Endangered and Threatened Wildlife and Plants; Reclassification of the Red-Cockaded Woodpecker From Endangered to Threatened With a Section 4(d) Rule, 85294-85338 [2024-23786]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 89, Number 207 (Friday, October 25, 2024)]
[Rules and Regulations]
[Pages 85294-85338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-23786]



[[Page 85293]]

Vol. 89

Friday,

No. 207

October 25, 2024

Part II





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Reclassification of the 
Red-Cockaded Woodpecker From Endangered to Threatened With a Section 
4(d) Rule; Final Rule

Federal Register / Vol. 89 , No. 207 / Friday, October 25, 2024 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2019-0018; FXES1113090FEDR-223-FF09E22000]
RIN 1018-BE09


Endangered and Threatened Wildlife and Plants; Reclassification 
of the Red-Cockaded Woodpecker From Endangered to Threatened 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 or USFWS), are 
reclassifying the red-cockaded woodpecker (Dryobates (= Picoides) 
borealis) from endangered to threatened (i.e., downlisting it) under 
the Endangered Species Act of 1973, as amended (Act). This action is 
based on our evaluation of the best available scientific and commercial 
information, which indicates that the species' status has improved such 
that it is not currently in danger of extinction throughout all or a 
significant portion of its range, but that it is still likely to become 
so in the foreseeable future. We also finalize protective regulations 
under the authority of section 4(d) of the Act that are necessary and 
advisable to provide for the conservation of the red-cockaded 
woodpecker. In addition, we correct the List of Endangered and 
Threatened Wildlife to reflect that Picoides is not the current 
scientifically accepted generic name for this species.

DATES: This rule is effective November 25, 2024.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov. Comments and materials we received are available 
for public inspection at https://www.regulations.gov at Docket No. FWS-
R4-ES-2019-0018.
    Availability of supporting materials: Supporting materials we used 
in preparing this rule, such as the 5-year review, the recovery plan, 
and the species status assessment report, are available on the 
Service's website at https://fws.gov/species/red-cockaded-woodpecker-dryobates-borealis, at https://www.regulations.gov at Docket No. FWS-
R4-ES-2019-0018, or both.

FOR FURTHER INFORMATION CONTACT: Nicole Rankin, Manager Division of 
Conservation and Classification, U.S. Fish and Wildlife Service, 
Southeast Regional Office, 1875 Century Boulevard, Atlanta, GA 30345; 
telephone 404-679-7089. 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: 

Executive Summary

    Why we need to publish a rule. Under the Act, a species warrants 
reclassification from endangered to threatened if it no longer meets 
the definition of an endangered species (in danger of extinction 
throughout all or a significant portion of its range). The red-cockaded 
woodpecker is listed as endangered, and we are reclassifying 
(downlisting) it as threatened. We have determined the red-cockaded 
woodpecker does not meet the Act's definition of an endangered species, 
but it does meet the definition of a threatened species (likely to 
become an endangered species throughout all or a significant portion of 
its range within the foreseeable future). Reclassifying a species as a 
threatened species can be completed only by issuing a rule through the 
Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq.). 
Finally, we are changing the scientific name of the red-cockaded 
woodpecker on the List of Endangered and Threatened Wildlife from 
Picoides borealis to Dryobates borealis, and such revisions to the Code 
of Federal Regulations can be accomplished only by issuing a rule.
    What this document does. This final rule reclassifies the red-
cockaded woodpecker from endangered to threatened (i.e., ``downlists'' 
the species) on the List of Endangered and Threatened Wildlife and 
issues protective regulations under the authority of section 4(d) of 
the Act that are necessary and advisable to provide for the 
conservation of this species.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered species or a threatened species because of 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 may reclassify a species if the 
best available commercial and scientific data indicate the species no 
longer meets the applicable definition in the Act. Based on the status 
review, the current threats analysis, and evaluation of conservation 
measures discussed in this final rule, we conclude that the red-
cockaded woodpecker no longer meets the Act's definition of an 
endangered species and should be reclassified to a threatened species. 
The species is no longer in danger of extinction throughout all or a 
significant portion of its range but is likely to become so within the 
foreseeable future.
    We have determined that red-cockaded woodpecker is a threatened 
species due to the following threats:
     Lack of suitable roosting, nesting, and foraging habitat 
due to legacy effects from historical logging, incompatible forest 
management, and conversion of forests to urban and agricultural uses 
(Factor A).
     Fragmentation of habitat, with resulting effects on 
genetic variation, dispersal, and connectivity to support demographic 
populations (Factor A).
     Stochastic events such as hurricanes, ice storms, and 
wildfires, exacerbated by the environmental effects of climate change 
(Factor E).
     Small populations (Factor E).

Acronyms and Initialisms Used in This Document

    We provide the following list for the convenience of the reader:

ANHC--Arkansas Natural Heritage Commission
BMPs--best management practices
CCPs--comprehensive conservation plans
DoD--Department of Defense
EPA--Environmental Protection Agency
ESMCs--endangered species management components
FFWCC--Florida Fish and Wildlife Conservation Commission
HCP--habitat conservation plan
INRMPs--integrated natural resources management plans
LDWF--Louisiana Department of Wildlife and Fisheries
LRMPs--land and resource management plans
NCWRC--North Carolina Wildlife Resources Commission
NEPA--National Environmental Policy Act
NRCS--Natural Resources Conservation Service
NWR--National Wildlife Refuge
PBG--potential breeding group
RFA--Regulatory Flexibility Act
SSA--species status assessment
TPWD--Texas Parks and Wildlife Department
USACE--U.S. Army Corps of Engineers
USFS--U.S. Forest Service
WMA--wildlife management area

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Previous Federal Actions

    Please refer to the proposed reclassification rule (85 FR 63474) 
for the red-cockaded woodpecker published on October 8, 2020, and the 
subsequent revised proposed 4(d) rule (87 FR 6118) published on 
February 3, 2022, for detailed descriptions of previous Federal actions 
concerning this species.

Peer Review

    A species status assessment (SSA) team prepared an SSA report for 
the red-cockaded woodpecker. The SSA team was composed of Service 
biologists, which consulted with other species experts during the 
process. 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.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review of 
listing actions under the Act, we solicited independent scientific 
review of the information contained in the red-cockaded woodpecker SSA 
report. As discussed in the proposed rule, we sent the SSA report to 
six independent peer reviewers and received three responses. The peer 
reviews can be found at https://www.regulations.gov and https://fws.gov/species/red-cockaded-woodpecker-dryobates-borealis. In 
preparing the proposed rule, we incorporated the results of these 
reviews, as appropriate, into the SSA report, which was the foundation 
for the proposed rule and this final rule. A summary of the peer review 
comments and our responses can be found in the Summary of Comments and 
Recommendations below.

Summary of Changes From the Proposed Rule

    In preparing this final rule, we reviewed and fully considered 
comments from the public on the proposed rule. In addition to minor 
editorial changes, we updated information in this final rule and the 
SSA report (USFWS 2022, entire) based on comments and additional 
information provided, as follows.
    We incorporated information examining the effects of climate on 
breeding phenology and productivity in 19 populations across the range 
of the woodpecker (DeMay and Walters 2019). While we have added this 
information to our discussion of climate change in this rule, we find 
that this information does not change our conclusion about the species' 
current risk of extinction.
    We revised our discussion in the Status Throughout a Significant 
Portion of Its Range section to clarify the statutory difference 
between an endangered species and a threatened species in relation to 
the Service's significant portion of a species' range analysis. We 
added a discussion addressing catastrophic risks from natural events 
and how they are being effectively managed (e.g., through prompt post-
storm response) and that small populations are not currently in danger 
of extinction due to ongoing active management (e.g., translocation, 
habitat management, artificial cavity installation) such that the 
species is not currently in danger of extinction in any portion of its 
range.
    In the SSA report, we added information regarding partial brood 
loss in relation to habitat quality in eastern Texas (McCormick et al. 
2004, entire, USFWS 2022, p. 25) and clarified ``encroachment 
partnership'' (USFWS 2022, p. 76). Additionally, we corrected an error 
in the SSA report stating that red-cockaded woodpeckers currently 
inhabit 12 ecoregions (USFWS 2022, p. 92) by revising it to 13 
ecoregions, and adding the Mississippi River Alluvial Plain to the list 
of ecoregions.
    Edits were made to tables 3, 5-9, 19-20, 24, 30, and 34 in the SSA 
report (USFWS 2022, pp. 108-109, 112-116, 141-142, 147, 153, and 158). 
The changes addressed the slight underreporting of population sizes and 
rate of growth for Babcock Webb Wildlife Management Area (WMA), Corbett 
WMA, McCurtain County Wilderness Area, and Lewis Ocean Bay Heritage 
Preserve properties. The current population size for Yawkey Wildlife 
Center was also updated from 14 to 15 individuals. Additionally, figure 
24 was updated to address an error in how the high-resiliency 
populations were represented and to update the population changes for 
the properties outlined above (USFWS 2022, p. 110). Finally, figure 26 
was updated to include a tropical storm and hurricane centerline track 
map for 2012-2022 (USFWS 2022, p. 121). Collectively, these minor 
updates to the SSA report do not change our overall understanding of 
the species' viability.
    Finally, we made the following changes to the discussion and/or 
regulatory text of the 4(d) rule:
     We made editorial corrections to the wording of certain 
exceptions in the discussion and regulatory text of the 4(d) rule to 
increase clarity and to better align the language with existing 
regulations and law; these editorial corrections do not alter the 
original meaning of these prohibitions and exceptions.
     Under the Exceptions discussion, we removed several 
paragraphs that described the Safe Harbor program, now known as the 
Conservation Benefit program, in greater detail. We made this change to 
reduce confusion by readers and redundancy in the text. One of the 
deleted paragraphs included a typographical error; the paragraph stated 
that there are currently 295 active clusters on lands that are enrolled 
in Safe Harbor Agreements (SHAs). Currently, across the species' range 
there are 273 red-cockaded woodpecker active clusters in SHAs, which 
may be converted into Conservation Benefit Agreements (CBAs) at some 
point, if needed. This issue is described in further detail in our 
response to Comment 85.

