Endangered and Threatened Wildlife and Plants; Reclassifying Furbish's Lousewort (Pedicularis furbishiae) From Endangered to Threatened Status With a Section 4(d) Rule, 30047-30057 [2023-09847]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 88, Number 90 (Wednesday, May 10, 2023)]
[Rules and Regulations]
[Pages 30047-30057]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09847]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R5-ES-2019-0056; FF09E22000 FXES11130900000 201]
RIN 1018-BD65


Endangered and Threatened Wildlife and Plants; Reclassifying 
Furbish's Lousewort (Pedicularis furbishiae) From Endangered to 
Threatened Status With a Section 4(d) Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
reclassifying (downlisting) Furbish's lousewort (Pedicularis 
furbishiae) from an endangered species to a threatened species under 
the Endangered Species Act of 1973, as amended (Act), and we finalize a 
rule under section 4(d) of the Act to promote the conservation of 
Furbish's lousewort. This information is based on a thorough review of 
the best available scientific and commercial information, which 
indicates the threats to the species have been reduced to the point 
that the species no longer meets the definition of an endangered 
species under the Act.

[[Page 30048]]


DATES: This rule is effective June 9, 2023.

ADDRESSES: This final rule, supporting documents we used in preparing 
this rule, and public comments we received on the proposed rule are 
available on the internet at https://www.regulations.gov at Docket No. 
FWS-R5-ES-2019-0056.

FOR FURTHER INFORMATION CONTACT: Amanda Cross, Project Leader, Maine 
Ecological Services Field Office, 306 Hatchery Road, East Orland, ME 
04431; telephone 207-902-1567. Individuals in the United States who are 
deaf, deafblind, hard of hearing, or have a speech disability may dial 
711 (TTY, TDD, or TeleBraille) to access telecommunications relay 
services. Individuals outside the United States should use the relay 
services offered within their country to make international calls to 
the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Supporting Documents

    A species status assessment (SSA) team prepared an SSA report for 
Furbish's lousewort. The SSA team was composed of biologists from the 
Service and the State of Maine Natural Areas Program. 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 (Service 2020, entire).
    The SSA report can be found at https://www.regulations.gov under 
Docket No. FWS-R5-ES-2019-0056 and on the FWS website at: https://www.fws.gov/species/st-johns-river-lousewort-pedicularis-furbishiae.

Previous Federal Actions

    Furbish's lousewort was listed as an endangered species on April 
26, 1978 (43 FR 17910). We completed a recovery plan in 1983 (Service 
1983) and revised it in 1991 (Service 1991). The revised recovery plan 
presented updated life-history and population information, and updated 
information on the threats to the species. A second revised recovery 
plan was signed on September 26, 2019, and on February 21, 2019, a 5-
year status review was completed (Service 2019b) and concluded that 
Furbish's lousewort should be downlisted to a threatened species under 
the Act.
    On January 15, 2021, we proposed to reclassify Furbish's lousewort 
from an endangered species to a threatened species with a rule issued 
under section 4(d) of the Act to provide for the conservation of the 
species, i.e., a ``4(d) rule'' (86 FR 3976).

Summary of Changes From the Proposed Rule

    In this rule, we make certain nonsubstantive, editorial changes to 
some text that we presented in the proposed rule, and we include a 
minor amount of new information (e.g., some updated population 
information showing improved conditions and new conservation actions) 
that we received or that became available since the proposed rule 
published. However, this new information did not change our analysis, 
rationales, or determination for either the proposed reclassification 
of Furbish's lousewort to a threatened species or the proposed 4(d) 
rule for the species.

I. Reclassification Determination

Background

    A thorough review of Furbish's lousewort is presented in the SSA 
report (Service 2020), found at https://www.regulations.gov under 
Docket FWS-R5-ES-2019-0056, which is briefly summarized here.

Species Information

    Furbish's lousewort was first named and described in 1882 (Watson 
1882, entire) and is recognized as a valid taxon. A thorough review of 
the taxonomy, life history, and ecology of Furbish's lousewort is 
presented in the SSA report.
    Furbish's lousewort is an herbaceous perennial plant that occurs on 
the intermittently flooded, ice-scoured banks of the St. John River. It 
is endemic to Maine with a few, small subpopulations in northwestern 
New Brunswick, Canada. The population of Furbish's lousewort comprises 
20 subpopulations associated with suitable habitat that occurs along 
portions of a 225-kilometer (140-mile) section of the St. John River. 
The plant is recognized early in the growing season by a basal rosette 
of fern-like leaves. By mid-summer, mature plants produce one or more 
flowering stems that grow to about 50 to 80 centimeters (20 to 30 
inches) in height. The stems have alternate, widely spaced, fern-like 
leaves along their length and are topped by a tight cluster 
(inflorescence) of small, yellow, tube-like flowers that bloom only a 
few at a time. Furbish's lousewort has two distinct growth stages: 
vegetative (immature, nonflowering) individuals that grow as a basal 
rosette of leaves and reproductive (flowering) plants.
    Furbish's lousewort does not spread clonally, and plants are 
established exclusively by sexual reproduction and seed (Stirrett 1980, 
p. 23; Menges 1990, p. 53). Flowering occurs at a minimum of 3 years 
once plants reach a certain size leaf area. Reproductive plants emerge 
in May and produce an average of 2 to 3 flowering stems; each stem has 
one or more inflorescences, and each inflorescence has up to 25 
flowers. Flowers bloom several at a time from about mid-July to the end 
of August (Stirrett 1980, p. 24; Menges et al. 1986, p. 1169). 
Furbish's lousewort is pollinated by a single species of bumble bee, 
the half-black bumble bee (Bombus vagans) (Macior 1978, entire). About 
50 percent of flowers produce egg-shaped seed capsules that ripen in 
late-September after which the tiny (1 millimeter) seeds are dropped 
(Menges et al. 1986, p. 1169; Gawler 1983, p. 27; Gawler et al. 1986, 
entire). Seeds lack mechanisms for wind or animal dispersal, and most 
drop near the parent plant. Each mature plant tends to form a colony 
around itself. During spring floods, it is conceivable that some seeds 
may disperse down-river (Stirrett 1980, pp. 26-27; Menges 1990, p. 53). 
The seeds germinate in moist, cool microhabitats having minimal 
herbaceous or woody plant competition or leaf litter, such as moss-
covered soil or parts of the riverbank that are constantly wet. 
Furbish's lousewort lacks seed dormancy; seedlings result only from the 
previous year's reproduction (Menges 1990, p. 54). Seedlings emerge in 
June through August and have two true leaves during their first growing 
season (Gawler et al. 1987, entire). Like most species of Pedicularis, 
seedlings of Furbish's lousewort are obligate hemiparasites and obtain 
part of their nutrition from root attachments with a perennial host 
plant. The species seems to be a host-generalist, perhaps relying on 
nitrogen-fixing host plants in the mineral-poor soil in which it grows 
(Macior 1980, entire). The lifespan of adult flowering plants is 
uncertain.

