analysis Unit.
    90. Comment: A commenter claims Watts' estimates of eastern black 
rail are guesses rather than estimates, and guesses are not good 
science.
    Response: Watts used the best information available to estimate 
eastern black rail population size on a state-by-state basis. The 
estimates are the result of a critical assessment of the most recent 
information available on the subspecies in each state, including the 
results of targeted black rail surveys and of general marshbird 
surveys, knowledge of available habitat, and consultation with state 
ornithologists and other marshbird experts (Watts 2016, p. 4-10). While 
the estimates were not quantitatively derived, the approach is 
appropriate and thorough for compiling and summarizing all diverse 
sources of information available on the status and distribution of the 
eastern black rail for the geographical areas covered by the report.
    91. Comment: One commenter remarked on the occurrence of eastern 
black rail outside of the contiguous United States, stating that there 
is no known record of black rail for Barbados. The bird has ventured on 
rare occasions as far south as Antigua and Guadeloupe, but not 
Barbados.
    Response: In our SSA report, we have updated the Historical and 
Current Range and Distribution section to state that there are no known 
records of eastern black rail for Barbados and rare records for Antigua 
and Guadeloupe.
    92. Comment: One commenter stated that differences in two time 
points can be due to simple stochastic processes rather than true 
trends. The commenter stated that one needs at least three data points 
to infer trends.
    Response: This concern was addressed by the dynamic occupancy 
modeling techniques that we used. While, in general, the commenter is 
correct that the changes over two observation periods can be 
stochastic; dynamic occupancy modeling approach accounts for this and 
uses multiple sites and detection probability to estimate colonization 
and extinction. Three or more data points will result in more precise 
estimates, but the modeling framework allows us to use data from just 
two.
    93. Comment: One commenter stated that claiming a change from 15 
detections on 328 survey points in 2007 to 2 detections on 135 survey 
points in 2014 is an 85 percent decline is incorrect, because the claim 
does not account for survey effort.
    Response: The correct value should be a decline of 68 percent since 
the number of survey points had changed between 2007 and 2014. This 
value has been updated in the rule and the SSA report.
    94. Comment: One commenter stated that the Service did not examine 
trends in true abundance when examining the status of the eastern black 
rail. The commenter stated that the Service only used changes in raw 
numbers of counted rails to estimate trends.
    Response: There are no statistically valid abundance estimates for 
assessing trend over time over the full range of the species. Some data 
might be useful for assessing localized trends, but we could not use 
those local trends to infer population trend across the entire range of 
the species. The standard required by the ESA is the best available 
scientific and commercial information available, and that standard is 
what was used for the analysis.
    95. Comment: One commenter stated that the Service did not account 
for variations in call rate or for detection probabilities in the data 
used.
    Response: Our models estimated detectability and accounted for 
variability over space and time. In addition, we tried to relate those 
probabilities to covariates; however, no covariates were useful 
predictors of detection probability.
    96. Comment: A commenter questioned how occupancy is used to 
predict long-term persistence.
    Response: The specific procedure for determining extinction risk to 
analysis units is laid out in the SSA, specifically chapters 4 and 5 
and appendices A and B. We took locations of known occupancy and 
assessed how

[[Page 63789]]

environmental variables at those locations would influence that known 
occupancy location's ability to support eastern black rails over time 
(persistence). We used probabilistic distributions based on different 
rates of change (wetland loss rates, relative sea level rise 
projections, land management practices, etc.) and projected these rates 
for each environmental variable. These rates of change included a range 
of scenarios that evaluated habitat availability and quality with 
regard to the eastern black rail.
    97. Comment: One commenter requested clarification on the terms 
``resiliency, redundancy, and representation (3Rs)'' and how these were 
applied in our SSA analysis. This commenter indicated there was 
apparently overlap between the three terms. The commenter also asked 
for clarity on how low, very low, and no resiliency are defined in the 
SSA report. This same commenter stated that the Service had only 
evaluated occupancy to inform our 3Rs analysis.
    Response: In general, resiliency reflects the ability of 
populations to withstand stochastic variation, such as random 
fluctuations in demographic rates. Redundancy reflects the species' 
ability to withstand catastrophic events, such as a hurricane or oil 
spill, and representation reflects a species' adaptive capacity. In a 
practical sense there is often overlap in resiliency, redundancy, and 
representation in the Species Status Assessment process. For eastern 
black rail, resiliency was measured at the analysis unit scale for this 
subspecies, in part, because of the difficulty in establishing true 
population boundaries. The Service used two metrics to estimate and 
predict representative units that reflect the subspecies' adaptive 
capacity: (1) Habitat variability and (2) latitudinal variability. 
There was no information related to genetic diversity to inform 
adaptive capacity for the subspecies. As the commenter noted, we did 
suggest overlap in resiliency and representation because, as noted in 
the SSA, to maintain existing adaptive capacity, it is important to 
have resilient populations (analysis units) that exhibit habitat 
variability and latitudinal variability. While typically we think of 
redundancy as the number and distribution of populations within 
representation units, because of the difficulty in delineating 
populations, analysis units are the only scale at which we can reflect 
the subspecies' ability to withstand stochastic events. In general, 
species (and subspecies) that are well-distributed across their 
historical range are considered less susceptible to extinction and more 
likely to be viable than species confined to a small portion of their 
range (Carroll et al. 2010, entire; Redford et al. 2011, entire). 
Occupancy analysis informed both the 3Rs and extinction probability for 
the subspecies. We have added further discussion in the SSA report to 
provide clarification on how we applied the 3Rs.
    98. Comment: One commenter stated that our future projections of 
habitat loss for eastern black rail are flawed because the model 
assumed a 10 percent loss rate of habitat per year, and there would not 
be any habitat left in 10 years.
    Response: This comment reflects a misunderstanding about the loss 
function used in the model. The loss rate was not an absolute loss rate 
of 10 percent per year. It was a 10 percent loss of remaining habitat 
available each year, so the rate actually decreases over time. It is a 
decay curve not a linear decay. In our future scenario modeling, we 
incorporated functions to account for habitat quality and possible 
habitat loss over time. The habitat loss function was a simple 
reduction in the total number of possible black rail sites at each time 
step in the simulation by a randomly drawn percentage (a beta 
distributed random variable) that was specified under different 
simulation scenarios to represent habitat loss due to development 
(urbanization) or sea level rise. We used the change in ``developed'' 
land cover from NLCD data to derive an annual rate of change in each 
region and we used NOAA climate change and sea level rise predictions 
to estimate probable coastal marsh habitat loss rates. In the Great 
Plain AU, groundwater loss rates were used, instead of sea level rise 
data, to represent permanent non-urbanization habitat loss in the 
region.
    99. Comment: One commenter stated that our future projections of 
habitat loss for eastern black rail are flawed because we assumed that 
the rate of marsh loss due to sea level rise will be greater than the 
rate of marsh creation. This commenter also stated we assumed sea level 
rise will only destroy marsh and provided citations for relevant 
literature supporting net increases in tidal marsh over time.
    Response: We recognize that there are scientific differences of 
opinion on many aspects of climate change, including the role of 
natural variability in climate and the uncertainties involved with 
climate change projections and how local ecosystems may respond, such 
as tidal marsh responses to sea level rise. We relied on synthesis 
documents (e.g., Parris et al. 2012; Sweet et al. 2017; Runkle et al. 
2017a, 2017b, 2017c; Reidmiller et al. 2018) that present the consensus 
view of a very large number of experts on climate change, including sea 
level rise, from around the world. Additionally, we relied on 
downscaled sea level rise projections (Sweet et al. 2017).
    We recognize the salt marsh elevation in some locations may be able 
to keep pace with sea level rise (e.g., Kirwan et al. 2016, Raabe and 
Stumpf 2016, Schieder et al. 2018); however, the rate of sea level rise 
in many areas will overwhelm the capacity of salt marshes to persist 
(Crosby et al. 2016), and marsh migration will not be possible where 
hardened shorelines exist (Torio and Chmura 2013). We have found that 
these latter reports, as well as the scientific papers used in those 
reports or resulting from those reports, represent the best available 
scientific information we can use to inform our decision and have 
relied upon them and provided citations within our analysis. Overall, 
sea level rise is projected to lead to substantial losses of salt marsh 
habitat, and new salt marsh creation is not expected to keep pace.
    100. Comment: One commenter stated that a study done by the Texas 
Comptroller's Office suggests that the black rail has a stronghold 
along the Upper Coast of Texas, especially in Chambers and Jefferson 
Counties. The commenter stated that with nearly 160,000 acres of 
Federal and State-owned property in Chambers and Jefferson Counties 
that is prime black rail habitat, it stands to reason that the 
population in that area could change the listing determination.
    Response: The study, supported by the Texas Comptroller of Public 
Accounts and the TPWD, estimated that during 2015 there were between 
183 and 2,414 eastern black rails present at Anahuac NWR (Tolliver et 
al. 2017, p. 18). The refuge is approximately 34,000 acres (13,759 
hectares) in size; however, the refuge area estimated to support 
eastern black rails was between 11,345 to 15,716 acres (4,591 to 6,360 
hectares) (Tolliver et al. 2017, p. 18). This area is roughly 33 to 46 
percent of the refuge, demonstrating that not all 160,000 acres of 
conservation lands in Chambers and Jefferson Counties would necessarily 
support eastern black rails. It is not appropriate to presume that 
eastern black rails are present and supported by all 160,000 acres. 
Surveys to estimate habitat occupancy indicate very low occupancy rates 
for this species. This finding means that the available habitat is not 
fully occupied by the species due to their low numbers. See Comments 28 
and 96 for additional discussion.

