Endangered and Threatened Wildlife and Plants; Threatened Species Status for Pinus albicaulis (Whitebark Pine) With Section 4(d) Rule, 77408-77424 [2020-25331]

Download as PDF 77408 Proposed Rules Federal Register Vol. 85, No. 232 Wednesday, December 2, 2020 This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules. DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R6–ES–2019–0054; FF09E21000 FXES11110900000 212] RIN 1018–BE23 Endangered and Threatened Wildlife and Plants; Threatened Species Status for Pinus albicaulis (Whitebark Pine) With Section 4(d) Rule Fish and Wildlife Service, Interior. ACTION: Proposed rule. AGENCY: We, the U.S. Fish and Wildlife Service (Service), propose to list whitebark pine (Pinus albicaulis), a high-elevation tree species found across western North America, as a threatened species under the Endangered Species Act of 1973 (Act), as amended. If we finalize this rule as proposed, it would extend the Act’s protections to this species. We also propose a rule issued under section 4(d) of the Act that is necessary and advisable to provide for the conservation of the species. We have determined that designation of critical habitat for the whitebark pine is not prudent at this time. DATES: We will accept comments received or postmarked on or before February 1, 2021. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by January 19, 2021. ADDRESSES: You may submit comments by one of the following methods: (1) Electronically: Go to the Federal eRulemaking Portal: https:// www.regulations.gov. In the Search box, enter FWS–R6–ES–2019–0054, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the Search panel on SUMMARY: VerDate Sep<11>2014 17:07 Dec 01, 2020 Jkt 253001 the left side of the screen, under the Document Type heading, click on the Proposed Rule box to locate this document. You may submit a comment by clicking on ‘‘Comment Now!’’ (2) By hard copy: Submit by U.S. mail to: Public Comments Processing, Attn: FWS–R6–ES–2019–0054, U.S. Fish and Wildlife Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041– 3803. We request that you send comments only by the methods described above. We will post all comments on https:// www.regulations.gov. This generally means that we will post any personal information you provide us (see Public Comments, below, for more information). FOR FURTHER INFORMATION CONTACT: Tyler Abbott, Field Supervisor, U.S. Fish and Wildlife Service, Wyoming Ecological Services Field Office, 5353 Yellowstone Road, Suite 308A, Cheyenne, WY 82009; telephone 307– 772–2374. 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, if a species is determined to be an endangered or threatened species throughout all or a significant portion of its range, we are required to promptly publish a proposal in the Federal Register and make a determination on our proposal within 1 year. Critical habitat shall be designated, to the maximum extent prudent and determinable, for any species determined to be an endangered or threatened species under the Act. Listing a species as an endangered or threatened species and designations and revisions of critical habitat can only be completed by issuing a rule. We have determined that designating critical habitat at this time is not prudent for Pinus albicaulis (hereafter, whitebark pine), for the reasons discussed below. This rule proposes the listing of the whitebark pine as a threatened species. The whitebark pine has been a candidate species for listing since 2011. This rule and the associated species status assessment (SSA) report assess all previous and new available information regarding the status of and threats to the whitebark pine. We also propose a rule PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 issued under section 4(d) of the Act that is necessary and advisable to provide for the conservation of the species. The basis for our action. Under the Act, we can 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 the primary stressor driving the status of the whitebark pine is white pine blister rust, a fungal disease caused by the nonnative pathogen Cronartium ribicola (Factor C). Whitebark pine is also impacted by the mountain pine beetle (Dendroctonus ponderosae) (Factor C), altered fire regimes (Factor E), and the effects of climate change (Factor E). Peer review. We requested comments from independent specialists on the SSA report upon which this proposed rule is based, to ensure that we based our determination on scientifically sound data, assumptions, and analyses. Their comments have been incorporated into the SSA report as appropriate. Because we will consider all additional comments and information received during the comment period, our final determination may differ from this proposal. The SSA report and other materials relating to this proposal can be found on the Service’s Mountain Prairie Region website at https://www.fws.gov/ mountain-prairie/es/whitebarkPine.php and at https://www.regulations.gov under Docket No. FWS–R6–ES–2019–0054. Because this proposed rule is based on the scientific information in the SSA report, which has already been peer reviewed, we are not seeking additional peer review of this proposed rule, in accordance with Service’s August 22, 2016, Director’s Memo on the Peer Review Process. Information Requested Public Comments We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or E:\FR\FM\02DEP1.SGM 02DEP1 Federal Register / Vol. 85, No. 232 / Wednesday, December 2, 2020 / Proposed Rules information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning: (1) The whitebark pine’s biology, range, and population trends, including: (a) Biological or ecological requirements of the species, including requirements for habitat, nutrition, reproduction, and dispersal; (b) Genetics and taxonomy; (c) Historical and current range, including distribution patterns; (d) Historical and current population levels, and current and projected trends; and (e) Past and ongoing conservation measures for the species, its habitat, or both, as well as planned conservation efforts. (2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors, including: (a) Information regarding the distribution, magnitude, and severity of impacts from white pine blister rust; (b) Mortality, cone production, and regeneration in areas impacted by mountain pine beetle, wildfire, or white pine blister rust; and (c) The potential effects of climate change on whitebark pine, its habitat, and the aforementioned factors. (3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species, and existing regulations that may be addressing those threats. (4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species. (5) Information concerning activities that should be considered under a rule issued in accordance with section 4(d) of the Act (16 U.S.C. 1531 et seq.) as a prohibition or exemption within U.S. territory that would contribute to the conservation of the species. In particular, information concerning whether import, export, and activities related to sale in interstate and foreign commerce should be prohibited, or whether any other activities should be considered excepted from the prohibitions in the 4(d) rule. (6) The reasons why we should or should not designate habitat as ‘‘critical habitat’’ under section 4 of the Act, including information to inform the following factors such that a designation VerDate Sep<11>2014 17:07 Dec 01, 2020 Jkt 253001 of critical habitat may be determined to be not prudent: (a) 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; (b) 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; (c) 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; (d) No areas meet the definition of critical habitat. Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or a threatened species must be made ‘‘solely on the basis of the best scientific and commercial data available.’’ You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES. If you submit information via https:// www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on https://www.regulations.gov. Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on https://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Wyoming Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 77409 Public Hearing Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the Federal Register (see DATES). Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule a public hearing on this proposal, if requested, and announce the date, time, and place of the hearing, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing. For the immediate future, we will provide these public hearings using webinars that will be announced on the Service’s website, in addition to the Federal Register. The use of these virtual public hearings is consistent with our regulation at 50 CFR 424.16(c)(3). Peer Review In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and the Service’s August 22, 2016, Director’s Memo on the Peer Review Process, we sought the expert opinions of seven appropriate and independent specialists regarding the SSA report on which this proposed rule is based, and received responses from five. The purpose of peer review of the SSA report is to ensure that our listing determination is based on scientifically sound data, assumptions, and analyses. The peer reviewers had expertise in whitebark pine’s biology, habitat management, genetics, and stressors. The peer reviewers reviewed the SSA report, which informed our determination. Comments from peer reviewers have been incorporated into our SSA report as appropriate, and will be available along with other public comments in the docket for this proposed rule. Previous Federal Actions On February 11, 1991, we received a petition, dated February 5, 1991, from the Great Bear Foundation of Missoula, Montana, to list the whitebark pine under the Act. The petition stated that whitebark pine was rapidly declining due to impacts from mountain pine beetles, white pine blister rust, and fire suppression. After reviewing the petition, we found that the petition did not provide substantial information indicating that listing whitebark pine may be warranted. We published this finding in the Federal Register on January 27, 1994 (59 FR 3824). E:\FR\FM\02DEP1.SGM 02DEP1 77410 Federal Register / Vol. 85, No. 232 / Wednesday, December 2, 2020 / Proposed Rules On December 9, 2008, we received a petition, dated December 8, 2008, from the Natural Resources Defense Council (NRDC) requesting that we list whitebark pine as endangered throughout its range and designate critical habitat under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, as then required by 50 CFR 424.14(a). The petition included supporting information regarding the species’ natural history, biology, taxonomy, lifecycle, distribution, and reasons for decline. The NRDC reiterated the threats from the 1991 petition, and included climate change and successional replacement as additional threats to whitebark pine. In a January 13, 2009, letter to NRDC, we responded that we had reviewed the information presented in the petition and determined that issuing an emergency rule temporarily listing the species under section 4(b)(7) of the Act was not warranted. We also stated that we could not address the petition promptly because of staff and budget limitations. We indicated that we would process a 90-day petition finding as quickly as possible. On December 23, 2009, we received NRDC’s December 11, 2009, notice of intent to sue over our failure to respond to the petition to list whitebark pine and designate critical habitat. We responded in a letter dated January 12, 2010, indicating that other preceding listing actions had priority, but that we expected to complete the 90-day finding during Fiscal Year 2010. On February 24, 2010, NRDC filed a complaint alleging a failure to issue a 90-day finding on the petition. We completed a 90-day finding on the petition, which published in the Federal Register on July 20, 2010 (75 FR 42033). In that finding, we determined that the petition presented substantial information such that listing whitebark pine may be warranted, and we announced that we would conduct a status review of the species. We opened a 60-day information collection period to allow all interested parties an opportunity to provide information on the status of whitebark pine (75 FR 42033); during that information collection period, we received 20 letters from the public. On July 19, 2011, we published a 12month finding in the Federal Register (76 FR 42631), following a review of all available scientific and commercial information. In that finding, we found that listing whitebark pine as endangered or threatened was warranted. However, at that time, listing whitebark pine was precluded by higher priority actions to amend the Lists of VerDate Sep<11>2014 17:07 Dec 01, 2020 Jkt 253001 Endangered and Threatened Wildlife and Plants, and we added whitebark pine to our candidate species list with a listing priority number of 2, indicating threats that were of high magnitude and were considered imminent. On January 15, 2013, Wildwest Institute and Alliance for the Wild Rockies filed a complaint challenging our finding that listing was ‘‘precluded’’ for whitebark pine, based on its listing priority number. On April 25, 2014, the District Court for the District of Montana upheld our finding that listing the whitebark pine was warranted but precluded. The plaintiffs appealed this ruling, and on April 28, 2017, the Ninth Circuit Court of Appeals affirmed the district court’s summary judgement in favor of the Service. Whitebark pine has remained a candidate for listing under the Act since 2011, and we have reevaluated its status on an annual basis through the candidate notice of review (see 76 FR 66370, October 26, 2011; 77 FR 69994, November 21, 2012; 78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014; 80 FR 80584, December 24, 2015; 81 FR 87246, December 2, 2016). The species currently has a listing priority number of 8, indicating threats that are of moderate magnitude and are imminent. Species Status Assessment The Service prepared an SSA report for whitebark pine (Service 2018). The science provided in the SSA report is the basis for this proposed rule. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. The SSA report underwent independent peer review by scientists with expertise in whitebark pine’s biology, habitat management, genetics, and stressors (factors negatively affecting the species). The SSA report and other materials relating to this proposal can be found on the Service’s Mountain Prairie Region website at https://www.fws.gov/mountain-prairie/ es/whitebarkPine.php and at https:// www.regulations.gov under Docket No. FWS–R6–ES–2019–0054. I. Proposed Threatened Species Status for the Whitebark Pine Background A thorough review of the distribution, taxonomy, life history, and ecology of the whitebark pine is presented in the SSA report (Service 2018, chapter 2), which is available at https:// PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 www.fws.gov/mountain-prairie/es/ whitebarkPine.php and at https:// www.regulations.gov under Docket No. FWS–R6–ES–2019–0054. A brief summary appears below. Whitebark pine is a slow-growing, long-lived tree, occurring at high elevations across the western United States and Canada. The species is a fiveneedle conifer placed in the subgenus Strobus, which includes other fiveneedle white pines. No taxonomic subspecies or varieties of whitebark pine are recognized (COSEWIC 2010, p. 6). Based on this taxonomic classification information, we recognize whitebark pine as a valid species and, therefore, a listable entity under the Act. Because whitebark pine is a plant species, our policy on distinct population segments is not applicable, and, therefore, the entire range of the species within the United States and Canada is the entity evaluated in our SSA report and considered in this listing determination. Whitebark pine has a broad range both latitudinally (occurring from a southern extent of approximately 36° north in California to 55° north latitude in British Columbia, Canada) and longitudinally (occurring from approximately 128° west in British Columbia, Canada, to an eastern extent of 108° west in Wyoming). Whitebark pine typically occurs on cold and windy high-elevation or high-latitude sites in western North America, although it also occurs in scattered areas of the warm and dry Great Basin (Service 2018, p. 13). Rangewide, whitebark pine occurs on an estimated 32,616,422 hectares (ha) (80,596,935 acres (ac)) in western North America. Roughly 70 percent of the species’ range occurs in the United States, with the remaining 30 percent of its range occurring in British Columbia and Alberta, Canada. In Canada, the majority of the species’ distribution occurs on federal or provincial crown lands (COSEWIC 2010, p. 12). In the United States, approximately 88 percent of land where the species occurs is federally owned or managed. The majority is located on U.S. Forest Service (USFS) lands (approximately 74 percent). The bulk of the remaining acreage is located on National Park Service (NPS) lands (approximately 10 percent). Small amounts of whitebark pine also can be found on Bureau of Land Management lands (approximately 4 percent). The remaining 12 percent of the species’ range is under non-Federal ownership, on State, private, and Tribal lands (Service 2018, pp. 14–15). There are four stages in the life cycle of the whitebark pine: Seed, seedling, E:\FR\FM\02DEP1.SGM 02DEP1 Federal Register / Vol. 85, No. 232 / Wednesday, December 2, 2020 / Proposed Rules sapling, and mature trees (i.e., reproductive adults). Whitebark pine trees may produce both male and female cones, are considered reproductive at approximately 60 years of age, and can survive on the landscape for hundreds of years (Service 2018, p. 19). Primary seed dispersal occurs almost exclusively by Clark’s nutcrackers (Nucifraga columbiana), a bird in the family Corvidae (whose members include ravens, crows, and jays) (Lanner 1996, p. 7; Schwandt 2006, p. 2). Whitebark pine trees are typically 5 to 20 meters (m) (16 to 66 feet (ft)) tall with a rounded or irregularly spreading crown shape. Whitebark pine is considered both a keystone and a foundation species in western North America, where it increases biodiversity and contributes to critical ecosystem functions (Tomback et al. 2001, pp. 7– 8). In general, whitebark pine has similar requirements to other tree species. That is, all four life stages require adequate amounts of sunlight, water, and soil for survival and reproduction (mature trees only). The needs of each life stage are described further in the SSA report (Service 2018, table 1, p. 23), and include Clark’s nutcrackers, a lack of seed predators, cold stratification, ground fires or other disturbance, open space and limited shading, suitable temperatures and precipitation, and available nitrogen and phosphorous. Whitebark pine is a hardy conifer that tolerates poor soils, steep slopes, and windy exposures; it is found at alpine tree line and subalpine elevations throughout its range (Tomback et al. 2001, pp. 6, 27). Whitebark pine is slowgrowing and relatively shade-intolerant, and can be outcompeted and replaced by more shade-tolerant trees in the absence of disturbances like fire (Arno and Hoff 1989, p. 6). The species grows under a wide range of annual precipitation amounts, from about 51 to over 254 centimeters (cm) (20 to 100 inches (in.)) per year, and it is considered relatively drought-tolerant (Arno and Hoff 1989, p. 7; Farnes 1990, p. 303). There are a variety of soil types that support whitebark pine (Weaver 2001, pp. 47–48; Keane et al. 2012, p. 3). These soil types are generally described as well-drained soils that are poorly developed, coarse, rocky, and shallow over bedrock (COSEWIC 2010, p. 10). Seeds of whitebark pine are typically cached by seed predators such as the Clark’s nutcracker. Seed predation plays a major role in whitebark pine population dynamics, as seed predators largely determine the fate of seeds. However, whitebark pine has coevolved VerDate Sep<11>2014 17:07 Dec 01, 2020 Jkt 253001 with seed predators and has several adaptations, like masting (regional synchrony of mass production of seeds), that has allowed the species to persist despite heavy seed predation (Lorenz et al. 2008, pp. 3–4). Whitebark pine trees usually do not produce large cone crops until 60 to 80 years of age (Krugman and Jenkinson 1974, as cited in McCaughey and Tomback 2001, p. 109), with average earliest first cone production at 40 years of age (Tomback and Pansing 2018, p. 7). Therefore, the generation time of whitebark pine is approximately 40 to 60 years (Tomback and Pansing 2018, p. 7; COSEWIC 2010, p. v). Whitebark pine is almost exclusively dependent upon the Clark’s nutcracker for seed dispersal. Clark’s nutcrackers are able to assess cone crops, and if there are insufficient seeds to cache, they will emigrate in order to survive (McKinney et al. 2009, p. 599). A threshold of approximately 1,000 cones per ha (2.47 ac) is needed for a high likelihood of seed dispersal by Clark’s nutcrackers, and this level of cone production occurs in forests with a live basal area (the volume of wood occurring in a given area) greater than 5 square meters per ha (McKinney et al. 2009, p. 603). Therefore, at the population level, whitebark pine populations need sufficient density and abundance of reproductive individuals to facilitate masting and to attract Clark’s nutcrackers, in order to achieve adequate recruitment and maintain resiliency to stochastic (random or unpredictable) events (Service 2018, pp. 27–28). At the species-level, for longterm viability, whitebark pine requires multiple (redundancy), self-sustaining populations (resiliency) distributed across the landscape (representation) to maintain the ecological and genetic diversity of the species (Service 2018, pp. 29–30). Regulatory Framework 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 is an ‘‘endangered species’’ or a ‘‘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 any species is an ‘‘endangered species’’ or a ‘‘threatened species’’ because of any of the following factors: PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 77411 (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. However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an ‘‘endangered species’’ or a ‘‘threatened species.’’ In determining whether a species meets either definition, we must evaluate all identified threats by considering the 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. The Act does not define the term ‘‘foreseeable future,’’ which appears in the statutory definition of ‘‘threatened E:\FR\FM\02DEP1.SGM 02DEP1 77412 Federal Register / Vol. 85, No. 232 / Wednesday, December 2, 2020 / Proposed Rules species.’’ Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. 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. In other words, the foreseeable future is the period of time in which we can make reliable predictions. ‘‘Reliable’’ does not mean ‘‘certain’’; it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions. It is not always possible or necessary to define foreseeable future as a particular number of years. 