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an endangered 
species or a threatened species, issuing protective regulations for 
threatened species, and designating critical habitat for threatened and 
endangered species. In 2019, jointly with the National Marine Fisheries 
Service, the Service issued a final rule that revised the regulations 
in 50 CFR part 424 regarding how we add, remove,

[[Page 30049]]

and reclassify endangered and threatened species and the criteria for 
designating listed species' critical habitat (84 FR 45020; August 27, 
2019). On the same day the Service also issued final regulations that, 
for species listed as threatened species after September 26, 2019, 
eliminated the Service's general protective regulations automatically 
applying to threatened species the prohibitions that section 9 of the 
Act applies to endangered species (84 FR 44753; August 27, 2019).
    The Act defines an ``endangered species'' as a species that is in 
danger of extinction throughout all or a significant portion of its 
range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an endangered species or a threatened 
species because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects. We consider these same five 
factors in downlisting a species from endangered to threatened.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the species' expected response and 
the effects of the threats--in light of those actions and conditions 
that will ameliorate the threats--on an individual, population, and 
species level. We evaluate each threat and its expected effects on the 
species, then analyze the cumulative effect of all of the threats on 
the species as a whole. We also consider the cumulative effect of the 
threats in light of those actions and conditions that will have 
positive effects on the species--such as any existing regulatory 
mechanisms or conservation efforts. The Secretary determines whether 
the species meets the definition of an ``endangered species'' or a 
``threatened species'' only after conducting this cumulative analysis 
and describing the expected effect on the species now and in the 
foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as we 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.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological status review of the best scientific and commercial data 
regarding the status of the species, including an assessment of the 
potential threats to the species. The SSA report does not represent a 
decision by the Service on whether Furbish's lousewort should be 
reclassified under the Act. It does, however, provide the scientific 
basis that informs our regulatory decisions, which involve the further 
application of standards within the Act and its implementing 
regulations and policies.
    To assess Furbish's lousewort viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency supports the ability of the species to withstand 
environmental and demographic stochastic events (for example, wet or 
dry, warm or cold years), redundancy supports the ability of the 
species to withstand catastrophic events (for example, droughts, large 
pollution events), and representation supports the ability of the 
species to adapt over time to long-term changes in the environment (for 
example, climate changes). In general, the more resilient and redundant 
a species is and the more representation it has, the more likely it is 
to sustain populations over time, even under changing environmental 
conditions. Using these principles, we identified the species' 
ecological requirements for survival and reproduction at the 
individual, population, and species levels, and described the 
beneficial and risk factors influencing the species' viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time. We use this information to inform our regulatory 
decision.

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the 
species and its resources, and the threats that influence the species' 
current and future condition, in order to assess the species' overall 
viability and the risks to that viability. In addition, the SSA 
(Service 2020, entire) and 5-year review (Service 2019a, entire) 
document our comprehensive biological status review

[[Page 30050]]

for the species, including an assessment of the potential threats to 
the species.
    To assess the resiliency of Furbish's lousewort, we reviewed the 
abundance of flowering and nonflowering individuals and colonization of 
populations through seed dispersal mechanisms; the dependency of 
populations on periodic ice scour and flooding; and the effects of 
climate change, and development. To assess the redundancy of Furbish's 
lousewort, we evaluated how the distribution and biological status of 
subpopulations contribute to the species' ability to withstand 
catastrophic events. Specifically, we examined how climate change and 
current and future development are likely to affect the number, sizes, 
and distribution of populations (Service 2020, pp. 38-39; 42-48; 52-
59). To assess representation, we evaluated the environmental diversity 
within and among subpopulations.

Summary of Current Condition

    Furbish's lousewort functions as a metapopulation. Unlike a 
continuous population, a metapopulation has spatially discrete local 
subpopulations, in which migration between subpopulations is 
significantly restricted. In the SSA report, we define subpopulations 
as separated by a mile or more of unsuitable habitat based primarily on 
the limitations of the species' pollinator, the half-black bumblebee. 
Bombus species typically exhibit foraging distances of less than 1 
kilometer (0.62 miles) from their nesting sites (Knight et al. 2005, p. 
1816; Wolf and Moritz 2008, p. 422). Based on this criterion, we 
identify 15 subpopulations of Furbish's lousewort in Maine and 5 in New 
Brunswick, Canada, that form the basis for our analysis of the current 
condition of the species. For our analysis, we first qualitatively 
assessed the subpopulations as ``good,'' ``fair,'' or ``poor,'' 
including the subpopulation's attributes: abundance, density, and 
current status as compared to the site history. We designated sites 
where Furbish's lousewort is currently thought to be absent (locally 
extirpated) as ``very poor.''
    Next, we evaluated each subpopulation according to three habitat 
criteria: the amount of potential habitat, the condition of the 
forested riparian buffer, and the prevalence of shoreline erosion. We 
selected these habitat criteria to describe habitat quality because of 
their influence on the species' resource needs (Service 2020, p. 11, 
table 2). We assigned a score of 3 (good), 2 (fair), 1 (poor), or 0 
(very poor) to each subpopulation and habitat criterion (Service 2020, 
pp. 31-32). The rankings presented in the SSA for the 15 subpopulations 
in Maine are 2 good, 2 fair to good, 3 fair, and 8 poor. Since the SSA 
was published, the Maine Natural Areas Program (MNAP) updated these 
rankings for the same subpopulations to 3 good, 3 fair to good, 1 fair, 
1 poor to fair, and 7 poor (MNAP 2021, pp. 14-15). On average, the 
upriver subpopulations rank higher than the downriver subpopulations 
because of the high-quality habitat and low pressures from development. 
Six of the 15 subpopulations in Maine are currently extirpated (all 
downriver subpopulations). In New Brunswick, all five subpopulations 
rank as poor (Service 2020, pp. 33-36), and there are some differences 
between habitat conditions upriver and downriver. Upriver habitat is 
more extensive and occurs in a managed industrial forest. Downriver 
habitats (including New Brunswick) are smaller and more fragmented.