[[Page 63790]]

    101. Comment: One commenter asked how altering land management 
practices during the nesting and molting period will increase 
population numbers.
    Response: When numbers within a population are very low, changes in 
management that affect survival of both young and adults can have 
significant effects on population numbers because each adult's 
reproductive potential and nest survival matter more to overall 
population dynamics. This scenario is often best thought of in the 
extinction vortex paradigm (Gilpin and Soule 1986, entire; Fagan and 
Holmes 2006, entire) where the loss of every individual can have a 
substantial impact on the population.
    102. Comment: A commenter stated that potential threats resulting 
from mosquito control activities are speculative and should be 
considered alongside the threats mosquitos pose to humans and wildlife.
    Response: For listing actions, section 4(a)(1) of the Act requires 
that we determine whether any species is an endangered species or 
threatened species because of any of the following factors that affect 
the species, including: The present or threatened destruction, 
modification, or curtailment of its habitat or range; overutilization 
for commercial, recreational, scientific, or educational purposes; 
disease or predation; the inadequacy of existing regulatory mechanisms; 
or other natural or manmade factors affecting its continued existence. 
It does not allow us to consider such information as the threats 
mosquitoes pose to humans and wildlife. At this time, there is no 
information regarding the impacts of pesticides used for mosquito 
control on the eastern black rail.
    103. Comment: One commenter stated that there is a difference in 
agricultural pesticide application and mosquito control methodologies 
and that product application parameters and conclusions drawn in the 
SSA report regarding pesticides do not apply to mosquito control 
products. The comment states that permethrin, a product commonly used 
in aerial adult mosquito control applications is considered low 
toxicity to birds and cites a 2009 fact sheet from the National 
Pesticide Information Center.
    Response: The SSA report discusses pesticide use to control 
mosquitoes and its potential impacts to the prey base of eastern black 
rail. The SSA report does not assert that permethrin is causing a 
direct effect on the eastern black rail; however, it does identify as a 
concern the widespread use of pesticides to control mosquitoes in 
marshes that are used by eastern black rails and the potential impacts 
of these chemicals to the prey base of the subspecies.
    104. Comment: One commenter stated that there is no evidence to 
support mosquitocide impacts to the eastern black rail or to their 
trophic structure effects.
    Response: The SSA concluded that ``while there are hotspots for 
environmental contaminants, there is no evidence of specific threats 
that might affect the subspecies and demonstrate a population level 
response. Indirect effects to eastern black rails such as impacts to 
forage base from certain pesticides require further study.'' The 
conclusion drawn relates to all contaminants, not just mosquitocide, 
which was only referenced with regard to the fact that it might affect 
prey (see previous comment); however, the conclusion drawn was that 
there was no evidence of a specific threat that might affect the 
subspecies.
    105. Comment: One commenter questioned why the Service did not 
consider oil and gas exploration and extraction, including seismic 
exploration, as a threat to eastern black rails.
    Response: Section 3.1 (Habitat Fragmentation and Conversion) of the 
SSA report discusses the status and trend information for wetlands. 
While not explicit, these trends of wetland conversion include impacts 
of oil and gas activities. Additional information was added to Section 
3.3 (Altered Hydrology) regarding specific types of activities 
associated with oil and gas development that modify hydrology and 
exacerbate wetland conversion or loss. Further, we revised the 4(d) 
rule to prohibit incidental take resulting from long-term or permanent 
habitat conversion that captures permanent damage to habitat where 
eastern black rails are present, which would include oil and gas 
activities. In addition, all jurisdictional wetlands affected by such 
activities are already covered under existing regulations. Public land 
site managers may negotiate the terms of access (including timing, the 
use of monitors, and equipment to be operated as well as other 
specifics) and damage concerns ahead of seismic activity or any other 
related access. They may also arrange compensatory actions for damages 
of any kind agreed to in advance of project initiation. The managers of 
public lands often do not own the mineral rights beneath their 
boundaries and in those cases may not deny access to the owners of 
those rights.
    106. Comment: One commenter stated that our statements about the 
possible negative effects on eastern black rail from flooding caused by 
Hurricane Harvey are speculation and not fact, and asked that we 
acknowledge this sentiment.
    Response: The SSA report and the proposed rule referenced Hurricane 
Harvey's aftermath to illustrate that flooding during hurricane events 
may be prolonged and extensive and impact the subspecies. Extensive 
flooding from Hurricane Harvey was documented at occupied sites of 
eastern black rail across the Texas coast, and thus we do not consider 
the hurricane's effects as speculative.
    107. Comment: A commenter recommended that the Service provide 
additional guidelines for determining what human activities and 
behaviors in suitable habitat are threats to this subspecies. Two 
commenters provided suggestions for restoration or recovery efforts for 
the eastern black rail. For example, one commenter asked that we 
consider the impact of invasive species, such as feral swine and 
nutria, to eastern black rail recovery. One commenter requested 
additional guidelines be developed on appropriate human activity and 
behaviors within eastern black rail habitat.
    Response: We will consider additional guidelines in developing a 
recovery plan or any potential future consultation guidelines for the 
subspecies.

Critical Habitat

    108. Comment: One commenter from the American Mosquito Control 
Association provided information on how the designation of critical 
habitat would compromise mosquito control measures and negatively 
impact public health.
    Response: We are not designating critical habitat for the eastern 
black rail (see Comments 37-39 above and Critical Habitat discussion 
below).
    109. Comment: Several commenters suggested that the Service 
designate critical habitat for the eastern black rail and focus on 
cooperative educational efforts for the eastern black rail among 
birders, States, and non-governmental partners, such as State 
ornithological societies. One commenter stated that these efforts could 
help maximize citizen science value while minimizing disturbance. 
Commenters indicated that birders contribute significantly to 
understanding the distribution of the eastern black rail.
    Response: The Service recognizes the important contributions 
birders have made to our understanding of bird species, including the 
eastern black rail. Even though we are not designating critical 
habitat, we intend to incorporate

[[Page 63791]]

education efforts and outreach information to a variety of stakeholders 
as a component of the recovery plan for this species.

4(d) Rule

    110. Comment: One commenter responded that departures from 
traditional ranch burning and grazing in place for hundreds of years 
(along the Gulf Coast) could adversely affect plants, animals, 
elevations and so on. The commenter also said that the 4(d) rule risks 
damages to healthy grasslands used by other species.
    Response: The evolution of the plants, animals, and the ecology of 
the habitats within the eastern black rail's range took place over a 
much more extended period of time than the timeframe being referenced 
by the commenter and without the presence of fenced domestic cattle or 
modern fire management. Stambaugh's (2014) literature review compiles 
the results of historical fire regime research and suggests that most 
coastal habitat in Texas used by the eastern black rail may have burned 
naturally as infrequently as once every 11 to 15 years. The authors 
summarize that burn intervals for most of Texas spanned 1 to 12 years. 
The 4(d) rule allows for up to 50 percent of available eastern black 
rail habitat to be burned in any given calendar year such that the 
other 50 percent of habitat within the management boundary remains 
present on the landscape and suitable for eastern black rails. This 
provision allows for maintenance of eastern black rail habitat, as well 
as population growth and maintenance. The 4(d) rule does not prohibit 
grazing, which is an important habitat management tool that stimulates 
herbaceous plant production and may help maintain the necessary 
overhead vegetation cover for eastern black rails and other native 
species, as long as dense overhead cover is maintained for the eastern 
black rail in at least 50 percent of the habitat. Grazing activities 
that maintain dense overhead cover are allowed during all times of year 
on suitable occupied eastern black rail habitat on public lands, and 
grazing activities on private lands are unaffected. We do not expect 
the 4(d) grazing prohibition to result in adverse impacts to plants, 
animals, and elevations, since grazing is not restricted at any time.
    111. Comment: One commenter expressed concerns that fire 
prohibitions threaten communities.
    Response: The construction of new firebreaks, and the maintenance 
of existing ones, are excepted in the 4(d) rule, as are responses to 
wildfire.
    112. Comment: One commenter advised that prescribed fire plans 
should be specific to location and supported by the best possible 
science.
    Response: We agree that fire plans should be specific to location 
and have endeavored to keep the practices outlined in the 4(d) rule 
general enough to allow site managers to determine the appropriate 
techniques that will enable them to conserve eastern black rails and 
their habitats. We have used information from fire experts and land 
managers as well as experts in the behavior of eastern black rails in 
revising the 4(d) rule to provide what is necessary and advisable for 
the conservation of the eastern black rail while also providing 
flexibility for land managers.
    113. Comment: One commenter recommended encouraging prescribed fire 
application in the fall rather than the spring and that the Service 
should provide financial incentives to do so.
    Response: The Service has modified the 4(d) rule to allow 
prescribed fire to take place any time during the year when using 
practices that minimize the take of eastern black rails. Further, the 
Service, as well as the U.S. Department of Agriculture's Natural 
Resources Conservation Service, already have in place several programs 
that provide financial and technical support to private landowners 
interested in actions that support fish and wildlife resources. In 
addition, some State Fish and Wildlife agencies also provide wildlife-
related technical assistance to private landowners.
    114. Comment: Two commenters said that the Service ignored positive 
burn and grazing effects in its assessment of these activities, which 
promote eastern black rails in Texas. A second commenter stated that 
the Service ignored positive burn and grazing effects (as reported in 
Kane 2011 and other studies) in its assessment of these activities.
    Response: The Service presented the best available science on the 
effects of various land management practices on eastern black rail 
occurrence, highlighting the known favorable and unfavorable approaches 
for each one. Please see section 3.4.1 of the SSA for the discussion on 
fire effects, which includes Kane's findings. For a discussion of 
grazing effects (including Kane's findings), please see section 3.4.3 
of the SSA. Although the Texas population estimates suggest that more 
eastern black rails are present there than in other portions of the 
range, all predictive modeling indicates that eastern black rails will 
be extirpated from Texas and the rest of its U.S. range before 2100 
without human intervention. Therefore, we cannot conclude that land 
management practices that result in the removal or destruction of 
eastern black rail habitat have not taken a toll on a formerly much 
larger population in Texas, or in other parts of the range. We have 
revised the 4(d) rule to provide greater flexibility to land managers 
with the use of BMPs that are designed to promote population growth and 
maintenance of eastern black rails at the site level.
    115. Comment: Two commenters stated there is no proof in peer-
reviewed literature or otherwise that fire causes direct or indirect 
mortality to eastern black rails. One commenter stated that Legare 1998 
was just a conference abstract with no way to validate its validity. 
Others stated that Grace et al. 2005 provided no evidence of direct 
mortality to rails from prescribed fire. One commenter asked to clarify 
why fast fires produce rail mortality and why this is significant.
    Response: The Service has sufficient evidence documenting the 
threat of fire mortality due to ignition and burn patterns that do not 
provide refugia or that trap eastern black rails between fire fronts. 
Photographic proof of the eastern black rail mortality detailed in 
Legare's abstract was made available by the author to the Service 
during preparation of the SSA. This photograph accompanied by follow-up 
conversations with the author was accepted as evidence of direct 
mortality of eastern black rail from a prescribed fire event. We have 
incorporated this photograph into the SSA report. The fact that the 
Legare et al. (1998) abstract appears in conference proceedings and not 
peer-reviewed literature has no bearing on the existence of this 
mortality event. Entrapment issues during this fire event led to bird 
mortality and the National Wildlife Refuge where this event occurred 
has since modified their burning practices to avoid and minimize 
wildlife entrapment. The Refuge identified in this abstract now employs 
slow-moving fires and takes the maximum amount of time to burn, employs 
flanking fires, and divided their burn units into smaller units after 
the large mortality event (now burning half or a third of what they 
used to) (Legare 2019, pers. comm.). The recommendation is also 
provided by Grace et al. (2005, entire), is based on fundamental 
evidence, and is reasonable. A fast fire can lead to rail mortality 
when the fire spreads quickly enough to overcome individual birds 
attempting to escape it, or through asphyxiation. With regard to 
significance, when numbers within a