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. Data that are typically relevant to assessing the species’ biological response include speciesspecific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors. Summary of Biological Status and Threats 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. We completed a comprehensive assessment of the biological status of the whitebark pine, and prepared a report of the assessment (SSA report, Service 2018), which provides a thorough account of the species’ overall viability. We define viability here as the ability of the species to persist over the long term (i.e., to avoid extinction). In the discussion below, we summarize the conclusions of that assessment, which we provide in full under Docket No. FWS–R6–ES–2019–0054 on https:// www.regulations.gov and at https:// www.fws.gov/mountain-prairie/es/ whitebarkPine.php. We focused our analysis of whitebark pine’s viability on four main stressors: Altered fire regimes, white pine blister rust, mountain pine beetle, and climate change. We focused on these four stressors because, according to the best available data, these stressors are the leading factors attributed to the decline of whitebark pine (Keane and Arno 1993, p. 44; Tomback et al. 2001, p. 13; COSEWIC 2010, p. 24; Tomback and Achuff 2010, p. 186; Keane et al. 2012, VerDate Sep<11>2014 17:07 Dec 01, 2020 Jkt 253001 p. 1; Mahalovich 2013, p. 2; Mahalovich and Stritch, 2013, entire; Smith et al. 2013, p. 90; GYWPMWG 2016, p. v; Jules et al. 2016, p. 144; Perkins et al. 2016, p. xi; Shanahan et al. 2016, p. 1; Shepard et al. 2018, p. 138). While all of these stressors impact the species, we found that white pine blister rust is the main driver of the species’ current and future conditions. Each of these stressors is described in detail in our SSA report (Service 2018), and is summarized below. Altered Fire Regimes Fire is one of the most important landscape-level disturbance processes within high-elevation whitebark pine forests (Agee 1993, p. 259; Morgan and Murray 2001, p. 238; Spurr and Barnes 1980, p. 422). Fires in the high-elevation ecosystem of whitebark pine can be of low intensity, high intensity, or mixed intensity. These varying intensity levels result in very different impacts to whitebark pine communities. Without regular disturbance, primarily from fire, these forest communities follow successional pathways that eventually lead to climax communities dominated by shade-tolerant conifers, to the exclusion of whitebark pine (Keane and Parsons 2010, p. 57). Fire also creates sites that are suitable for the Clark’s nutcracker’s seed-caching behavior and provides optimal growing conditions for whitebark pine (Tomback et al. 2001, p. 13). Low-intensity ground fires occur frequently under low-fuel conditions. These fires remove small-diameter, thinbarked seedlings and allow large, mature whitebark pine trees to thrive (Arno 2001, p. 82), as long as the mature trees are not subjected to bole (main stem of the tree) scorching (e.g., Hood et al. 2008). Whitebark pine also has a thinner crown and a deeper root system than many of its competitors, which can allow it to withstand low-intensity fires better (Arno and Hoff 1990 in Keane and Parsons 2010, p. 58). Conversely, whitebark pine cannot survive highseverity fires; during such fires, all age and size classes can be killed. Highintensity fires, often referred to as stand replacement fires, or crown fires (Agee 1993, p. 16), produce intense heat, resulting in the removal of all or most of the vegetation from the ground (i.e., high severity). Newly burned areas can provide a seedbed for whitebark pine, and if stands of unburned coneproducing whitebark pine are nearby (i.e., within the range of Clark’s nutcracker’s seed-caching behavior), Clark’s nutcrackers will cache those seeds on the burned site, and regeneration is likely. However, the introduction of white pine blister rust PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 and the recent epidemic of the predatory mountain pine beetle (see discussion below) have reduced or effectively eliminated whitebark pine seed sources on a landscape scale, meaning that regeneration of whitebark pine following high-severity fire is unlikely in many cases (Tomback et al. 2008, p. 20; Leirfallom et al. 2015, p. 1601). Fire exclusion policies have had unintended negative impacts on whitebark pine populations (Keane 2001a, entire). Stands once dominated by whitebark pine have undergone succession to more shade-tolerant conifers (Arno et al. 1993 in Keane et al. 1994, p. 225; Flanagan et al. 1998, p. 307). However, we do not know at what scale the impacts of fire exclusion and resultant forest succession have affected whitebark pine. In general, wildfire characteristics across the range of whitebark pine are expected to shift with future climate changes. Substantial increases in fire season length, number of fires, area burned, and intensity are predicted (reviews in Keane et al. 2017, pp. 34–35, and Westerling 2016, pp. 1– 2). For a more detailed discussion of the impacts of fire on whitebark pine, see the SSA report (Service 2018, pp. 31– 34). White Pine Blister Rust White pine blister rust is a fungal disease of five-needle pines caused by a nonnative pathogen, Cronartium ribicola (Geils et al. 2010, p. 153). The fungus was inadvertently introduced around 1910, near Vancouver, British Columbia (McDonald and Hoff 2001, p. 198; Brar et al. 2015, p. 10). The incidence of white pine blister rust at stand, landscape, and regional scales varies due to time since introduction and environmental suitability for its development. It continues to spread into areas originally considered less suitable for infection, such as the Sierra Nevada Mountains, and it has become a serious threat, causing severe population losses to several species of western pines, including whitebark pine (Schwandt et al. 2010, pp. 226–230). Its current known geographic distribution in western North America includes all U.S. States and British Columbia and Alberta, Canada. The white pine blister rust fungus has a complex life cycle: It does not spread directly from one tree to another, but alternates between primary hosts (i.e., five-needle pines) and alternate hosts. Alternate hosts in western North America are typically woody shrubs in the genus Ribes (gooseberries and currants) (McDonald and Hoff 2001, p. 193; McDonald et al. 2006, p. 73). The E:\FR\FM\02DEP1.SGM 02DEP1 Federal Register / Vol. 85, No. 232 / Wednesday, December 2, 2020 / Proposed Rules spreading of white pine blister rust spores depends on the distribution of hosts, the prevailing microclimates, and the different genotypes of white pine blister rust and hosts (McDonald and Hoff 2001, pp. 193, 202). A wave event (a massive spreading of new white pine blister rust infections into new or relatively unaffected areas, or intensification of spread from a cumulative buildup in already infected stands) occurs where alternate hosts are abundant and when late summer weather is favorable to spore production and dispersal, and subsequent infection of pine needles. Because its abundance is influenced by weather and host populations, white pine blister rust also is affected by climate change. If conditions become cooler or moister, white pine blister rust will likely spread and intensify; conversely, where conditions become both warmer and drier, it may spread more slowly (Service 2018, p. 39). However, even if climatic conditions slow the spread of white pine blister rust, it remains everpresent on the landscape, infecting seedlings that attempt to reestablish. White pine blister rust attacks whitebark pine seedlings, saplings, and mature trees, damaging stems and conebearing branches and restricting nutrient flows; it eventually girdles branches and boles (tree trunks or stems), leading to the death of branches or the entire tree (Tomback et al. 2001, p. 15, McDonald and Hoff 2001, p. 195). While some infected mature trees can continue to live for decades (Wong and Daniels 2017, p. 1935), their conebearing branches typically die first, thereby eliminating the seed source required for reproduction (Geils et al. 2010, p. 156). Although some areas of the species’ range have been impacted by white pine blister rust for 90 years or more, for whitebark pine that timeframe equates to only 1.5 generations (Mahalovich 2013, p. 17), which means the species has had a limited time to adapt to or develop resistance to white pine blister rust. However, low levels of rust resistance have been documented on the landscape in individual trees and their seeds, indicating that there is some level of heritable resistance to white pine blister rust (Hoff et al. 2001, p. 350; Mahalovich et al. 2006, p. 95; Mahalovich 2015, p. 1). In some populations and geographic areas, there is moderate frequency and level of genetic resistance, while in others, the frequency of resistance appears to be much lower (Sniezko 2018, p. 1–2). Most current management and research focuses on producing and planting whitebark pine seedlings with VerDate Sep<11>2014 17:07 Dec 01, 2020 Jkt 253001 proven genetic resistance to white pine blister rust, but also includes enhancing natural regeneration and applying silvicultural treatments, such as appropriate site selection and preparation, pruning, and thinning (Zeglen et al. 2010, p. 347). However, management challenges to restoration include remoteness, difficulty of access, and a perception that some whitebark pine restoration activities conflict with wilderness values (Schwandt et al. 2010, p. 242). In addition, the vast scale at which planting rust-resistant trees would need to occur, long timeframes in which restoration efficacy could be assessed, and limited funding and resources will make it challenging to restore whitebark pine throughout its range. Based on modeling results (Ettl and Cottone 2004, pp. 36–47; Hatala et al. 2011; Field et al. 2012, p. 180), we conclude that, in addition to the ubiquitous presence of white pine blister rust across the entire range of the whitebark pine, white pine blister rust infection likely will continue to increase and intensify within individual sites, ultimately resulting in stands that are no longer viable and that potentially face extirpation. For a more detailed discussion of white pine blister rust, see the SSA report (Service 2018, pp. 35– 42). Mountain Pine Beetle The native mountain pine beetle (Dendroctonus ponderosae Hopkins) is one of the principal sources of whitebark pine mortality (Raffa and Berryman 1987, p. 234; Arno and Hoff 1989, p. 7). Mountain pine beetles feed on whitebark pine and other western conifers, and to reproduce successfully, the beetles must kill host trees (Logan and Powell 2001, p. 162; Logan et al. 2010, p. 895). At endemic, or more typical levels, mountain pine beetles remove relatively small areas of trees, changing stand structure and species composition in localized areas. However, when conditions are favorable (abundant hosts and favorable climate), mountain pine beetle populations can erupt to epidemic levels and create stand-replacing events that may kill 80 to 95 percent of suitable host trees (Berryman 1986 as cited in Keane et al. 2012, p. 26). Such outbreaks are episodic, and typically subside only when suitable host trees have been exhausted or temperatures are sufficiently low to kill larvae and adults (Gibson et al. 2008, p. 2). Therefore, at epidemic levels, mountain pine beetle outbreaks may have population-level effects on whitebark pine. Mountain pine beetle epidemics affecting whitebark pine have occurred PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 77413 throughout recorded history (Keane et al. 2012, p. 26). The most recent mountain pine beetle epidemic began in the late 1990s, and although it has since subsided, it continues to be a measurable but much reduced source of mortality for whitebark pine (Macfarlane et al. 2013, p. 434; Mahalovich 2013, p. 21; Shelly 2014, pp. 1–2). Unlike previous epidemics, the most recent mountain pine beetle outbreak had a significant rangewide impact on whitebark pine (Logan et al. 2003, p. 130; Logan et al. 2010, p. 898; MacFarlane et al. 2013, p. 434). Trends of environmental effects from climate change have provided favorable conditions necessary to sustain the most recent, unprecedented mountain pine beetle epidemic in high-elevation communities across the western United States and Canada (Logan and Powell 2001, p. 167; Logan et al. 2003, p. 130; Raffa et al. 2008, p. 511). This most recent epidemic is waning across the majority of the range (Hayes 2013, pp. 3, 41, 42, 54; Alberta Whitebark and Limber Pine Recovery Team 2014, p. 18; Bower 2014, p. 2; Shelly 2014, pp. 1– 2). However, given ongoing and predicted environmental effects from climate change, we expect mountain pine beetles will continue to expand into higher elevation habitats and that epidemics will continue within the range of whitebark pine (Buotte et al. 2016, p. 2516; Sidder et al. 2016, p. 9). For a more detailed discussion of mountain pine beetle, see the SSA report (Service 2018, pp. 42–49). Climate Change Our analyses under the Act include consideration of ongoing and projected changes in climate. In general, the pace of predicted climate change will outpace many plant species’ abilities to respond to the concomitant habitat changes. Whitebark pine is potentially particularly vulnerable to warming temperatures because it is adapted to cool, high-elevation habitats. Therefore, current and anticipated warming is expected to make its current habitat unsuitable for whitebark pine, either directly or indirectly as conditions become more favorable to whitebark pine competitors, such as subalpine fir or mountain hemlock (Bartlein et al. 1997, p. 788; Hamann and Wang 2006, p. 2783; Hansen and Phillips 2015, p. 74; Schrag et al. 2007, p. 8; Warwell et al. 2007, p. 2; Aitken et al. 2008, p. 103; Loehman et al. 2011, pp. 185–187; Rice et al. 2012, p. 31; Chang et al. 2014, p. 10). The rate of migration needed to respond to predicted climate change will be significant (Malcolm et al. 2002, E:\FR\FM\02DEP1.SGM 02DEP1 77414 Federal Register / Vol. 85, No. 232 / Wednesday, December 2, 2020 / Proposed Rules pp. 844–845; McKenney et al. 2007, p. 941). It is not known whether whitebark pine is capable of migrating at a pace sufficient to move to areas that are more favorable to survival given the projected effects of climate change. It is also not known the degree to which the Clark’s nutcracker could facilitate this migration. In addition, the presence of significant white pine blister rust infection in the northern range of the whitebark pine could serve as a barrier to effective northward migration. Whitebark pine survives at high elevations already, so there is little remaining habitat in many areas for the species to migrate to higher elevations in response to warmer temperatures. Adaptation in response to a rapidly warming climate would also be unlikely, as whitebark pine is a longlived species with a long generation time (Bradshaw and McNeilly 1991, p. 10). Climate models suggest that climate change is expected to act directly and indirectly, regardless of the emission scenario, to significantly decrease the probability of rangewide persistence in whitebark pine within the next 100 years (e.g., Warwell et al. 2007, p. 2; Hamann and Wang 2006, p. 2783; Schrag et al. 2007, p. 6; Rice et al. 2012, p. 31; Loehman et al. 2011, pp. 185–187; Chang et al. 2014, p. 10–12). This time interval is less than two generations for this long-lived species. See the Determination section of this document for our discussion on the relationship of this modeled timeframe to our determination of the foreseeable future for this listing determination. In addition, projected climate change effects are a significant threat to the whitebark pine, because the impacts of climate change, including projected temperature and precipitation changes, interact with and exacerbate other stressors such as mountain pine beetle and wildfire, resulting in habitat loss and population decline. For a more detailed discussion of climate change impacts on whitebark pine, see the SSA report (Service 2018, pp. 49–55). Current Conditions In order to assess the current condition of the whitebark pine across its extensive range, we broke the range into 15 smaller analysis units (AUs), based primarily on Environmental Protection Agency Level III ecoregions as well as input from whitebark pine experts, as described in the SSA report (Service 2018, pp. 57–59). Ecoregions identify areas of general similarity in ecosystems, as well as topographic and environmental variables. We further divided AUs in the United States from VerDate Sep<11>2014 17:07 Dec 01, 2020 Jkt 253001 those in Canada to reflect differences in management and legal status. A map of these AUs is available in the SSA report (Service 2018, pp. 58, figure 9). We then evaluated the best available data regarding the current impacts of wildfire, white pine blister rust, and mountain pine beetle on the resiliency (ability to withstand stochastic events) of each AU. These analyses are described in detail in the SSA report (Service 2018, pp. 56–81), and our conclusions are summarized below. We note that not all AUs are equal in size; they encompass varying proportions of the species’ range, ranging from the Middle Rockies AU (27.6 percent of the range) to the Olympics AU (0.4 percent of the range) (Service 2018, p. 59, table 3). Resiliency To assess the current impact of wildfire on the resiliency of whitebark pine AUs, we examined burn data collected from 1984 to 2016 from the following sources Monitoring Trends in Burn Severity [MTBS] (a multi-agency program compiling fire data from multiple sources including USGS and the USFS); GeoMac (a multi-agency program providing fire data from multiple agencies managed by USGS); and the Canadian Forest Service (Service 2018, p. 60). We found that from 1984 to 2016, between 0.08 percent and 42.64 percent of each AU burned (including burns of any severity level). Although we collected information on all fires, our analysis focuses on areas of high burn severity that could potentially negatively impact the species. Overall, a minimum of 1,273,583 ha (3,147,092 ac) of whitebark pine habitat burned in high severity fires during this time period, equating to approximately 5 percent of the species’ range within the United States (Service 2018, pp. 60–63). Similar data for high severity fires were not available for AUs in Canada. To assess the current impact of white pine blister rust on the resiliency of whitebark pine AUs, we examined the large volume of published literature and information provided by experts, as described in the SSA report (Service 2018, pp. 63–71). White pine blister rust infections have increased in intensity over time and are now prevalent even in trees living in cold, dry areas formerly considered less susceptible (Tomback and Resler 2007, p. 399; Smith-Mckenna et al. 2013, p. 224), such as the Greater Yellowstone Ecosystem. This trend has resulted in reduced seed production and increased mortality. We assessed the current impact of white pine blister rust on whitebark pine by evaluating data from a modeled dataset developed by PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 the USFS in 2011 for the United States. This modeled dataset is based on white pine blister rust infection information from the USFS Whitebark and Limber Pine Information System (WLIS) database combined with environmental variables (Service 2018, p. 68–69). Canadian white pine blister rust data were derived from a combination of survey data from Parks Canada and empirical literature (e.g., COSEWIC 2010, p. viii and Table 4, p. 19; Smith et al. 2010, p. 67; Smith et al. 2013, p. 90; Shepherd et al. 2018, p. 6). Approximately 34 percent of the range is infected with white pine blister rust (Service 2018, p. 93), and every AU within the whitebark pine’s range is currently affected by the disease. The current average white pine blister rust infection level within each AU ranges between 2 percent and 74 percent, with 12 of the 15 AUs having an average infection level over 20 percent, and 5 of the AUs having average infection levels above 40 percent (Service 2018, pp. 68– 71). Average infection levels are lowest in the southern AUs (Klamath Mountains, Basin and Range, and Sierras) and then sharply increase moving north into the latitudes of the Rocky Mountains and Cascades. As stated above, once white pine blister rust is present in an area, there are no known methods to eradicate it. It will spread and infect more of the area when conditions are favorable. To assess the current impact of mountain pine beetle on the resiliency of whitebark pine AUs, we aggregated aerial detection survey (ADS, a USFS dataset) data for the United States and aerial overview survey (AOS, a dataset of the British Columbia Ministry of Forests) data for Canada from 1991 through 2016 across the range of the whitebark pine (Service 2018, p. 71). As mountain pine beetles only attack mature trees, the effects of mountain pine beetle attacks observed during aerial surveys can be interpreted as the loss of seed-producing trees. From 1991 through 2016, 5,919,276 ha (14,626,850 ac) of the whitebark pine’s range have been impacted by the mountain pine beetle, resulting in at least 18 percent of the whitebark pine’s range being negatively impacted (Service 2018, pp. 71–75). Similar to white pine blister rust infection, the more southern AUs are currently less impacted by the mountain pine beetle than their more northern counterparts. On the West Coast, the Cascades, Thompson Plateau, and Fraser Plateau AUs have had at least 25 percent of the whitebark pine’s range impacted by the mountain pine beetle. Overall, whitebark pine stands have seen severe reductions in reproduction E:\FR\FM\02DEP1.SGM 02DEP1 Federal Register / Vol. 85, No. 232 / Wednesday, December 2, 2020 / Proposed Rules and regeneration because of these stressors, thus resulting in a reduction in resiliency and therefore their ability to withstand stochastic events. High severity wildfires, white pine blister rust, and mountain pine beetle all act on portions of whitebark pine’s range, killing individuals and limiting reproduction and regeneration (Service 2018, p. 81, Figure 14). Interactions between these factors have further exacerbated the species’ decline and have reduced its resiliency. Representation Having evaluated the current impact of the above stressors on the resiliency of each whitebark pine AU, we next evaluated the species’ current levels of representation, or ability to adapt to changing conditions (Service 2018, pp. 75–78). The range of variation found within a species, which may include ecological, genetic, morphological, and phenological diversity, may be an indication of its levels of representation. Whitebark pine can be found in a number of ecological settings throughout its range, mainly depending on elevation, latitude, and climate of an area. Whitebark pine has high genetic diversity relative to other conifer tree species (i.e., high representation in terms of genetic variation), with poor genetic differentiation among zones, and similar levels of diversity to other highly geographically distributed tree species in North America (Mahalovich and Hipkins 2011, p. 126). The high levels of genetic diversity within the species may be impacted through bottleneck events caused by mortality resulting from white pine blister rust, mountain pine beetle, or fires. Whitebark pine also has higher rates of inbreeding than most other windpollinated conifers, likely due to the close proximity of mature trees arising from clumps of seeds of related individuals or even from the same cone, suggesting that population genetic structure is driven by seed dispersal by the Clark’s nutcracker (Keane et al. 2012, p. 14). The whitebark pine exhibits a range of morphologies, from tall, single-stemmed trees to shrub-like krummholz forms. These factors may contribute to the species’ level of ability to adapt to changing conditions. Given the species wide geographic range and levels of ecological, genetic, morphological, and phenological diversity, it likely has inherently higher levels of representation than many species. Redundancy Finally, we evaluated the whitebark pine’s current levels of redundancy, or VerDate Sep<11>2014 17:07 Dec 01, 2020 Jkt 253001 ability to withstand catastrophic events. Whitebark pine is widely distributed, and thus inherently has higher levels of redundancy than many species. Rangewide, whitebark pine occurs on an estimated 32,616,422 ha (80,596,935 ac) in western North America. However, as a result of the rangewide reduction in resiliency due to the stressors discussed above, there has been a concomitant loss in species redundancy, as many areas become less able to contribute to the species’ ability to withstand catastrophic events (Service 2018, p. 78). Overall, rangewide data from USFS Forest Inventory and Analysis surveys indicate that 51 percent of all standing whitebark pine trees in the United States are now dead, with over half of that amount occurring approximately in the last two decades alone (Goeking and Izlar 2018, p. 7). Each of the stressors acts individually and cumulatively on portions of the whitebark pine’s range, and interactions between stressors have further exacerbated the species’ decline and have reduced its resiliency. This reduction in resiliency is rangewide, occurring across all AUs, with the Canadian, U.S., and Northern Rockies likely the most impacted. While the species is still wide-ranging and, therefore, has inherently higher levels of representation and redundancy than many species, reductions to resiliency across the range are reducing the species’ adaptive capacity and ability to withstand catastrophic events (Service 2018, pp. 78–80). Future