Risk Factors

    Based on the life-history and habitat needs of Furbish's lousewort, 
and in consultation with species' experts, as well as experts in 
botany, ice scour and flooding of the St. John River, and landscape 
ecology, we identify the potential stressors (negative influences), the 
contributing sources of those stressors, and how conservation measures 
to address those stressors are likely to affect the species' current 
condition and viability (Service 2020, pp. 21-31). We evaluate how 
these stressors may be currently affecting the species and whether, and 
to what extent, they would affect the species in the future (Service 
2020, pp. 40-57). The stressors most likely to affect the viability of 
Furbish's lousewort are: (1) Development resulting in habitat loss, 
erosion, and fragmentation; and (2) climate change that causes the 
current trends of warmer winters that affect the ice dynamics, 
flooding, and overall disturbance regime of the St. John River.
    Historical land use patterns influence Furbish's lousewort habitat 
today; the land use upriver of the town of Allagash is undeveloped, 
while the downriver landscapes in Maine and farther downriver in New 
Brunswick are dominated by agriculture and small villages. Changes in 
land use on the banks of the St. John River in downriver areas have 
occurred through the clearing of vegetation, especially trees, for 
agriculture, individual house lots, and roads. These land use changes 
within the St. John River valley may have negatively affected habitat 
of some Furbish's lousewort subpopulations through removal or reduction 
of forested riparian buffers and subsequent loss of shade critical to 
the species' growth and reproduction. Areas cleared of forest, and 
impermeable surfaces associated with development, have led to the 
erosion and subsidence of the unconsolidated glacial till soils, and 
caused slumping and erosion of Furbish's lousewort habitat. Modest 
predicted trends of future development for the St. John River Valley 
are described in the SSA Report (Service 2020, p. 47). Future 
development will likely occur in the center of larger towns and expand 
into some areas currently in agricultural land use; this activity could 
cause slumping and erosion in Furbish's lousewort habitat.
    Furbish's lousewort is identified as one of Maine's plant species 
most vulnerable to climate change (Jacobson et al. 2009, p. 33). The 
species depends on periodic disturbance of the riverbank from ice scour 
that is not too frequent or too infrequent and not too severe. Climate 
change is expected to affect the ice regime of northern rivers, 
including the St. John, by increasing the frequency and severity of ice 
scour and flood events (Service 2020, p. 23). River ice models for the 
St. John River demonstrate that key variables influencing the frequency 
and severity of ice scour, jamming, and flooding are caused by 
midwinter temperatures above freezing, midwinter precipitation in the 
form of rain, and increasing river flows (Beltaos and Prowse 2009, pp. 
134-137). Beltaos (2002, entire) developed a hydroclimatic analysis for 
the upper St. John River using long-term climate and flow records. He 
documented that a small rise in winter air temperatures over the past 
80 years has resulted in a substantial increase in the number of mild 
winter days and the amount of winter rainfall, which were previously 
rare occurrences in this region. These two factors augment river flows, 
causing increased breakup of ice cover, increased peak flows in late 
winter, and a higher frequency of spring ice jams and flooding (Service 
2020, p. 24). Increasing summer temperatures may also affect Furbish's 
lousewort. The climate envelope of the species has not been described, 
but its closest genetic relatives are all arctic plants that require 
cool, moist environments. We are uncertain about the maximum summer 
temperatures and moisture deficits that Furbish's lousewort can 
withstand (Service 2020, p. 27).
    Several conservation actions are in place and may reduce some of 
the stressors to Furbish's lousewort or provide habitat protection (see

[[Page 30051]]

Conservation Efforts for Furbish's lousewort, for more information).

Summary of Future Conditions Analysis

    We assess two timeframes for characterizing the condition of 
Furbish's lousewort in the future. We selected the years 2030 and 2060 
as a period for which we can reasonably project effects of the 
stressors and plausible conservation efforts. Climate change 
information for these timeframes is based on the available information 
contained in climate predicting models provided through the U.S. 
Geological Survey (USGS) Climate Change Viewer, Summary of the Upper 
St. John River Watershed, Aroostook County, Maine (USGS 2017a, b, 
entire). The timeframes of 2030 and 2060 capture approximately one to 
two, and four to five, generations of Furbish's lousewort, 
respectively. Development information for this timeframe is available 
in municipal comprehensive plans (Town of Fort Kent 2012, entire) and 
The University of Maine Sustainability Solutions Initiative (Service 
2020, p. 41).
    For each of the two timeframes, 2030 and 2060, we developed three 
future scenarios: continuation, best case, and a worst case. We provide 
a range of reasonable, plausible effects for development and climate 
change. For climate change scenarios, we use data from representative 
concentration pathways (RCPs) of greenhouse gas (GHG) concentration 
trajectories adopted by the International Panel on Climate Change 
(IPCC). The three RCPs selected, RCP 2.6, RCP 4.5, and RCP 8.5, reflect 
a wide range of possible changes in future anthropogenic GHG emissions. 
RCP 2.6 is a scenario that assumes that global GHG emissions have 
peaked and will decline after 2020. The continuation scenario assumes 
moderate increases in GHG emissions (RCP 4.5), moderate increases in 
development downriver, and conservation measures continuing or being 
reduced slightly. The best-case scenario assumes low GHG emissions (RCP 
2.6), conservation measures remaining in place, and no further 
development downriver. The worst-case scenario assumes high GHG 
emissions and moderate increases of GHG emissions into the future (RCP 
8.5), modest levels of development, and reduced conservation measures 
(Service 2020, p. 48).
    All future predictions are uncertain; therefore, we qualified them 
using relative terms of likelihood that had been adopted as terminology 
specified by the IPCC (2014). Based on the future analysis, we predict 
that by 2030 there is a higher likelihood that, in all three scenarios, 
the metapopulation of the Furbish's lousewort will continue to decline 
due to local extirpations of downriver subpopulations. By 2060, we 
predict that it is likely that the overall viability of the 
metapopulation will be greatly reduced from current conditions and a 
few subpopulations will persist upriver in Maine. We predict that there 
is a high likelihood that in both the continuation and worst-case 
scenarios the metapopulation will no longer be viable; it will be 
extirpated throughout most of its range; and the few plants that remain 
would be concentrated at upriver sites.
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have not 
only analyzed individual effects on the species, but we have also 
analyzed their potential cumulative effects. We incorporate the 
cumulative effects into our SSA analysis when we characterize the 
current and future condition of the species. Our assessment of the 
current and future conditions encompasses and incorporates the threats 
individually and cumulatively. Our current and future condition 
assessment is iterative because it accumulates and evaluates the 
effects of all the factors that may be influencing the species, 
including threats and conservation efforts. Because the SSA framework 
considers not just the presence of the factors, but to what degree they 
collectively influence risk to the entire species, our assessment 
integrates the cumulative effects of the factors and replaces a 
standalone cumulative effects analysis.
    The SSA report contains a more detailed discussion on our 
evaluation of the biological status of the species and the influences 
that may affect its continued existence. Our conclusions are based upon 
the best available scientific and commercial data, including the 
judgments of the species' experts and peer reviewers. See the SSA 
report for a complete list of the species' experts and peer reviewers 
and their affiliations.