Summary of Comments and Recommendations

    In the proposed rule published on October 8, 2020 (85 FR 63474), we 
requested that all interested parties submit written comments on the 
proposal by December 7, 2020. We also contacted appropriate Federal and 
State agencies, scientific experts and organizations, and other 
interested parties and invited them to comment on the proposed rule. 
Newspaper notices inviting general public comment were published in USA 
Today. We received a request for a public hearing. We held a public 
hearing on December 1, 2020, that was announced in the Federal Register 
on November 16, 2020 (85 FR 73012). We published a revised proposed 
4(d) rule on February 3, 2022 (87 FR 6118), and requested that all 
interested parties submit written comments on the proposal by March 7, 
2022. All substantive information received during the comment periods 
has either been incorporated directly into this final determination or 
is addressed below.

Peer Reviewer Comments

    As discussed in Peer Review above, we received comments from three 
peer reviewers on the draft SSA report. We reviewed all comments we 
received from the peer reviewers for substantive issues and new 
information regarding the contents of the SSA report. For example, peer 
reviewers provided additional nuanced information on species biology, 
including but not limited to, forest composition of specific National 
Forests, recommendations for cavities, and background on

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kleptoparasitism; we updated the SSA report accordingly with this 
information. The peer reviewers also provided new references, or 
corrected existing references we cited in our SSA report, which we 
revised or in which we included relevant references, as appropriate. We 
also received a few comments from peer reviewers on recovery or listing 
policy that were outside the intended scope of the peer review of the 
SSA. The peer reviewers generally concurred with our methods and 
conclusions and provided support for thorough and descriptive 
narratives of assessed issues, additional information, clarifications, 
and suggestions to improve the final SSA report and rule. Peer reviewer 
comments are addressed in the following summary and were incorporated 
into the version 1.4 of the SSA report and this final rule as 
appropriate.
    Comment 1: One peer reviewer expressed concern that timber 
harvesting was being promoted in the SSA report as a necessary strategy 
for maintaining quality red-cockaded woodpecker habitat when fire is 
the essential management application.
    Our Response: In the SSA report, timber harvesting is mentioned as 
a potential management tool when hazardous large and small fuels have 
accumulated in red-cockaded woodpecker habitat, resulting in a 
significant impediment to a continuing program of prescribed fire. 
Timber harvesting is one option to reduce hazardous conditions through 
salvage of down or severely damaged timber and mulching of other debris 
and small-diameter excessive hardwoods. Both management options are 
included in the SSA report as timber harvesting is often used as a tool 
for restoration management for red-cockaded woodpecker habitat while 
fire is more frequently used for maintenance of habitat.
    Comment 2: One peer reviewer expressed concern that the benefits of 
flying squirrel removal had been understated given the potential 
impacts of cavity kleptoparasitism (a cavity created and used by a red-
cockaded woodpecker that is usurped by another species) by flying 
squirrels (Laves and Loeb, 1999; Mitchell et al., 1999). They also 
referenced that snakes may have a positive indirect effect on red-
cockaded woodpeckers by consuming cavity kleptoparasites, in addition 
to their direct negative impacts on the species (Kappes and Sieving, 
2011).
    Our Response: Occasional loss of nests or cavities to 
kleptoparasitism is unlikely to have population-level impacts in red-
cockaded woodpecker populations that are healthy and of medium to large 
size. However, critically small populations or isolated groups may not 
be able to tolerate high rates of kleptoparasitism. While we agree that 
there can be value to removing kleptoparasites in small populations 
(Laves and Loeb, 1999), there have yet to be studies indicating 
population-level effect of flying squirrels on red-cockaded woodpeckers 
(Mitchell et al. 1999) to suggest that flying squirrel removal should 
be implemented for larger populations.

Federal and State Agency Comments

    We also received comments from Federal and State agencies on the 
proposed reclassification and 4(d) rule during the comment period. We 
summarize and respond to these below. When appropriate, we combined 
similar comments received from public commenters into these comment 
summaries.
Delisting
    Comment 3: In response to the original proposed downlisting rule, 
three State agencies (the Texas Parks and Wildlife Department (TPWD), 
Arkansas Natural Heritage Commission, and the North Carolina Wildlife 
Resources Commission (NCWRC)) and several public commenters expressed 
their belief that delisting the species would be premature because the 
active management that the species requires may not continue if the 
species were to lose all Federal protection.
    Our Response: We do not find that the species currently warrants 
delisting. On the contrary, we find that the red-cockaded woodpecker is 
likely to become in danger of extinction within the foreseeable future; 
in other words, we find that the species meets the definition of a 
threatened species. As a conservation-reliant species, securing 
management commitments for the foreseeable future would ensure that 
red-cockaded woodpecker populations grow or are maintained. However, 
given that the red-cockaded woodpecker will still face a variety of 
stressors in the future (e.g., hurricanes, small population sizes) and 
due to the lack of certainty that effective management will continue in 
the foreseeable future, we find that this species meets the definition 
of a threatened species. We address the States' concerns about the 
decline in active management if the species' status changes in Comment 
4, below.
Downlisting
    Comment 4: The Louisiana Department of Wildlife and Fisheries 
(LDWF), NCWRC, and public commenters expressed concerns that a shift in 
status would divert critical funds away from the recovery and 
management efforts of the red-cockaded woodpecker.
    Our Response: We acknowledge that the red-cockaded woodpecker is a 
conservation-reliant species and responds well to active management. 
For State agencies, a change from endangered to threatened does not 
change the eligibility of funding under section 6 of the Act.
    Comment 5: LDWF and multiple public commenters expressed concern 
that downlisting the species will undermine goals outlined in 
management plans if agencies decide to alter or reduce voluntary 
protections. Public commenters also worried that downlisting could 
introduce additional stressors on the species, due to increased 
pressure from development, logging, and/or oil, mineral, and gas 
exploration on public lands.
    Our Response: While we do not have commitments that all current 
management will continue, there is no information indicating that a 
downlisting would alter current management plans. It is important to 
note that downlisting the species from an endangered to a threatened 
status does not eliminate or alter the same need to achieve its 
recovery, and agencies are already managing red-cockaded woodpeckers in 
an effort to reach this goal. As mentioned, the management protections 
have always been voluntary, and the agencies could have altered or 
reduced them at any time, yet they have chosen not to due to their 
commitment to achieving recovery.
    Regarding the risk of downlisting introducing additional stressors 
to the species on public lands, section 7(a)(2) obligations are the 
same regardless of whether a species is listed as an endangered species 
or a threatened species, i.e., every Federal agency must ensure that 
their actions are not likely to result in jeopardizing the continued 
existence of the species.
    Comment 6: The NCWRC claimed that the proposed rule states that 65 
percent of populations have to reach moderate to high resiliency to 
justify downlisting of the red-cockaded woodpecker; however, the 
Service also stated in the proposed rule that only 13 percent of all 
existing clusters have moderate to very high resiliency. Therefore, the 
NCWRC