Conditions To assess the future condition of whitebark pine, we projected the impacts of each of the stressors described above under three plausible scenarios (scenarios 1, 2, and 3, as noted below). This analysis, and the uncertainties associated with it, are described in more detail in the SSA report (Service 2018, pp. 82–114), and are summarized below. Scenarios constructed include variation in: (1) The presence of white pine blister rust. Given historical trends, we assume in all scenarios that white pine blister rust will continue to spread and intensify throughout the range of whitebark pine. There is no information to suggest that the rate of spread or prevalence of white pine blister rust will decrease in the future. The incidence of white pine blister rust at stand, landscape, and regional scales varies due to time since introduction and environmental suitability for its development. It continues to spread into areas originally considered less suitable for persistence, and it has become a PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 77415 serious threat. In our future scenarios, we varied the future rate of white pine blister rust spread between one and four percent annually based on values presented in the literature (e.g., Schwandt et al. 2013; Smith et al 2013). The percentage of genetically resistant individuals and the effectiveness and scale of management efforts to collect, propagate, and plant genetically resistant individuals are key areas of uncertainty. Therefore, we varied the level of genetic resistance between a lower value of 10 percent and higher value of 40 percent based on a range of values presented in the literature (e.g., Mahalovich 2013, p. 33). We considered the higher 40 percent value to include both the presence of some level of natural resistance and planting of resistant individuals. (2) The frequency of high severity wildfire. Given current trends and predictions for future changes in the climate, we assume in all scenarios that the frequency of stand replacing wildfire will increase although the magnitude of that increase is uncertain (Keane et al. 2017, p. 18; Westerling 2016, entire; Littell et al. 2010, entire). Because of that uncertainty, we choose what are likely conservative values of a 5 or 10 percent increase in severe wildfire above current annual levels. (3) The magnitude of future mountain pine beetle impacts. Given warming trends, we assume in all scenarios that mountain pine beetle epidemics will continue to impact whitebark pine in the future. There is no information to suggest that mountain pine beetle epidemics will decrease in magnitude or frequency in the future. In our future scenarios, we predicted a new mountain pine beetle epidemic would occur every 60 years, as that is the minimum time it would likely take for individual trees to achieve diameters large enough to facilitate successful mountain pine beetle brood production that is required to reach epidemic levels. Climate change is understood to impact whitebark pine principally through its effect on the magnitude of the other three key stressors, and was therefore included in these projections as an indirect impact to whitebark pine resilience by modifying the rate of change in the other stressors (Service 2018, p. 82). Similarly, potential levels of current and future conservation efforts were also included indirectly in these projections by varying the rate of change of those stressors for which conservation could potentially have an effect. Due to the longevity and long generation time of the species, we modeled projections of impacts for several timeframes, going out 180 years, E:\FR\FM\02DEP1.SGM 02DEP1 77416 Federal Register / Vol. 85, No. 232 / Wednesday, December 2, 2020 / Proposed Rules which corresponds to approximately three generations of whitebark pine (Tomback and Pansing 2018, p. 7; COSEWIC 2010, p. v). However, we focused our discussion of viability in the SSA report largely on the 60-year (1 generation) timeframe where our confidence is greatest with respect to the range of plausible projected changes to stressors and the species’ response. We note that our projections are based on long-term geospatial data sets and a large body of empirical data, and the scenarios chosen encompass the full range of conditions that could plausibly occur. Below, we briefly summarize each scenario that we considered, and the results of our analysis under each scenario. Scenario 1 is a continuation of current trends, where impacts from high severity fires and mountain pine beetle continue at current levels. We predicted a new mountain pine beetle epidemic would occur every 60 years, as that is the minimum time it would likely take for individual trees to achieve diameters large enough to facilitate successful mountain pine beetle brood production that is required to reach epidemic levels. In this scenario, white pine blister rust begins at the current estimated proportion of the range infected and spreads at 1 percent per year with an assumed 10 percent level of genetically resistant individuals (Service 2018, p. 89). In scenario 2, high severity wildfires increase by 5 percent over current trends. The spread of white pine blister rust continues at a relatively low annual rate (1 percent per year), and the assumed level of genetic resistance to white pine blister rust is relatively high at 40 percent (a value that includes both the presence of some level of natural resistance and planting of resistant individuals). Mountain pine beetle epidemics continue to occur at 60-year intervals, but with 20 percent recruitment of whitebark pine into the population between epidemics (Service 2018, p. 90). In scenario 3, high severity wildfires increase by 10 percent over current trends. The spread of white pine blister rust increases (4 percent per year), and only 10 percent of individuals on the landscape have genetic resistance to white pine blister rust. Mountain pine beetle epidemics continue to occur at 60-year intervals, but impacts increase in severity by 10 percent, and there is no recruitment between epidemics (Service 2018, p. 90). Under each scenario, we evaluated what percentage of the whitebark pine’s range would be impacted by each stressor, relative to current levels. We VerDate Sep<11>2014 17:07 Dec 01, 2020 Jkt 253001 focused our discussion of viability in the SSA report largely on the 60-year (1 generation) timeframe where our confidence is greatest with respect to the range of plausible projected changes to stressors and the species’ response. See the Determination section of this document for our discussion on the relationship of this modeled timeframe to our determination of the foreseeable future for this listing determination. Within this timeframe, a continuation of current trends in high severity fires (under scenario 1) would not likely severely negatively impact whitebark pine resiliency, redundancy, or representation in the absence of other threats, as newly burned areas can potentially provide a seedbed for whitebark pine if stands of healthy cone-producing whitebark pine are nearby, resulting in some level of natural regeneration. Similarly, if current trends in high severity fires continue or increase by 5 to 10 percent (the relatively small projected increase in severe wildfire under scenarios 2 and 3), high severity fires alone (in the absence of other threats) would not be likely to severely negatively impact whitebark pine (Service 2018, pp. 100– 101). Currently, approximately 34 percent of the range is infected by white pine blister rust. Within the 60-year timeframe, under scenario 1, approximately 61 percent of the range will be infected with white pine blister rust. Under scenario 2, approximately 52 percent of the range will be infected within the next 60 years. Under scenario 3, approximately 88 percent of the range will be infected within the next 60 years (Service 2018, pp. 101–103). In addition, approximately 17 percent of the range is currently impacted by mountain pine beetle. Within the 60year timeframe, under scenario 1, an estimated 31 percent of the range will be impacted by the mountain pine beetle in the absence of other stressors. Under scenario 2, an estimated 15 percent of the range will be impacted by the mountain pine beetle within 60 years. Under scenario 3, approximately 40 percent of the range will be impacted by the mountain pine beetle within 60 years (Service 2018, pp. 103–105). These results are further broken down by AU in the SSA report (Service 2018, pp. 100–105). Although not specifically addressed in our projections, the best available science indicates that there are strong synergistic and cumulative interactions between the four key stressors (mountain pine beetle, white pine blister rust, severe fire, and climate change), which will increase negative PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 impacts to whitebark pine under all three scenarios. Therefore, our assessment of the future effects of each individual stressor on whitebark pine likely underestimates the total impact of these stressors when combined on the species’ overall viability. For example, environmental changes resulting from climate change are expected to alter fire regimes, resulting in decreased fire intervals and increased fire severity. More frequent stand-replacing fires will likely negatively impact whitebark pine resiliency by reducing the probability of regeneration in many areas (Tomback et al. 2008, p. 20; Leirfallom et al. 2015, p. 1601). Warming trends have also resulted in unprecedented mountain pine beetle epidemics throughout the range of the whitebark pine (Logan et al. 2003, p. 130; Logan et al. 2010, p. 896). In addition, the latest mountain pine beetle epidemic and white pine blister rust together have negatively impacted the probability of whitebark pine regeneration because both have acted to severely decrease seed cone production. These and other interactions are described in the SSA report (Service 2018, pp. 105–111). In summary, the abundance of whitebark pine is forecasted to decline over time under all three scenarios we considered. In these scenarios, the rate of decline appeared to be most sensitive to the rate of white pine blister rust spread, the presence of genetically resistant individuals (whether natural or due to conservation efforts), and the level of regeneration (Service 2018, pp. 111–112). Whitebark pine viability has declined over time, and continuation of current trends and synergistic and cumulative interactions between wildfire, white pine blister rust, mountain pine beetle, and climate change will continue to result in actual or functional loss of populations. However, we acknowledge that there may be significant differences and a large degree of variation when examining stressors at smaller landscape or stand scales. As a result of the highly heterogeneous ecological settings of this widespread species (e.g., differences in topography, elevation, weather, and climate) and geographic variation in levels of genetic resistance to white pine blister rust, rates of whitebark pine decline will likely vary for each AU. We predict all AUs will have a reduced level of resiliency in the future. This reduction in resiliency will be the result of continued increase in white pine blister rust infection, synergistic and cumulative interactions between white pine blister rust and other stressors, and the resulting loss of seed E:\FR\FM\02DEP1.SGM 02DEP1 Federal Register / Vol. 85, No. 232 / Wednesday, December 2, 2020 / Proposed Rules source and subsequent regeneration. Whitebark pine remains widely distributed across the spatial extent and ecological settings of its historical range. However, under all three future scenarios, we predict redundancy and representation will decline, as fewer populations persist and the spatial extent and connectivity of the species declines (Service 2018, pp. 112–113). See the SSA report (Service 2018, entire) for a more detailed discussion of our evaluation of the biological status of the whitebark pine and the influences that may affect its continued existence. Our conclusions in the SSA report, which form the basis for the determination below, are based upon the best available scientific and commercial data. Management and Restoration There are a variety of regulatory mechanisms, as well as management and restoration plans in place, that benefit or impact whitebark pine, as described in the SSA report (Service 2018, appendix A). Due to the broad distribution of whitebark pine in the United States and Canada, management of this species falls under numerous jurisdictions that encompass a spectrum of local and regional ecological, climatic, and management conditions and needs. Several management and restoration plans have been developed for specific regions or jurisdictions to address the task of conserving and restoring this widespread, long-lived species (Service 2018, p. 112). Conversely, some areas within the range of whitebark pine do not have a specific management plan for whitebark pine (e.g., central Idaho) (Service 2018, p. 112). Consequently, within the United States management actions in these areas would generally follow established forest or vegetation management plans developed under the National Forest Management Act of 1976 (16 U.S.C. 1600 et seq.) or other similar policies (e.g., National Forest land management plans, National Park Service vegetation management plans). In Canada, the Committee on the Status of Endangered Wildlife designated whitebark pine as Endangered under the Canadian Species at Risk Act (SARA) on June 20, 2012, due to the high risk of extirpation. This listing provides protection from harming, killing, collecting, buying, selling or possessing, for individuals on Canadian Federal land. See the SSA report for a description of management and restoration plans currently in place or under development, and some of their accomplishments (Service 2018, VerDate Sep<11>2014 17:07 Dec 01, 2020 Jkt 253001 appendix A). Many of these efforts have had positive impacts on the species on local or regional scales. However, given the vast geographic range of the species and the ubiquitous presence of white pine blister rust, there is currently no effective means to control the disease and its cumulative impacts with other stressors on a species-wide scale through any regulatory or nonregulatory mechanism. Twenty-nine percent of the range of whitebark pine within the United States (Service 2018, p. 15) is designated wilderness under the Wilderness Act of 1964 (16 U.S.C. 1131–1136). The Wilderness Act states that wilderness should be managed to preserve its natural conditions and yet remain untrammeled by humans. This designation limits management options and conservation efforts in those areas to some degree. How the Wilderness Act is implemented can vary between agencies, regions, or even between species. While the Wilderness Act allows for some ‘‘minimal actions’’ to address certain management needs, it does not directly allow for treatment of the impacts of white pine blister rust, fire exclusion policies, mountain pine beetle epidemics, or climate change. For a more detailed discussion of how the Wilderness Act influences the management of whitebark pine, see the SSA report (Service 2018, pp. 129–130). Determination of Whitebark Pine 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 ‘‘endangered species’’ as a species ‘‘in danger of extinction throughout all or a significant portion of its range,’’ and ‘‘threatened species’’ as a species ‘‘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 We have carefully assessed the best scientific and commercial information PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 77417 available regarding the past, present, and future threats to the whitebark pine across its range in the United States and Canada. Our analysis of the current and future condition of whitebark pine found that the species is being impacted by four main stressors: Altered fire regimes (Factor E), white pine blister rust (Factor C), mountain pine beetle (Factor C), and climate change (Factor E). We found white pine blister rust (Factor C) to be the main driver of the species’ current and future condition. White pine blister rust is currently ubiquitous across the range, and under all three future condition scenarios, it is expected to expand significantly. Under the three scenarios, within one generation, 52 to 88 percent of the range will be infected. The impacts of white pine blister rust combined with other stressors will reduce the ability of whitebark pine stands to regenerate (i.e., resiliency) following disturbances, such as fire and mountain pine beetle outbreaks. The decline is expected to be most pronounced in the northern twothirds of the whitebark pine’s range, where white pine blister rust infection rates are predicted to be highest. Despite the existing regulatory mechanisms (Factor D) and voluntary conservation efforts described above, these stressors have continued to spread and are predicted to increase in prevalence in the future. Our analysis did not find any stressors to be impacting the species at a population or species level under Factors A or B. After evaluating threats to the species and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we find that the whitebark pine is likely to become endangered throughout all of its range within the foreseeable future. This finding is based on anticipated reductions in resiliency, redundancy, and representation in the future as a result of continued increase in white pine blister rust infection and associated mortality, synergistic and cumulative interactions between white pine blister rust and other stressors, and the resulting loss of seed source. White pine blister rust is already ubiquitous rangewide, and there is currently no effective method to reverse it on a meaningful scale. In addition, 51 percent of whitebark pine trees in the United States are now dead (Goeking and Izlar 2018, p. 7). For this long-lived species, we consider the foreseeable future to be within 40 to 80 years. This timeframe encompasses the length of approximately one generation (i.e., 60 years) for whitebark pine, but also accounts for uncertainty in the precise rate of spread of white pine blister rust E:\FR\FM\02DEP1.SGM 02DEP1 77418 Federal Register / Vol. 85, No. 232 / Wednesday, December 2, 2020 / Proposed Rules and associated mortality. While we were able to project the species response out to 180 years in our SSA, our confidence is greatest with respect to the range of plausible projected changes to stressors and the species’ response under 80 years. We can reasonably determine that both the future threats and the species’ responses to those threats are likely within this 40- to 80-year timeframe (i.e., the foreseeable future). We find that the whitebark pine is not currently in danger of extinction because the species is still widespread throughout its extensive range, and whitebark pine trees are expected to persist on the landscape for many decades, especially given their long lifespan, and the presence of some levels of genetic resistance to white pine blister rust. In addition, there is uncertainty regarding how quickly white pine blister rust, the primary stressor, will spread within the three southwestern AUs (the Sierras, Basin and Range, and Klamath Mountains AUs) where it currently occurs at low levels and greater levels of resiliency remain. Therefore, the species currently has sufficient redundancy and representation to withstand catastrophic events and maintain adaptability to changes, particularly in the southwestern part of the range, and is not at risk of extinction now. However, we expect that the stressors, individually and cumulatively, will reduce resiliency, redundancy, and representation within all parts of the range within the foreseeable future. Therefore, on the basis of the best available scientific and commercial information, we determine that the whitebark pine 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 in danger of extinction or likely to become so in the foreseeable future 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 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 VerDate Sep<11>2014 17:07 Dec 01, 2020 Jkt 253001 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). In undertaking this analysis for the whitebark pine, we will address the status question first—we consider information pertaining to the geographic distribution of both the species and the threats that the species faces to identify any portions of the range where the species may be endangered. The statutory difference between an endangered species and a threatened species is the time frame in which the species becomes in danger of extinction; an endangered species is in danger of extinction now while a threatened species is not in danger of extinction now but is likely to become so in the foreseeable future. Thus, we reviewed the best scientific and commercial data available regarding the time horizon for the threats that are driving the whitebark pine to warrant listing as a threatened species throughout all of its range. We then considered whether these threats are geographically concentrated in any portion of the species’ range in a way that would accelerate the time horizon for the species’ exposure or response to the threats. We examined the following threats: Altered fire regimes, white pine blister rust, mountain pine beetle, and climate change, including synergistic and cumulative effects. We found white pine blister rust to be the main driver of the species’ status. We found a concentration of threats in the northern two-thirds of the whitebark pine’s range, including the following Analysis Units: Nechako Plateau, Fraser Plateau, Thompson Plateau, Columbia Mountains, Canadian Rockies, Olympics, Cascades, Northern Rockies, Blue Mountains, Idaho Batholith, US Canadian Rockies, and Middle Rockies (see Service 2018, Figures 9, 11, 14). As described above, the impacts of white pine blister rust combined with other stressors is expected to reduce the ability of whitebark pine stands to PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 regenerate following disturbances. Although white pine blister rust is currently ubiquitous across the range, white pine blister rust infection rates are currently the highest, and will further increase in the future, in the northern two-thirds of whitebark pine’s range; as such, we expect future declines in resiliency to be most pronounced in the northern two-thirds of the whitebark pine’s range. However, despite the prevalence of white pine blister rust and other stressors in the northern two-thirds of the whitebark pine’s range, whitebark pine trees are still widespread throughout this extensive geographic area. Given their long lifespan and the presence of some levels of genetic resistance to white pine blister rust, whitebark pine trees are expected to persist on the landscape for many decades. As we discuss above, white pine blister rust may not immediately kill infected trees; many trees with white pine blister rust can live for decades before they succumb to the disease. Thus, currently, levels of redundancy and representation are reduced, but sufficient to withstand catastrophic events and maintain adaptability to changes, and therefore the species is not currently in danger of extinction in this portion of the range. However, white pine blister rust will likely continue to spread throughout the species’ range in the future, reducing available seed source and recruitment into the future. We expect that white pine blister rust, individually and cumulatively along with other stressors, will reduce resiliency, redundancy, and representation within the northern twothirds of the range such that whitebark pine is likely to become an endangered species in this portion within the foreseeable future. Although some threats to the whitebark pine are concentrated in the northern two-thirds of the species’ range, the best scientific and commercial data available does not indicate that the concentration of threats, or the species’ responses to the concentration of threats, are likely to accelerate the time horizon in which the species becomes in danger of extinction in that portion of its range. As a result, the whitebark pine is not in danger of extinction now in the northern twothirds of its range. Therefore, 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 E:\FR\FM\02DEP1.SGM 02DEP1 Federal Register / Vol. 85, No. 232 / Wednesday, December 2, 2020 / Proposed Rules 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 whitebark pine meets the definition of a threatened species. Therefore, we propose to list the whitebark pine 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, 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 SSA Report developed to inform this listing determination may also inform the development of the recovery outline and recovery plan, and may be updated as new information becomes available. 