Existing Regulatory Mechanisms

    Section 4(b)(1)(A) of the Act requires that the Service take into 
account ``those efforts, if any, being made by any State or foreign 
nation, or any political subdivision of a State or foreign nation, to 
protect such species.'' In relation to Factor D under the Act, we 
interpret this language to require the Service to consider relevant 
Federal, State, and Tribal laws, regulations, and other such binding 
legal mechanisms that may ameliorate or exacerbate any of the threats 
we describe in threat analyses under the other four factors or 
otherwise enhance the species' conservation. We give the strongest 
weight to statutes and their implementing regulations and to management 
direction that stems from those laws and regulations.
    Municipal shoreline zoning in Maine now provides partial protection 
of Furbish's lousewort habitat (Service 2020, appendix 1). As 
established by State law in 2013, the shoreline zone extends to 250 
feet from the high-water line all along the St. John River. Zoning 
prohibits clear-cutting within 50 feet of the river; openings located 
greater than 50 feet from the river (or 75 feet from the river for a 
few subpopulations in organized towns) are restricted to a maximum of 
0.3 acres, and no more than 40 percent of the forest in the 250-foot 
zone can be harvested in a 10-year period (Maine Department of 
Environmental Protection Mandatory Shoreland Zoning, title 38, chapter 
3, sections 435-449). Organized towns have the option to designate 
lousewort habitats as resource protection subdistricts, which would 
provide more stringent measures. Currently, no towns have designated 
any resource protection subdistricts for the lousewort (Service 2020, 
p. 28).
    The New Brunswick Clean Water Act provides shoreline protections 
that convey a benefit to the Furbish's lousewort in Canada. The New 
Brunswick Department of Environmental and Local Government acts as the 
regulatory entity responsible for issuing all watercourse alteration 
permits. Guidelines for implementing the regulations specify that no 
heavy equipment may be operated within 15 meters of the bank of a 
watercourse, no ground disturbance may occur within 30 meters of a 
watercourse, and only 30 percent of the total merchantable trees may be 
removed from a 30-meter buffer zone every 10 years. All activities 
taking place within 30 meters of a watercourse that is either one 
hectare or larger in area or that involve the removal, deposit, or 
disturbance of the water, soil, or vegetation require a permit (Service 
2020, p. 29).
    Several parcels that support Furbish's lousewort have permanent 
protection. Since 2001, the New England Forestry Foundation has had a 
754,673-acre conservation easement on lands along the St. John River 
where Furbish's lousewort occurs. The easement protects approximately 
6.2 percent of the total population in Maine and restricts development 
rights in perpetuity. In 2019, The Maine Chapter of The Nature 
Conservancy purchased several areas of the St. John River corridor. The 
Maine Bureau of Parks and Lands (Bureau) owns a large unit in the town 
of

[[Page 30052]]

Allagash that provides several hundred feet of Furbish's lousewort 
habitat, approximately 2 percent of the population in Maine. The 
Bureau's integrated resource policy requires that the Bureau promote 
the conservation of federally listed species. One of the five 
subpopulations in New Brunswick is permanently protected (Service 2020, 
pp. 29-30).
    The Furbish's lousewort was listed on Canada's Schedule 1 of the 
Species at Risk Act (SARA) in June 2003 and was initially designated as 
endangered by the Committee on the Status for Endangered Wildlife in 
Canada (COSEWIC) in 1980. With this proclamation, protection and 
recovery measures were developed and implemented.
    The Furbish's lousewort is protected by New Brunswick's Endangered 
Species Act. Under this Act, it is prohibited to kill, harm, or collect 
this species or disturb its habitat on Federal lands (Service New 
Brunswick 1996, entire).
    As discussed, Furbish's lousewort and its habitat receives some 
protection from regulatory mechanisms in both the United States and 
Canada. In the United States, the State of Maine and municipal 
regulations provide partial protection for shorefronts, which includes 
protections of riparian habitats where the lousewort could be located. 
These State and municipal regulations are enforced through local and 
State ordinances. They were not designed to protect Furbish's lousewort 
from direct take, and as such, the species is not regulated from direct 
take on private lands in Maine. In Canada, where populations are at 
historic lows, New Brunswick regulates heavy equipment use and buffer 
zones and prohibits take of Furbish's lousewort through the New 
Brunswick Endangered Species Act. Furbish's lousewort is further 
regulated as a Schedule 1 species at risk under SARA. Collectively 
these regulations provide protections in Canada for the Furbish's 
lousewort and its habitat.