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believes red-cockaded woodpeckers do not meet this standard for 
downlisting.
    Our Response: We recognize that we made an error when we stated 
that 13 percent of all current red-cockaded woodpecker clusters are 
within moderate, high, or very highly resilient populations (85 FR 
63474, October 8, 2020); this statement was incorrect, and we have 
rectified the error in this final rule. In fact, 13 percent of the 124 
demographic populations analyzed in the SSA have moderate to very high 
resilience; this amounts to 16 populations. However, 65 percent of all 
known clusters (5,062 out of 7,794) occur in these 16 populations. 
Thus, 65 percent (not 13 percent) of all known red-cockaded woodpecker 
clusters are within moderate, high, or very highly resilient 
populations.
    The proposed rule (85 FR 63474, October 8, 2020) does not specify 
that 65 percent of the populations must reach moderate to high 
resiliency to justify downlisting of the red-cockaded woodpecker. The 
proposed rule referenced 65 percent in the following context: Of the 98 
populations for which trend data are available, only 13 percent are 
declining; in addition, over 65 percent of red-cockaded woodpecker 
clusters are currently in moderate to very high resiliency populations. 
Regardless, the species currently has sufficient levels of resiliency, 
redundancy, and representation, in large part due to effective habitat 
management, such that the species is no longer in danger of extinction 
(see Determination of Red-Cockaded Woodpecker Status below).
    Comment 7: The LDWF and one public commenter requested 
clarification on how the guidelines and provisions of the 2003 Red-
cockaded Woodpecker Recovery Plan (hereafter the ``2003 recovery 
plan'') are applicable under the rule, noting that the revised 4(d) 
rule describes recovery plans as being strategies to guide conservation 
and not regulatory documents, but also states that the provisions of 
the 2003 recovery plan may still be applicable under the 4(d) rule.
    Our Response: The 4(d) rule does not state that the provisions of 
the recovery plan will still be applicable. Recovery plans are not 
regulatory documents, but rather they provide a strategy to guide the 
conservation and recovery of the identified species. The 2003 recovery 
plan outlined the actions that, to the best of current understanding at 
the time, would aid in the recovery of the red-cockaded woodpecker. The 
2003 recovery plan will still guide continued management for the 
species, and provisions of the 4(d) rule are crafted to encourage this 
type of management.
    Comment 8: LDWF requested a list of management plans for all red-
cockaded woodpecker recovery units, including the dates of recent 
revisions and a timeline for next revision. They requested that the 
information be incorporated into the downlisting documents (we believe 
LDWF is referring to our SSA report and final rule) to provide insight 
into timing and frequency of the refinement of red-cockaded woodpecker 
population goals given that the proposed 4(d) rule relies on voluntary 
management plans for Federal agencies.
    Our Response: While management plans are outside of the scope of 
the 4(d) rule, we encourage the LDWF to request management plan 
information from properties they are interested in. As noted in the 
Background of this rule, below, Federal agencies' section 7 
consultation obligations are not and cannot be removed by rules under 
section 4(d) of the Act. Federal agencies will still consult under 
section 7 of the Act if their actions may affect red-cockaded 
woodpeckers. As such, the management plans will still be subject to the 
consultation requirements of section 7 of the Act.
Policy and Process
    Comment 9: The Arkansas Natural Heritage Commission (ANHC) and a 
public commenter questioned whether the peer review process was 
adequate. ANHC recommended that the SSA report be submitted to peer 
review journals, and the public commenter asked why we had sought peer 
review from six individuals but received review from only three.
    Our Response: The peer review process for the SSA report complied 
with our July 1, 1994, peer review policy (59 FR 34270), the Office of 
Management and Budget's December 16, 2004, Final Information Quality 
Bulletin for Peer Review, and our August 22, 2016, memorandum 
clarifying the peer review process.
    The 2016 memorandum clarifying the peer review process requires 
that the Service solicit review from three or more objective and 
independent peer reviewers. In the case of the red-cockaded woodpecker 
SSA report, we sought review from six qualified peer reviewers. While 
our policies do not require us to receive three responses from peer 
reviewers (just to seek review from at least three peer reviewers), we 
received comments back from three reviewers, which we made available to 
the public when we published our proposed rule. A summary of the 
comments received, and how they were addressed, can be found in the 
Peer Reviewer Comments section above. We are not aware of why three 
peer reviewers chose not to respond.
Recovery
    Comment 10: Several State agencies (ANHC, LDWF, and the NCWRC) and 
public commenters expressed concerns about inconsistencies between the 
2003 recovery plan and the SSA report; they believed that the 2003 
recovery plan, rather than the SSA report, should be used as guidance 
for evaluating whether a change in species status is warranted.
    Our Response: Recovery plans provide roadmaps to species recovery 
but are not required to achieve recovery of a species or to evaluate it 
for delisting or downlisting. A determination of whether a valid, 
extant species should be delisted or downlisted is made solely on the 
question of whether it meets the Act's definitions of an ``endangered 
species'' or a ``threatened species.'' The SSA framework is an 
analytical approach developed by the Service to deliver foundational 
science for informing decisions under the Act (Smith et al. 2018, 
entire). The SSA characterizes species' viability (the ability of a 
species to sustain populations in the wild over time) based on the best 
scientific understanding of current and future abundance and 
distribution within the species' ecological settings using the 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 308-311). The SSA report 
provides decisionmakers with a scientifically rigorous characterization 
of a species' status and the likelihood that the species will sustain 
populations over time, along with key uncertainties in that 
characterization.
    The 2003 recovery plan provides management guidelines fundamental 
to the conservation and recovery of the red-cockaded woodpecker. The 
best available information in the SSA report does not invalidate the 
habitat management guidelines in the recovery plan. We continue to 
strongly encourage the application of these guidelines to the 
management of woodpecker populations on public and private lands.
    Comment 11: ANHC and several public commenters suggested that the 
Service should have updated the 2003 recovery plan before considering a 
downlisting and noted specific guidance they believe should be updated.
    Our Response: The SSA report for red-cockaded woodpeckers 
represents a compilation of the best available