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 and the SSA may be done to address continuing or new threats to the species, as new substantive information becomes VerDate Sep<11>2014 17:07 Dec 01, 2020 Jkt 253001 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 listed status (‘‘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 (https://www.fws.gov/ endangered), or from our Wyoming 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. If this species is listed, 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 States of Wyoming, Montana, Idaho, Washington, Oregon, California, and Nevada would be eligible for Federal funds to implement management actions that promote the protection or recovery of the whitebark pine. Information on our grant programs that are available to aid species recovery can be found at https://www.fws.gov/ grants. Although the whitebark pine is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 77419 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 species’ 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. Forest Service, National Park Service, and Bureau of Land Management. Effects of Listing It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of the species proposed for listing. Based on the best available information, and considering the proposed 4(d) rule described below, the following actions are unlikely to result in a violation of section 9, if these activities are carried out in accordance with existing regulations and permit requirements; this list is not comprehensive: • Silviculture practices and forest management activities that address fuels management, insect and disease impacts, and wildlife habitat management (e.g., cone collections, planting seedlings/sowing seeds, mechanical cuttings as a restoration tool in stands experiencing advancing succession, full or partial suppression of E:\FR\FM\02DEP1.SGM 02DEP1 77420 Federal Register / Vol. 85, No. 232 / Wednesday, December 2, 2020 / Proposed Rules wildfires in whitebark pine communities, allowing wildfires to burn, or survey and monitoring of tree health status). Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act (except in the case of the exceptions listed in our proposed 4(d) rule; see discussion below); this list is not comprehensive: • Removal and reduction to possession of the species from areas under Federal jurisdiction; • Malicious damage or destruction of the species on any areas under Federal jurisdiction; or • Removal, cutting, digging up, or damage or destruction of the species on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law. For example, the removal or damage of whitebark pine trees, when not conducted or authorized by the Federal agency with jurisdiction over the land where the activity occurs, would be prohibited. Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Wyoming Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). II. Proposed Rule Issued Under Section 4(d) of the Act 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 VerDate Sep<11>2014 17:07 Dec 01, 2020 Jkt 253001 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, as long as the prohibitions, and exceptions to those prohibitions, will ‘‘serve to conserve, protect, or restore the species concerned in accordance with the purposes of the Act’’ (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973). The Service has developed a proposed species-specific 4(d) rule that is designed to address the whitebark pine’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 is necessary and advisable to provide for the conservation of the whitebark pine, as explained below. As discussed in above under Determination, the Service has concluded that the whitebark pine is at risk of extinction within the foreseeable future primarily due to the continued increase in white pine blister rust infection and associated mortality, synergistic and cumulative interactions between white pine blister rust and other stressors, and the resulting loss of seed source. The provisions of this proposed 4(d) rule would promote conservation of the whitebark pine by encouraging management of the landscape in ways that meet land management considerations while meeting the conservation needs of the whitebark pine, as explained further below. The provisions of this rule are one of many tools that the Service PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 would use to promote the conservation of the whitebark pine. This proposed 4(d) rule would apply only if and when the Service makes final the listing of the whitebark pine as a threatened species. Provisions of the Proposed 4(d) Rule This proposed 4(d) rule would provide for the conservation of whitebark pine by prohibiting the following activities (except in the case of the exceptions listed below), unless otherwise authorized or permitted: • Import or export of the species; • Delivery, receipt, transport, or shipment of the species in interstate or foreign commerce in the course of commercial activity; • Sale or offer for sale of the species in interstate or foreign commerce; • Removal and reduction to possession of the species from areas under Federal jurisdiction; • Malicious damage or destruction of the species on any area under Federal jurisdiction; or • Removal, cutting, digging up, or damage or destruction of the species on any area under Federal jurisdiction in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law. These prohibitions and the exceptions below would apply to whitebark pine trees and any tree parts, such as cones, tree cores, etc. The following activities would be excepted from the prohibitions identified above: • Activities authorized by a permit under 50 CFR 17.72; and • Forest management, restoration, or research-related activities conducted or authorized by the Federal agency with jurisdiction over the land where the activities occur. • Removal, cutting, digging up, or damage or destruction of the species on areas not under Federal jurisdiction by any qualified employee or agent of the Service or State conservation agency which is a party to a Cooperative Agreement with the Service in accordance with section 6(c) of the Act, who is designated by that agency for such purposes, when acting in the course of official duties. We may issue permits to carry out otherwise prohibited activities, including those described above, involving threatened plants under certain circumstances. Regulations governing permits are codified at 50 CFR 17.72. With regard to threatened plants, a permit may be issued for the following purposes: Scientific purposes, to enhance propagation or survival, for economic hardship, for botanical or E:\FR\FM\02DEP1.SGM 02DEP1 Federal Register / Vol. 85, No. 232 / Wednesday, December 2, 2020 / Proposed Rules horticultural exhibition, for educational purposes, or for other purposes consistent with the purposes of the Act. Additional statutory exemptions from the prohibitions are found in sections 9 and 10 of the Act. Broadly, the forest management, restoration, or research-related activities referred to above may include, but are not limited, to silviculture practices and forest management activities that address fuels management, insect and disease impacts, and wildlife habitat management (e.g., cone collections, planting seedlings or sowing seeds, mechanical cuttings as a restoration tool in stands experiencing advancing succession, full or partial suppression of wildfires in whitebark pine communities, allowing wildfires to burn, survey and monitoring of tree health status), as well as other forest management, restoration, or researchrelated activities. We purposefully do not specify precisely when, where, or how these activities must be conducted because they are not a threat to whitebark pine in any form, and they may vary in how they are conducted across the species’ wide range. This proposed 4(d) rule would enhance the conservation of whitebark pine by prohibiting activities that would be detrimental to the species, while allowing the forest management, restoration, and research-related activities that are necessary to conserve whitebark pine by maintaining and restoring forest health on the Federal lands that encompass the vast majority of the species’ habitat within the United States. 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 VerDate Sep<11>2014 17:07 Dec 01, 2020 Jkt 253001 whitebark pine that may result in otherwise prohibited activities without additional authorization. We note that the prohibitions related to removing and reducing to possession; maliciously damaging and destroying; or removing, cutting, digging up, or destroying the species in this proposed 4(d) rule only apply to areas under Federal jurisdiction. Therefore, the exceptions to those prohibitions also only apply to areas under Federal jurisdiction. However, we still encourage forest management, restoration, and research-related activities on areas outside of Federal jurisdiction such as State, private, and Tribal lands within the United States or any lands within Canada. The proposed 4(d) rule only addresses Federal Endangered Species Act requirements, and would not change any prohibitions provided for by State law. Additionally, nothing in this proposed 4(d) rule would change 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 whitebark pine. However, the consultation process may be further streamlined through programmatic consultations between Federal agencies and the Service for these activities. This proposed 4(d) rule would be finalized only after consideration of public comments and only if and when the Service makes final the listing of whitebark pine as threatened. Necessary and Advisable Finding The Service has determined that a 4(d) rule is appropriate for the whitebark pine. The proposed 4(d) rule would provide for the conservation of the species by use of protective regulations, as described here. Within the United States, the vast majority of the species’ range (approximately 88 percent) is located on Federal lands. Given the reductions in resiliency that have already occurred to varying degrees across the range (Service 2018, pp. 56–82), we are proposing to apply the prohibitions of section 9(a)(2) of the Act to the whitebark pine by making the following activities unlawful: • Import or export of the species; • Delivery, receipt, transport, or shipment of the species in interstate or foreign commerce in the course of commercial activity; • Sale or offer for sale of the species in interstate or foreign commerce; • Removal and reduction to possession of the species from areas under Federal jurisdiction; PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 77421 • Malicious damage or destruction of the species on any area under Federal jurisdiction; or • Removal, cutting, digging up, or damage or destruction of the species on any area under Federal jurisdiction in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law. However, we are also proposing to apply two broad exceptions to those prohibitions to allow authorization under 50 CFR 17.72, and to allow Federal land management agencies to continue managing the forest ecosystems where the whitebark pine occurs and to continue conducting restoration and research activities that benefit the species. The Service has concluded that the whitebark pine is likely to become endangered within the foreseeable future primarily due to the continued increase in white pine blister rust infection and associated mortality, synergistic and cumulative interactions between white pine blister rust and other stressors, and the resulting loss of seed source. This fungal disease is not human-spread or influenced by human activity, and few restoration methods are currently available to restore whitebark pine in areas affected by the disease. The whitebark pine is not commercially harvested, and while some human activities could potentially affect individual trees or local areas, we found no threats at the species level resulting from human activities, such as development or forest management activities. In fact, forest management activities are important to maintaining the health and resiliency of forest ecosystems that include whitebark pine. As described in the SSA report (Service 2018, Appendix A), most current whitebark pine management and research focuses on producing trees with inherited (genetic) resistance to white pine blister rust, as well as implementing mechanical treatments and prescribed fire as conservation tools. As part of this process, cones may be collected from trees identified as apparently resistant to white pine blister rust, or ‘‘plus’’ trees. Additional current areas of research involve investigating natural regeneration and silvicultural treatments, such as appropriate site selection (i.e., identifying areas where restoration will be most effective) and preparation, pruning, and thinning in order to protect high-value genetic resources, increase reproduction, reduce white pine blister rust damage, and increase stand volume (Zeglen et al. 2010, p. 361). Conservation measures for whitebark pine can generally be categorized as E:\FR\FM\02DEP1.SGM 02DEP1 77422 Federal Register / Vol. 85, No. 232 / Wednesday, December 2, 2020 / Proposed Rules either protection (of existing healthy trees and stands) or restoration (of damaged, unhealthy, or extirpated trees and stands). Inventory, monitoring, and mapping of whitebark pine stands are critical for assessing the current status and implementing strategic conservation strategies. The precise nature of management, restoration, and research activities that are conducted may vary widely across the broad range of whitebark pine, as management of this species falls under numerous jurisdictions that encompass a spectrum of local and regional ecological, climatic, and management conditions and needs. As no forest management, restoration, or research-related activities pose any threat to the whitebark pine in any form, we purposefully do not specify in detail what types of these activities are included in this exception, or how, when, or where they must be conducted, as long as they are conducted or authorized by the Federal agency with jurisdiction over the land where the activities occur. Therefore, this proposed 4(d) rule would allow the continuation of all such forest management, restoration, and researchrelated activities conducted by or authorized by relevant Federal land management agencies, as these activities pose no threat to the whitebark pine and are crucial to the species’ conservation into the future, while allowing for flexibility to accommodate specific physical conditions, resource needs, and constraints across the species’ vast range. For the reasons discussed above, we find that this rule under section 4(d) of the Act is necessary and advisable to provide for the conservation of the whitebark pine. We ask the public, particularly Federal and State agencies and other interested stakeholders that may be affected by the proposed 4(d) rule, to provide comments and suggestions regarding additional guidance and methods that the Service could provide or use, respectively, to streamline the implementation of this proposed 4(d) rule (see Information Requested, above). III. Critical Habitat Designation 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 VerDate Sep<11>2014 17:07 Dec 01, 2020 Jkt 253001 (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. Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species’ occurrences, as determined by the Secretary (i.e., range). Such areas may include those areas used throughout all or part of the species’ life cycle, even if not used on a regular basis (e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals). Conservation, as defined under 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 PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat. Under the first prong of the Act’s definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features that occur in specific areas, we focus on the specific features that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. Under the second prong of the Act’s definition of critical habitat, we can designate critical habitat in 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. When designating critical habitat, the Secretary will first evaluate areas occupied by the species. The Secretary will only consider unoccupied areas to be essential where a critical habitat designation limited to geographical areas occupied by the species would be inadequate to ensure the conservation of the species. In addition, for an unoccupied area to be considered essential, the Secretary must determine that there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species. 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 E:\FR\FM\02DEP1.SGM 02DEP1 Federal Register / Vol. 85, No. 232 / Wednesday, December 2, 2020 / Proposed Rules 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 the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species to the maximum extent prudent and determinable. 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. As explained below, we conclude that the present or threatened destruction, modification, or curtailment of a species’ habitat or range is not a threat to the whitebark pine, and therefore designating critical habitat is not prudent for the species. Our analysis of the species’ status found that the primary stressor driving the status of whitebark pine is disease (white pine blister rust, Factor C). White VerDate Sep<11>2014 17:07 Dec 01, 2020 Jkt 253001 pine blister rust also interacts with other stressors, including predation by mountain pine beetles (Factor C), altered fire regimes (Factor E) and climate change (Factor E). While wildfires could in some cases be considered a negative impact on habitat as well as on individuals, wildfires may also have positive impacts on whitebark pine depending on severity and extent (e.g., they may create spaces for seedcaching and eliminate competition from shade-tolerant species) (Keane and Parsons 2010, p. 57; Service 2018, pp. 31–34). In addition, we do not consider altered fire regimes, climate change, or the mountain pine beetle to be the main drivers of the status of the species. Furthermore, habitat is not limiting for whitebark pine, which is widely distributed over a range of 32,616,422 ha (80,596,935 ac) (Service 2018, pp. 13–18). Our analysis evaluated the needs of whitebark pine at the individual, population, and species level. These needs include open space on the forest floor, and limited shading for all life stages of whitebark pine (Service 2018, pp. 21–27). In addition, populations need to maintain a sufficient density of reproductive adults for pollen dispersal and pollen clouds to facilitate masting, and to attract Clark’s nutcrackers (Service 2018, pp. 27–28). These needs may be met in a variety of habitat types, as long as there are Clark’s nutcrackers and limited competition. In fact, the habitat needs of whitebark pine are flexible and not specific, as evidenced by the fact that the species is extremely widespread, occupying a wide range of elevations, slopes, forest community types, latitudes, and climates across its 32,616,422-ha (80,596,935-ac) range (Service 2018, pp. 13–18). In other words, habitat for whitebark pine is plentiful, and is not a limiting factor determining the distribution of the species. Therefore, we do not consider the present or threatened destruction, modification, or curtailment of a species’ habitat or range to be a threat to the species. Since we have determined that the present or threatened destruction, modification, or curtailment of the species’ habitat or range is not a threat to the whitebark pine, in accordance with 50 CFR 424.12(a)(1), we determine that designation of critical habitat is not prudent for the whitebark pine. IV. Required Determinations Clarity of the Rule We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 77423 language. This means that each rule we publish must: (1) Be logically organized; (2) Use the active voice to address readers directly; (3) Use clear language rather than jargon; (4) Be divided into short sections and sentences; and (5) Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc. 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 (NEPA; 42 U.S.C. 4321 et seq.), 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. We solicited information from Tribes within the range of whitebark pine to inform the development of our SSA, and E:\FR\FM\02DEP1.SGM 02DEP1 77424 Federal Register / Vol. 85, No. 232 / Wednesday, December 2, 2020 / Proposed Rules notified Tribes of our upcoming proposed listing determination. We also provided these Tribes the opportunity to review a draft of the SSA report and provide input prior to making our proposed determination on the status of the whitebark pine. We will continue to coordinate with affected Tribes throughout the listing process as appropriate. References Cited A complete list of references cited in this proposed rule is available on the internet at https://www.regulations.gov and upon request from the Wyoming Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Scientific name * Conifers * Pinus albicaulis ............... * The primary authors of this proposed rule are the staff members of the Service’s Mountain Prairie Regional Office. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: * Where listed * * * Whitebark pine .............. * § 17.74 Special rules—conifers and cycads. (a) Pinus albicaulis (whitebark pine). (1) The following prohibitions that apply to endangered plants also apply to the whitebark pine except as provided under paragraph (a)(2) of this section: (i) Import or export, as set forth at § 17.61(b) for endangered plants. (ii) Removal and reduction to possession of the species from areas under Federal jurisdiction; malicious damage or destruction of the species on any such area; or removal, cutting, digging up, or damage or destruction of the species on any other area in knowing violation of any law or 17:07 Dec 01, 2020 Jkt 253001 * T ................ * Frm 00017 Fmt 4702 Authority: 16 U.S.C. 1361–1407; 1531– 1544; and 4201–4245, unless otherwise noted. 2. In § 17.12(h), add an entry for ‘‘Pinus albicaulis’’ to the List of Endangered and Threatened Plants in alphabetical order under CONIFERS to read as set forth below: § 17.12 * Endangered and threatened plants. * * (h) * * * * * * * * [Federal Register citation when published as a final rule]; 50 CFR 17.74(a).4d * Sfmt 9990 * Listing citations and applicable rules regulation of any State or in the course of any violation of a State criminal trespass law. (iii) Interstate or foreign commerce in the course of commercial activity, as set forth at § 17.61(d) for endangered plants. (iv) Sale or offer for sale, as set forth at § 17.61(e) for endangered plants. (v) Attempt to commit, solicit another to commit, or cause to be committed, any of the acts described in paragraphs (a)(1)(i) through (iv). (2) Exceptions from prohibitions. In regard to the whitebark pine, you may: (i) Conduct activities as authorized by a permit under § 17.72. (ii) Conduct forest management, restoration, or research-related activities conducted or authorized by the Federal PO 00000 1. The authority citation for part 17 continues to read as follows: ■ * * Wherever found ............ * 3. Add § 17.74 to read as set forth below: Status * PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS ■ V. Proposed Regulation Promulgation Common name ■ VerDate Sep<11>2014 Authors * * agency with jurisdiction over the land where the activities occur. (iii) Remove, cut, dig up, damage or destroy on areas under Federal jurisdiction by any qualified employee or agent of the Service or State conservation agency which is a party to a Cooperative Agreement with the Service in accordance with section 6(c) of the Act, who is designated by that agency for such purposes, when acting in the course of official duties. (b) [Reserved] Aurelia Skipwith, Director, U.S. Fish and Wildlife Service. [FR Doc. 2020–25331 Filed 12–1–20; 8:45 am] BILLING CODE 4333–15–P E:\FR\FM\02DEP1.SGM 02DEP1