Conservation Efforts for Furbish's Lousewort

    Since Furbish's lousewort was listed in 1978, various conservation 
and recovery actions have improved the status of the species. For 
example:
     In 1986, Congress deauthorized the construction of the 
Dickey-Lincoln hydropower project (Pub. L. 99-662), which was the 
primary threat to the species at the time of listing (Service 2020, p. 
27).
     St. John River Resource Protection Plan (Plan): Industrial 
forest landowners voluntarily signed the Plan beginning in 1982, with 
revisions in 1992, 2002, 2012, and 2022 (Land Use Planning Commission 
2022, entire). The intent of the Plan is to protect the natural values 
and traditional recreational uses of the river. The primary value of 
the Plan to the conservation of Furbish's lousewort is that it does not 
allow commercial and residential development, subdivisions, water 
impoundments, and utility projects on land along the St. John River 
owned by signatory landowners.
     Since 2009, the Service's Partners for Fish and Wildlife 
Program has partnered with a small business owner in Aroostook County, 
Maine, to restore riparian forests that are potential habitat for 
Furbish's lousewort. Through this partnership, they have collaborated 
with 37 landowners encompassing 40 parcels. To date, $110,000 has been 
invested, and trees were planted along 4.6 miles of river, creating 
55.2 acres of forested riparian habitat (Service 2020, pp. 30-31).
     At the end of the 2021 growing season, seeds (as flowering 
scapes) were collected by MNAP and the Service from plants at three 
sites to send to researchers in New Brunswick, Canada. These 
researchers hope to propagate the species in anticipation of possible 
reintroductions. A total of 36 flowering scapes were collected, each 
with anywhere from one dozen to several dozen flowering capsules (MNAP 
2021, p. 17).
     The Furbish's lousewort occurs only on private lands in 
Canada. Therefore, private landowner stewardship is vitally important. 
Several nonprofit organizations collaborated to create the George 
Stirret Nature Preserve, a protected area around one population of 
lousewort. The Nature Trust of New Brunswick contacted private 
landowners surrounding the remaining areas where Furbish's lousewort 
grows and developed 15 voluntary private landowner stewardship 
agreements to encourage and support stewardship practices (Dowding 
2020).
    These recovery actions and other supporting data that we analyzed 
indicate that some of the threats identified at the time of listing 
have been ameliorated or reduced in areas occupied by Furbish's 
lousewort, and that the species' status has improved, primarily due to 
the congressional deauthorization of the Dickey-Lincoln hydropower 
project. However, more recent threats associated with climate change 
may impede the plant's ability to recover.

Recovery Criteria

    Section 4(f) of the Act directs us to develop and implement 
recovery plans for the conservation and survival of endangered and 
threatened species unless we determine that such a plan will not 
promote the conservation of the species. Recovery plans must, to the 
maximum extent practicable, include ``objective, measurable criteria 
which, when met, would result in a determination, in accordance with 
the provisions [of section 4 of the Act], that the species be removed 
from the list.''
    Recovery plans provide a roadmap for us and our partners on methods 
of enhancing conservation and minimizing threats to listed species, as 
well as measurable criteria against which to evaluate progress towards 
recovery and assess the species' likely future condition. However, they 
are not regulatory documents and do not substitute for the 
determinations and promulgation of regulations required under section 
4(a)(1) of the Act. A decision to revise the status of a species or to 
delist a species is ultimately based on an analysis of the best 
scientific and commercial data available to determine whether a species 
is no longer an endangered species or a threatened species, regardless 
of whether that information differs from the recovery plan.
    There are many paths to accomplishing recovery of a species, and 
recovery may be achieved without all of the criteria in a recovery plan 
being fully met. For example, one or more criteria may be exceeded 
while other criteria may not yet be accomplished. In that instance, we 
may determine that the threats are minimized sufficiently and that the 
species is robust enough that it no longer meets the definition of an 
endangered species or a threatened species. In other cases, we may 
discover new recovery opportunities after having finalized the recovery 
plan. Parties seeking to conserve the species may use these 
opportunities instead of methods identified in the recovery plan. 
Likewise, we may learn new information about the species after we 
finalize the recovery plan. The new information may change the extent 
to which existing criteria are appropriate for identifying recovery of 
the species. The recovery of a species is a dynamic process requiring 
adaptive management that may, or may not, follow all of the guidance 
provided in a recovery plan.
    On June 29, 1983, the Service completed the first recovery plan for 
Furbish's lousewort (Service 1983). Following completion of this 
recovery

[[Page 30053]]

plan, recovery activities enhanced our understanding about the life-
history of the plant and about the populations. This information and 
the removal of the primary threat to the species at the time of listing 
(the proposed Dickey-Lincoln hydropower project) led to a revised 
recovery plan for Furbish's lousewort, which was made final on July 2, 
1991 (Service 1991). The revised 1991 recovery plan includes criteria 
for downlisting Furbish's lousewort from endangered to threatened, but 
it does not provide delisting criteria due to lack of information 
regarding the species' long-term population dynamics and viability. The 
2019 5-year review (Service 2019a, pp. 2-3) states that, given the 
revised recovery plan is more than 25 years old, the downlisting 
criteria are no longer considered adequate; recent population data are 
not incorporated into the recovery criteria, and the plan lacks recent 
published and unpublished scientific information on Furbish's lousewort 
and its habitat. In the 2019 5-year review, we concluded that a change 
in the species' listing status to threatened is warranted because the 
Dickey-Lincoln hydropower project is no longer a threat, the species' 
population rebounded from several severe ice-scour events, the 
population is widely distributed, and a single catastrophic event is 
unlikely to extirpate the species.
    In September 2019, the Service completed the Recovery Plan for the 
Furbish's Lousewort (Pedicularis furbishiae), Second Revision (Service 
2019b), which was developed using the information used to inform the 
SSA report for the species (Service 2020). In light of the 
recommendation to reclassify Furbish's lousewort to a threatened 
species, the revised recovery plan includes criteria that describe the 
conditions indicative of a recovered species (delisting criteria). 
Specifically, the revised recovery plan contains two recovery criteria 
for delisting based on population status over a period of at least 30 
years (three generations). The first criterion states that the 
metapopulation is viable, comprising a 30-year median of 4,400 
flowering stems or greater, and distributed with a 30-year median of 
2,800 flowering stems or greater upriver in at least 6 subpopulations 
with at least 3 good and 3 fair subpopulations, and a 30-year median of 
1,600 flowering stems or greater downriver in at least 9 subpopulations 
with at least 3 good and 6 fair subpopulations. Once the upriver and 
downriver criteria are reached, the median number of flowering stems 
for each respective river section will remain stable or increase over a 
period of at least 30 years without augmentation, reintroduction, or 
hand-pollinating of plants. Additionally, in New Brunswick, there is a 
30-year median of 1,100 plants distributed among at least 5 
subpopulations. The second criterion states there is long-term habitat 
protection for all subpopulations in Maine that provides for the 
species' needs throughout its life cycle (Service 2019b, pp. 8-9).
    Based on the latest census (2018-2019), for criterion 1, the 30-
year median for upriver subpopulations is 1,817 flowering stems and 983 
for downriver subpopulations. In 2018-2019 there were six 
subpopulations, five good and one fair, in the upriver region and three 
subpopulations, one good and two fair, in the downriver region. In 
2018-2019, the Maine population increased by 970 flowering stems (43 
percent). Canadian subpopulations remain at or below historic lows of 
about 150 plants at 5 subpopulations, but few plants are flowering. For 
criterion 2, in 2019, The Maine Chapter of The Nature Conservancy 
purchased several areas of the St. John River corridor in three upriver 
townships. Currently, there is long-term habitat protection in 4 of 15 
subpopulations. A total of 9.26 miles of 22.89 miles of Furbish's 
lousewort habitat is protected, mostly in the upriver region.