[[Page 63792]]

population are very low, changes in management that affect survival of 
both young and adults can have significant effects on population 
numbers because each adult's reproductive potential and nest survival 
matter more to overall population dynamics. This is often best thought 
of in the extinction vortex paradigm (Gilpin and Soule 1986, entire; 
Fagan and Holmes 2006, entire) where the loss of every individual can 
have substantial impact on the population.
    116. Comment: One commenter supported the use of prescribed fire as 
a management tool and relayed that natural fires would have included 
fast-moving perimeter fires. The commenter also cited several 
references (Van't Hul et al. 1997 and Rogers et al. 2013) to support 
limited detrimental impacts of prescribed burns to certain bird 
species.
    Response: The Service has modified the rule to allow prescribed 
fire to take place any time during the year while retaining habitat in 
untreated areas that supports dense overhead cover required by the 
eastern black rail. This approach allows managers to continue habitat 
management efforts important to the eastern black rail while supporting 
its life cycle needs. While historical fires may have been perimeter 
fires, historical conditions (abundant habitat and multiple population 
sources) no longer exist across the range of the eastern black rail 
and, therefore, the effects of these types of fires may have greater 
negative impacts today than they would have historically. It is 
important for fire managers to minimize the negative impacts to 
wildlife through the use of ignition tactics and timing. The papers 
referenced by the commenter did not evaluate the direct or indirect 
mortality associated with prescribed fire but instead studied habitat 
use. For example, Van't Hul et al. 1997 found that the bird species 
studied returned to pre-burn levels after 2 years, with the exception 
of the sedge wren. The sedge wren is similar to the eastern black rail 
in that it requires dense herbaceous cover. The revised rule supports 
activities that provide for dense overhead cover required by the 
eastern black rail.
    117. Comment: One commenter, citing McKee and Grace (2012), stated 
that fire prohibitions will lessen fire opportunities which in turn 
will lead to subsidence and diminished marsh health and greater impacts 
from sea level rise. The commenter advised against blanket restrictions 
for a wide-ranging species.
    Response: We do not find that an increased rate of subsidence will 
result from the prohibitions on prescribed fire outlined in the 4(d) 
rule. Subsidence is a sinking of the landscape that occurs due to 
changes in or collapse of the subsurface layers of the earth; shifting 
of underground mines; or the extraction of underground fluids like 
water or oil (Geology.com 2019; USGS 2000). However, it is possible 
that various human acts can cause a net loss in elevation over time or 
offset losses due to subsidence or other factors. McKee and Grace 
(2012) state that prescribed burning of Spartina patens may decrease 
elevation losses by roughly 1 mm/year at McFaddin National Wildlife 
Refuge; however, their work at McFaddin and Blackwater NWRs involved 
sites that were subsiding and in poor sediment supply. This research 
has not been extended to other marshes, and the authors state that 
their results are not applicable to other marshes outside the Texas 
Chenier Plains Complex NWR or Blackwater NWR, as other marshes will 
vary in sediment supply, geologic setting, and disturbances from other 
factors. The study also calls for further research, as the net loss of 
elevation relative to fire regime is still not well understood (McKee 
and Grace 2012, p. 42). Where eastern black rails are present, burning 
may be done year round within guidelines designed to ensure habitat is 
always available and that the population growth and maintenance of this 
species is supported. In addition, incidental take of eastern black 
rails from otherwise prohibited activities can be exempted through 
either section 7 or section 10 of the Act.
    118. Comment: One commenter stated that the proposed 4(d) rule 
would end all summer grazing on public lands.
    Response: The 4(d) rule does not end grazing on public lands. It 
has been further modified since the proposed version was released for 
comment, so that grazing will be allowed on public lands as long as the 
dense overhead cover required by the subspecies is maintained in at 
least 50 percent of the eastern black rail habitat within a management 
boundary.
    119. Comment: One commenter stated grazing is a useful tool and 
should be allowed on both private and public lands. Two commenters 
suggested that public lands with an approved grazing plan be allowed to 
continue grazing, as prescribed grazing can be an important habitat 
management tool. One commenter stated that ``properly managed cattle'' 
are not detrimental to eastern black rails.
    Response: We agree that grazing can be a useful management tool for 
resetting the seral stage to maintain suitable habitat for eastern 
black rail. These types of grazing activities can be used as part of an 
ownership boundary's overall plan to promote eastern black rail 
population growth and maintenance. The final 4(d) rule allows grazing 
on public lands as long as 50 percent of eastern black rail habitat, 
i.e., the dense overhead cover required by the eastern black rail, is 
maintained. We encourage land managers who use grazing in areas with 
eastern black rails to consider implementing a grazing plan that will 
ensure that dense overhead cover is maintained for the species.
    120. Comment: One person reported that grazing (buffalo) and fire 
are part of Salt Bayou Plan, which restores habitat on the upper Texas 
Coast in Chambers County.
    Response: The Salt Bayou Watershed Restoration Plan (2013) does not 
identify the use of grazing or prescribed fire as actions to restore 
the watershed.
    121. Comment: One commenter stated that grazing programs funded or 
permitted through the U.S. Department of Agriculture would be affected 
outside of public lands and would result in harmful changes to private 
land use practices.
    Response: The grazing prohibition in the 4(d) rule does not apply 
to private lands. As discussed in Comment 79, section 7(a)(2) of the 
Act requires Federal agencies to ensure that activities they authorize, 
fund, or carry out are not likely to jeopardize the continued existence 
of a listed species or destroy or adversely modify its critical 
habitat. If a Federal action may affect a listed species or its 
critical habitat, the responsible Federal agency must enter into 
consultation with the Service. This requirement does not change when a 
4(d) rule is implemented.
    122. Comment: One commenter stated that Kane (2011) shows the 
negative impacts of mowing or haying during sensitive seasons but is 
not sufficiently comprehensive to demonstrate the effects of not mowing 
or haying within seasons, across seasons, or across habitat types. The 
commenter recommended that the study be replicated throughout the 
species' range so that it is certain these results are not localized or 
correlated to the Kane study site.
    Response: We agree that more research and study of the eastern 
black rail will improve our knowledge and understanding of the 
subspecies.
    123. Comment: One commenter stated that he owned mineral rights 
under a Refuge and that the 4(d) rule would have devastating effects on 
oil and gas exploration and cause harm to families relying on this 
income.

[[Page 63793]]

    Response: The 4(d) rule does not prohibit oil and gas activities or 
mineral extraction within the range of the eastern black rail. 
Incidental take resulting from activities that result in long-term or 
permanent conversion, fragmentation, or damage to persistent emergent 
wetland habitat and the contiguous wetland-upland transition zone to 
other habitat types or land uses is prohibited under the 4(d) rule. 
However, entities have other means to have take excepted, such as 
section 10 permits or section 7 incidental take authorization. The rule 
extends exemptions for maintenance of existing infrastructure. Entities 
engaging in oil and gas activities within jurisdictional wetlands, or 
in settings that are addressed by existing regulations, will be 
required to complete the same permitting process already in place prior 
to initiating work. Further, any activity that has a Federal nexus, 
that is an action that is authorized, funded, or carried out by a 
Federal agency, and may affect the eastern black rail, will require 
consultation with the Service. However, section 7 consultation 
requirements are triggered by the listing of a species and not a 4(d) 
rule.
    124. Comment: One commenter requested that we include a prohibition 
to reduce the risk of predation by cats.
    Response: The impacts of feral and/or free-ranging domestic cats on 
wildlife has been well documented. These exotic felines can become 
problematic at the localized level and depress local wildlife 
populations. Our review of threats faced by the subspecies considered 
practices that could possibly affect substantial numbers of birds and 
influence population maintenance and growth. We did not find that the 
risk of predation by cats is a threat such that we should regulate 
incidental take of this activity under our 4(d) rule.
    125. Comment: One commenter requested that new rights-of-way 
projects be excepted.
    Response: New rights-of-way projects will be required to consider 
their effects on the species; they are not excepted under the 4(d) 
rule. New rights-of-way may be planned in areas of currently occupied 
habitat and their construction may result in the take of eastern black 
rails. Therefore, we are not excepting new rights-of-way projects under 
the 4(d) rule.

Recovery

    126. Comment: Three commenters stated that an approved Recovery 
Plan should precede efforts to list the species.
    Response: According to the requirements in the Act, species are 
listed prior to the initiation of recovery planning. Recovery actions 
will be decided upon during recovery planning. We are working on a 
recovery outline that will be made publically available within 30 days 
of the publication of this final rule. Additionally, a recovery plan 
and strategy will be developed with input from our conservation 
partners including States, Federal agencies, private and public 
landowners, and non-governmental organizations. The Service has already 
begun working on the development of a Black Rail Conservation Plan with 
the Atlantic Flyway branch of the Black Rail Working Group, coordinated 
by the Atlantic Coast Joint Venture. The Plan outlines five priority 
strategies for black rail recovery and conservation on the Atlantic 
Coast of the United States and the Gulf Coast of peninsular Florida. 
The Service has also participated in preliminary conservation planning 
with the Texas Black Rail Working Group, led by the Texas Parks and 
Wildlife Department in partnership with the Texas Comptroller's Office. 
Planning documents from these efforts will be foundational to the 
recovery strategy that is developed over the next two to three years.

Determination of Eastern Black Rail Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of ``endangered species'' or 
``threatened species.'' The Act defines an ``endangered species'' as a 
species that is ``in danger of extinction throughout all or a 
significant portion of its range,'' and a ``threatened species'' as a 
species that is ``likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range.'' The Act requires that we determine whether a species meets the 
definition of ``endangered species'' or ``threatened species'' because 
of any of the following factors: (A) The present or threatened 
destruction, modification, or curtailment of its habitat or range; (B) 
Overutilization for commercial, recreational, scientific, or 
educational purposes; (C) Disease or predation; (D) The inadequacy of 
existing regulatory mechanisms; or (E) Other natural or manmade factors 
affecting its continued existence.