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scientific and commercial information on the current and future 
viability of the species. We used this analysis to inform our 
determination of the species' status. We did not need to consider the 
recommended management strategies outlined in the 2003 recovery plan to 
inform our decision regarding the species' status under the Act.
    Updating recovery plans is a discretionary action; the Service may 
choose to update a species' recovery plan at any point, but it is not 
required to incorporate new science into recovery plans when the 
science becomes available, as stated in Center for Biological Diversity 
v. Bernhardt, 509 F. Supp. 3d 1256 (D. Montana 2020).
    Comment 12: The LDWF and NCWRC expressed concern that some 
populations of red-cockaded woodpeckers have either only partially met 
or have not met recovery criteria for downlisting. Additionally, 
several commenters thought it was too soon to downlist the species and 
provided ideas for conditions that should be met, such as waiting for 
the population to become more stable, before downlisting would be 
appropriate.
    Our Response: While recovery plans provide management guidelines 
fundamental to the conservation and recovery of species, they are 
guidance and not regulatory documents. There are many paths to 
accomplishing recovery of a species, and recovery may be achieved 
without all recovery criteria being fully met. The overriding 
considerations in determining listing status are the five factors 
listed in section 4(a)(1) of the Act.
    Since the recovery plan was last revised in 2003, the number of 
red-cockaded woodpecker active clusters has increased from 5,627 to 
over 7,800 (USFWS 2022, entire). The population size objectives to meet 
applicable downlisting criteria have been met for 15 of 20 designated 
populations. All of these designated populations show stable or 
increasing long-term population growth rates ([lambda] >= 1).
Ecology and Populations
    Comment 13: TPWD shared that in Texas, there was a 70 percent 
decline in red-cockaded woodpeckers on State lands between 1991 and 
2019 and a 17 percent decline on private lands in the State during the 
same period. Additionally, Texas suggested that those populations that 
have increased in size occur on U.S. Forest Service (USFS) lands, which 
house 90.5 percent of the woodpeckers in the State; they suggested this 
indicates that, in Texas, the species is highly dependent on the 
continued application of effective management practices.
    The USFS also shared that their implementation of land and resource 
management plans (LRMPs) that were specifically designed to recover the 
red-cockaded woodpecker has increased the number of active red-cockaded 
woodpecker territories on National Forests from 2,000 to almost 3,700 
over the past two decades.
    Our Response: While we appreciate the trend information that TPWD 
and the USFS provided, without site-level detail, we were not able to 
compare this information to the SSA. However, we receive property 
reports from Federal, State, and Safe Harbor program lands with red-
cockaded woodpeckers on an annual basis; these property reports 
informed the demographic information in our SSA, so we are confident 
that the SSA captures the trend information these commenters provided. 
Moreover, the general trends that TPWD and the USFS describe align with 
the findings of our SSA.
    We also agree that the species remains highly dependent on active 
management. The currently stable or increasing growth rates, even in 
small populations, demonstrate the effectiveness of the current active 
management regime. New restoration techniques and changes in 
silvicultural practices have led to a substantial increase in the 
number and distribution of populations. Sixty-five percent of all red-
cockaded woodpecker clusters are within moderate, high, or very high 
resiliency populations, and populations are spread across multiple 
ecoregions, providing for redundancy and representation. We fully 
expect this conservation management to continue into the foreseeable 
future, and we have structured our final 4(d) rule to facilitate the 
continuation of such management.
Population Stressor
    Comment 14: The LDWF and members of the public raised concern about 
the risk of inbreeding depression in the majority of red-cockaded 
woodpecker populations (i.e., those with fewer than 100 clusters), due 
to their small size and isolation. They highlighted the importance of 
translocations given that red-cockaded woodpeckers do not typically 
disperse between populations, given they are geographically isolated 
from each other. As a result, commenters felt that it is premature to 
reduce protections for the species.
    Our Response: We agree that small populations having high degrees 
of isolation and habitat fragmentation are the most susceptible to risk 
from inbreeding depression and negative genetic impacts and acknowledge 
the importance of habitat management and translocations for maintaining 
healthy populations. However, the species no longer meets the 
definition of an endangered species and instead meets the definition of 
a threatened species.
    Because the species is still protected under the Act and because 
reclassification as a threatened species does not increase any existing 
permitting requirements that pertain to translocation, we expect 
current translocation efforts to continue unaffected. In fact, there 
are fewer permitting requirements for recovery efforts, such as 
translocation, for threatened species (e.g., 50 CFR 17.31(b) and 50 CFR 
17.32) than those for endangered species (e.g., 50 CFR 17.21(c)(5) and 
50 CFR 17.22). Additionally, most properties on public lands harboring 
red-cockaded woodpeckers have implemented management programs to 
sustain or increase habitat availability and connectivity and to meet 
population size objectives in the 2003 recovery plan or other 
management plans. Accordingly, managers are reducing fragmentation by 
restoring and increasing habitat and through the strategic placement of 
recruitment clusters to reduce gaps within and between populations.
Climate Change and Catastrophic Events
    Comment 15: Multiple State agencies (Florida Fish and Wildlife 
Conservation Commission (FFWCC), ANHC, LDWF, NCWRC) and public 
commenters discussed how hurricanes are already intensifying and 
becoming more frequent along the Atlantic coast due to climate change 
and that this situation will only worsen in the future, resulting in 
detrimental effects on the recovery of the species, especially given 
that the majority of populations occur in coastal plain ecoregions. 
FFWCC noted that, despite active management, populations have not been 
able to reach their goal on Picayune Strand State Forest because of the 
impacts of such natural disasters.
    Our Response: We agree that red-cockaded woodpecker populations and 
their habitats are periodically subjected to significant disturbances 
(e.g., hurricanes) that increase mortality and destroy cavity trees, 
which can lead to temporary population declines. We acknowledge that 
every population in the coastal plain ecoregions has been affected by 
one or more hurricanes over the past two decades. As such, in the 
proposed rule and in this final rule, we identified hurricanes, and 
other naturally occurring disturbances that

[[Page 85299]]

destroy pines used for cavities and foraging, as one of the stressors 
affecting the species. However, populations can withstand and persist 
after hurricanes if biologists and land managers implement prompt, 
effective post-storm recovery actions, such as installing artificial 
cavities, reducing hazardous fuels, and restoring forests to suitable 
habitat. This emergency response and routine management are well-
understood and are currently being implemented across the range of the 
woodpecker. Additionally, much of the red-cockaded woodpecker's 
currently occupied habitat is now protected under various management 
plans. As such, despite the regular occurrence of hurricanes within 
red-cockaded woodpecker habitat, 87 percent of populations evaluated in 
the SSA demonstrate stable to increasing growth rates, illustrating the 
effectiveness of currently ongoing active management in preventing 
species-level impacts from hurricanes (USFWS 2022, p. 112).
    We recognize the impacts natural disasters have had on the Picayune 
Strand State Forest. Annual property report data from 2019-2021 show 
that the active clusters in Picayune Strand State Forest have 
maintained 14 active clusters. This number is due in large part to the 
management actions conducted by the land managers. Further details 
about impacts of hurricanes on the species can be found in the Habitat 
Loss and Degradation section, below.
    Comment 16: The LDWF, NCWRC, and public commenters noted that it 
could take years to gather reliable population counts to fully 
understand impacts from a given natural disaster. They provided 
preliminary estimates of the impacts from Hurricanes Laura and Delta on 
Fort Polk, the Evangeline Unit of the Kisatchie National Forest, and 
the Alexander State Forest WMA, suggesting over 1,221 total cavity 
trees were lost.
    Our Response: As these commenters acknowledge, we do not yet have 
monitoring data to illuminate the impacts of the most recent hurricane 
seasons on red-cockaded woodpecker populations. While we do not yet 
have data on the species' response to the most recent hurricane events, 
we know from responses to previous storms that populations can 
withstand and persist after hurricanes if biologists and land managers 
implement prompt, effective post-storm recovery actions, such as 
installing artificial cavities, reducing hazardous fuels, and restoring 
forests to suitable habitat. Such actions have been occurring after 
storm events for managed populations, such as the quick response after 
Hurricane Michael in October 2018.
    We recognize the impacts natural disasters have had on Fort Polk, 
the Evangeline Unit of Kisatchie National Forest, and the Alexander 
State Forest WMA. Annual property report data from 2019-2021 shows that 
Fort Polk has maintained between 46 and 49 active clusters; the 
Evangeline Unit of Kisatchie National Forest has increased the active 
clusters from 135 to 141; and the Alexander State Forest WMA has 
maintained 13 active clusters. These results are due in large part to 
the management actions conducted by the land managers. Both this 
emergency response and routine management are well-understood and are 
currently being implemented across the range of the woodpecker. In 
addition, much of the red-cockaded woodpecker's currently occupied 
habitat is now protected under various management plans. Please 
reference our response to Comment 15 for more information on these 
findings.
    Comment 17: The FFWCC, NCWRC, and public commenters called for 
updating the methods in the SSA analysis to better account for the 
effects of climate change and hurricanes on the species' future 
resiliency. One commenter provided a recent paper (DeMay and Walters 
2019, entire) suggesting that our failure to consider this paper in our 
analysis demonstrates an inadequate consideration of climate change's 
effects on long-term population health.
    Our Response: As we acknowledge in the SSA report, due to 
uncertainty and limitations in modeling, the projections from the 
future simulation models should not be viewed as definitively known 
future conditions (USFWS 2022, p. 136). Therefore, the projected 
resiliency in our three future scenarios may overestimate or 
underestimate potential future resiliency, as all models include 
assumptions about the future trends of threats, and the species' 
response to them. As our ability to model the species' response 
reliably and quantitatively to climate change improves, we may be able 
to provide greater clarity on the potential effects of hurricanes on 
red-cockaded woodpecker populations in the future.
    We are aware of preliminary investigations that show correlation 
between breeding phenology and productivity and changing climate 
variables like temperature and wetness (DeMay and Walters 2019, 
entire). Although our SSA did not incorporate the findings of DeMay and 
Walters (2019), since it was published after the SSA report neared 
completion, the SSA report noted that southwestern populations have 
lower productivity (USFWS 2022, p. 26) and considered earlier research 
which similarly suggested that climate change has the potential to 
influence productivity through anticipated changes in temperature and 
precipitation patterns (USFWS 2022, p. 92; Schiegg et al. 2002, 
entire). Thus, while we have added a summary of the paper by DeMay and 
Walters (2019) to our discussion of climate change in this rule, we 
find that it does not provide any new information to change our 
conclusion about the species' current risk of extinction. Additional 
information on climate change can be found in the Habitat Loss and 
Degradation section below and in the SSA report (USFWS 2022, pp. 121-
124).
    Comment 18: The ANHC suggested that figure 26 in the SSA report, 
which depicted tropical storm and hurricane tracks between 2003 and 
2011, is outdated, especially given changes that have occurred over the 
most recent 5 years. They also claimed that the timeframe depicted in 
this figure is too narrow to be relevant.
    Our Response: We recognize that figure 26 does not present a full 
picture of hurricanes and tropical storms that have occurred throughout 
the range of red-cockaded woodpeckers in the past few decades and have 
added an updated figure 26 to the SSA report (USFWS 2022, p. 122). 
However, it is important to note that the intent of this figure is to 
illustrate the potential stressor that hurricanes pose to red-cockaded 
woodpeckers, and the vulnerability of many populations to storms. This 
figure is not intended to present an exact quantitative measure of the 
number and types of storms that have occurred within the species' 
range; as we discuss in the SSA report, due to uncertainty and 
limitations in modeling, the projections from the future simulation 
models should not be viewed as definitive outcome for future conditions 
(USFWS 2022, p. 135).
Habitat Stressor and Conservation
    Comment 19: LDWF, FFWCC, and public commenters provided feedback 
emphasizing the species' reliance on extensive and continual habitat 
management; they reiterated that the species is not yet self-sustaining 
and needs this active management (e.g., thinning, prescribed fire, 
provision of artificial cavities, and translocation) to maintain 
stability. As a result, they requested that the species not be 
reclassified without the continued support for existing management 
strategies. Additionally, one commenter