Determination of Furbish's Lousewort 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 an endangered species or a 
threatened species. The Act defines an endangered species as a species 
``in danger of extinction throughout all or a significant portion of 
its range,'' and a 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 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.

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the section 4(a)(1) factors, we 
determined that the Furbish's lousewort no longer meets the definition 
of an endangered species. This determination is based on the following: 
the removal of the primary threat at the time of listing, the Dickey-
Lincoln hydropower project; the ability of the species to rebound after 
several severe ice-scouring events; the species continuing to be found 
at sites beyond its known distribution at the time of the original 
listing; and more than 25 percent of the overall population being 
located on protected lands. Additionally, long-term census data 
demonstrate that the Furbish's lousewort is resilient to stochastic 
events such as periodic ice scour and flooding. Redundancy in the 
downriver subpopulations has diminished, though the conditions in the 
upriver subpopulations have remained constant. Thus, after assessing 
the best available information, we conclude that the Furbish's 
lousewort no longer meets the Act's definition of an endangered 
species. Therefore, we proceed with determining whether Furbish's 
lousewort meets the Act's definition of a threatened species.
    The information indicates that, at the species level, development 
(Factor A) that causes habitat loss, erosion, and fragmentation and 
climate change (Factor E) that causes the current trends of warmer 
winters that affect the ice dynamics, flooding, and the overall 
disturbance regime of the St. John River are the most influential 
factors affecting Furbish's lousewort now and into the future. The 
existing State and Canadian regulations (Factor D) are not considered 
adequate to alleviate the identified threats. Furbish's lousewort is 
listed as endangered by the State of Maine; however, the lack of take 
prohibitions for plants under this law limits its ability to protect 
the species from the habitat-based threats that it faces. Canada's SARA 
and New Brunswick's Act have a provision to protect species designated 
as endangered when found on Federal lands; however, the Furbish's 
lousewort does not occur on any Federal lands in Canada.
    In both future timeframes, 2030 and 2060, under our projected 
``continuation'' and ``worst case'' scenarios, we predict the species' 
resiliency, redundancy, and representation to diminish significantly, 
indicating that the species is likely to become in danger of extinction 
within

[[Page 30054]]

the next 40 years. While the downriver subpopulations are predicted to 
experience the most diminishment, even the current upriver stronghold 
is predicted to decline, indicating an increased risk of extinction of 
the entire metapopulation beyond the near term. Furbish's lousewort has 
a particular niche and appears to have very little adaptation 
potential. Hence, changes to the ice-scour regime, due to climate 
change, are highly likely to have significant impacts to the species 
within the foreseeable future. Under both timeframes analyzed, the 
downriver subpopulations are predicted to be in poor condition, thereby 
putting extra importance on the upriver subpopulations to maintain the 
species' viability. After assessing the best available information, we 
conclude that Furbish's lousewort 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, 435 
F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the provision of the 
Final Policy on Interpretation of the Phrase ``Significant Portion of 
Its Range'' in the Endangered Species Act's Definitions of ``Endangered 
Species'' and ``Threatened Species'' (hereafter ``Final Policy''; 79 FR 
37578; July 1, 2014) that provided that if the Services determine that 
a species is threatened throughout all of its range, the Services will 
not analyze whether the species is endangered in a significant portion 
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 Furbish's lousewort, we choose to 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 portions of the range where the species may 
be endangered.
    The statutory difference between an endangered species and a 
threatened species is the time horizon 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 considered 
the time horizon for the threats that are driving the Furbish's 
lousewort to warrant listing as a threatened species throughout all of 
its range. We examined the threats of development and climate change, 
including cumulative effects. As stated in the section Status 
Throughout All of Its Range above, we predict the species is likely to 
become in danger of extinction within the next 40 years. We recognize 
that the downriver subpopulations are small, and habitat is less 
extensive and more fragmented. However, the risk of extinction to the 
population is low and does not currently meet the threshold of 
endangered. We selected 40 years for the foreseeable future as a period 
for which we can reasonably project effects of the stressors and 
potential conservation efforts. The timeframe of 2060 will capture 
approximately four to five generations of the Furbish's lousewort. We 
believe this timeframe will allow projection of changes in the 
condition of the species without increasing uncertainty about the 
nature and intensity of stressors beyond a reasonable level.
    The best scientific and commercial data available indicate that the 
time horizon on which the threats of development and climate change to 
Furbish's lousewort and the responses to those threats are likely to 
occur is the foreseeable future. In addition, the best scientific and 
commercial data available do not indicate that any threats of 
development and climate change to Furbish's lousewort and the response 
to those threats are more immediate in any portions of the species' 
range. There is evidence showing that, although downriver populations 
are smaller and more fragmented, these populations have the ability to 
rebound from declines stemming from catastrophic ice-scour events 
(Service 2020, p. 4). Therefore, we determine that the Furbish's 
lousewort is not in danger of extinction now in any portion of its 
range, but that the species is likely to become in danger of extinction 
within the foreseeable future throughout all of its range. This finding 
does not conflict with the courts' holdings in Desert Survivors v. U.S. 
Department of the Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal. 
2018) and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d 
946, 959 (D. Ariz. 2017) because, in reaching this conclusion, we did 
not need to consider whether any portions are significant and, 
therefore, did not apply the aspects of the final policy's definition 
of ``significant'' that those court decisions held were invalid.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that Furbish's lousewort meets the definition of 
a threatened species. Therefore, we finalize downlisting Furbish's 
lousewort as a threatened species in accordance with sections 3(20) and 
4(a)(1) of the Act.