Status Throughout All of Its Range

    After evaluating threats to the subspecies and assessing the 
cumulative effect of the threats under the section 4(a)(1) factors, we 
summarize our findings below. We have carefully assessed the best 
scientific and commercial information available regarding the past, 
present, and future threats to the eastern black rail. When viewing 
historical occurrences on the State level compared to what is known of 
present distribution, the range contraction (from Massachusetts to New 
Jersey) and site abandonment (patchy coastal distribution) noted by 
Watts (2016, entire) appear to be occurring throughout the eastern 
United States. Over the past 10 to 20 years, reports indicate that 
populations have declined by 75 percent or greater. North of South 
Carolina, occupancy has declined by 64 percent and the number of birds 
detected has declined by 89 percent, equating to a 9.2 percent annual 
rate of decline (Watts 2016, p. 1).
    In relative terms, regional strongholds still exist for this 
subspecies; however, the best available scientific data suggest that 
the remaining strongholds support a relatively small total population 
size, i.e., an estimated 1,299 individuals on the upper Texas coast 
within specific protected areas prior to Hurricane Harvey, and an 
estimated 355 to 815 breeding pairs on the Atlantic Coast from New 
Jersey to Florida (including the Gulf Coast of Florida) prior to 
multiple major hurricanes. There are no current population estimates 
from the interior States (Colorado, Kansas, or Oklahoma), although 
there are consistent populations of eastern black rails at Quivira NWR 
in Kansas and at least four sites in Colorado where the subspecies is 
encountered in the spring and summer. We have no information to 
indicate that the eastern black rail is present in large numbers in the 
Caribbean, Central America, or Brazil.
    Based on our review of the available science, we identified the 
current threats to eastern black rail. Habitat loss and degradation 
(Factor A) as a result of sea level rise along the coast and ground and 
surface water withdrawals are having a negative impact on the eastern 
black rail now and will continue to impact this subspecies into the 
future. Incompatible land management techniques (Factor E), such as the 
application of prescribed fire, haying, mowing, and grazing, have 
negative impacts on the bird and its habitat, especially when conducted 
at sensitive times, such as the breeding season or the flightless molt 
period. Stochastic events (Factor E), such as flood events and 
hurricanes, can have significant impacts on populations and the 
subspecies' habitat. For example, the impacts of Hurricane Harvey on 
the Texas coastal populations of eastern black rail likely caused 
direct mortality

[[Page 63794]]

as well as short-term habitat loss, as the hurricane occurred during 
the flightless molt period and resulted in the habitat being flooded 
for an extended period of time. Human disturbance (Factor B) to the 
eastern black rail occurs throughout the bird's range and is driven by 
the bird's rarity and interest by the birding community to add this 
bird to individual life lists.
    As we consider the future risk factors to the eastern black rail, 
we recognize that a complex interaction of factors have synergistic 
effects on the subspecies as a whole. In coastal areas, sea level rise, 
as well as increasing storm frequency and intensity and increased flood 
events (which are both associated with high tides and storms), will 
have both direct and indirect effects on the subspecies. Extensive 
patches of high marsh required for breeding are projected to be lost or 
converted to low marsh or open water as a result of sea level rise. 
Demand for groundwater is increasing, which will reduce soil moisture 
and surface water, and thus negatively impact wetland habitat. We 
expect to see localized subsidence, which can occur when groundwater 
withdrawal rates are greater than the aquifer recharge rates. Also, 
warmer and drier conditions (associated with projected drought 
increases) will reduce overall habitat quality for the eastern black 
rail. Further, incompatible land management (such as fire application 
and grazing) will continue to negatively impact the subspecies 
throughout its range, especially if done during the breeding season or 
flightless molt period.
    These stressors contribute to the subspecies' occupancy at sites 
and thus its population numbers. Some stressors have already resulted 
in permanent or long-term habitat loss, such as the historical 
conversion of habitat to agriculture, while other factors may only 
affect sites temporarily, such as a fire or annually reduced 
precipitation. Even local but too frequent intermittent stressors, such 
as unusual high tides or prescribed fire, can cause reproductive 
failure or adult mortality, respectively, and thus reduce eastern black 
rail occupancy at a site and the ability of a site to allow for 
successful reproduction of individuals to recolonize available sites 
elsewhere. While these intermittent stressors allow for recolonization 
at sites, recolonization is based on productivity at other sites within 
a generational timescale for the subspecies. If these stressors, 
combined, occur too often within and across generations, they limit the 
ability of the subspecies to maintain occupancy at habitat sites and 
also limit its ability to colonize other previously occupied sites or 
new sites.
    It is likely that several of these stressors are acting 
synergistically on the subspecies. Sea level changes, together with 
increasing peak tide events and higher peak flood events, wetland 
subsidence, past wetland filling and wetland draining, and incompatible 
land management (e.g., prescribed fire and grazing), all limit the 
ability of the eastern black rail to persist in place or to shift to 
newly lightly flooded, ``just-right'' areas as existing habitats are 
impacted. These interacting threats all conspire to limit the ability 
of this subspecies to maintain and expand populations now and in the 
foreseeable future.
    Although the eastern black rail has experienced reductions in its 
numbers and seen a range contraction, this subspecies is still 
relatively widespread in terms of its geographic extent. It continues 
to maintain a level of representation in four analysis units, which 
demonstrates continued latitudinal variability across its range. These 
four analysis units are spread throughout most of the subspecies' 
range, providing for some level of redundancy. Though the resiliency in 
the four currently occupied analysis units is low, Florida and Texas 
remain strongholds for the subspecies in the Southeast and Southwest. 
The current condition of the subspecies still provides for resiliency, 
redundancy, and representation such that it is not at risk of 
extinction now throughout its range.
    However, our estimates of future resiliency, redundancy, and 
representation for the eastern black rail are further reduced from the 
current condition, consistent with this analysis of future threats. 
Currently, three analysis units are effectively extirpated, and four 
analysis units that continue to support populations of the eastern 
black rail all have low levels of resiliency. Given the projected 
future decreases in resiliency for these four analysis units, the 
eastern black rail will become more vulnerable to extirpation from 
ongoing threats, consequently resulting in concurrent losses in 
representation and redundancy. The range of plausible future scenarios 
of the eastern black rail all predict extirpation for all four analysis 
units by mid-century (2068) with the Great Plains analysis units 
potentially becoming extirpated within 15 to 25 years (depending on the 
scenario). In short, our analysis of the subspecies' current and future 
conditions show that the population and habitat factors used to 
determine the resiliency, representation, and redundancy for the 
subspecies will continue to decline so that it is likely to become in 
danger of extinction throughout its range within the foreseeable 
future.
    Our implementing regulations at 50 CFR 424.11(d) set forth a 
framework within which we evaluate the foreseeable future on a case-by-
case basis. The term foreseeable future extends only so far into the 
future as the Services can reasonably determine that both the future 
threats and the species' responses to those threats are likely. The 
foreseeable future extends only so far as the predictions about the 
future are reliable. ``Reliable'' does not mean ``certain''; it means 
sufficient to provide a reasonable degree of confidence in the 
prediction. In the same way, a ``reliable prediction'' is also meant in 
a non-technical, ordinary sense and not necessarily in a statistical 
sense. Analysis of the foreseeable future uses the best scientific and 
commercial data available and should consider the timeframes applicable 
to the relevant threats and to the species' likely responses to those 
threats in view of its life-history characteristics.
    In cases where the available data allow for quantitative modeling 
or projections, the time horizon for such analyses does not necessarily 
dictate what constitutes the ``foreseeable future'' or set the specific 
threshold for determining when a species may be in danger of 
extinction. Rather, the foreseeable future can extend only as far as 
the Service can reasonably explain reliance on the available data to 
formulate a reliable prediction and avoid reliance on assumption, 
speculation, or preconception. Regardless of the type of data available 
underlying the Service's analysis, the key to any analysis is a clear 
articulation of the facts, the rationale, and conclusions regarding 
foreseeability.
    We identify the foreseeable future for the eastern black rail to be 
25 to 50 years from the present. We consider 25 to 50 years 
``foreseeable'' in this case because this timeframe includes 
projections from our modeling efforts and takes into account the 
threats acting upon the eastern black rail and its habitat and how we 
consider the eastern black rail will respond to these threats in the 
future. For all five plausible scenarios, all analysis units exhibited 
a consistent downward trend in the proportion of sites remaining 
occupied after the first 25 years (by 2043), with extirpation for all 
analysis units by 2068. The Great Plains analysis unit is predicted to 
be extirpated by 2043. Given that future projections of habitat loss 
are expected to continue and be exacerbated by sea level rise and tidal 
flooding, resiliency

[[Page 63795]]