[[Page 85300]]

requested guidance on how to better manage the species on public lands.
    Our Response: We recognize that the red-cockaded woodpecker is a 
conservation-reliant species and responds well to active management 
(USFWS 2022, p. 159). As such, the species is not being delisted and 
will continue to be afforded protections under the Act. Furthermore, we 
have structured our final 4(d) rule to facilitate the continuation of 
conservation management.
    While we do not have commitments that all current management will 
continue, there is no information indicating that a downlisting would 
alter current management plans. It is important to note that 
downlisting the species from an endangered to a threatened status does 
not eliminate or alter the need to achieve its recovery, and agencies 
are already managing red-cockaded woodpeckers in an effort to reach 
this goal. As mentioned, the management protections have always been 
voluntary, and the agencies could have altered or reduced them at any 
time yet have chosen not to, due to their commitments to achieving 
recovery.
    A species' reliance on conservation management does not, by 
definition, suggest that it must always be listed as endangered. With 
effective assurances of such management, or with sufficient viability, 
species that require active management may not be at risk of imminent 
extinction. We have listed multiple conservation-reliant species as 
threatened (e.g., Hawaiian goose, Peirson's milk-vetch, humpback chub) 
and have even delisted conservation-reliant species, when appropriate 
commitments to necessary management are in place (e.g., interior least 
tern, running buffalo clover, Kirtland's warbler).
    Guidance on how to better manage the red-cockaded woodpecker on 
public lands can be found in the 2003 recovery plan, integrated natural 
resources management plans (INRMPs), forest management plans, National 
Wildlife Refuge plans, National Park plans, and State plans, among 
other sources.
    Comment 20: The LDWF suggested that the downlisting proposal did 
not adequately address the current condition of red-cockaded woodpecker 
habitat on the landscape by not properly acknowledging that much of the 
currently occupied and potential red-cockaded woodpecker habitat 
remains degraded and is in need of additional restoration (e.g., timber 
stand improvement via thinning or prescribed burning) before 
populations could achieve maximum resiliency.
    Our Response: As we discuss in greater detail under Summary of 
Conservation Management below, with the potential exception of several 
ecologically unique populations in pond pine and related habitat on 
organic soils in northeast North Carolina, none of the current or 
estimated future populations are capable of naturally persisting 
without ongoing management. The proposed downlisting rule relies on the 
analysis provided in the SSA report, which describes the many 
influences on viability, including foraging habitat loss, land use/
construction, conservation management, and habitat degradation.
    Most properties on public lands harboring red-cockaded woodpeckers 
have implemented management programs to sustain or increase populations 
consistent with population size objectives in the 2003 recovery plan or 
other plans. The species is reliant on active habitat management, as 
discussed in the SSA report (USFWS 2022, p. 131).
General Stressors
    Comment 21: The NCWRC expressed concern that we have not adequately 
considered the stressor of human population expansion and encroachment 
into red-cockaded woodpecker habitat. They informed us that the area of 
private lands between the Sandhills Game Lands and Fort Bragg (now Fort 
Liberty), known collectively as ``the Gap,'' is in need of continued 
active management or this area will not be able to serve to connect 
isolated populations on public lands.
    Our Response: The effects of human expansion and encroachment have 
been taken into consideration. The SSA report describes many influences 
on viability, including foraging habitat loss, land use/construction, 
conservation management, and habitat degradation (USFWS 2022, pp. 124-
131). Current red-cockaded woodpecker populations are highly dependent 
on active conservation management with prescribed fire, beneficial and 
compatible silvicultural methods to regulate forest composition and 
structure, the provision of artificial cavities where natural cavities 
are insufficient, translocation to sustain and increase small 
vulnerable populations, and effective monitoring to identify limiting 
factors for management (USFWS 2022, pp. 121-131). We recognize that 
human impacts, including development, have the potential to negatively 
affect red-cockaded woodpeckers through loss or degradation of habitat; 
however, through the continued protections under the Act, we are 
ensuring that any action with a Federal nexus will be required to make 
sure that the continued existence of the species will not be 
jeopardized.
    Comment 22: The FFWCC commented that we had not identified invasive 
exotic vegetation as a threat. They suggested that invasive plants are 
a major issue in Florida, especially in south Florida, and provided the 
following examples: Melaleuca (Melaleuca quinquenervia) monocultures 
appearing after fire, higher intensity wildfires that kill native 
pines, and decreased effectiveness of prescribed burns when Brazilian 
pepper (Schinus terebinthifolius) is present. They also recommended 
that we include invasive vegetation as a stressor in the final rule, 
given these negative effects and the fact that eradication is 
difficult.
    Our Response: We agree that the rule does not state specific 
examples of the invasive, nonnative, exotic vegetation types that exist 
within various open pine habitat types throughout the red-cockaded 
woodpecker's range. However, the SSA report specifically identifies 
invasive species as an example of disturbances that have the potential 
to impact red-cockaded woodpecker habitat and, therefore, red-cockaded 
woodpecker population resilience (USFWS 2022, p. 74).
    Throughout the SSA report, we acknowledge the importance of 
prescribed fire and its overall impact on the structure, function, and 
process of the open pine/grass systems (USFWS 2022, pp. 37-39, 124-
127). We do agree and report that most of the prescribed fire 
references are generally linked to the improvements in hardwood 
midstory control, fuel load reduction, and overall open pine habitat 
restoration. However, we also recognize in the ``Current Condition'' 
portion of this document (below) that there are impacts from 
disturbance that represent hazardous fire fuels like those reported by 
the FFWCC, and these structural habitat components are potential 
threats to red-cockaded woodpecker resiliency.
    Comment 23: The FFWCC suggested that we still do not know the 
effects of an ongoing hydrologic restoration project (Picayune Strand 
Restoration Project) on the Picayune Strand State Forest essential 
support population, and that this project's increased water flows could 
reduce the intensity of future wildfires; the FFWCC recommended that we 
also consider adaptive management strategies for mitigating any impacts 
to the red-cockaded woodpecker from increased water and prolonged 
hydroperiods.