Agencies

[Federal Register Volume 85, Number 232 (Wednesday, December 2, 2020)]
[Proposed Rules]
[Pages 77408-77424]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25331]

========================================================================
Proposed Rules
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

========================================================================

Federal Register / Vol. 85, No. 232 / Wednesday, December 2, 2020 /
Proposed Rules

[[Page 77408]]

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2019-0054; FF09E21000 FXES11110900000 212]
RIN 1018-BE23

Endangered and Threatened Wildlife and Plants; Threatened Species
Status for Pinus albicaulis (Whitebark Pine) With Section 4(d) Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list whitebark pine (Pinus albicaulis), a high-elevation tree species
found across western North America, as a threatened species under the
Endangered Species Act of 1973 (Act), as amended. If we finalize this
rule as proposed, it would extend the Act's protections to this
species. We also propose a rule issued under section 4(d) of the Act
that is necessary and advisable to provide for the conservation of the
species. We have determined that designation of critical habitat for
the whitebark pine is not prudent at this time.

DATES: We will accept comments received or postmarked on or before
February 1, 2021. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. Eastern Time on the closing date. We must receive requests for
public hearings, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by January 19, 2021.

ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R6-ES-2019-0054,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the Search panel on the left
side of the screen, under the Document Type heading, click on the
Proposed Rule box to locate this document. You may submit a comment by
clicking on ``Comment Now!''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R6-ES-2019-0054, U.S. Fish and Wildlife Service,
MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Public Comments, below, for more information).

FOR FURTHER INFORMATION CONTACT: Tyler Abbott, Field Supervisor, U.S.
Fish and Wildlife Service, Wyoming Ecological Services Field Office,
5353 Yellowstone Road, Suite 308A, Cheyenne, WY 82009; telephone 307-
772-2374. 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, if a species is
determined to be an endangered or threatened species throughout all or
a significant portion of its range, we are required to promptly publish
a proposal in the Federal Register and make a determination on our
proposal within 1 year. Critical habitat shall be designated, to the
maximum extent prudent and determinable, for any species determined to
be an endangered or threatened species under the Act. Listing a species
as an endangered or threatened species and designations and revisions
of critical habitat can only be completed by issuing a rule. We have
determined that designating critical habitat at this time is not
prudent for Pinus albicaulis (hereafter, whitebark pine), for the
reasons discussed below.
This rule proposes the listing of the whitebark pine as a
threatened species. The whitebark pine has been a candidate species for
listing since 2011. This rule and the associated species status
assessment (SSA) report assess all previous and new available
information regarding the status of and threats to the whitebark pine.
We also propose a rule issued under section 4(d) of the Act that is
necessary and advisable to provide for the conservation of the species.
The basis for our action. Under the Act, we can 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 the primary stressor
driving the status of the whitebark pine is white pine blister rust, a
fungal disease caused by the nonnative pathogen Cronartium ribicola
(Factor C). Whitebark pine is also impacted by the mountain pine beetle
(Dendroctonus ponderosae) (Factor C), altered fire regimes (Factor E),
and the effects of climate change (Factor E).
Peer review. We requested comments from independent specialists on
the SSA report upon which this proposed rule is based, to ensure that
we based our determination on scientifically sound data, assumptions,
and analyses. Their comments have been incorporated into the SSA report
as appropriate. Because we will consider all additional comments and
information received during the comment period, our final determination
may differ from this proposal. The SSA report and other materials
relating to this proposal can be found on the Service's Mountain
Prairie Region website at https://www.fws.gov/mountain-prairie/es/whitebarkPine.php and at https://www.regulations.gov under Docket No.
FWS-R6-ES-2019-0054. Because this proposed rule is based on the
scientific information in the SSA report, which has already been peer
reviewed, we are not seeking additional peer review of this proposed
rule, in accordance with Service's August 22, 2016, Director's Memo on
the Peer Review Process.

Information Requested

Public Comments

We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or

[[Page 77409]]

information from other concerned governmental agencies, Native American
tribes, the scientific community, industry, or any other interested
parties concerning this proposed rule. We particularly seek comments
concerning:
(1) The whitebark pine's biology, range, and population trends,
including:
(a) Biological or ecological requirements of the species, including
requirements for habitat, nutrition, reproduction, and dispersal;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, its
habitat, or both, as well as planned conservation efforts.
(2) Factors that may affect the continued existence of the species,
which may include habitat modification or destruction, overutilization,
disease, predation, the inadequacy of existing regulatory mechanisms,
or other natural or manmade factors, including:
(a) Information regarding the distribution, magnitude, and severity
of impacts from white pine blister rust;
(b) Mortality, cone production, and regeneration in areas impacted
by mountain pine beetle, wildfire, or white pine blister rust; and
(c) The potential effects of climate change on whitebark pine, its
habitat, and the aforementioned factors.
(3) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species, and existing regulations
that may be addressing those threats.
(4) Additional information concerning the historical and current
status, range, distribution, and population size of this species,
including the locations of any additional populations of this species.
(5) Information concerning activities that should be considered
under a rule issued in accordance with section 4(d) of the Act (16
U.S.C. 1531 et seq.) as a prohibition or exemption within U.S.
territory that would contribute to the conservation of the species. In
particular, information concerning whether import, export, and
activities related to sale in interstate and foreign commerce should be
prohibited, or whether any other activities should be considered
excepted from the prohibitions in the 4(d) rule.
(6) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act, including information
to inform the following factors such that a designation of critical
habitat may be determined to be not prudent:
(a) 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;
(b) 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;
(c) 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;
(d) No areas meet the definition of critical habitat.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for or
opposition to the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is an endangered or a
threatened species must be made ``solely on the basis of the best
scientific and commercial data available.'' You may submit your
comments and materials concerning this proposed rule by one of the
methods listed in ADDRESSES. We request that you send comments only by
the methods described in ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Wyoming Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).

Public Hearing

Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received within 45 days after
the date of publication of this proposed rule in the Federal Register
(see DATES). Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. For the immediate future, we will provide these public
hearings using webinars that will be announced on the Service's
website, in addition to the Federal Register. The use of these virtual
public hearings is consistent with our regulation at 50 CFR
424.16(c)(3).

Peer Review

In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and the Service's
August 22, 2016, Director's Memo on the Peer Review Process, we sought
the expert opinions of seven appropriate and independent specialists
regarding the SSA report on which this proposed rule is based, and
received responses from five. The purpose of peer review of the SSA
report is to ensure that our listing determination is based on
scientifically sound data, assumptions, and analyses. The peer
reviewers had expertise in whitebark pine's biology, habitat
management, genetics, and stressors. The peer reviewers reviewed the
SSA report, which informed our determination. Comments from peer
reviewers have been incorporated into our SSA report as appropriate,
and will be available along with other public comments in the docket
for this proposed rule.

Previous Federal Actions

On February 11, 1991, we received a petition, dated February 5,
1991, from the Great Bear Foundation of Missoula, Montana, to list the
whitebark pine under the Act. The petition stated that whitebark pine
was rapidly declining due to impacts from mountain pine beetles, white
pine blister rust, and fire suppression. After reviewing the petition,
we found that the petition did not provide substantial information
indicating that listing whitebark pine may be warranted. We published
this finding in the Federal Register on January 27, 1994 (59 FR 3824).

[[Page 77410]]

On December 9, 2008, we received a petition, dated December 8,
2008, from the Natural Resources Defense Council (NRDC) requesting that
we list whitebark pine as endangered throughout its range and designate
critical habitat under the Act. The petition clearly identified itself
as such and included the requisite identification information for the
petitioner, as then required by 50 CFR 424.14(a). The petition included
supporting information regarding the species' natural history, biology,
taxonomy, lifecycle, distribution, and reasons for decline. The NRDC
reiterated the threats from the 1991 petition, and included climate
change and successional replacement as additional threats to whitebark
pine. In a January 13, 2009, letter to NRDC, we responded that we had
reviewed the information presented in the petition and determined that
issuing an emergency rule temporarily listing the species under section
4(b)(7) of the Act was not warranted. We also stated that we could not
address the petition promptly because of staff and budget limitations.
We indicated that we would process a 90-day petition finding as quickly
as possible.
On December 23, 2009, we received NRDC's December 11, 2009, notice
of intent to sue over our failure to respond to the petition to list
whitebark pine and designate critical habitat. We responded in a letter
dated January 12, 2010, indicating that other preceding listing actions
had priority, but that we expected to complete the 90-day finding
during Fiscal Year 2010. On February 24, 2010, NRDC filed a complaint
alleging a failure to issue a 90-day finding on the petition. We
completed a 90-day finding on the petition, which published in the
Federal Register on July 20, 2010 (75 FR 42033). In that finding, we
determined that the petition presented substantial information such
that listing whitebark pine may be warranted, and we announced that we
would conduct a status review of the species. We opened a 60-day
information collection period to allow all interested parties an
opportunity to provide information on the status of whitebark pine (75
FR 42033); during that information collection period, we received 20
letters from the public.
On July 19, 2011, we published a 12-month finding in the Federal
Register (76 FR 42631), following a review of all available scientific
and commercial information. In that finding, we found that listing
whitebark pine as endangered or threatened was warranted. However, at
that time, listing whitebark pine was precluded by higher priority
actions to amend the Lists of Endangered and Threatened Wildlife and
Plants, and we added whitebark pine to our candidate species list with
a listing priority number of 2, indicating threats that were of high
magnitude and were considered imminent. On January 15, 2013, Wildwest
Institute and Alliance for the Wild Rockies filed a complaint
challenging our finding that listing was ``precluded'' for whitebark
pine, based on its listing priority number. On April 25, 2014, the
District Court for the District of Montana upheld our finding that
listing the whitebark pine was warranted but precluded. The plaintiffs
appealed this ruling, and on April 28, 2017, the Ninth Circuit Court of
Appeals affirmed the district court's summary judgement in favor of the
Service.
Whitebark pine has remained a candidate for listing under the Act
since 2011, and we have reevaluated its status on an annual basis
through the candidate notice of review (see 76 FR 66370, October 26,
2011; 77 FR 69994, November 21, 2012; 78 FR 70104, November 22, 2013;
79 FR 72450, December 5, 2014; 80 FR 80584, December 24, 2015; 81 FR
87246, December 2, 2016). The species currently has a listing priority
number of 8, indicating threats that are of moderate magnitude and are
imminent.

Species Status Assessment

The Service prepared an SSA report for whitebark pine (Service
2018). The science provided in the SSA report is the basis for this
proposed rule. The SSA report represents a compilation of the best
scientific and commercial data available concerning the status of the
species, including the impacts of past, present, and future factors
(both negative and beneficial) affecting the species. The SSA report
underwent independent peer review by scientists with expertise in
whitebark pine's biology, habitat management, genetics, and stressors
(factors negatively affecting the species). The SSA report and other
materials relating to this proposal can be found on the Service's
Mountain Prairie Region website at https://www.fws.gov/mountain-prairie/es/whitebarkPine.php and at https://www.regulations.gov under
Docket No. FWS-R6-ES-2019-0054.

I. Proposed Threatened Species Status for the Whitebark Pine

Background

A thorough review of the distribution, taxonomy, life history, and
ecology of the whitebark pine is presented in the SSA report (Service
2018, chapter 2), which is available at https://www.fws.gov/mountain-prairie/es/whitebarkPine.php and at https://www.regulations.gov under
Docket No. FWS-R6-ES-2019-0054. A brief summary appears below.
Whitebark pine is a slow-growing, long-lived tree, occurring at
high elevations across the western United States and Canada. The
species is a five-needle conifer placed in the subgenus Strobus, which
includes other five-needle white pines. No taxonomic subspecies or
varieties of whitebark pine are recognized (COSEWIC 2010, p. 6). Based
on this taxonomic classification information, we recognize whitebark
pine as a valid species and, therefore, a listable entity under the
Act. Because whitebark pine is a plant species, our policy on distinct
population segments is not applicable, and, therefore, the entire range
of the species within the United States and Canada is the entity
evaluated in our SSA report and considered in this listing
determination.
Whitebark pine has a broad range both latitudinally (occurring from
a southern extent of approximately 36[deg] north in California to
55[deg] north latitude in British Columbia, Canada) and longitudinally
(occurring from approximately 128[deg] west in British Columbia,
Canada, to an eastern extent of 108[deg] west in Wyoming). Whitebark
pine typically occurs on cold and windy high-elevation or high-latitude
sites in western North America, although it also occurs in scattered
areas of the warm and dry Great Basin (Service 2018, p. 13).
Rangewide, whitebark pine occurs on an estimated 32,616,422
hectares (ha) (80,596,935 acres (ac)) in western North America. Roughly
70 percent of the species' range occurs in the United States, with the
remaining 30 percent of its range occurring in British Columbia and
Alberta, Canada. In Canada, the majority of the species' distribution
occurs on federal or provincial crown lands (COSEWIC 2010, p. 12). In
the United States, approximately 88 percent of land where the species
occurs is federally owned or managed. The majority is located on U.S.
Forest Service (USFS) lands (approximately 74 percent). The bulk of the
remaining acreage is located on National Park Service (NPS) lands
(approximately 10 percent). Small amounts of whitebark pine also can be
found on Bureau of Land Management lands (approximately 4 percent). The
remaining 12 percent of the species' range is under non-Federal
ownership, on State, private, and Tribal lands (Service 2018, pp. 14-
15).
There are four stages in the life cycle of the whitebark pine:
Seed, seedling,

[[Page 77411]]

sapling, and mature trees (i.e., reproductive adults). Whitebark pine
trees may produce both male and female cones, are considered
reproductive at approximately 60 years of age, and can survive on the
landscape for hundreds of years (Service 2018, p. 19). Primary seed
dispersal occurs almost exclusively by Clark's nutcrackers (Nucifraga
columbiana), a bird in the family Corvidae (whose members include
ravens, crows, and jays) (Lanner 1996, p. 7; Schwandt 2006, p. 2).
Whitebark pine trees are typically 5 to 20 meters (m) (16 to 66 feet
(ft)) tall with a rounded or irregularly spreading crown shape.
Whitebark pine is considered both a keystone and a foundation species
in western North America, where it increases biodiversity and
contributes to critical ecosystem functions (Tomback et al. 2001, pp.
7-8).
In general, whitebark pine has similar requirements to other tree
species. That is, all four life stages require adequate amounts of
sunlight, water, and soil for survival and reproduction (mature trees
only). The needs of each life stage are described further in the SSA
report (Service 2018, table 1, p. 23), and include Clark's nutcrackers,
a lack of seed predators, cold stratification, ground fires or other
disturbance, open space and limited shading, suitable temperatures and
precipitation, and available nitrogen and phosphorous. Whitebark pine
is a hardy conifer that tolerates poor soils, steep slopes, and windy
exposures; it is found at alpine tree line and subalpine elevations
throughout its range (Tomback et al. 2001, pp. 6, 27). Whitebark pine
is slow-growing and relatively shade-intolerant, and can be outcompeted
and replaced by more shade-tolerant trees in the absence of
disturbances like fire (Arno and Hoff 1989, p. 6). The species grows
under a wide range of annual precipitation amounts, from about 51 to
over 254 centimeters (cm) (20 to 100 inches (in.)) per year, and it is
considered relatively drought-tolerant (Arno and Hoff 1989, p. 7;
Farnes 1990, p. 303). There are a variety of soil types that support
whitebark pine (Weaver 2001, pp. 47-48; Keane et al. 2012, p. 3). These
soil types are generally described as well-drained soils that are
poorly developed, coarse, rocky, and shallow over bedrock (COSEWIC
2010, p. 10).
Seeds of whitebark pine are typically cached by seed predators such
as the Clark's nutcracker. Seed predation plays a major role in
whitebark pine population dynamics, as seed predators largely determine
the fate of seeds. However, whitebark pine has coevolved with seed
predators and has several adaptations, like masting (regional synchrony
of mass production of seeds), that has allowed the species to persist
despite heavy seed predation (Lorenz et al. 2008, pp. 3-4). Whitebark
pine trees usually do not produce large cone crops until 60 to 80 years
of age (Krugman and Jenkinson 1974, as cited in McCaughey and Tomback
2001, p. 109), with average earliest first cone production at 40 years
of age (Tomback and Pansing 2018, p. 7). Therefore, the generation time
of whitebark pine is approximately 40 to 60 years (Tomback and Pansing
2018, p. 7; COSEWIC 2010, p. v).
Whitebark pine is almost exclusively dependent upon the Clark's
nutcracker for seed dispersal. Clark's nutcrackers are able to assess
cone crops, and if there are insufficient seeds to cache, they will
emigrate in order to survive (McKinney et al. 2009, p. 599). A
threshold of approximately 1,000 cones per ha (2.47 ac) is needed for a
high likelihood of seed dispersal by Clark's nutcrackers, and this
level of cone production occurs in forests with a live basal area (the
volume of wood occurring in a given area) greater than 5 square meters
per ha (McKinney et al. 2009, p. 603). Therefore, at the population
level, whitebark pine populations need sufficient density and abundance
of reproductive individuals to facilitate masting and to attract
Clark's nutcrackers, in order to achieve adequate recruitment and
maintain resiliency to stochastic (random or unpredictable) events
(Service 2018, pp. 27-28). At the species-level, for long-term
viability, whitebark pine requires multiple (redundancy), self-
sustaining populations (resiliency) distributed across the landscape
(representation) to maintain the ecological and genetic diversity of
the species (Service 2018, pp. 29-30).

Regulatory Framework

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 is an ``endangered species'' or a ``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 any species is an ``endangered species'' or a
``threatened species'' because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the 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.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened

[[Page 77412]]

species.'' Our implementing regulations at 50 CFR 424.11(d) set forth a
framework for evaluating the foreseeable future on a case-by-case
basis. 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. In other words,
the foreseeable future is the period of time in which we can make
reliable predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to provide a reasonable degree of confidence in the
prediction. Thus, a prediction is reliable if it is reasonable to
depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. 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. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.