of the four remaining analysis units is expected to decline further 
over the next 25 to 50 years.
    We find that the eastern black rail is likely to become endangered 
throughout all of its range within the foreseeable future. It is facing 
threats across its range that have led to reduced resiliency, 
redundancy, and representation, and we expect the subspecies to 
continue to decline into the future. Thus, after assessing the best 
available information, we conclude that the eastern black rail is not 
currently in danger of extinction, but is likely to become in danger of 
extinction within the foreseeable future throughout all of its range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is endangered or threatened throughout all or a 
significant portion of its range. The court in Center for Biological 
Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020) (Everson), 
vacated the aspect of the 2014 Significant Portion of its Range Policy 
(SPR Policy) (79 FR 37578) that provided that the Services do not 
undertake an analysis of significant portions of a species' range if 
the species warrants listing as threatened throughout all of its range. 
Therefore, we proceed to evaluating whether the species is endangered 
in a significant portion of its range--that is, whether there is any 
portion of the species' range for which both (1) the portion is 
significant; and, (2) the species is in danger of extinction in that 
portion. Depending on the case, it might be more efficient for us to 
address the ``significance'' question or the ``status'' question first. 
We can choose to address either question first. Regardless of which 
question we address first, if we reach a negative answer with respect 
to the first question that we address, we do not need to evaluate the 
other question for that portion of the species' range.
    Following the court's holding in Everson, we now consider whether 
there are any significant portions of the species' range where the 
species is in danger of extinction now (i.e., endangered). As discussed 
above and in our SSA report, there are little to no data to evaluate 
resiliency for the Central America and Caribbean portion of the eastern 
black rail's range. For the purposes of considering portions of the 
eastern black rail's range, we reviewed the analysis units we 
identified in the SSA report. Three of the analysis units we 
evaluated--Appalachians, Central Lowlands, and New England--are 
effectively extirpated. These three units historically did not support 
abundances of eastern black rail as high as the other four analysis 
units and an evaluation of current status information yielded that the 
species is effectively extirpated from the portions of these units that 
were once occupied. We did not consider these three analysis units in 
our future scenario modeling, as we do not anticipate that these units 
will contribute to the future viability of the eastern black rail. 
Accordingly, when conducting our analysis to determine whether the 
species may be in danger of extinction in a significant portion of its 
range, we consider these portions to be lost historical range. 
Consistent with our SPR Policy, we do not base a determination to list 
a species on the status (extirpated) of the species in lost historical 
range. We already take into account the effects that the loss of these 
three units have on the current and future viability of the eastern 
black rail in our determination. As articulated in our SPR Policy, we 
conclude that this consideration is sufficient to account for the 
effects of loss of historical range, i.e., the Appalachians, Central 
Lowlands, and New England analysis units, when evaluating the current 
status of the eastern black rail, and a specific consideration of 
whether lost historical range constitutes a significant portion of the 
range is not necessary.
    We then considered the current status of the remaining analysis 
units--the Great Plains, Mid-Atlantic Coastal Plain, Southeast Coastal 
Plain, and Southwest Coastal Plain--to determine if any portion may be 
in danger of extinction now. We evaluated the Mid-Atlantic Coastal 
Plain and Southeast Coastal Plain as one portion, because we used the 
results from the Southeast Coastal Plain to help infer the current 
resiliency of the Mid-Atlantic Coastal Plain, these analysis units are 
adjacent to one another along the Atlantic coast, and we suspect that 
the birds within the Mid-Atlantic Coastal Plain overwinter in the 
Southeast Coastal Plain.
    As discussed in our SSA report and above, the eastern black rail's 
current distribution is patchy across the range of the species. Our 
occupancy model results indicated that eastern black rail analysis 
units currently have low to very low resiliency across these portions 
based on the occupancy model results (Service 2019, pp. 94-95). The 
Mid-Atlantic Coastal Plain currently exhibits very low resiliency for 
eastern black rail as it supports fewer birds and occupied habitat 
patches than the Southeast Coastal Plain. Current estimates for the 
Mid-Atlantic and Southeast Coastal Plain (i.e., New Jersey to Florida) 
are 355-815 breeding pairs (Watts 2016, p.19). The uncertainty 
surrounding these estimates varies from low to moderate; there is 
moderate uncertainty for states with more extensive marshes that 
preclude full survey coverage (e.g., New Jersey, Maryland; Watts 2016, 
pp. 19, 54, 64). South Carolina shows a limited distribution with two 
known occupied areas and an estimated 50-100 breeding pairs (Watts, 
2016, p. 19). In Florida, birds are found in inland and coastal 
habitats on both the Atlantic and Gulf Coasts and the state is 
estimated to support between 200-500 breeding pairs (Watts, 2016, p. 
19). Florida is considered the stronghold of this portion, although the 
eastern black rail remains distributed along the Atlantic Coast (in the 
Mid-Atlantic and Southeast Coastal Plain).
    The Southwest Coastal Plain also has a stronghold of birds, with an 
estimated 1,299 individuals on the upper Texas coast within specific 
protected areas prior to Hurricane Harvey (Tolliver et al. 2017, p. 
18). The remaining Gulf Coast states support few to no birds during the 
breeding season. Alabama and Mississippi had a population estimate of 
zero breeding pairs and Louisiana supported an estimated zero to ten 
breeding pairs in 2016 (Watts, 2016, p. 19). However, recent first-time 
surveys conducted in Louisiana during the breeding and non-breeding 
seasons in 2017 and 2018 detected eastern black rails at 21 of 152 
survey points (Johnson and Lehman, 2019b, p. 6), confirming a small 
year-round population in the state.
    In the Great Plains analysis unit there are no current population 
estimates from the interior States still known to support the species 
(i.e., Colorado and Kansas), but there are consistently detected 
populations of eastern black rails at a site in Kansas and along the 
Arkansas River Basin in southeastern Colorado. In 2018, the first 
formal repeat surveys were completed for the species in southeastern 
Colorado during the breeding season (Rossi and Runge 2018, entire). 
Surveys detected at least one black rail at 39 of 115 points and 17 of 
66 marshes surveyed (Rossi and Runge 2018, p. 6). Detection probability 
estimates for dusk and night surveys were 0.413 (95% CI = 0.176-0.698) 
and 0.552 (95% CI = 0.329-0.756), respectfully, and the mean 
probability of eastern black rail occupancy (the probability that a 
site was occupied) in core habitat was 0.792 (95% CI = 0.562-0.919) 
(Rossi and Runge 2018, p. 6-7). The 2018 detection and occupancy 
estimates for eastern black rails in Colorado are higher than those 
recently estimated for the upper Texas coast

[[Page 63796]]

(Tolliver et al. 2019, entire), the species' stronghold in the 
Southwest Coastal Plain analysis unit.
    When determining whether a species is endangered in any portion, 
there is often a temporal aspect of the analysis. We consider whether 
the species is presently on the brink of extinction, as opposed to 
likely to become so in the foreseeable future. This species faces 
significant habitat loss and conversion from different drivers, 
including development pressure, groundwater extraction, incompatible 
land management practices, and impacts from climate change (i.e., 
changes in temperature and precipitation events, sea level rise, and 
increases in tidal flooding). Most of the predicted declines in eastern 
black rail occupancy modeled in the SSA report were driven by habitat 
loss rates. Future projections of habitat loss are expected to continue 
and be exacerbated by sea level rise and other drivers. While the 
extent and severity of the major threats vary across the four remaining 
analysis units--the Great Plains, Mid-Atlantic Coastal Plain, Southeast 
Coastal Plain, and Southwest Coastal Plain--the species is likely to 
become an endangered species within the foreseeable future, 25 to 50 
years from the present, and is not in danger of extinction now. The 
Southwest Coastal Plain analysis unit had the longest predicted time to 
potential extirpation, between 45 to 50 years from the present, while 
the Southeast Coastal Plain and the Mid-Atlantic Coastal Plain analysis 
units' predicted time to probable extirpation is between 35 and 50 
years from present depending on the scenario.
    The Great Plains analysis unit had the shortest time to potential 
extirpation, forecasting between 15 to 25 years from the present 
depending on the scenario. However, we determined the one scenario 
resulting in extirpation within 15 years is a worst-case scenario and 
is unlikely to be an accurate representation of the species viability 
in that portion. As noted above, there are no current population 
estimates from Great Plains analysis unit, but there are consistently 
detected populations of eastern black rails at a site in Kansas and 
along the Arkansas River Basin in southeastern Colorado. At the time of 
the SSA projection analysis, replicated survey data for Colorado were 
unavailable and data from Kansas (Hands 2009, entire) were used to 
represent the Great Plains analysis unit. While the Kansas dataset was 
from a survey for all secretive marshbirds and not a black rail-
specific survey, the dataset included eastern black rail detections and 
represented the best available scientific information at the time of 
the SSA analysis. However, more recent surveys indicate a higher 
occupancy rate for portions of the Great Plains (Rossi and Runge 2018, 
entire).
    Given our review of the current condition of the eastern black 
rail, the additional information from the 2018 surveys in the Great 
Plains, and our future projection models, we conclude that, while the 
species is likely to become in danger of extinction within each of 
these portions within the foreseeable future, we do not find that these 
portions are in danger of extinction now. Thus, there are no portions 
of the species' range where the species has a different status from its 
range-wide status. Therefore, no portion of the species' range provides 
a basis for determining that the species is in danger of extinction in 
a significant portion of its range, and we determine that the species 
is likely to become in danger of extinction within the foreseeable 
future throughout all of its range. This is consistent with the courts' 
holdings in Desert Survivors v. Department of the Interior, No. 16-cv-
01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and Center for 
Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 
2017).

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the eastern black rail meets the definition 
of a threatened species. Therefore, we are listing the eastern black 
rail as a threatened species in accordance with sections 3(20) and 
4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies; private 
organizations; and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies and 
the prohibitions against certain activities are discussed, in part, 
below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act calls for the Service to develop 
and implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning includes the development of a recovery outline 
shortly after a species is listed and preparation of a draft and final 
recovery plan. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan also identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from the Lists of Endangered and Threatened Wildlife and Plants 
(``delisting''), and methods for monitoring recovery progress. Recovery 
plans also establish a framework for agencies to coordinate their 
recovery efforts and provide estimates of the cost of implementing 
recovery tasks. Recovery teams (composed of species experts, Federal 
and State agencies, nongovernmental organizations, and stakeholders) 
are often established to develop recovery plans. When completed, the 
recovery outline, draft recovery plan, and the final recovery plan will 
be available on our website (http://www.fws.gov/endangered), or from 
our South Carolina Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.

[[Page 63797]]

    Following publication of this final listing rule, funding for 
recovery actions will be available from a variety of sources, including 
Federal budgets, State programs, and cost share grants for non-Federal 
landowners, the academic community, and nongovernmental organizations. 
In addition, pursuant to section 6 of the Act, the U.S. States and 
territories of Alabama, Arkansas, Colorado, Connecticut, Delaware, 
Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Louisiana, Maryland, 
Massachusetts, Mississippi, Missouri, Nebraska, New Hampshire, New 
Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Puerto 
Rico, Rhode Island, South Carolina, Tennessee, Texas, Virginia, U.S. 
Virgin Islands, and West Virginia would be eligible for Federal funds 
to implement management actions that promote the protection or recovery 
of the eastern black rail. Information on our grant programs that are 
available to aid species recovery can be found at: http://www.fws.gov/grants.
    Please let us know if you are interested in participating in 
recovery efforts for this subspecies. Additionally, we invite you to 
submit any new information on this subspecies whenever it becomes 
available and any information you may have for recovery planning 
purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is listed subsequently, section 7(a)(2) of the Act requires 
Federal agencies to ensure that activities they authorize, fund, or 
carry out are not likely to jeopardize the continued existence of the 
species or destroy or adversely modify its critical habitat. If a 
Federal action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with the 
Service.
    Federal agency actions within the eastern black rail's habitat that 
may require conference or consultation or both as described in the 
preceding paragraph include management and any other landscape-altering 
activities on Federal lands administered by the U.S. Fish and Wildlife 
Service and National Park Service; issuance of section 404 Clean Water 
Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of 
Engineers; and construction and maintenance of roads or highways by the 
Federal Highway Administration.