[[Page 85301]]

    Our Response: We appreciate the suggestion to consider the Picayune 
hydrologic restoration project and its potential indirect effects on 
red-cockaded woodpeckers. We also appreciate the request to consider an 
adaptive management approach as a means to mitigate for any 
unanticipated negative impacts that would be correlated with the 
hydrologic project. Since this comment was submitted, modeling efforts 
conducted by the U.S. Army Corps of Engineers (USACE) have predicted 
impacts from the anticipated flooding. The model results indicate that 
the red-cockaded woodpecker habitat will shift below the standard of 
management as the project progresses. While it is still unclear how 
quickly slashpine will react to being inundated, modeling efforts 
suggest there is a potential projected loss of up to 3 clusters as the 
result of this project. We are actively working with the USACE through 
the section 7 process to minimize any impacts.
    The Service has a long history of supporting the application of 
adaptive management. When applied, assumption-based applications have 
rigorous datasets that support informed decision making. We support 
adaptive management approaches that (1) conceptualize the problem, (2) 
plan actions and monitoring, (3) implement actions and monitoring, (4) 
analyze, use, and adapt from the data, and (5) capture and share the 
learning. Based on the FFWCC comments, we fully support Picayune State 
Forest implementing an assumption-based (adaptive management) 
scientific approach in order to provide early detection of potential 
adverse impacts to the forest's red-cockaded woodpecker population.
Conservation Efforts and Plans
    Comment 24: The NCWRC suggested two conservation initiatives that 
would aid in the management of the species after downlisting: (1) a 
conservation fund to support future land management and (2) a post-
downlisting monitoring plan.
    Our Response: As we continue down the path towards full recovery of 
red-cockaded woodpeckers, we will use the best available science to 
inform and facilitate further conservation efforts that benefit the 
species. While we do not have a specific conservation fund for red-
cockaded woodpecker land management, we encourage partners to apply to 
grant opportunities available (e.g., Partners for Fish and Wildlife, 
Natural Resources Conservation Service (NRCS), section 6 funding (for 
State lands).
    We are not required to create a post-downlisting monitoring plan; a 
specific monitoring plan is required only after delisting a species due 
to recovery. However, annual population monitoring of red-cockaded 
woodpeckers will continue once they are downlisted. For example, anyone 
enrolled with an SHA will continue to provide annual reports that 
include the number of breeding groups and increases/decreases in active 
clusters. Additionally, annual property reports from section 
10(a)(1)(A) permits will include data on active clusters, inactive 
clusters, potential breeding groups, and descriptions of habitat 
management completed. Furthermore, the 4(d) rule requires Federal 
agencies and Department of Defense (DoD) properties to provide a report 
on their red-cockaded woodpecker populations to the Service annually.
4(d) Rule Exceptions
    Comment 25: LDWF expressed concern that the 4(d) rule does not 
define ``short-term'' with regard to incidental take of red-cockaded 
woodpecker during habitat conversion, if there are short-term impacts 
to the species. The State agency requested that the Service define 
``short-term'' and provide greater clarification on the magnitude of 
impact that habitat conversions can have on a given red-cockaded 
woodpecker population.
    Our Response: The terms ``short-term'' and ``magnitude'' have not 
been defined in the rule because they have different meanings depending 
on many variables. In terms of wildlife species and biological 
populations, both short- and long-term effects, and the magnitude of 
those effects, depend on many influential inherent and external 
biological, ecological, and environmental factors like lifespan, 
reproductive timing, and generational time; population size, growth 
rate, and connectivity; population dynamics and demographics; and 
availability of natural resources. In this rule, it is anticipated that 
the temporal scale of short-term adverse effects (e.g., reducing a 
stand below the managed stability standard) to red-cockaded woodpeckers 
are likely to occur within one or two generations (i.e., 4-8 years; 
USFWS 2022, p. 71) in a resident population. The magnitude of long-term 
beneficial impacts from those same short-term adverse management 
actions are expected to be high and to span over multiple generations 
(three generations or more) within a resident population.
    The 4(d) rule provides take exceptions only when habitat management 
actions are intended to further conservation of the species. However, 
any incidental adverse effects to red-cockaded woodpeckers from these 
beneficial management actions would likely be low in magnitude; 
therefore, in this context, incidental adverse effects are not likely 
to rise to the level of incidental take of red-cockaded woodpeckers.
4(d) Rule Artificial Cavity Provisions
    Comment 26: The South Carolina Department of Natural Resources 
recommended the threshold minimum diameter of 15 inches for cavity 
inserts should be followed and that areas lacking trees of sufficient 
size for insert installation should use the Copeyon method for drilled 
cavities (Copeyon 1990, pp. 303-311). Separately, a public commenter 
noted that Picayune Strand and Big Cypress rely on South Florida slash 
pine, which are naturally much smaller in diameter even when mature. 
They indicated they would have overall 32 percent fewer artificial 
cavities on the landscape if they had to select trees >=14 inches.
    Our Response: We currently support the artificial cavity standards 
defined by Allen (1991, p. 19), Copeyon (1990, pp. 303-311), and USFWS 
(2022, pp. 85-87). For the cavity insert technique, the guidance 
requires selected trees have a minimum of 15 inches diameter at cavity 
height, while the guidance for the drilled cavity technique generally 
requires knowledge of the tree's sapwood (3.5 inches or less) to 
heartwood (7 inches or more) ratios at cavity height. We agree that the 
drilled cavity technique provides more opportunity to utilize smaller 
diameter trees at cavity height where sapwood/heartwood ratios are 
suitable, and we continue to advocate drilled cavities as the preferred 
method. However, many landscapes are challenged with limited access 
restrictions. The number of return visits for drilled cavity 
applications, which includes screening, checks for resin leakage, and 
routine maintenance checks is often limited for those on access 
restricted landscapes. While we support the standards outlined above, 
we acknowledge that there are unique habitats in the region, such as 
Picayune and Big Cypress, that require site-specific application of 
this technique. These standards have been previously approved by the 
Service and are fundamentally based on the heartwood/sapwood ratio 
rather than the diameter of the tree.
4(d) Rule Military Exception
    Comment 27: The LDWF requested that the annual property reporting 
language for DoD and other Federal properties be changed from ``could'' 
to

[[Page 85302]]

``must'' when detailing the requirements for the annual report in the 
following sentence: ``could include the property's recovery goal; the 
number of active, inactive, and recruitment clusters; information on 
habitat quality; and the number of artificial cavities the property 
installed.''
    Our Response: The annual property report language is outside of the 
scope of the 4(d) rule and played no part in our determination. 
However, as the DoD adjusts and modifies their INRMPs to best 
coordinate with the findings in the 4(d) rule, we anticipate the 
content of the INRMP to reflect mutually agreed upon conservation, 
protection, and management of fish and wildlife resources as stated in 
the Sikes Act (16 U.S.C. 670 et seq.). Per the Sikes Act, this will 
include requirements to monitor and improve the effectiveness of the 
plan.
4(d) Rule Provisions for Prescribed Burning and Herbicides
    Comment 28: The LDWF requested that best management practices 
(BMPs) be used when prescribed burns are conducted in red-cockaded 
woodpecker clusters and associated foraging habitat and in protection 
of red-cockaded woodpecker cavity trees. Additionally, they recommended 
the 4(d) rule further define the BMPs using existing language from the 
SSA report. Similarly, a public commenter requested additional 
information be provided to clarify what is compatible or incompatible 
practice for prescribed fires and herbicide applications.
    Our Response: This 4(d) rule includes the requirement, in Sec.  
17.41(h)(4)(iii)(A)-(B), to follow applicable BMPs and applicable 
Federal and State laws for both prescribed burns and herbicide 
application. Privately and other non-federally owned lands may have 
different needs and should tailor those individual needs to their BMPs. 
We continue to recommend the use of the 2003 recovery plan for guidance 
on compatible or incompatible practices for prescribed fires and 
herbicide applications.
4(d) Rule Exception for Service- or State-Approved Management Plans
    Comment 29: Multiple commenters brought up issues that may impact 
landowner willingness to participate in the Safe Harbor program, 
currently known as the Conservation Benefit program, and expressed 
concerns over the permitting process (i.e., lack of enforcement, 
ability to return to baseline conditions, and the burdensome process). 
Additionally, the South Carolina Department of Natural Resources 
indicated concern that the prescribed fire and herbicide exception 
could disincentivize further Safe Harbor program enrollment (currently 
known as the Conservation Benefit program).
    Our Response: We acknowledge these concerns now that landowners 
will have additional flexibility on how to manage their land for red-
cockaded woodpeckers. Although the 4(d) rule and SHAs, currently known 
as CBAs, may provide many of the same benefits on managed non-Federal 
lands, the Conservation Benefit program provides the additional 
flexibility for land managers to remove new (above-baseline) clusters 
that emerge on their property without violating certain section 9 
prohibitions of the Act. Without the incidental take exceptions in this 
4(d) rule, take resulting from these activities would be prohibited, 
thus requiring a section 10(a)(1)(a) permit associated with a CBA or 
section 10(a)(1)(b) permit and habitat conservation plan (HCP) prior to 
implementation. These incidental take exceptions are applicable to all 
private lands regardless of participation in existing SHAs or future 
CBAs as long as the activity meets the stipulations described above. It 
is important to note that the 4(d) rule does not nullify existing SHAs 
or future CBAs. Existing enrollment and participation in SHAs or future 
CBAs does not preclude an enrollee from exceptions of the 4(d) rule 
(see ``Provisions of the 4(d) Rule'').
4(d) Rule General Issue
    Comment 30: The Alabama Division of Wildlife and Freshwater 
Fisheries requested clarification on prohibitions and exemptions 
regarding insecticide use. A public commenter requested insecticide use 
within the cluster area be approved by the Service and used only when 
necessary.
    Our Response: This rule prohibits take, as set forth at Sec.  
17.21(c)(1) for endangered wildlife. We did not include any exceptions 
to this prohibition for take resulting from the use of insecticides 
from the prohibitions of section 9. If the property has red-cockaded 
woodpeckers, then there is a potential for take to occur from such 
activities and incidental take could still be exempted through a 
section 10 permit or an incidental take statement associated with a 
biological opinion. Thus, the 4(d) rule does not cause a change in the 
process for authorization of insecticide use in red-cockaded woodpecker 
clusters.