Summary of Biological Status and Threats

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. We completed a comprehensive
assessment of the biological status of the whitebark pine, and prepared
a report of the assessment (SSA report, Service 2018), which provides a
thorough account of the species' overall viability. We define viability
here as the ability of the species to persist over the long term (i.e.,
to avoid extinction). In the discussion below, we summarize the
conclusions of that assessment, which we provide in full under Docket
No. FWS-R6-ES-2019-0054 on https://www.regulations.gov and at https://www.fws.gov/mountain-prairie/es/whitebarkPine.php.
We focused our analysis of whitebark pine's viability on four main
stressors: Altered fire regimes, white pine blister rust, mountain pine
beetle, and climate change. We focused on these four stressors because,
according to the best available data, these stressors are the leading
factors attributed to the decline of whitebark pine (Keane and Arno
1993, p. 44; Tomback et al. 2001, p. 13; COSEWIC 2010, p. 24; Tomback
and Achuff 2010, p. 186; Keane et al. 2012, p. 1; Mahalovich 2013, p.
2; Mahalovich and Stritch, 2013, entire; Smith et al. 2013, p. 90;
GYWPMWG 2016, p. v; Jules et al. 2016, p. 144; Perkins et al. 2016, p.
xi; Shanahan et al. 2016, p. 1; Shepard et al. 2018, p. 138). While all
of these stressors impact the species, we found that white pine blister
rust is the main driver of the species' current and future conditions.
Each of these stressors is described in detail in our SSA report
(Service 2018), and is summarized below.

Altered Fire Regimes

Fire is one of the most important landscape-level disturbance
processes within high-elevation whitebark pine forests (Agee 1993, p.
259; Morgan and Murray 2001, p. 238; Spurr and Barnes 1980, p. 422).
Fires in the high-elevation ecosystem of whitebark pine can be of low
intensity, high intensity, or mixed intensity. These varying intensity
levels result in very different impacts to whitebark pine communities.
Without regular disturbance, primarily from fire, these forest
communities follow successional pathways that eventually lead to climax
communities dominated by shade-tolerant conifers, to the exclusion of
whitebark pine (Keane and Parsons 2010, p. 57). Fire also creates sites
that are suitable for the Clark's nutcracker's seed-caching behavior
and provides optimal growing conditions for whitebark pine (Tomback et
al. 2001, p. 13). Low-intensity ground fires occur frequently under
low-fuel conditions. These fires remove small-diameter, thin-barked
seedlings and allow large, mature whitebark pine trees to thrive (Arno
2001, p. 82), as long as the mature trees are not subjected to bole
(main stem of the tree) scorching (e.g., Hood et al. 2008). Whitebark
pine also has a thinner crown and a deeper root system than many of its
competitors, which can allow it to withstand low-intensity fires better
(Arno and Hoff 1990 in Keane and Parsons 2010, p. 58). Conversely,
whitebark pine cannot survive high-severity fires; during such fires,
all age and size classes can be killed. High-intensity fires, often
referred to as stand replacement fires, or crown fires (Agee 1993, p.
16), produce intense heat, resulting in the removal of all or most of
the vegetation from the ground (i.e., high severity). Newly burned
areas can provide a seedbed for whitebark pine, and if stands of
unburned cone-producing whitebark pine are nearby (i.e., within the
range of Clark's nutcracker's seed-caching behavior), Clark's
nutcrackers will cache those seeds on the burned site, and regeneration
is likely. However, the introduction of white pine blister rust and the
recent epidemic of the predatory mountain pine beetle (see discussion
below) have reduced or effectively eliminated whitebark pine seed
sources on a landscape scale, meaning that regeneration of whitebark
pine following high-severity fire is unlikely in many cases (Tomback et
al. 2008, p. 20; Leirfallom et al. 2015, p. 1601).
Fire exclusion policies have had unintended negative impacts on
whitebark pine populations (Keane 2001a, entire). Stands once dominated
by whitebark pine have undergone succession to more shade-tolerant
conifers (Arno et al. 1993 in Keane et al. 1994, p. 225; Flanagan et
al. 1998, p. 307). However, we do not know at what scale the impacts of
fire exclusion and resultant forest succession have affected whitebark
pine. In general, wildfire characteristics across the range of
whitebark pine are expected to shift with future climate changes.
Substantial increases in fire season length, number of fires, area
burned, and intensity are predicted (reviews in Keane et al. 2017, pp.
34-35, and Westerling 2016, pp. 1-2). For a more detailed discussion of
the impacts of fire on whitebark pine, see the SSA report (Service
2018, pp. 31-34).

White Pine Blister Rust

White pine blister rust is a fungal disease of five-needle pines
caused by a nonnative pathogen, Cronartium ribicola (Geils et al. 2010,
p. 153). The fungus was inadvertently introduced around 1910, near
Vancouver, British Columbia (McDonald and Hoff 2001, p. 198; Brar et
al. 2015, p. 10). The incidence of white pine blister rust at stand,
landscape, and regional scales varies due to time since introduction
and environmental suitability for its development. It continues to
spread into areas originally considered less suitable for infection,
such as the Sierra Nevada Mountains, and it has become a serious
threat, causing severe population losses to several species of western
pines, including whitebark pine (Schwandt et al. 2010, pp. 226-230).
Its current known geographic distribution in western North America
includes all U.S. States and British Columbia and Alberta, Canada.
The white pine blister rust fungus has a complex life cycle: It
does not spread directly from one tree to another, but alternates
between primary hosts (i.e., five-needle pines) and alternate hosts.
Alternate hosts in western North America are typically woody shrubs in
the genus Ribes (gooseberries and currants) (McDonald and Hoff 2001, p.
193; McDonald et al. 2006, p. 73). The

[[Page 77413]]

spreading of white pine blister rust spores depends on the distribution
of hosts, the prevailing microclimates, and the different genotypes of
white pine blister rust and hosts (McDonald and Hoff 2001, pp. 193,
202). A wave event (a massive spreading of new white pine blister rust
infections into new or relatively unaffected areas, or intensification
of spread from a cumulative buildup in already infected stands) occurs
where alternate hosts are abundant and when late summer weather is
favorable to spore production and dispersal, and subsequent infection
of pine needles. Because its abundance is influenced by weather and
host populations, white pine blister rust also is affected by climate
change. If conditions become cooler or moister, white pine blister rust
will likely spread and intensify; conversely, where conditions become
both warmer and drier, it may spread more slowly (Service 2018, p. 39).
However, even if climatic conditions slow the spread of white pine
blister rust, it remains ever-present on the landscape, infecting
seedlings that attempt to reestablish.
White pine blister rust attacks whitebark pine seedlings, saplings,
and mature trees, damaging stems and cone-bearing branches and
restricting nutrient flows; it eventually girdles branches and boles
(tree trunks or stems), leading to the death of branches or the entire
tree (Tomback et al. 2001, p. 15, McDonald and Hoff 2001, p. 195).
While some infected mature trees can continue to live for decades (Wong
and Daniels 2017, p. 1935), their cone-bearing branches typically die
first, thereby eliminating the seed source required for reproduction
(Geils et al. 2010, p. 156). Although some areas of the species' range
have been impacted by white pine blister rust for 90 years or more, for
whitebark pine that timeframe equates to only 1.5 generations
(Mahalovich 2013, p. 17), which means the species has had a limited
time to adapt to or develop resistance to white pine blister rust.
However, low levels of rust resistance have been documented on the
landscape in individual trees and their seeds, indicating that there is
some level of heritable resistance to white pine blister rust (Hoff et
al. 2001, p. 350; Mahalovich et al. 2006, p. 95; Mahalovich 2015, p.
1). In some populations and geographic areas, there is moderate
frequency and level of genetic resistance, while in others, the
frequency of resistance appears to be much lower (Sniezko 2018, p. 1-
2).
Most current management and research focuses on producing and
planting whitebark pine seedlings with proven genetic resistance to
white pine blister rust, but also includes enhancing natural
regeneration and applying silvicultural treatments, such as appropriate
site selection and preparation, pruning, and thinning (Zeglen et al.
2010, p. 347). However, management challenges to restoration include
remoteness, difficulty of access, and a perception that some whitebark
pine restoration activities conflict with wilderness values (Schwandt
et al. 2010, p. 242). In addition, the vast scale at which planting
rust-resistant trees would need to occur, long timeframes in which
restoration efficacy could be assessed, and limited funding and
resources will make it challenging to restore whitebark pine throughout
its range. Based on modeling results (Ettl and Cottone 2004, pp. 36-47;
Hatala et al. 2011; Field et al. 2012, p. 180), we conclude that, in
addition to the ubiquitous presence of white pine blister rust across
the entire range of the whitebark pine, white pine blister rust
infection likely will continue to increase and intensify within
individual sites, ultimately resulting in stands that are no longer
viable and that potentially face extirpation. For a more detailed
discussion of white pine blister rust, see the SSA report (Service
2018, pp. 35-42).

Mountain Pine Beetle

The native mountain pine beetle (Dendroctonus ponderosae Hopkins)
is one of the principal sources of whitebark pine mortality (Raffa and
Berryman 1987, p. 234; Arno and Hoff 1989, p. 7). Mountain pine beetles
feed on whitebark pine and other western conifers, and to reproduce
successfully, the beetles must kill host trees (Logan and Powell 2001,
p. 162; Logan et al. 2010, p. 895). At endemic, or more typical levels,
mountain pine beetles remove relatively small areas of trees, changing
stand structure and species composition in localized areas. However,
when conditions are favorable (abundant hosts and favorable climate),
mountain pine beetle populations can erupt to epidemic levels and
create stand-replacing events that may kill 80 to 95 percent of
suitable host trees (Berryman 1986 as cited in Keane et al. 2012, p.
26). Such outbreaks are episodic, and typically subside only when
suitable host trees have been exhausted or temperatures are
sufficiently low to kill larvae and adults (Gibson et al. 2008, p. 2).
Therefore, at epidemic levels, mountain pine beetle outbreaks may have
population-level effects on whitebark pine.
Mountain pine beetle epidemics affecting whitebark pine have
occurred throughout recorded history (Keane et al. 2012, p. 26). The
most recent mountain pine beetle epidemic began in the late 1990s, and
although it has since subsided, it continues to be a measurable but
much reduced source of mortality for whitebark pine (Macfarlane et al.
2013, p. 434; Mahalovich 2013, p. 21; Shelly 2014, pp. 1-2). Unlike
previous epidemics, the most recent mountain pine beetle outbreak had a
significant rangewide impact on whitebark pine (Logan et al. 2003, p.
130; Logan et al. 2010, p. 898; MacFarlane et al. 2013, p. 434). Trends
of environmental effects from climate change have provided favorable
conditions necessary to sustain the most recent, unprecedented mountain
pine beetle epidemic in high-elevation communities across the western
United States and Canada (Logan and Powell 2001, p. 167; Logan et al.
2003, p. 130; Raffa et al. 2008, p. 511). This most recent epidemic is
waning across the majority of the range (Hayes 2013, pp. 3, 41, 42, 54;
Alberta Whitebark and Limber Pine Recovery Team 2014, p. 18; Bower
2014, p. 2; Shelly 2014, pp. 1-2). However, given ongoing and predicted
environmental effects from climate change, we expect mountain pine
beetles will continue to expand into higher elevation habitats and that
epidemics will continue within the range of whitebark pine (Buotte et
al. 2016, p. 2516; Sidder et al. 2016, p. 9). For a more detailed
discussion of mountain pine beetle, see the SSA report (Service 2018,
pp. 42-49).

Climate Change

Our analyses under the Act include consideration of ongoing and
projected changes in climate. In general, the pace of predicted climate
change will outpace many plant species' abilities to respond to the
concomitant habitat changes. Whitebark pine is potentially particularly
vulnerable to warming temperatures because it is adapted to cool, high-
elevation habitats. Therefore, current and anticipated warming is
expected to make its current habitat unsuitable for whitebark pine,
either directly or indirectly as conditions become more favorable to
whitebark pine competitors, such as subalpine fir or mountain hemlock
(Bartlein et al. 1997, p. 788; Hamann and Wang 2006, p. 2783; Hansen
and Phillips 2015, p. 74; Schrag et al. 2007, p. 8; Warwell et al.
2007, p. 2; Aitken et al. 2008, p. 103; Loehman et al. 2011, pp. 185-
187; Rice et al. 2012, p. 31; Chang et al. 2014, p. 10).
The rate of migration needed to respond to predicted climate change
will be significant (Malcolm et al. 2002,

[[Page 77414]]

pp. 844-845; McKenney et al. 2007, p. 941). It is not known whether
whitebark pine is capable of migrating at a pace sufficient to move to
areas that are more favorable to survival given the projected effects
of climate change. It is also not known the degree to which the Clark's
nutcracker could facilitate this migration. In addition, the presence
of significant white pine blister rust infection in the northern range
of the whitebark pine could serve as a barrier to effective northward
migration. Whitebark pine survives at high elevations already, so there
is little remaining habitat in many areas for the species to migrate to
higher elevations in response to warmer temperatures. Adaptation in
response to a rapidly warming climate would also be unlikely, as
whitebark pine is a long-lived species with a long generation time
(Bradshaw and McNeilly 1991, p. 10).
Climate models suggest that climate change is expected to act
directly and indirectly, regardless of the emission scenario, to
significantly decrease the probability of rangewide persistence in
whitebark pine within the next 100 years (e.g., Warwell et al. 2007, p.
2; Hamann and Wang 2006, p. 2783; Schrag et al. 2007, p. 6; Rice et al.
2012, p. 31; Loehman et al. 2011, pp. 185-187; Chang et al. 2014, p.
10-12). This time interval is less than two generations for this long-
lived species. See the Determination section of this document for our
discussion on the relationship of this modeled timeframe to our
determination of the foreseeable future for this listing determination.
In addition, projected climate change effects are a significant threat
to the whitebark pine, because the impacts of climate change, including
projected temperature and precipitation changes, interact with and
exacerbate other stressors such as mountain pine beetle and wildfire,
resulting in habitat loss and population decline. For a more detailed
discussion of climate change impacts on whitebark pine, see the SSA
report (Service 2018, pp. 49-55).

Current Conditions

In order to assess the current condition of the whitebark pine
across its extensive range, we broke the range into 15 smaller analysis
units (AUs), based primarily on Environmental Protection Agency Level
III ecoregions as well as input from whitebark pine experts, as
described in the SSA report (Service 2018, pp. 57-59). Ecoregions
identify areas of general similarity in ecosystems, as well as
topographic and environmental variables. We further divided AUs in the
United States from those in Canada to reflect differences in management
and legal status. A map of these AUs is available in the SSA report
(Service 2018, pp. 58, figure 9). We then evaluated the best available
data regarding the current impacts of wildfire, white pine blister
rust, and mountain pine beetle on the resiliency (ability to withstand
stochastic events) of each AU. These analyses are described in detail
in the SSA report (Service 2018, pp. 56-81), and our conclusions are
summarized below. We note that not all AUs are equal in size; they
encompass varying proportions of the species' range, ranging from the
Middle Rockies AU (27.6 percent of the range) to the Olympics AU (0.4
percent of the range) (Service 2018, p. 59, table 3).
Resiliency
To assess the current impact of wildfire on the resiliency of
whitebark pine AUs, we examined burn data collected from 1984 to 2016
from the following sources Monitoring Trends in Burn Severity [MTBS] (a
multi-agency program compiling fire data from multiple sources
including USGS and the USFS); GeoMac (a multi-agency program providing
fire data from multiple agencies managed by USGS); and the Canadian
Forest Service (Service 2018, p. 60). We found that from 1984 to 2016,
between 0.08 percent and 42.64 percent of each AU burned (including
burns of any severity level). Although we collected information on all
fires, our analysis focuses on areas of high burn severity that could
potentially negatively impact the species. Overall, a minimum of
1,273,583 ha (3,147,092 ac) of whitebark pine habitat burned in high
severity fires during this time period, equating to approximately 5
percent of the species' range within the United States (Service 2018,
pp. 60-63). Similar data for high severity fires were not available for
AUs in Canada.
To assess the current impact of white pine blister rust on the
resiliency of whitebark pine AUs, we examined the large volume of
published literature and information provided by experts, as described
in the SSA report (Service 2018, pp. 63-71). White pine blister rust
infections have increased in intensity over time and are now prevalent
even in trees living in cold, dry areas formerly considered less
susceptible (Tomback and Resler 2007, p. 399; Smith-Mckenna et al.
2013, p. 224), such as the Greater Yellowstone Ecosystem. This trend
has resulted in reduced seed production and increased mortality. We
assessed the current impact of white pine blister rust on whitebark
pine by evaluating data from a modeled dataset developed by the USFS in
2011 for the United States. This modeled dataset is based on white pine
blister rust infection information from the USFS Whitebark and Limber
Pine Information System (WLIS) database combined with environmental
variables (Service 2018, p. 68-69). Canadian white pine blister rust
data were derived from a combination of survey data from Parks Canada
and empirical literature (e.g., COSEWIC 2010, p. viii and Table 4, p.
19; Smith et al. 2010, p. 67; Smith et al. 2013, p. 90; Shepherd et al.
2018, p. 6). Approximately 34 percent of the range is infected with
white pine blister rust (Service 2018, p. 93), and every AU within the
whitebark pine's range is currently affected by the disease. The
current average white pine blister rust infection level within each AU
ranges between 2 percent and 74 percent, with 12 of the 15 AUs having
an average infection level over 20 percent, and 5 of the AUs having
average infection levels above 40 percent (Service 2018, pp. 68-71).
Average infection levels are lowest in the southern AUs (Klamath
Mountains, Basin and Range, and Sierras) and then sharply increase
moving north into the latitudes of the Rocky Mountains and Cascades. As
stated above, once white pine blister rust is present in an area, there
are no known methods to eradicate it. It will spread and infect more of
the area when conditions are favorable.
To assess the current impact of mountain pine beetle on the
resiliency of whitebark pine AUs, we aggregated aerial detection survey
(ADS, a USFS dataset) data for the United States and aerial overview
survey (AOS, a dataset of the British Columbia Ministry of Forests)
data for Canada from 1991 through 2016 across the range of the
whitebark pine (Service 2018, p. 71). As mountain pine beetles only
attack mature trees, the effects of mountain pine beetle attacks
observed during aerial surveys can be interpreted as the loss of seed-
producing trees. From 1991 through 2016, 5,919,276 ha (14,626,850 ac)
of the whitebark pine's range have been impacted by the mountain pine
beetle, resulting in at least 18 percent of the whitebark pine's range
being negatively impacted (Service 2018, pp. 71-75). Similar to white
pine blister rust infection, the more southern AUs are currently less
impacted by the mountain pine beetle than their more northern
counterparts. On the West Coast, the Cascades, Thompson Plateau, and
Fraser Plateau AUs have had at least 25 percent of the whitebark pine's
range impacted by the mountain pine beetle.
Overall, whitebark pine stands have seen severe reductions in
reproduction

[[Page 77415]]

and regeneration because of these stressors, thus resulting in a
reduction in resiliency and therefore their ability to withstand
stochastic events. High severity wildfires, white pine blister rust,
and mountain pine beetle all act on portions of whitebark pine's range,
killing individuals and limiting reproduction and regeneration (Service
2018, p. 81, Figure 14). Interactions between these factors have
further exacerbated the species' decline and have reduced its
resiliency.
Representation
Having evaluated the current impact of the above stressors on the
resiliency of each whitebark pine AU, we next evaluated the species'
current levels of representation, or ability to adapt to changing
conditions (Service 2018, pp. 75-78). The range of variation found
within a species, which may include ecological, genetic, morphological,
and phenological diversity, may be an indication of its levels of
representation. Whitebark pine can be found in a number of ecological
settings throughout its range, mainly depending on elevation, latitude,
and climate of an area. Whitebark pine has high genetic diversity
relative to other conifer tree species (i.e., high representation in
terms of genetic variation), with poor genetic differentiation among
zones, and similar levels of diversity to other highly geographically
distributed tree species in North America (Mahalovich and Hipkins 2011,
p. 126). The high levels of genetic diversity within the species may be
impacted through bottleneck events caused by mortality resulting from
white pine blister rust, mountain pine beetle, or fires. Whitebark pine
also has higher rates of inbreeding than most other wind-pollinated
conifers, likely due to the close proximity of mature trees arising
from clumps of seeds of related individuals or even from the same cone,
suggesting that population genetic structure is driven by seed
dispersal by the Clark's nutcracker (Keane et al. 2012, p. 14). The
whitebark pine exhibits a range of morphologies, from tall, single-
stemmed trees to shrub-like krummholz forms. These factors may
contribute to the species' level of ability to adapt to changing
conditions. Given the species wide geographic range and levels of
ecological, genetic, morphological, and phenological diversity, it
likely has inherently higher levels of representation than many
species.
Redundancy
Finally, we evaluated the whitebark pine's current levels of
redundancy, or ability to withstand catastrophic events. Whitebark pine
is widely distributed, and thus inherently has higher levels of
redundancy than many species. Rangewide, whitebark pine occurs on an
estimated 32,616,422 ha (80,596,935 ac) in western North America.
However, as a result of the rangewide reduction in resiliency due to
the stressors discussed above, there has been a concomitant loss in
species redundancy, as many areas become less able to contribute to the
species' ability to withstand catastrophic events (Service 2018, p.
78).
Overall, rangewide data from USFS Forest Inventory and Analysis
surveys indicate that 51 percent of all standing whitebark pine trees
in the United States are now dead, with over half of that amount
occurring approximately in the last two decades alone (Goeking and
Izlar 2018, p. 7). Each of the stressors acts individually and
cumulatively on portions of the whitebark pine's range, and
interactions between stressors have further exacerbated the species'
decline and have reduced its resiliency. This reduction in resiliency
is rangewide, occurring across all AUs, with the Canadian, U.S., and
Northern Rockies likely the most impacted. While the species is still
wide-ranging and, therefore, has inherently higher levels of
representation and redundancy than many species, reductions to
resiliency across the range are reducing the species' adaptive capacity
and ability to withstand catastrophic events (Service 2018, pp. 78-80).