Final 4(d) Rule

Background

    Section 4(d) of the Act states that the ``Secretary shall issue 
such regulations as he deems necessary and advisable to provide for the 
conservation'' of species listed as threatened. The U.S. Supreme Court 
has noted that very similar statutory language demonstrates a large 
degree of deference' to the agency (see Webster v. Doe, 486 U.S. 592 
(1988)). Conservation is defined in the Act to mean ``the use of all 
methods and procedures which are necessary to bring any endangered 
species or threatened species to the point at which the measures 
provided pursuant to [the Act] are no longer necessary.'' Additionally, 
section 4(d) of the Act states that the Secretary ``may by regulation 
prohibit with respect to any threatened species any act prohibited 
under section 9(a)(1), in the case of fish or wildlife, or section 
9(a)(2), in the case of plants.'' Thus, regulations promulgated under 
section 4(d) of the Act provide the Secretary with wide latitude of 
discretion to select appropriate provisions tailored to the specific 
conservation needs of the threatened species. The statute grants 
particularly broad discretion to the Service when adopting the 
prohibitions under section 9.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have approved rules 
developed under section 4(d) that include a taking prohibition for 
threatened wildlife, or include a limited taking prohibition (see Alsea 
Valley Alliance v. Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 
2007); Washington Environmental Council v. National Marine Fisheries 
Service, 2002 U.S. Dist. Lexis 5432 (W.D. Wash. 2002)). Courts have 
also approved 4(d) rules that do not address all of the threats a 
species faces (see State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 
1988)). As noted in the legislative history when the Act was initially 
enacted, ``once an animal is on the threatened list, the Secretary has 
an almost infinite number of options available to him with regard to 
the permitted activities for those species. He may, for example, permit 
taking, but not importation of such species, or he may choose to forbid 
both taking and importation but allow the transportation of such 
species,'' (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).
    The Service has developed a species-specific 4(d) rule that is 
designed to address the eastern black rail's specific threats and 
conservation needs. Although the statute does not require the Service 
to make a ``necessary and advisable'' finding with respect to the 
adoption of specific prohibitions under section 9, we find that this 
rule as a whole satisfies the requirement in section 4(d) of the Act to 
issue regulations deemed necessary and advisable to provide for the 
conservation of the eastern black rail. As discussed under the 
Determination section, the Service has concluded that the eastern black 
rail is at risk of extinction within the foreseeable future due to 
continued wetland habitat loss, sea level changes, increasing storm 
frequency and intensity and increased flood events (which are both 
associated with high tides and storms), wetland subsidence, and land 
management practices (e.g., incompatible prescribed fire, grazing, and 
mechanical treatment activities). The provisions of this 4(d) rule 
would promote conservation of the eastern black rail by encouraging 
management of the landscape in ways that meet both land management 
considerations and the conservation needs of the eastern black rail. 
The provisions of this rule are one of many tools that the Service 
would use to promote the conservation of the eastern black rail.

Provisions of the 4(d) Rule

    Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct. Some of these provisions have been further defined in 
regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by 
direct and indirect impacts, intentionally or incidentally. As 
discussed under the Summary of Biological Status and Threats (above), 
multiple factors are affecting the status of the eastern black rail. A 
range of activities have the potential to impact the eastern black 
rail, including fire management, grazing, mechanical treatment 
activities, and long-term or permanent conversion, fragmentation, and 
damage of persistent emergent wetland habitat and the contiguous 
wetland-upland transition zone to other habitat types or land uses. 
Regulating incidental take from these activities would help preserve 
the species' remaining populations and decrease

[[Page 63798]]

synergistic, negative effects from other stressors.
    A major goal of the 4(d) rule is to minimize incidental take and to 
maintain the dense overhead cover that the subspecies needs. For the 
purposes of this rule, we define dense overhead cover as cover that 
exists in excess of the height of an eastern black rail, and is 
assessed from above in terms of herbaceous persistent emergent wetland 
plant cover (as defined by Cowardin et al. 1979, p. 20) versus non-
vegetative cover of the ground, including bare ground itself. Eastern 
black rails typically occupy areas with overhead cover that permits 
little or no view of bare ground. This type of cover has been assessed 
by three different means for eastern black rails: (1) The visual 
estimate of overhead cover in a 50-m radius centered upon the point of 
interest (e.g., Roach and Barrett 2015, Tolliver et al. 2019); (2) a 
10-cm graduated pole accompanied by percent cover estimates (Wiens 
pole; e.g., Kane 2011, Butler et al. 2015); and (3) a Robel pole and 
percent cover or plant density estimates (e.g., Butler et al. 2015, 
Rossi and Runge 2018, Haverland 2019). The latter two protocols 
included both vertical and horizontal assessments of cover. Roach and 
Barrett, Tolliver, Haverland, and Butler worked in Spartina-dominated 
estuarine wetlands, whereas Kane and Rossi and Runge worked in inland 
palustrine marshes. Plant height is generally <=1 m in coastal 
habitats, but can be taller in occupied cattail and bulrush marshes 
(e.g., Legare and Eddleman 2001, p. 170; Culver and Lemly 2013, pp. 
316-318).
    Under this 4(d) rule, incidental take resulting from fire 
management activities, grazing activities, and haying, mowing, and 
other mechanical treatment activities would be prohibited unless 
otherwise noted. Regardless of management tool, be it mowing, haying, 
other mechanical treatment activities, fire, or grazing, within a 
management boundary, a minimum of 50 percent of habitat (i.e., dense 
overhead cover) required by the eastern black rail should be maintained 
in any given calendar year. For example, if a single management 
boundary conducts burning and mechanical treatment activities, the 
cumulative treatment should not exceed 50 percent of total eastern 
black rail habitat within the boundary. We discourage 
disproportionately applying land management treatments to habitats 
during the breeding season because this will limit population growth 
and recruitment. Management boundaries can include individual 
landholdings, e.g., a National Wildlife Refuge boundary, or be formed 
through landscape-level agreements across landholdings of different but 
contiguous ownerships.

Fire Management Activities

    Prescribed fire is an essential management tool for re-
initialization of vegetative succession and seral sequencing for 
restoring and maintaining habitats on public and private lands, which 
is important to ensure suitable habitat for maintaining populations of 
the eastern black rail. Wildland fire occurrence from both natural and 
human ignition sources can occur any time of the year across much of 
the eastern black rail's distribution. Eastern black rails can survive 
fires that slowly progress in a way where individuals can move ahead of 
the flames and when areas of unburned refugia are available. Refugia 
can include wetter areas with emergent vegetation, areas with natural 
or created firebreaks, or areas not conducive to burning (e.g., wet or 
green areas in a burn unit). These refugia provide escape from the 
prescribed fire and predators. Prescribed fires that are conducted with 
large, fast-moving flame fronts and lines of fire merging into each 
other may result in trapping eastern black rails that may be killed 
directly by fire or indirectly through asphyxiation.
    While the application of prescribed fire may temporarily affect 
breeding success of individual eastern black rails, periodic burning 
supports appropriate seral stages and other beneficial features of the 
habitat conditions necessary for this species. Fire return frequencies 
in areas known to support eastern black rails should be infrequent to a 
degree that suitable habitat is available for several years to breeding 
individuals and yet frequent enough to maintain suitable eastern black 
rail habitat. These fire return frequencies may vary across the 
species' range and, therefore, should be determined by site managers. 
Fire regimes should provide a broad range of habitat conditions, such 
as adequate breeding habitat and overhead cover, to support completion 
of the life cycle of individuals and that, overall, provide for 
population maintenance and growth. Strategies to accomplish this 
objective should minimize incidental take of eggs and chicks, where 
possible. If the prescribed fire occurs during the breeding and nesting 
season, adults that lose eggs and chicks would have the opportunity to 
re-nest in unaffected areas. Certain prescribed fire practices can 
result in unnecessary mortality of eastern black rail during both the 
breeding and non-breeding season.
    The 4(d) rule prohibits incidental take of eastern black rails 
resulting from prescribed fires throughout the year, unless the 
practices described below, which would minimize incidental take of 
eastern black rails and provide for long-term habitat needs for the 
eastern black rail and other cover-dependent species, are followed. 
Practices include:
     Regardless of the size of the area under management with 
prescribed fire, a broad range of habitat conditions should be 
maintained by burning on a rotational basis, which supports black rail 
population maintenance and growth. In any given calendar year, at least 
50 percent of eastern black rail habitat within a management boundary 
should be maintained in order to provide the dense overhead cover 
required by the subspecies. This percentage does not apply to 
landholdings smaller than 640 acres.
     Where eastern black rail are present, the application of 
prescribed fire uses tactics that provide unburned refugia allowing 
birds to survive a fire (e.g., using short flanking, backing fires, or 
similar approaches). Prescribed fire is applied under fuel and weather 
conditions (e.g., soil moisture and/or relative humidity) that are most 
likely to result in patchy persistence of unburned habitat to serve as 
refugia as well as provide dense overhead cover for protection from 
aerial predators. For each burn unit, as an objective approximately 10 
percent of the burn unit should be distributed as small dispersed 
patches of unburned area. Unburned patches should be no smaller than 
100 square feet. In addition to refugia dispersed in the interior of a 
burn unit, leaving unburned habitat along unit edges (such as those 
available on the outward side of roadside borrow ditches) may provide 
additional refugia for birds to shelter in prior to dispersing to 
adjacent suitable habitat.
     Ignition tactics, rates of spread, and flame lengths 
should allow for wildlife escape routes and avoid trapping birds in a 
fire. The application of prescribed fire should avoid fires, such as 
ring and strip head fires, that have long, unbroken boundaries and/or 
that come together in a short period of time and which consume 
essentially all vegetation and prevent black rails from escaping a 
fire. If aerial ignition is the chosen tool, ignitions should be 
conducted in such a way that large, fast-moving fires are avoided. 
Special precautions should be taken when using aerial ignition, and 
using short flanking fires into prevailing wind to slow the rate of 
spread is recommended.
    For landholdings smaller than 640 acres, we are excepting these 
areas from

[[Page 63799]]

the practice to provide dense overhead cover in 50 percent of the 
eastern black rail habitat within the management boundary. The 
selection of 640 acres as a lower limit is based on the feasibility of 
meeting the percentage requirement on smaller land holdings. In many 
States where eastern black rails may occur, roads are often used as 
firebreaks and often form the perimeter of a ``section'' or square 
mile, i.e., 640 acres. Smaller land holdings may find achieving the 
percentage requirement difficult or infeasible and possibly unsafe. It 
is unlikely that all small land holdings within a geographic area that 
supports eastern black rails would be treated with prescribed fire at 
the same time. Further, other nearby land holdings may support eastern 
black rails where habitat is present.
    This provision of the 4(d) rule for fire management activities 
would promote conservation of the eastern black rail by encouraging 
continued management of the landscape in ways that meet management 
needs while simultaneously ensuring the continued survival and 
propagation of the eastern black rail and by providing suitable 
habitat.