Public Comments

    We received 234 unique comments from the general public on the 
proposed listing and 4(d) rule during the 2 public comment periods. We 
summarize and respond to these comments below. However, we do not 
repeat issues that we have already addressed above and instead address 
only new issues that were not raised by peer reviewers or State or 
Federal agencies.
Downlisting
    Comment 31: One public commenter indicated that the Service's 
targets for downlisting have not been met and that public records 
indicated the Service had been planning to downlist or delist the 
species if State and Federal agencies were able to provide necessary 
assurances of continued management.
    Our Response: Assurances of continued management are not required 
for reclassification of a species. Although there are uncertainties 
about the continuation of some management commitments, we fully expect 
much of the conservation management for red-cockaded woodpecker to 
continue into the foreseeable future and have structured our final 4(d) 
rule to encourage the continuation of such management.
    Comment 32: Multiple commenters emphasized the importance of 
longleaf pine ecosystems in supporting biodiversity in the southeastern 
United States and the role of red-cockaded woodpeckers as umbrella and 
keystone species. Several of these commenters suggested that conserving 
red-cockaded woodpeckers, via management of longleaf pine ecosystems, 
provides cascading benefits to many other species, including other at-
risk species, and proposed that the species remain protected for that 
reason.
    Our Response: While we recognize the importance of the longleaf 
pine habitat, as referenced in the ``Background'' and ``Summary of 
Stressors'' below, section 4(a)(1) requires that the Secretary 
determine whether a species is an endangered species or threatened 
species because of any of the five factors listed. Section 4(b) of the 
Act requires that the determination be made ``solely on the basis of 
the best scientific and commercial data available.'' Thus, we cannot 
factor the need to protect other at-risk species or the ecosystem at 
large into the decision of whether or not a species meets the 
definition of threatened or endangered.
    Comment 33: Some commenters believed that, since woodpeckers 
currently occupy less than their historical range, they should not be 
downlisted.
    Our Response: Neither downlisting nor delisting require that the 
species

[[Page 85303]]

reoccupy their historical range. Under the Act, a species' status must 
be assessed using the five factors: (1) Present or threatened 
destruction, modification, or curtailment of its habitat or range; (2) 
overutilization of the species for commercial, recreational, 
scientific, or educational purposes; (3) disease or predation; (4) 
inadequacy of existing regulatory mechanisms; and (5) other natural or 
manmade factors affecting its continued existence.
    Comment 34: One commenter expressed concern that, if the species is 
downlisted, land managers will return to past practices of reducing the 
use of fire, reducing control of woody understory vegetation, and 
illegally removing cavity trees on private lands; all of these actions 
would reduce habitat quality and quantity.
    Our Response: The red-cockaded woodpecker will continue to receive 
protections under the Act as a threatened species. The 4(d) rule is 
designed to encourage continued habitat management by including 
exceptions to the prohibitions for incidental take caused by 
application of prescribed burns or herbicides on private lands to 
create or maintain habitat (i.e., open pine ecosystems) or sustain and 
grow red-cockaded woodpecker populations, provided that the landowner, 
or their representative: (1) Follows applicable BMPs for prescribed 
burns and applicable Federal and State laws; (2) applies herbicides in 
a manner consistent with applicable BMPs and applicable Federal and 
State laws; and (3) applies prescribed burns and herbicides in a manner 
that minimizes or avoids adverse effects to known active clusters and 
red-cockaded woodpecker roosting and nesting behavior to the maximum 
extent practicable.
    Our intent for this provision is to provide a simple means by which 
to encourage private landowners to pursue certain types of voluntary 
forest management activities (i.e., prescribed burns and herbicide 
application) in a way that reduces impacts to the species and also 
removes any potential barriers to the implementation, such as the 
potential for violating the Act, of this beneficial forest management. 
Collaboration with partners in the forestry industry and their 
voluntary conservation and restoration of red-cockaded woodpecker 
habitat has helped advance red-cockaded woodpecker recovery to the 
point of downlisting; this provision would continue to encourage this 
beneficial management.
    Comment 35: One commenter suggested that the downlisting would not 
alter any of the protections the species receives and is thus merely a 
symbolic gesture.
    Our Response: Downlisting the red-cockaded woodpecker is not merely 
a symbolic gesture. The species has achieved major gains in recovery in 
the past several decades. These gains have benefited the species to the 
point that it no longer meets the definition of an endangered species. 
While the species has not yet achieved full recovery, it is paramount 
in the effective implementation of the Act to ensure every listed 
species has the appropriate status, based on the best available 
scientific information regarding its extinction risk. In the case of 
the red-cockaded woodpecker, since the species no longer meets the 
definition of an endangered species, we are revising its classification 
to ensure its listed status aligns with the latest information on its 
viability.
    While downlisting the red-cockaded woodpecker will continue to 
provide protections under the Act, the 4(d) rule includes exceptions to 
take prohibitions that provide additional management flexibilities that 
do not apply while the species is listed as endangered (e.g., exception 
for take resulting from prescribed burns on private lands; exception 
for take resulting from installation of artificial cavities) (see 
``Provisions of the 4(d) Rule'' below).
    Comment 36: One commenter suggested that the species' status had 
not changed considerably since the 2006 5-year status review, in which 
we recommended that the species should remain listed as endangered and 
that the threats to the species have not been sufficiently ameliorated.
    Our Response: Since the 5-year review in 2006, the species' status 
has continued to improve. Based on the best available scientific 
information including new information available since the 2006 5-year 
review (i.e., the new analysis in the SSA), 87 percent of red-cockaded 
woodpecker demographic populations for which we have trend data 
demonstrate stable to increasing trends. The continued growth of 
populations since 2006, and the species' current stability, suggests 
the red-cockaded woodpecker is not in immediate danger of extinction. 
We are also downlisting the species because we believe the threats 
currently acting on the species are effectively managed. Since 2006, 
managers have continued to install more artificial cavities, have 
continued to actively manage habitat to improve quality, and have 
continued to translocate birds to enhance genetic health and viability. 
These activities have contributed to the stabilization of the 
populations, and management of threats. Our rigorous analysis of 
stressors and species' condition in the SSA demonstrates the improved 
status of the species and effectiveness of current management.
Policy and Process
    Comment 37: Multiple commenters expressed confusion about the 
status of the species' 5-year status reviews, and the relationship of 
these reviews to the proposed rule.
    Our Response: The December 2, 2020, proposed rule to reclassify the 
red-cockaded woodpecker as a threatened species fulfilled the 
requirements of a 5-year status review for the species (85 FR 63474). 
While the proposed rule referenced biological information in the SSA 
report, the SSA alone does not represent the 5-year status review. 
According to the Act, a 5-year status review must contain an evaluation 
of the five listing factors for the species, and a recommendation as to 
the species' current status based on the relevant threats under those 
factors. In the proposed rule, we provided a thorough account of the 
stressors affecting the species and aligned these stressors with the 
five factors under the Act.
    Our analysis in the proposed rule also took into account the 
submissions we received in response to the 5-year review initiation 
notice; we are not required to respond to each of these submissions 
individually, as we do for public comments on a proposed rulemaking. 
The public had an opportunity to provide feedback on our determination 
of species' status during the comment period on the proposed rule, and 
we have addressed that feedback here.
    Comment 38: Multiple commenters took issue with our ``significant 
portion of the range'' analysis, suggesting that we did not adequately 
explain why the Florida Peninsula, West Gulf Coastal Plain, and 
southernmost near-coastal extension of the Upper West Gulf Coastal 
Plain ecoregions are not ``significant.'' Other commenters believed 
that our discussion of significance was not consistent with our 
``Significant Portion of the Range'' policy and court rulings 
concerning this policy.
    Our Response: We revised our ``significant portion of the range'' 
analysis in this rule in response to these comments and to increase 
consistency with current practice. We removed the discussion of the 
significance of the portion that includes the Florida Peninsula, West 
Gulf Coastal Plain, and southernmost near-coastal extension of