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

Background

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as she deems 
necessary and advisable to provide for the conservation'' of species 
listed as threatened. The U.S. Supreme Court has noted that statutory 
language like ``necessary and advisable'' 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, the second sentence 
of 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, the combination of the two 
sentences of section 4(d) provides the Secretary with wide latitude of 
discretion to select and promulgate appropriate regulations tailored to 
the specific conservation needs of the threatened species. The second 
sentence 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

[[Page 30055]]

standard to develop rules that are appropriate for the conservation of 
a species. For example, courts have upheld rules developed under 
section 4(d) as a valid exercise of agency authority where they 
prohibited take of 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 upheld 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 [her] 
with regard to the permitted activities for those species. [She] may, 
for example, permit taking, but not importation of such species, or 
[she] may choose to forbid both taking and importation but allow the 
transportation of such species'' (H.R. Rep. No. 412, 93rd Cong., 1st 
Sess. 1973).
    Exercising this authority under section 4(d), the Service has 
developed a species-specific 4(d) rule that is designed to address the 
threats and conservation needs of Furbish's lousewort. Although the 
statute does not require the Service to make a ``necessary and 
advisable'' finding with respect to the adoption of specific 
prohibitions under section 9, we find that this rule as a whole 
satisfies the requirement in section 4(d) of the Act to issue 
regulations deemed necessary and advisable to provide for the 
conservation of Furbish's lousewort. As discussed above in the 
Determination of Furbish's Lousewort Status section, the Service has 
concluded that Furbish's lousewort is likely to become in danger of 
extinction within the foreseeable future primarily due to climate 
change and development. The provisions of this 4(d) rule promote 
conservation of Furbish's lousewort by deterring certain activities 
that could negatively impact the species in knowing violation of any 
law or regulation of the State of Maine, including any State trespass 
laws. The provisions of this 4(d) rule are among the many tools that 
the Service uses to promote the conservation of Furbish's lousewort.

Provisions of the 4(d) Rule

    The 4(d) rule provides for the conservation of Furbish's lousewort 
by prohibiting the following activities, except as otherwise 
authorized: Removal and reduction to possession from areas under 
Federal jurisdiction; malicious damage or destruction on any such area; 
or removal, cutting, digging up, or damage or destruction 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.
    While removal and reduction to possession from areas under Federal 
jurisdiction is not identified as an existing threat to Furbish's 
lousewort, prohibiting this activity would maintain a deterrent that 
may become necessary in the future to support recovery of the species 
(e.g., should a Federal agency seek to conserve a population through 
land or easement acquisition). As discussed above under Summary of 
Biological Status and Threats, climate change and development are 
affecting the status of Furbish's lousewort. Indirect effects 
associated with development, including loss of shade critical to growth 
and reproduction due to reduction of the forested riparian buffer, and 
erosion of habitat due to clearing of forested areas and runoff from 
creation of impermeable surfaces, have the potential to impact 
Furbish's lousewort. Prohibiting certain activities, when in knowing 
violation of State law or regulation, would complement State efforts to 
conserve the species. Providing these protections would help preserve 
the species' remaining subpopulations; slow its rate of decline; and 
decrease synergistic, negative effects from other stressors.
    We may issue permits to carry out otherwise prohibited activities, 
including those described above, involving threatened plants under 
certain circumstances. Regulations governing permits for threatened 
plants are codified at 50 CFR 17.72, which states that the Director may 
issue a permit authorizing any activity otherwise prohibited with 
regard to threatened species. That regulation also states that the 
permit shall be governed by the provisions of Sec.  17.72 unless a 
special rule applicable to the plant is provided in Sec. Sec.  17.73 
through 17.78. We interpret that second sentence to mean that permits 
for threatened species are governed by the provisions of Sec.  17.72 
unless a species-specific rule provides otherwise. We recently 
promulgated revisions to Sec.  17.71 providing that Sec.  17.71 will no 
longer apply to plants listed as threatened in the future. We did not 
intend for those revisions to limit or alter the applicability of the 
permitting provisions in Sec.  17.72, or to require that every special 
rule spell out any permitting provisions that apply to that species and 
special rule. To the contrary, we anticipate that permitting provisions 
would generally be similar or identical for most species, so applying 
the provisions of Sec.  17.72 unless a species-specific rule provides 
otherwise would likely avoid substantial duplication. Moreover, this 
interpretation brings Sec.  17.72 in line with the comparable provision 
for wildlife at 50 CFR 17.32, in which the second sentence states that 
such permit shall be governed by the provisions of that section unless 
a special rule applicable to the wildlife, appearing in Sec. Sec.  
17.40 through 17.48, provides otherwise. Under 50 CFR 17.72 with regard 
to threatened plants, a permit may be issued for the following 
purposes: for scientific purposes, to enhance propagation or survival, 
for economic hardship, for botanical or horticultural exhibition, for 
educational purposes, or for other purposes consistent with the 
purposes and policy of the Act. Additional statutory exemptions from 
the prohibitions are found in sections 9 and 10 of the Act.
    The Service recognizes the special and unique relationship with our 
State natural resource agency partners in contributing to conservation 
of listed species. State agencies often possess scientific data and 
valuable expertise on the status and distribution of endangered, 
threatened, and candidate species of wildlife and plants. State 
agencies, because of their authorities and close working relationships 
with local governments and landowners, are in a unique position to 
assist the Service in implementing all aspects of the Act. In this 
regard, section 6 of the Act provides that the Service shall cooperate 
to the maximum extent practicable with the States in carrying out 
programs authorized by the Act. Therefore, in accordance with 50 CFR 
17.71(b), any person who is a 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 and who is 
designated by his or her agency for such purposes would be able to 
conduct activities designed to conserve Furbish's lousewort that may 
result in otherwise prohibited activities without additional 
authorization.
    Nothing in the 4(d) rule changes in any way the recovery planning 
provisions of section 4(f) of the Act, the consultation requirements 
under section 7 of the Act, or the ability of the Service to enter into 
partnerships for the management and protection of Furbish's lousewort. 
However, interagency cooperation may be further streamlined through 
planned programmatic

[[Page 30056]]

consultations for the species between Federal agencies and the Service.