Future Conditions

To assess the future condition of whitebark pine, we projected the
impacts of each of the stressors described above under three plausible
scenarios (scenarios 1, 2, and 3, as noted below). This analysis, and
the uncertainties associated with it, are described in more detail in
the SSA report (Service 2018, pp. 82-114), and are summarized below.
Scenarios constructed include variation in:
(1) The presence of white pine blister rust. Given historical
trends, we assume in all scenarios that white pine blister rust will
continue to spread and intensify throughout the range of whitebark
pine. There is no information to suggest that the rate of spread or
prevalence of white pine blister rust will decrease in the future. The
incidence of white pine blister rust at stand, landscape, and regional
scales varies due to time since introduction and environmental
suitability for its development. It continues to spread into areas
originally considered less suitable for persistence, and it has become
a serious threat. In our future scenarios, we varied the future rate of
white pine blister rust spread between one and four percent annually
based on values presented in the literature (e.g., Schwandt et al.
2013; Smith et al 2013). The percentage of genetically resistant
individuals and the effectiveness and scale of management efforts to
collect, propagate, and plant genetically resistant individuals are key
areas of uncertainty. Therefore, we varied the level of genetic
resistance between a lower value of 10 percent and higher value of 40
percent based on a range of values presented in the literature (e.g.,
Mahalovich 2013, p. 33). We considered the higher 40 percent value to
include both the presence of some level of natural resistance and
planting of resistant individuals.
(2) The frequency of high severity wildfire. Given current trends
and predictions for future changes in the climate, we assume in all
scenarios that the frequency of stand replacing wildfire will increase
although the magnitude of that increase is uncertain (Keane et al.
2017, p. 18; Westerling 2016, entire; Littell et al. 2010, entire).
Because of that uncertainty, we choose what are likely conservative
values of a 5 or 10 percent increase in severe wildfire above current
annual levels.
(3) The magnitude of future mountain pine beetle impacts. Given
warming trends, we assume in all scenarios that mountain pine beetle
epidemics will continue to impact whitebark pine in the future. There
is no information to suggest that mountain pine beetle epidemics will
decrease in magnitude or frequency in the future. In our future
scenarios, we predicted a new mountain pine beetle epidemic would occur
every 60 years, as that is the minimum time it would likely take for
individual trees to achieve diameters large enough to facilitate
successful mountain pine beetle brood production that is required to
reach epidemic levels.
Climate change is understood to impact whitebark pine principally
through its effect on the magnitude of the other three key stressors,
and was therefore included in these projections as an indirect impact
to whitebark pine resilience by modifying the rate of change in the
other stressors (Service 2018, p. 82). Similarly, potential levels of
current and future conservation efforts were also included indirectly
in these projections by varying the rate of change of those stressors
for which conservation could potentially have an effect. Due to the
longevity and long generation time of the species, we modeled
projections of impacts for several timeframes, going out 180 years,

[[Page 77416]]

which corresponds to approximately three generations of whitebark pine
(Tomback and Pansing 2018, p. 7; COSEWIC 2010, p. v). However, we
focused our discussion of viability in the SSA report largely on the
60-year (1 generation) timeframe where our confidence is greatest with
respect to the range of plausible projected changes to stressors and
the species' response. We note that our projections are based on long-
term geospatial data sets and a large body of empirical data, and the
scenarios chosen encompass the full range of conditions that could
plausibly occur. Below, we briefly summarize each scenario that we
considered, and the results of our analysis under each scenario.
Scenario 1 is a continuation of current trends, where impacts from
high severity fires and mountain pine beetle continue at current
levels. We predicted a new mountain pine beetle epidemic would occur
every 60 years, as that is the minimum time it would likely take for
individual trees to achieve diameters large enough to facilitate
successful mountain pine beetle brood production that is required to
reach epidemic levels. In this scenario, white pine blister rust begins
at the current estimated proportion of the range infected and spreads
at 1 percent per year with an assumed 10 percent level of genetically
resistant individuals (Service 2018, p. 89).
In scenario 2, high severity wildfires increase by 5 percent over
current trends. The spread of white pine blister rust continues at a
relatively low annual rate (1 percent per year), and the assumed level
of genetic resistance to white pine blister rust is relatively high at
40 percent (a value that includes both the presence of some level of
natural resistance and planting of resistant individuals). Mountain
pine beetle epidemics continue to occur at 60-year intervals, but with
20 percent recruitment of whitebark pine into the population between
epidemics (Service 2018, p. 90).
In scenario 3, high severity wildfires increase by 10 percent over
current trends. The spread of white pine blister rust increases (4
percent per year), and only 10 percent of individuals on the landscape
have genetic resistance to white pine blister rust. Mountain pine
beetle epidemics continue to occur at 60-year intervals, but impacts
increase in severity by 10 percent, and there is no recruitment between
epidemics (Service 2018, p. 90).
Under each scenario, we evaluated what percentage of the whitebark
pine's range would be impacted by each stressor, relative to current
levels. We focused our discussion of viability in the SSA report
largely on the 60-year (1 generation) timeframe where our confidence is
greatest with respect to the range of plausible projected changes to
stressors and the species' response. See the Determination section of
this document for our discussion on the relationship of this modeled
timeframe to our determination of the foreseeable future for this
listing determination. Within this timeframe, a continuation of current
trends in high severity fires (under scenario 1) would not likely
severely negatively impact whitebark pine resiliency, redundancy, or
representation in the absence of other threats, as newly burned areas
can potentially provide a seedbed for whitebark pine if stands of
healthy cone-producing whitebark pine are nearby, resulting in some
level of natural regeneration. Similarly, if current trends in high
severity fires continue or increase by 5 to 10 percent (the relatively
small projected increase in severe wildfire under scenarios 2 and 3),
high severity fires alone (in the absence of other threats) would not
be likely to severely negatively impact whitebark pine (Service 2018,
pp. 100-101).
Currently, approximately 34 percent of the range is infected by
white pine blister rust. Within the 60-year timeframe, under scenario
1, approximately 61 percent of the range will be infected with white
pine blister rust. Under scenario 2, approximately 52 percent of the
range will be infected within the next 60 years. Under scenario 3,
approximately 88 percent of the range will be infected within the next
60 years (Service 2018, pp. 101-103).
In addition, approximately 17 percent of the range is currently
impacted by mountain pine beetle. Within the 60-year timeframe, under
scenario 1, an estimated 31 percent of the range will be impacted by
the mountain pine beetle in the absence of other stressors. Under
scenario 2, an estimated 15 percent of the range will be impacted by
the mountain pine beetle within 60 years. Under scenario 3,
approximately 40 percent of the range will be impacted by the mountain
pine beetle within 60 years (Service 2018, pp. 103-105). These results
are further broken down by AU in the SSA report (Service 2018, pp. 100-
105).
Although not specifically addressed in our projections, the best
available science indicates that there are strong synergistic and
cumulative interactions between the four key stressors (mountain pine
beetle, white pine blister rust, severe fire, and climate change),
which will increase negative impacts to whitebark pine under all three
scenarios. Therefore, our assessment of the future effects of each
individual stressor on whitebark pine likely underestimates the total
impact of these stressors when combined on the species' overall
viability. For example, environmental changes resulting from climate
change are expected to alter fire regimes, resulting in decreased fire
intervals and increased fire severity. More frequent stand-replacing
fires will likely negatively impact whitebark pine resiliency by
reducing the probability of regeneration in many areas (Tomback et al.
2008, p. 20; Leirfallom et al. 2015, p. 1601). Warming trends have also
resulted in unprecedented mountain pine beetle epidemics throughout the
range of the whitebark pine (Logan et al. 2003, p. 130; Logan et al.
2010, p. 896). In addition, the latest mountain pine beetle epidemic
and white pine blister rust together have negatively impacted the
probability of whitebark pine regeneration because both have acted to
severely decrease seed cone production. These and other interactions
are described in the SSA report (Service 2018, pp. 105-111).
In summary, the abundance of whitebark pine is forecasted to
decline over time under all three scenarios we considered. In these
scenarios, the rate of decline appeared to be most sensitive to the
rate of white pine blister rust spread, the presence of genetically
resistant individuals (whether natural or due to conservation efforts),
and the level of regeneration (Service 2018, pp. 111-112). Whitebark
pine viability has declined over time, and continuation of current
trends and synergistic and cumulative interactions between wildfire,
white pine blister rust, mountain pine beetle, and climate change will
continue to result in actual or functional loss of populations.
However, we acknowledge that there may be significant differences and a
large degree of variation when examining stressors at smaller landscape
or stand scales. As a result of the highly heterogeneous ecological
settings of this widespread species (e.g., differences in topography,
elevation, weather, and climate) and geographic variation in levels of
genetic resistance to white pine blister rust, rates of whitebark pine
decline will likely vary for each AU.
We predict all AUs will have a reduced level of resiliency in the
future. This reduction in resiliency will be the result of continued
increase in white pine blister rust infection, synergistic and
cumulative interactions between white pine blister rust and other
stressors, and the resulting loss of seed

[[Page 77417]]

source and subsequent regeneration. Whitebark pine remains widely
distributed across the spatial extent and ecological settings of its
historical range. However, under all three future scenarios, we predict
redundancy and representation will decline, as fewer populations
persist and the spatial extent and connectivity of the species declines
(Service 2018, pp. 112-113).
See the SSA report (Service 2018, entire) for a more detailed
discussion of our evaluation of the biological status of the whitebark
pine and the influences that may affect its continued existence. Our
conclusions in the SSA report, which form the basis for the
determination below, are based upon the best available scientific and
commercial data.

Management and Restoration

There are a variety of regulatory mechanisms, as well as management
and restoration plans in place, that benefit or impact whitebark pine,
as described in the SSA report (Service 2018, appendix A). Due to the
broad distribution of whitebark pine in the United States and Canada,
management of this species falls under numerous jurisdictions that
encompass a spectrum of local and regional ecological, climatic, and
management conditions and needs. Several management and restoration
plans have been developed for specific regions or jurisdictions to
address the task of conserving and restoring this widespread, long-
lived species (Service 2018, p. 112). Conversely, some areas within the
range of whitebark pine do not have a specific management plan for
whitebark pine (e.g., central Idaho) (Service 2018, p. 112).
Consequently, within the United States management actions in these
areas would generally follow established forest or vegetation
management plans developed under the National Forest Management Act of
1976 (16 U.S.C. 1600 et seq.) or other similar policies (e.g., National
Forest land management plans, National Park Service vegetation
management plans). In Canada, the Committee on the Status of Endangered
Wildlife designated whitebark pine as Endangered under the Canadian
Species at Risk Act (SARA) on June 20, 2012, due to the high risk of
extirpation. This listing provides protection from harming, killing,
collecting, buying, selling or possessing, for individuals on Canadian
Federal land.
See the SSA report for a description of management and restoration
plans currently in place or under development, and some of their
accomplishments (Service 2018, appendix A). Many of these efforts have
had positive impacts on the species on local or regional scales.
However, given the vast geographic range of the species and the
ubiquitous presence of white pine blister rust, there is currently no
effective means to control the disease and its cumulative impacts with
other stressors on a species-wide scale through any regulatory or
nonregulatory mechanism.
Twenty-nine percent of the range of whitebark pine within the
United States (Service 2018, p. 15) is designated wilderness under the
Wilderness Act of 1964 (16 U.S.C. 1131-1136). The Wilderness Act states
that wilderness should be managed to preserve its natural conditions
and yet remain untrammeled by humans. This designation limits
management options and conservation efforts in those areas to some
degree. How the Wilderness Act is implemented can vary between
agencies, regions, or even between species. While the Wilderness Act
allows for some ``minimal actions'' to address certain management
needs, it does not directly allow for treatment of the impacts of white
pine blister rust, fire exclusion policies, mountain pine beetle
epidemics, or climate change. For a more detailed discussion of how the
Wilderness Act influences the management of whitebark pine, see the SSA
report (Service 2018, pp. 129-130).

Determination of Whitebark Pine 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 ``endangered species'' as a
species ``in danger of extinction throughout all or a significant
portion of its range,'' and ``threatened species'' as a species
``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

We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the whitebark pine across its range in the United States and Canada.
Our analysis of the current and future condition of whitebark pine
found that the species is being impacted by four main stressors:
Altered fire regimes (Factor E), white pine blister rust (Factor C),
mountain pine beetle (Factor C), and climate change (Factor E). We
found white pine blister rust (Factor C) to be the main driver of the
species' current and future condition. White pine blister rust is
currently ubiquitous across the range, and under all three future
condition scenarios, it is expected to expand significantly. Under the
three scenarios, within one generation, 52 to 88 percent of the range
will be infected. The impacts of white pine blister rust combined with
other stressors will reduce the ability of whitebark pine stands to
regenerate (i.e., resiliency) following disturbances, such as fire and
mountain pine beetle outbreaks. The decline is expected to be most
pronounced in the northern two-thirds of the whitebark pine's range,
where white pine blister rust infection rates are predicted to be
highest. Despite the existing regulatory mechanisms (Factor D) and
voluntary conservation efforts described above, these stressors have
continued to spread and are predicted to increase in prevalence in the
future. Our analysis did not find any stressors to be impacting the
species at a population or species level under Factors A or B.
After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, we
find that the whitebark pine is likely to become endangered throughout
all of its range within the foreseeable future. This finding is based
on anticipated reductions in resiliency, redundancy, and representation
in the future as a result of continued increase in white pine blister
rust infection and associated mortality, synergistic and cumulative
interactions between white pine blister rust and other stressors, and
the resulting loss of seed source. White pine blister rust is already
ubiquitous rangewide, and there is currently no effective method to
reverse it on a meaningful scale. In addition, 51 percent of whitebark
pine trees in the United States are now dead (Goeking and Izlar 2018,
p. 7). For this long-lived species, we consider the foreseeable future
to be within 40 to 80 years. This timeframe encompasses the length of
approximately one generation (i.e., 60 years) for whitebark pine, but
also accounts for uncertainty in the precise rate of spread of white
pine blister rust

[[Page 77418]]

and associated mortality. While we were able to project the species
response out to 180 years in our SSA, our confidence is greatest with
respect to the range of plausible projected changes to stressors and
the species' response under 80 years. We can reasonably determine that
both the future threats and the species' responses to those threats are
likely within this 40- to 80-year timeframe (i.e., the foreseeable
future).
We find that the whitebark pine is not currently in danger of
extinction because the species is still widespread throughout its
extensive range, and whitebark pine trees are expected to persist on
the landscape for many decades, especially given their long lifespan,
and the presence of some levels of genetic resistance to white pine
blister rust. In addition, there is uncertainty regarding how quickly
white pine blister rust, the primary stressor, will spread within the
three southwestern AUs (the Sierras, Basin and Range, and Klamath
Mountains AUs) where it currently occurs at low levels and greater
levels of resiliency remain. Therefore, the species currently has
sufficient redundancy and representation to withstand catastrophic
events and maintain adaptability to changes, particularly in the
southwestern part of the range, and is not at risk of extinction now.
However, we expect that the stressors, individually and cumulatively,
will reduce resiliency, redundancy, and representation within all parts
of the range within the foreseeable future. Therefore, on the basis of
the best available scientific and commercial information, we determine
that the whitebark pine 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 in danger of extinction or likely to become so
in the foreseeable future 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 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). In
undertaking this analysis for the whitebark pine, we will address the
status question first--we consider information pertaining to the
geographic distribution of both the species and the threats that the
species faces to identify any portions of the range where the species
may be endangered.
The statutory difference between an endangered species and a
threatened species is the time frame in which the species becomes in
danger of extinction; an endangered species is in danger of extinction
now while a threatened species is not in danger of extinction now but
is likely to become so in the foreseeable future. Thus, we reviewed the
best scientific and commercial data available regarding the time
horizon for the threats that are driving the whitebark pine to warrant
listing as a threatened species throughout all of its range. We then
considered whether these threats are geographically concentrated in any
portion of the species' range in a way that would accelerate the time
horizon for the species' exposure or response to the threats. We
examined the following threats: Altered fire regimes, white pine
blister rust, mountain pine beetle, and climate change, including
synergistic and cumulative effects. We found white pine blister rust to
be the main driver of the species' status.
We found a concentration of threats in the northern two-thirds of
the whitebark pine's range, including the following Analysis Units:
Nechako Plateau, Fraser Plateau, Thompson Plateau, Columbia Mountains,
Canadian Rockies, Olympics, Cascades, Northern Rockies, Blue Mountains,
Idaho Batholith, US Canadian Rockies, and Middle Rockies (see Service
2018, Figures 9, 11, 14). As described above, the impacts of white pine
blister rust combined with other stressors is expected to reduce the
ability of whitebark pine stands to regenerate following disturbances.
Although white pine blister rust is currently ubiquitous across the
range, white pine blister rust infection rates are currently the
highest, and will further increase in the future, in the northern two-
thirds of whitebark pine's range; as such, we expect future declines in
resiliency to be most pronounced in the northern two-thirds of the
whitebark pine's range.
However, despite the prevalence of white pine blister rust and
other stressors in the northern two-thirds of the whitebark pine's
range, whitebark pine trees are still widespread throughout this
extensive geographic area. Given their long lifespan and the presence
of some levels of genetic resistance to white pine blister rust,
whitebark pine trees are expected to persist on the landscape for many
decades. As we discuss above, white pine blister rust may not
immediately kill infected trees; many trees with white pine blister
rust can live for decades before they succumb to the disease. Thus,
currently, levels of redundancy and representation are reduced, but
sufficient to withstand catastrophic events and maintain adaptability
to changes, and therefore the species is not currently in danger of
extinction in this portion of the range.
However, white pine blister rust will likely continue to spread
throughout the species' range in the future, reducing available seed
source and recruitment into the future. We expect that white pine
blister rust, individually and cumulatively along with other stressors,
will reduce resiliency, redundancy, and representation within the
northern two-thirds of the range such that whitebark pine is likely to
become an endangered species in this portion within the foreseeable
future.
Although some threats to the whitebark pine are concentrated in the
northern two-thirds of the species' range, the best scientific and
commercial data available does not indicate that the concentration of
threats, or the species' responses to the concentration of threats, are
likely to accelerate the time horizon in which the species becomes in
danger of extinction in that portion of its range. As a result, the
whitebark pine is not in danger of extinction now in the northern two-
thirds of its range. Therefore, 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

[[Page 77419]]

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 whitebark pine meets the definition of a
threatened species. Therefore, we propose to list the whitebark pine 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 SSA Report developed to inform this listing
determination may also inform the development of the recovery outline
and recovery plan, and may be updated as new information becomes
available. 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 and the SSA 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 listed status (``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
(https://www.fws.gov/endangered), or from our Wyoming 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.
If this species is listed, 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 States of Wyoming, Montana,
Idaho, Washington, Oregon, California, and Nevada would be eligible for
Federal funds to implement management actions that promote the
protection or recovery of the whitebark pine. Information on our grant
programs that are available to aid species recovery can be found at
https://www.fws.gov/grants.
Although the whitebark pine is only proposed for listing under the
Act at this time, please let us know if you are interested in
participating in recovery efforts for this species. Additionally, we
invite you to submit any new information on this species 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 species' 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. Forest Service,
National Park Service, and Bureau of Land Management.