Haying, Mowing, and Other Mechanical Treatment Activities

    Haying and mowing can maintain eastern black rail habitat by 
reducing woody vegetation encroachment. Mechanical treatment activities 
include disking (using a disk, harrow, or other tractor-drawn 
implement) and brush clearing (using a variety of tools that may be 
attached to a tractor or a stand-alone device). While these practices 
can be used to enhance eastern black rail habitat, the timing and 
manner of implementation can impact recruitment and survival.
    Haying, mowing, and mechanical treatment activities in persistent 
emergent wetlands should be avoided during the nesting and brood-
rearing periods where eastern black rails are present. We define 
persistent, emergent wetlands as areas where persistent emergent plants 
(i.e., erect, rooted, herbaceous hydrophytes, excluding mosses and 
lichens, that normally remain standing at least until the beginning of 
the next growing season) are the tallest life form with at least 30 
percent areal coverage (Cowardin et al. 1979, pp. 11, 19-20). 
Persistent, emergent vegetation are typically perennial hydrophytic 
plants (e.g., Spartina sp., Juncus sp., Scirpus sp., Typha sp., 
Phragmites sp., Zizaniopsis sp., etc.; Federal Geographic Data 
Committee 2013, p. 33) that form dense stands and provide overhead 
cover and primary nesting substrate for black rail and other secretive 
marsh birds. For more information on emergent wetlands, please visit 
the Service's National Wetlands Inventory website: https://www.fws.gov/wetlands/.
    Haying, mowing, and mechanical treatment activities in persistent 
emergent wetlands that take place during critical time periods for 
eastern black rail (i.e., nest construction, egg-laying, incubation, 
and parental care) can potentially lead to disturbance of nesting 
birds; destruction of nests; and mortality of eggs, chicks, juveniles, 
and adults. We recognize that there is latitudinal variability of these 
life-history events across the range of the eastern black rail. For 
example, in Texas, eastern black rails begin to nest in March, whereas 
in Kansas and Colorado nesting begins in May. Therefore, the timing of 
prohibitions would coincide with when the eastern black rail is using 
the habitat for nesting and brood-rearing.
    We recognize haying, mowing, or other mechanical treatment 
activities may need to be used for maintenance requirements to ensure 
safety and operational needs for existing infrastructure, and we 
understand that these maintenance activities may need to take place 
during the nesting or brooding periods. These include maintenance of 
existing firebreaks, roads, rights-of-way, levees, dikes, fence lines, 
airfields, and surface water irrigation infrastructure (e.g., head 
gates, ditches, canals, water control structures and culverts). 
Incidental take resulting from these activities are an exception to 
this prohibition.
    We also except incidental take that results from mechanical 
treatment activities that are done during the nesting or brooding 
periods with the purpose of controlling woody encroachment or other 
invasive plant species to restore degraded habitat. It is unlikely that 
eastern black rails will be occupying areas of unsuitable habitat, and 
mechanical treatment activities to remove woody vegetation or other 
invasive plant species may help restore habitat and allow for eastern 
black rail use in the future. Invasive species (both native [e.g., 
Baccharis halimifolia] and nonnative [e.g., Phragmites australis, 
Triadica sebifera]) have played a role by converting emergent systems 
into shrub- or tree-dominated landscapes or monocultures. Given the 
narrow habitat preferences of the eastern black rail, i.e., very 
shallow water and dense emergent vegetation, small changes in plant 
community structure from woody encroachment or other invasive plant 
species can quickly result in unsuitable habitat for the eastern black 
rail.
    We do not prohibit incidental take from mowing, haying, or other 
mechanical treatment activities outside of the nesting or brood-rearing 
periods. However, we encourage land managers to employ voluntary BMPs 
outside of these time periods in emergent wetlands with eastern black 
rails present. BMPs for haying, mowing, and mechanical treatment 
activities include avoiding treatment of more than 50 percent of a 
contiguous block of habitat resources in emergent wetlands where 
eastern black rails are present; providing untreated (i.e., unmown or 
avoided) areas that provide refugia for species dependent on dense 
overhead vegetative cover, such as the eastern black rail, during years 
when treatments are conducted; and using temporary markers to identify 
where birds occur so that these areas may be avoided.
    This provision of the 4(d) rule for haying, mowing, and other 
mechanical treatment activities in persistent emergent wetlands would 
promote conservation of the eastern black rail by prohibiting 
incidental take of eastern black rail during the nesting and brood-
rearing period.

Grazing Activities

    Based on current knowledge of grazing and eastern black rail 
occupancy, the specific timing, duration, and intensity of grazing will 
result in varying impacts to the eastern black rail and its habitat. 
Either no grazing or light-to-moderate grazing may be compatible with 
eastern black rail occupancy under certain conditions, while intensive 
or heavy grazing is likely to have negative effects on eastern black 
rails and the quality of their habitat. Intensive or heavy grazing may 
lead to the removal of required dense overhead cover, as well as 
disturbance of nesting birds and possible destruction of nests and 
mortality of eggs and chicks due to trampling. Grazing densities should 
maintain the dense overhead cover required by the eastern black rail 
and allow for the long-term maintenance of habitat conditions required 
by the eastern black rail.
    Grazing practices support other land use purposes and management 
goals, including resetting of grassland and marsh seral stages 
necessary to support habitat needs of various species. Grazing (such as 
short duration grazing) is sometimes used to delay seral stage 
succession as a surrogate for prescribed fire.
    We are limiting this prohibition to public lands whose intended 
purpose is wildlife and/or habitat conservation,

[[Page 63800]]

given our knowledge of where grazing activities and the presence of 
eastern black rails overlap. The rationale for this approach is based 
on several factors. First, applying the prohibition to these public 
ownerships that have been established for wildlife or habitat 
conservation provides clarity to land managers who presently employ 
grazing as a management tool and to land managers who may consider 
using grazing as a management tool at a future date. Further, the 
Service and its Federal and State partners have significant efforts 
working with private landowners who conduct grazing activities on their 
lands to support conservation of other listed and at-risk wildlife 
species. For example, the Partners for Fish and Wildlife Program is 
working with private landowners on Attwater's prairie chicken recovery 
in Texas. Preliminary results suggest that land management activities 
at this site, which include grazing prescriptions, may also support 
eastern black rails. These efforts provide public and private land 
managers with strategies and approaches that will support conservation 
and recovery of the eastern black rail. Although we are not proposing 
to prohibit incidental take resulting from grazing that maintains dense 
overhead cover, we recommend that land managers follow voluntary 
practices to support conservation of the eastern black rail and 
associated habitat. Voluntary practices to avoid negative impacts to 
the eastern black rail from grazing activities include the use of 
fences to exclude grazing from habitat where eastern black rails are 
present, and rotational grazing practices so that a mosaic pattern of 
cover density is present across fenced tracts of land.
    The rule prohibits incidental take resulting from grazing 
activities on public lands that, individually or cumulatively with 
other land management practices, do not maintain at least 50 percent of 
eastern black rail habitat, i.e., dense overhead cover, in any given 
calendar year within a management boundary. This provision of the 4(d) 
rule for grazing activities would promote conservation of the eastern 
black rail by encouraging land managers to continue managing the 
landscape in ways that meet their needs while simultaneously providing 
suitable habitat for the eastern black rail. We encourage the use of 
rotational and deferred grazing practices in an effort to reduce the 
duration of disturbance/impacts to eastern black rails and their 
habitat.

Long-Term or Permanent Conversion, Fragmentation, and Damage of 
Persistent Emergent Wetland Habitat and Contiguous Wetland-Upland 
Transition Zone to Other Habitat Types or Land Uses

    The eastern black rail is a wetland-dependent bird requiring dense 
overhead cover and soils that are moist to saturated (occasionally dry) 
and interspersed with or adjacent to very shallow water (typically <=3 
cm) to support its resource needs. Eastern black rails occur across an 
elevational gradient that lies between low marsh and uplands. Their 
location across this gradient may vary depending on hydrologic 
conditions. The wetland-upland transition zone is a narrow band of 
habitat where wetlands and uplands intersect and contains vegetation 
types from both ecotones and are important to provide refugia during 
flooding events and minimize the risk of predation (Evens and Page 
1986). For activities planned within the wetland-upland transition 
zone, we encourage you to contact the local Ecological Services Field 
Office (http://www.fws.gov/offices) to help evaluate the potential for 
take of eastern black rail.
    Although conservation measures to protect wetlands have resulted in 
meaningful decreases in the rate of wetland habitat loss, loss of 
emergent wetlands continues (Service 2019, entire). The most recent 
wetlands status and trends report indicates that estuarine emergent 
wetland losses are mostly attributable to conversion to open water 
through erosion (Dahl and Stedman 2013, p. 37), while freshwater 
emergent wetland losses appear to be the result of development (Dahl 
and Stedman 2013, p. 35). While we cannot prohibit incidental take that 
may result from the effects of climate change, such as sea level rise 
or erosion, we can ensure that incidental take of eastern black rails 
that results from conversion or fragmentation of wetlands and the 
contiguous wetland-upland transition zone outside of natural community 
shifts (e.g., due to wet and dry cycles), to other habitat types or 
land uses is prohibited. Conversion of this type may result from 
development and construction activities or from vehicular access when 
such access results in a permanent or long-term conversion or damage of 
the habitat. For example, track equipment or equipment with amphibious 
tires may leave behind ruts or depressions that exist permanently or 
for the long term.
    This prohibition addresses public comments received requesting that 
the Service include measures to address impacts from infrastructure 
development and construction activities in eastern black rail habitat.