III. Summary of Comments and Recommendations

Peer Reviewer Comments

    In accordance with our July 1, 1994, peer review policy (59 FR 
34270; July 1, 1994), our August 22, 2016, Director's Memo on the Peer 
Review Process, and the Office of Management and Budget's December 16, 
2004, Final Information Quality Bulletin for Peer Review (revised June 
2012), we solicited independent scientific reviews of the information 
contained in the Furbish's lousewort SSA report. We solicited 
independent peer review of the SSA report by four individuals with 
expertise in Furbish's lousewort, botany, ice scour and flooding 
regimes of the St. John River, and landscape ecology; we received 
comments from three of the four peer reviewers. In addition, we 
received comments from the State of Maine and Canada.
    We reviewed all comments we received from the peer reviewers for 
substantive issues and new information regarding Furbish's lousewort. 
The peer reviewers generally concurred with our methods and 
conclusions, and provided additional information, clarifications, and 
suggestions to improve the SSA report and final rule. Peer reviewer 
comments are incorporated into the SSA report and this final rule as 
appropriate; no significant, substantive issues were identified with 
our analysis and SSA report.

Public Comments

    In our proposed rule published on January 15, 2021 (86 FR 3976), we 
requested that all interested parties submit written comments on the 
proposal by March 16, 2021. We contacted appropriate Federal and State 
agencies, scientific experts and organizations, and other interested 
parties and invited them to comment on the proposal. We received one 
request for a public hearing that was later withdrawn.
    During the comment period, we received 10 comments addressing the 
proposed action. These included comments from one nongovernmental 
organization and nine individuals. All comments are posted at https://www.regulations.gov under Docket No. FWS-R5-ES-2019-0056. We reviewed 
these comments for substantive issues and new information regarding the 
proposed rule. A summary of the substantive issues raised in the 
comments follows:
    (1) Comment: Several commenters questioned whether the Service 
should be downlisting a plant species that is pollinated by a single 
species of bumble bee (the half-black bumble bee [Bombus vagans]), when 
pollinating bumble bees in general are in decline.
    Our Response: While the Service acknowledges the potential overall 
decline of pollinating bumble bees, we determined that the half-black 
bumble bee is currently widely distributed throughout the Maine range 
of Furbish's lousewort and decline of the half-black bumble bee was not 
determined to be a threat to Furbish's lousewort (Service 2020, p. 28).
    (2) Comment: One commenter questioned whether we should downlist 
Furbish's lousewort given that it would lose the protections of the 
Endangered Species Act (ESA).
    Our Response: The Service is responsible for determining not only 
whether a species warrants listing under the ESA, but also if 
warranted, which status is the most appropriate. Species with 
endangered status and those with threatened status are both considered 
to be federally protected. The statutory difference between an 
endangered species and a threatened species is the time horizon 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 considered the time horizon for the 
threats that are driving the Furbish's lousewort to warrant listing and 
determined that it does not currently meet the threshold of endangered. 
In addition, with the added provisions of the 4(d) rule outlined above, 
the species receives much of the same protection it received as an 
endangered species.
    (3) Comment: Several commenters questioned whether Furbish's 
lousewort should be downlisted with the ongoing threats from climate 
change, highlighting that this species is particularly vulnerable to 
negative impacts from climate change.
    Our Response: As is the case for Comment 2 (above), the Service is 
responsible for determining the immediacy and magnitude of threats 
impacting Furbish's lousewort, including the threats from climate 
change, and then assigning the appropriate listing status, if 
warranted. The best scientific and commercial data available indicate 
that the time horizon on which the threats from climate change to 
Furbish's lousewort and the responses to those threats are likely to 
occur is the foreseeable future. Therefore, this species meets the 
Service's definition of a threatened species.

IV. Required Determinations

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

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be 
prepared in connection with determining and implementing a species' 
listing status 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 
Secretary's 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. There are two federally recognized 
Tribes in northern Maine; however, no subpopulations of Furbish's 
lousewort occur on Tribal lands.

References Cited

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

Authors

    The primary authors of this final rule are staff members of the 
U.S. Fish and Wildlife Service Northeast Regional Office and Maine 
Ecological Services Field Office.

[[Page 30057]]

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, we hereby 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, in paragraph (h), amend the List of Endangered and 
Threatened Plants by revising the entry for ``Pedicularis furbishiae'' 
under FLOWERING PLANTS to read as follows:


Sec.  17.12   Endangered and threatened plants.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
         Scientific name              Common name          Where listed        Status        applicable rules
----------------------------------------------------------------------------------------------------------------
                                                Flowering Plants
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Pedicularis furbishiae..........  Furbish's lousewort  Wherever found.....  T            43 FR 17910, 4/26/1978;
                                                                                          88 FR [INSERT FEDERAL
                                                                                          REGISTER PAGE WHERE
                                                                                          THE DOCUMENT BEGINS],
                                                                                          5/10/2023; 50 CFR
                                                                                          17.73(d).\4d\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.73 by adding paragraph (d) to read as follows:


Sec.  17.73   Special rules--flowering plants.

* * * * *
    (d) Pedicularis furbishiae (Furbish's lousewort)--(1) Prohibitions. 
Except as provided under paragraph (d)(2) of this section, you may not 
remove and reduce to possession the species from areas under Federal 
jurisdiction; maliciously damage or destroy the species on any such 
area; or remove, cut, dig up, or damage or destroy 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.
    (2) Exceptions from prohibitions. The following exceptions from the 
prohibitions apply to this species:
    (i) You may conduct activities authorized by permit under Sec.  
17.72.
    (ii) Qualified employees or agents of the Service or a State 
conservation agency may conduct activities authorized under Sec.  
17.71(b).
* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-09847 Filed 5-9-23; 8:45 am]
BILLING CODE 4333-15-P