Effects of Listing

It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a proposed
listing on proposed and ongoing activities within the range of the
species proposed for listing. Based on the best available information,
and considering the proposed 4(d) rule described below, the following
actions are unlikely to result in a violation of section 9, if these
activities are carried out in accordance with existing regulations and
permit requirements; this list is not comprehensive:
Silviculture practices and forest management activities
that address fuels management, insect and disease impacts, and wildlife
habitat management (e.g., cone collections, planting seedlings/sowing
seeds, mechanical cuttings as a restoration tool in stands experiencing
advancing succession, full or partial suppression of

[[Page 77420]]

wildfires in whitebark pine communities, allowing wildfires to burn, or
survey and monitoring of tree health status).
Based on the best available information, the following activities
may potentially result in a violation of section 9 of the Act (except
in the case of the exceptions listed in our proposed 4(d) rule; see
discussion below); this list is not comprehensive:
Removal and reduction to possession of the species from
areas under Federal jurisdiction;
Malicious damage or destruction of the species on any
areas under Federal jurisdiction; or
Removal, cutting, digging up, or damage or destruction of
the species on any other area in knowing violation of any law or
regulation of any State or in the course of any violation of a State
criminal trespass law.
For example, the removal or damage of whitebark pine trees, when
not conducted or authorized by the Federal agency with jurisdiction
over the land where the activity occurs, would be prohibited.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Wyoming
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

II. Proposed Rule Issued Under Section 4(d) of the Act

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, as long as the prohibitions, and exceptions to those
prohibitions, will ``serve to conserve, protect, or restore the species
concerned in accordance with the purposes of the Act'' (H.R. Rep. No.
412, 93rd Cong., 1st Sess. 1973).
The Service has developed a proposed species-specific 4(d) rule
that is designed to address the whitebark pine'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 is necessary and advisable to provide for the conservation of the
whitebark pine, as explained below. As discussed in above under
Determination, the Service has concluded that the whitebark pine is at
risk of extinction within the foreseeable future primarily due to the
continued increase in white pine blister rust infection and associated
mortality, synergistic and cumulative interactions between white pine
blister rust and other stressors, and the resulting loss of seed
source. The provisions of this proposed 4(d) rule would promote
conservation of the whitebark pine by encouraging management of the
landscape in ways that meet land management considerations while
meeting the conservation needs of the whitebark pine, as explained
further below. The provisions of this rule are one of many tools that
the Service would use to promote the conservation of the whitebark
pine. This proposed 4(d) rule would apply only if and when the Service
makes final the listing of the whitebark pine as a threatened species.

Provisions of the Proposed 4(d) Rule

This proposed 4(d) rule would provide for the conservation of
whitebark pine by prohibiting the following activities (except in the
case of the exceptions listed below), unless otherwise authorized or
permitted:
Import or export of the species;
Delivery, receipt, transport, or shipment of the species
in interstate or foreign commerce in the course of commercial activity;
Sale or offer for sale of the species in interstate or
foreign commerce;
Removal and reduction to possession of the species from
areas under Federal jurisdiction;
Malicious damage or destruction of the species on any area
under Federal jurisdiction; or
Removal, cutting, digging up, or damage or destruction of
the species on any area under Federal jurisdiction in knowing violation
of any law or regulation of any State or in the course of any violation
of a State criminal trespass law.
These prohibitions and the exceptions below would apply to
whitebark pine trees and any tree parts, such as cones, tree cores,
etc.
The following activities would be excepted from the prohibitions
identified above:
Activities authorized by a permit under 50 CFR 17.72; and
Forest management, restoration, or research-related
activities conducted or authorized by the Federal agency with
jurisdiction over the land where the activities occur.
Removal, cutting, digging up, or damage or destruction of
the species on areas not under Federal jurisdiction by any qualified
employee or agent of the Service or State conservation agency which is
a party to a Cooperative Agreement with the Service in accordance with
section 6(c) of the Act, who is designated by that agency for such
purposes, when acting in the course of official duties.
We may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened plants under
certain circumstances. Regulations governing permits are codified at 50
CFR 17.72. With regard to threatened plants, a permit may be issued for
the following purposes: Scientific purposes, to enhance propagation or
survival, for economic hardship, for botanical or

[[Page 77421]]

horticultural exhibition, for educational purposes, or for other
purposes consistent with the purposes of the Act. Additional statutory
exemptions from the prohibitions are found in sections 9 and 10 of the
Act.
Broadly, the forest management, restoration, or research-related
activities referred to above may include, but are not limited, to
silviculture practices and forest management activities that address
fuels management, insect and disease impacts, and wildlife habitat
management (e.g., cone collections, planting seedlings or sowing seeds,
mechanical cuttings as a restoration tool in stands experiencing
advancing succession, full or partial suppression of wildfires in
whitebark pine communities, allowing wildfires to burn, survey and
monitoring of tree health status), as well as other forest management,
restoration, or research-related activities. We purposefully do not
specify precisely when, where, or how these activities must be
conducted because they are not a threat to whitebark pine in any form,
and they may vary in how they are conducted across the species' wide
range. This proposed 4(d) rule would enhance the conservation of
whitebark pine by prohibiting activities that would be detrimental to
the species, while allowing the forest management, restoration, and
research-related activities that are necessary to conserve whitebark
pine by maintaining and restoring forest health on the Federal lands
that encompass the vast majority of the species' habitat within the
United States.
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 whitebark
pine that may result in otherwise prohibited activities without
additional authorization.
We note that the prohibitions related to removing and reducing to
possession; maliciously damaging and destroying; or removing, cutting,
digging up, or destroying the species in this proposed 4(d) rule only
apply to areas under Federal jurisdiction. Therefore, the exceptions to
those prohibitions also only apply to areas under Federal jurisdiction.
However, we still encourage forest management, restoration, and
research-related activities on areas outside of Federal jurisdiction
such as State, private, and Tribal lands within the United States or
any lands within Canada. The proposed 4(d) rule only addresses Federal
Endangered Species Act requirements, and would not change any
prohibitions provided for by State law. Additionally, nothing in this
proposed 4(d) rule would change 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 whitebark pine.
However, the consultation process may be further streamlined through
programmatic consultations between Federal agencies and the Service for
these activities. This proposed 4(d) rule would be finalized only after
consideration of public comments and only if and when the Service makes
final the listing of whitebark pine as threatened.

Necessary and Advisable Finding

The Service has determined that a 4(d) rule is appropriate for the
whitebark pine. The proposed 4(d) rule would provide for the
conservation of the species by use of protective regulations, as
described here. Within the United States, the vast majority of the
species' range (approximately 88 percent) is located on Federal lands.
Given the reductions in resiliency that have already occurred to
varying degrees across the range (Service 2018, pp. 56-82), we are
proposing to apply the prohibitions of section 9(a)(2) of the Act to
the whitebark pine by making the following activities unlawful:
Import or export of the species;
Delivery, receipt, transport, or shipment of the species
in interstate or foreign commerce in the course of commercial activity;
Sale or offer for sale of the species in interstate or
foreign commerce;
Removal and reduction to possession of the species from
areas under Federal jurisdiction;
Malicious damage or destruction of the species on any area
under Federal jurisdiction; or
Removal, cutting, digging up, or damage or destruction of
the species on any area under Federal jurisdiction in knowing violation
of any law or regulation of any State or in the course of any violation
of a State criminal trespass law.
However, we are also proposing to apply two broad exceptions to
those prohibitions to allow authorization under 50 CFR 17.72, and to
allow Federal land management agencies to continue managing the forest
ecosystems where the whitebark pine occurs and to continue conducting
restoration and research activities that benefit the species. The
Service has concluded that the whitebark pine is likely to become
endangered within the foreseeable future primarily due to the continued
increase in white pine blister rust infection and associated mortality,
synergistic and cumulative interactions between white pine blister rust
and other stressors, and the resulting loss of seed source. This fungal
disease is not human-spread or influenced by human activity, and few
restoration methods are currently available to restore whitebark pine
in areas affected by the disease. The whitebark pine is not
commercially harvested, and while some human activities could
potentially affect individual trees or local areas, we found no threats
at the species level resulting from human activities, such as
development or forest management activities. In fact, forest management
activities are important to maintaining the health and resiliency of
forest ecosystems that include whitebark pine.
As described in the SSA report (Service 2018, Appendix A), most
current whitebark pine management and research focuses on producing
trees with inherited (genetic) resistance to white pine blister rust,
as well as implementing mechanical treatments and prescribed fire as
conservation tools. As part of this process, cones may be collected
from trees identified as apparently resistant to white pine blister
rust, or ``plus'' trees. Additional current areas of research involve
investigating natural regeneration and silvicultural treatments, such
as appropriate site selection (i.e., identifying areas where
restoration will be most effective) and preparation, pruning, and
thinning in order to protect high-value genetic resources, increase
reproduction, reduce white pine blister rust damage, and increase stand
volume (Zeglen et al. 2010, p. 361).
Conservation measures for whitebark pine can generally be
categorized as

[[Page 77422]]

either protection (of existing healthy trees and stands) or restoration
(of damaged, unhealthy, or extirpated trees and stands). Inventory,
monitoring, and mapping of whitebark pine stands are critical for
assessing the current status and implementing strategic conservation
strategies. The precise nature of management, restoration, and research
activities that are conducted may vary widely across the broad range of
whitebark pine, as management of this species falls under numerous
jurisdictions that encompass a spectrum of local and regional
ecological, climatic, and management conditions and needs.
As no forest management, restoration, or research-related
activities pose any threat to the whitebark pine in any form, we
purposefully do not specify in detail what types of these activities
are included in this exception, or how, when, or where they must be
conducted, as long as they are conducted or authorized by the Federal
agency with jurisdiction over the land where the activities occur.
Therefore, this proposed 4(d) rule would allow the continuation of all
such forest management, restoration, and research-related activities
conducted by or authorized by relevant Federal land management
agencies, as these activities pose no threat to the whitebark pine and
are crucial to the species' conservation into the future, while
allowing for flexibility to accommodate specific physical conditions,
resource needs, and constraints across the species' vast range.
For the reasons discussed above, we find that this rule under
section 4(d) of the Act is necessary and advisable to provide for the
conservation of the whitebark pine. We ask the public, particularly
Federal and State agencies and other interested stakeholders that may
be affected by the proposed 4(d) rule, to provide comments and
suggestions regarding additional guidance and methods that the Service
could provide or use, respectively, to streamline the implementation of
this proposed 4(d) rule (see Information Requested, above).

III. Critical Habitat Designation

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.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under 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.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features that occur in specific areas, we focus
on the specific features that are essential to support the life-history
needs of the species, including, but not limited to, water
characteristics, soil type, geological features, prey, vegetation,
symbiotic species, or other features. A feature may be a single habitat
characteristic, or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in 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. When designating critical habitat, the Secretary will first
evaluate areas occupied by the species. The Secretary will only
consider unoccupied areas to be essential where a critical habitat
designation limited to geographical areas occupied by the species would
be inadequate to ensure the conservation of the species. In addition,
for an unoccupied area to be considered essential, the Secretary must
determine that there is a reasonable certainty both that the area will
contribute to the conservation of the species and that the area
contains one or more of those physical or biological features essential
to the conservation of the species.
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

[[Page 77423]]

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 the Secretary shall designate
critical habitat at the time the species is determined to be an
endangered or threatened species to the maximum extent prudent and
determinable. 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.
As explained below, we conclude that the present or threatened
destruction, modification, or curtailment of a species' habitat or
range is not a threat to the whitebark pine, and therefore designating
critical habitat is not prudent for the species.
Our analysis of the species' status found that the primary stressor
driving the status of whitebark pine is disease (white pine blister
rust, Factor C). White pine blister rust also interacts with other
stressors, including predation by mountain pine beetles (Factor C),
altered fire regimes (Factor E) and climate change (Factor E). While
wildfires could in some cases be considered a negative impact on
habitat as well as on individuals, wildfires may also have positive
impacts on whitebark pine depending on severity and extent (e.g., they
may create spaces for seed-caching and eliminate competition from
shade-tolerant species) (Keane and Parsons 2010, p. 57; Service 2018,
pp. 31-34). In addition, we do not consider altered fire regimes,
climate change, or the mountain pine beetle to be the main drivers of
the status of the species.
Furthermore, habitat is not limiting for whitebark pine, which is
widely distributed over a range of 32,616,422 ha (80,596,935 ac)
(Service 2018, pp. 13-18). Our analysis evaluated the needs of
whitebark pine at the individual, population, and species level. These
needs include open space on the forest floor, and limited shading for
all life stages of whitebark pine (Service 2018, pp. 21-27). In
addition, populations need to maintain a sufficient density of
reproductive adults for pollen dispersal and pollen clouds to
facilitate masting, and to attract Clark's nutcrackers (Service 2018,
pp. 27-28). These needs may be met in a variety of habitat types, as
long as there are Clark's nutcrackers and limited competition. In fact,
the habitat needs of whitebark pine are flexible and not specific, as
evidenced by the fact that the species is extremely widespread,
occupying a wide range of elevations, slopes, forest community types,
latitudes, and climates across its 32,616,422-ha (80,596,935-ac) range
(Service 2018, pp. 13-18). In other words, habitat for whitebark pine
is plentiful, and is not a limiting factor determining the distribution
of the species. Therefore, we do not consider the present or threatened
destruction, modification, or curtailment of a species' habitat or
range to be a threat to the species.
Since we have determined that the present or threatened
destruction, modification, or curtailment of the species' habitat or
range is not a threat to the whitebark pine, in accordance with 50 CFR
424.12(a)(1), we determine that designation of critical habitat is not
prudent for the whitebark pine.

IV. Required Determinations

Clarity of the Rule

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

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 (NEPA; 42 U.S.C. 4321 et seq.), 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. We solicited information from Tribes
within the range of whitebark pine to inform the development of our
SSA, and

[[Page 77424]]

notified Tribes of our upcoming proposed listing determination. We also
provided these Tribes the opportunity to review a draft of the SSA
report and provide input prior to making our proposed determination on
the status of the whitebark pine. We will continue to coordinate with
affected Tribes throughout the listing process as appropriate.

References Cited

A complete list of references cited in this proposed rule is
available on the internet at https://www.regulations.gov and upon
request from the Wyoming Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).

Authors

The primary authors of this proposed rule are the staff members of
the Service's Mountain Prairie Regional Office.

List of Subjects in 50 CFR Part 17

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

V. Proposed Regulation Promulgation

Accordingly, we propose to 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. In Sec. 17.12(h), add an entry for ``Pinus albicaulis'' to the List
of Endangered and Threatened Plants in alphabetical order under
CONIFERS to read as set forth below:

Sec. 17.12 Endangered and threatened plants.

* * * * *
(h) * * *

----------------------------------------------------------------------------------------------------------------
Listing citations and
Scientific name Common name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Conifers

* * * * * * *
Pinus albicaulis............... Whitebark pine... Wherever found... T................ [Federal Register
citation when
published as a final
rule]; 50 CFR
17.74(a).\4d\

* * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Add Sec. 17.74 to read as set forth below:

Sec. 17.74 Special rules--conifers and cycads.

(a) Pinus albicaulis (whitebark pine).
(1) The following prohibitions that apply to endangered plants also
apply to the whitebark pine except as provided under paragraph (a)(2)
of this section:
(i) Import or export, as set forth at Sec. 17.61(b) for endangered
plants.
(ii) Removal and reduction to possession of the species from areas
under Federal jurisdiction; malicious damage or destruction of the
species on any such area; or removal, cutting, digging up, or damage or
destruction of the species on any other area in knowing violation of
any law or regulation of any State or in the course of any violation of
a State criminal trespass law.
(iii) Interstate or foreign commerce in the course of commercial
activity, as set forth at Sec. 17.61(d) for endangered plants.
(iv) Sale or offer for sale, as set forth at Sec. 17.61(e) for
endangered plants.
(v) Attempt to commit, solicit another to commit, or cause to be
committed, any of the acts described in paragraphs (a)(1)(i) through
(iv).
(2) Exceptions from prohibitions. In regard to the whitebark pine,
you may:
(i) Conduct activities as authorized by a permit under Sec. 17.72.
(ii) Conduct forest management, restoration, or research-related
activities conducted or authorized by the Federal agency with
jurisdiction over the land where the activities occur.
(iii) Remove, cut, dig up, damage or destroy on areas under Federal
jurisdiction by any qualified employee or agent of the Service or State
conservation agency which is a party to a Cooperative Agreement with
the Service in accordance with section 6(c) of the Act, who is
designated by that agency for such purposes, when acting in the course
of official duties.
(b) [Reserved]

Aurelia Skipwith,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2020-25331 Filed 12-1-20; 8:45 am]
BILLING CODE 4333-15-P

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