Other Forms of Take

    This 4(d) rule provides for the conservation of the eastern black 
rail by prohibiting the following activities, except as otherwise 
authorized or permitted: Importing or exporting; purposeful take; 
possession and other acts with unlawfully taken specimens; delivering, 
receiving, transporting, or shipping in interstate or foreign commerce 
in the course of commercial activity; or selling or offering for sale 
in interstate or foreign commerce. We extend the Act's section 
9(a)(1)(A) and 9(a)(1)(D)-(F) prohibitions to the eastern black rail 
throughout its range.
    We may issue permits to carry out otherwise prohibited activities 
involving threatened wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.32. With regard to 
threatened wildlife, a permit may be issued for the following purposes: 
For scientific purposes, to enhance propagation or survival, for 
economic hardship, for zoological exhibition, for educational purposes, 
for incidental taking, or for special purposes consistent with the 
purposes of the Act. There are also certain statutory exemptions from 
the prohibitions, which are found in sections 9 and 10 of the Act.
    The Service recognizes the special and unique relationship with our 
state natural resource agency partners in contributing to conservation 
of listed species. State agencies often possess scientific data and 
valuable expertise on the status and distribution of endangered, 
threatened, and candidate species of wildlife and plants. State 
agencies, because of their authorities and their close working 
relationships with local governments and landowners, are in a unique 
position to assist the Services in implementing all aspects of the Act. 
In this regard, section 6 of the Act provides that the Services shall 
cooperate to the maximum extent practicable with the States in carrying 
out programs authorized by the Act. Therefore, any qualified employee 
or agent of a State conservation agency that is a party to a 
cooperative agreement with the Service in accordance with section 6(c) 
of the Act, who is designated by his or her agency for such purposes, 
would be able to conduct activities designed to conserve the eastern 
black rail that may result in otherwise prohibited take without 
additional authorization.

[[Page 63801]]

Other Exceptions to Prohibitions

    We recognize that some individual managed wetland units have an 
established history of intensive vegetation and soil management, which 
may include burning, during the growing season on an annual or nearly 
annual basis (e.g., moist soil management). In contrast to the 
definition of persistent emergent wetlands provided above, these 
wetland units have established objectives to maintain unvegetated 
(e.g., mudflat), sparsely vegetated, and/or primarily annual plant 
communities that may not provide vegetative cover during a substantial 
portion of the growing season. For example, prior converted croplands 
that support active production of rice and other cereal grains do not 
provide suitable habitat for eastern black rail and are, therefore, 
excepted. These and other wetland units with established management 
practices to provide habitat conditions other than those described in 
our definition of persistent emergent wetlands are an exception to this 
prohibition.
    We are excepting incidental take resulting from actions taken to 
control wildfires. There are also incidental take exceptions for 
construction of new firebreaks (for example, to protect wildlands or 
manmade infrastructure) and fence lines, as these are needed when 
management units are subdivided or new property is acquired. Both of 
these activities allow for improved targeted management that benefits 
the habitat needs of eastern black rails and provide for public safety.
    Nothing in this 4(d) rule changes in any way the recovery planning 
provisions of section 4(f) of the Act, the consultation requirements 
under section 7 of the Act, or the ability of the Service to enter into 
partnerships for the management and protection of the eastern black 
rail. However, interagency cooperation may be further streamlined 
through planned programmatic consultations for the species between 
Federal agencies and the Service. We ask the public, particularly State 
agencies and other interested stakeholders that may be affected by the 
4(d) rule, to contact us regarding additional guidance and methods that 
the Service could provide or use, respectively, to streamline the 
implementation of this 4(d) rule (see ADDRESSES, above).

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features:
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined at section 3 of the Act, means to use and 
the use of all methods and procedures that are necessary to bring an 
endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific 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 
are based on 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.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary designate critical habitat at 
the time the species is determined to be endangered or threatened. Our 
regulations (50 CFR 424.12(a)(1)) state that the Secretary may, but is 
not required to, determine that a designation would not be prudent in 
the following circumstances:
    (i) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (ii) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (iii) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States;
    (iv) No areas meet the definition of critical habitat; or
    (v) The Secretary otherwise determines that designation of critical 
habitat would not be prudent based on the best scientific data 
available.
    In the proposed listing rule (83 FR 50610, October 9, 2018), we 
determined that designation of critical habitat for the eastern black 
rail would not be prudent. However, we invited public comment and 
requested information on the threats of taking or other human activity, 
particularly by birders, on the eastern black rail and its habitat, and 
the extent to which designation might

[[Page 63802]]

increase those threats, as well as the possible benefits of critical 
habitat designation to the eastern black rail.
    During the comment period, we did not receive any substantive 
comments, or any comments that would require us to change the not 
prudent determination or our rationale for it (see 83 FR 50627-50628). 
Therefore, we restate our conclusion that the designation of critical 
habitat is not prudent, in accordance with 50 CFR 424.12(a)(1), because 
the eastern black rail and its habitat face a threat by overzealous 
birders, and designation can reasonably be expected to increase the 
degree of these threats to the subspecies and its habitat by making 
location information more readily available.

Required Determinations

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, 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).

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. Although we have no records of the 
eastern black rail occurring on tribal lands, the range of the eastern 
black rail overlaps with tribal lands. At the time of the proposed 
rule, we contacted Tribal leaders and Natural Resource Coordinators for 
those Tribes residing within the subspecies' range. We did not receive 
any comments on the proposed rule from these Tribes.

References Cited

    A complete list of references cited in this rule is available on 
the internet at http://www.regulations.gov in Docket No. FWS-R4-ES-
2018-0057 and upon request from the South Carolina Ecological Services 
Field Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Species Assessment Team, U.S. Fish and Wildlife Service.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

    Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless 
otherwise noted.


0
2. Amend Sec.  17.11(h) by adding an entry for ``Rail, eastern black'' 
to the List of Endangered and Threatened Wildlife in alphabetical order 
under BIRDS to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
                                                      Birds
 
                                                  * * * * * * *
Rail, eastern black.............  Laterallus          Wherever found....  T              85 FR [INSERT FEDERAL
                                   jamaicensis                                            REGISTER PAGE WHERE
                                   jamaicensis.                                           THE DOCUMENT BEGINS],
                                                                                          10/8/2020; 50 CFR
                                                                                          17.41(f).\4d\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

0
3. Amend Sec.  17.41 by adding paragraph (f) to read as follows:


Sec.  17.41  Special rules--birds.

* * * * *
    (f) Eastern black rail (Laterallus jamaicensis jamaicensis).
    (1) Prohibitions. The following activities with the eastern black 
rail are prohibited:
    (i) Purposeful take, including capture, handling, or other 
activities.
    (ii) Incidental take resulting from the following activities:
    (A) Prescribed burn activities, unless best management practices 
that minimize negative effects of the prescribed burn on the eastern 
black rail are employed. Best management practices include:
    (1) Regardless of the size of the area under management with 
prescribed fire, a broad range of habitat conditions should be 
maintained by burning on a rotational basis, which supports black rail 
population maintenance and growth. In any given calendar year, at least 
50 percent of the eastern black rail habitat within the management 
boundary should be maintained in order to provide the dense overhead 
cover required by the subspecies. Management boundaries can include 
individual landholdings, e.g., a National Wildlife Refuge boundary, or 
be formed through landscape-level agreements across landholdings of 
different but contiguous ownerships. This percentage does not

[[Page 63803]]

apply to landholdings smaller than 640 acres.
    (2) Where eastern black rail are present, the application of 
prescribed fire uses tactics that provide unburned refugia allowing 
birds to survive a fire (e.g., using short flanking, backing fires, or 
similar approaches). Prescribed fire is applied under fuel and weather 
conditions (e.g., soil moisture and/or relative humidity) that are most 
likely to result in patchy persistence of unburned habitat to serve as 
refugia from fire and predators.
    (3) Ignition tactics, rates of spread, and flame lengths should 
allow for wildlife escape routes to avoid trapping birds in a fire. The 
application of prescribed fire should avoid fires, such as ring and 
strip head fires, that have long, unbroken boundaries and/or that come 
together in a short period of time and that consume essentially all 
vegetation and prevent black rails from escaping a fire. If aerial 
ignition is the chosen tool, ignitions should be conducted in such a 
way that large, fast-moving fires are avoided.
    (B) Mowing, haying, and other mechanical treatment activities in 
persistent emergent wetlands when the activity occurs during the 
nesting or brooding periods, except in accordance with paragraph 
(f)(2)(iii) of this section.
    (C) Grazing activities on public lands that occur on eastern black 
rail habitat and, that individually or cumulatively with other land 
management practices, do not maintain at least 50 percent of eastern 
black rail habitat, i.e., dense overhead cover, in any given calendar 
year within a management boundary.
    (D) Long-term or permanent damage, fragmentation, or conversion of 
persistent emergent wetlands and the contiguous wetland-upland 
transition zone to other habitat types (such as open water) or land 
uses that do not support eastern black rail.
    (iii) Possession and other acts with unlawfully taken eastern black 
rails. It is unlawful to possess, sell, deliver, carry, transport, or 
ship, by any means whatsoever, any eastern black rail that was taken in 
violation of section 9(a)(1)(B) and (C) of the Act or State laws.
    (iv) Import or export, as set forth at Sec.  17.21(b) for 
endangered wildlife.
    (v) Possess and conduct other acts with unlawfully taken specimens, 
as set forth at Sec.  17.21(d)(1) for endangered wildlife.
    (vi) Engage in interstate or foreign commerce in the course of 
commercial activity, as set forth at Sec.  17.21(e) for endangered 
wildlife.
    (vii) Sell or offer for sale, as set forth at Sec.  17.21(f) for 
endangered wildlife.
    (2) Exceptions from prohibitions.
    (i) All of the provisions of Sec.  17.32 apply to the eastern black 
rail.
    (ii) Any employee or agent of the Service, of the National Marine 
Fisheries Service, or of a State conservation agency that is operating 
a conservation program for the eastern black rail pursuant to the terms 
of a cooperative agreement with the Service in accordance with section 
6(c) of the Act, who is designated by his agency for such purposes, 
may, when acting in the course of his official duties, take eastern 
black rails.
    (iii) Incidental take resulting from haying, mowing, or other 
mechanical treatment activities in persistent emergent wetlands that 
occur during the nesting and brooding periods is allowed if those 
activities:
    (A) Are maintenance requirements to ensure safety and operational 
needs, including maintaining existing infrastructure such as 
firebreaks, roads, rights-of-way, levees, dikes, fence lines, 
airfields, and surface water irrigation infrastructure (e.g., head 
gates, ditches, canals, water control structures, and culverts); or
    (B) Occur during the control of woody encroachment and other 
invasive plant species to restore degraded habitat.
    (iv) Incidental take resulting from actions taken to control 
wildfires is allowed.
    (v) Incidental take resulting from the establishment of new 
firebreaks (for example, to protect wildlands or manmade 
infrastructure) and new fence lines is allowed.
    (vi) Incidental take resulting from prescribed burns, grazing, and 
mowing or other mechanical treatment activities in existing moist soil 
management units or prior converted croplands (e.g., impoundments for 
rice or other cereal grain production) is allowed.

Aurelia Skipwith,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2020-19661 Filed 10-7-20; 8:45 am]
 BILLING CODE 4333-15-P