[[Page 85304]]

the Upper West Gulf Coastal Plain ecoregions.
    Ultimately, this discussion of significance was not necessary for 
our analysis since this portion does not have a different status than 
the whole. Despite the vulnerability of these areas to hurricanes, this 
stressor is not currently accelerating extinction risk in this part of 
the range, due to effective conservation management. Populations can 
withstand and persist after hurricanes if biologists and land managers 
implement prompt, effective post-storm recovery actions, such as 
installing artificial cavities, reducing hazardous fuels, and restoring 
forests to suitable habitat. Both this emergency response and routine 
management are well-understood and are currently being implemented 
across the range of the woodpecker. In addition, much of the red-
cockaded woodpecker's currently occupied habitat is now protected under 
various management plans. As such, despite the regular occurrence of 
hurricanes within red-cockaded woodpecker habitat, 89 percent of the 
populations for which we have trend data demonstrate stable to 
increasing growth rates in this portion of the range, illustrating the 
effectiveness of currently ongoing active management in preventing 
broad impacts from hurricanes and other stressors (USFWS 2022, p. 112).
    This risk may be particularly high in the foreseeable future in the 
Florida Peninsula, West Gulf Coastal Plain, and the southernmost near-
coastal extension of the Upper West Gulf Coastal Plain ecoregions. 
Therefore, although some threats to the red-cockaded woodpecker are 
concentrated in these ecoregions, the timing of the effects of the 
threats in that portion is the same as that for the entire range--the 
foreseeable future. As a result, the red-cockaded woodpecker is not in 
danger of extinction now in this portion of its range. Given the fact 
that this portion has the same status as the species throughout all of 
its range, we do not need to evaluate its significance.
    Comment 39: Commenters suggested other areas that could be 
considered a significant portion of the species' range (e.g., the 
populations that have low or very low resiliency and the western 
portion of the species' range, where there are no ``high'' or ``very 
high'' resiliency populations).
    Our Response: Based on feedback from the comments, we considered 
whether the portion of the species' range that contains low or very low 
resiliency populations could constitute a portion that provides a basis 
for determining that the species is in danger of extinction throughout 
a significant portion of its range. Based on our analysis, we did not 
find that this portion of the species' range, or any combination of 
areas that lack moderate, high, or very high resiliency populations, 
met the definition of an endangered species. Managers are currently 
applying active management to these small populations. As a result of 
this active management, the vast majority of these low or very low 
resiliency populations have stable or increasing growth rates, 
demonstrating the effectiveness of this active management in supporting 
the persistence of these small populations. Of the 108 demographic 
populations in low or very low resiliency classes, 86 have data on 
growth rates; 86 percent of these populations have growth rates greater 
than or equal to one (USFWS 2022, pp. 108-110). Under this current 
paradigm, these small populations are not currently in danger of 
extinction due to the active management (e.g., translocation, habitat 
management, artificial cavity installation) that supports their 
stability and growth. As a result, the red-cockaded woodpecker is not 
currently in danger of extinction in this portion of its range. Given 
the fact that this portion has the same status as the species 
throughout all of its range, we do not need to evaluate its 
significance.
    Comment 40: One commenter expressed concern that the Service, 
contrary to the best available science, has been trying to downlist or 
delist the red-cockaded woodpecker to appease Federal partners. This 
commenter also questioned an interagency agreement signed with the Army 
on the same day that we announced the proposal to downlist the red-
cockaded woodpecker, indicating concern that the agreement set a goal 
of eliminating section 7 consultations in favor of general INRMP 
consultations.
    Our Response: The analysis in this rulemaking is based on the best 
available science, summarized in the SSA report. This scientific 
information has been peer-reviewed, and the public was provided with 
opportunities to review and comment on our analysis during two comment 
periods and one public meeting. We are required to coordinate, 
collaborate, and use the expertise of State agencies in developing the 
scientific foundation upon which the Service bases its determinations 
for listing actions (i.e., SSA reports) per the 1994 joint policy and 
2016 Revised Interagency Cooperative Policy Regarding the Role of State 
Agencies in Endangered Species Act Activities (State Representation of 
Species Status Assessment Teams). We also frequently collaborate with 
Federal partners in the development of SSAs to ensure we have the best 
available data and a thorough understanding of Federal management that 
may affect the species. In the development of the red-cockaded 
woodpecker SSA, we followed these common practices. We sought 
information from our State and Federal partners to inform the SSA, our 
understanding of relevant ongoing management, and any proposed status 
change under the Act.
    Based on the best available information in the SSA, we have 
determined that the species no longer meets the definition of an 
endangered species under the Act. However, while many of the landowners 
and managers within the range of the species have committed to 
continuing to implement their conservation programs into the future, we 
do not have certain commitments that all current management will 
continue and that it will adapt as necessary to effectively address 
emerging stressors (e.g., intensifying hurricanes). As a conservation-
reliant species, securing management commitments for the foreseeable 
future would ensure that red-cockaded woodpecker populations grow or 
are maintained. This conclusion is reinforced by the future-scenario 
simulations, which indicate that management efforts equal to or greater 
than current levels will further increase the number of moderate to 
very high resiliency populations and preserve small populations. Thus, 
uncertainties about the continuation of the management upon which the 
species relies informed our determination that a downlisting status of 
threatened is appropriate.
    The purpose of the interagency agreement is to promote the 
conservation of the red-cockaded woodpecker. This agreement did not 
factor into the proposal to downlist the species. Additionally, it is 
important to note that Federal agency section 7 consultations 
obligations have not been altered in any way with this final rule.
    Comment 41: One commenter believed that the Service's selection of 
25 years as the foreseeable future was arbitrary and too short to 
reasonably forecast effects of threats to the species (e.g., climate 
change impacts), especially considering the species' reliance on very 
old pine trees.
    Our Response: We determined the foreseeable future to be 25 years 
from present, because it is a timeframe in which we can reasonably 
estimate population responses to natural factors and management. As 
discussed under Future Conditions below, in the SSA

[[Page 85305]]

report, future population conditions under different management 
scenarios were simulated and modeled to 25 years into the future. 
During this process it was determined that we can rely on the timeframe 
presented in the scenarios and predict how future stressors and 
management will affect the red-cockaded woodpecker. This timeframe, 
given the species' life history, is also sufficient to identify any 
effects of stressors or conservation measures on the red-cockaded 
woodpecker's viability at both population and species levels. Finally, 
25 years represents four to five generations of red-cockaded 
woodpecker, which would be sufficient time for population-level impacts 
from stressors and management to be detected.
    Comment 42: One commenter contended that the proposed 4(d) rule 
fails to explain how it is necessary and advisable, because the rule's 
effect on private landowners and voluntary conservation is not 
considered. In addition, the commenter expressed concern that the 
Service did not explain why the Regulatory Flexibility Act (RFA) and 
National Environmental Policy Act (NEPA) analyses were not prepared for 
the proposed 4(d) rule.
    Our Response: As discussed in our February 3, 2022, proposed 
reclassification rule, section 4(d) of the Act provides that the 
``Secretary shall issue such regulations as he deems necessary and 
advisable to provide for the conservation'' of species listed as 
threatened. As discussed in the Background, 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. 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.
    We considered the effect on private landowners of our proposed 
rule. The proposed rule explains that if a manager has received or 
receives a permit for a particular activity (e.g., a section 
10(a)(1)(A) permit for monitoring red-cockaded woodpeckers, a permit 
issued for an existing SHA, CBA, or HCP), any take that occurs as a 
result of activities covered by this permit would remain exempted from 
the rule's prohibitions on take. Furthermore, our rule encourages 
private landowners to continue to enroll in the CBA program, under 
which the landowners receive formal regulatory assurances from the 
Service regarding their management responsibilities in return for 
contributions to benefit the listed species. Any landowner who enrolls 
in a CBA is allowed to return their property to ``baseline'' conditions 
at any time. Additionally, this final rule excepts take from activities 
completed by a landowner that, when the species was endangered, would 
have required a permit under the Act.
    Regarding the commenter's concern that a NEPA analysis was not 
undertaken, it is our position that, outside the jurisdiction of the 
U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare 
a NEPA analysis in connection with regulations adopted pursuant to 
section 4(a) of the Act (see National Environmental Policy Act section 
below).
    Regarding the commenter's concern that an RFA analysis was not 
provided, the Secretary, in making a determination of endangered or 
threatened species status under section 4(b)(1)(A) of the Act, ``shall 
make determinations solely on the basis of the best scientific and 
commercial data available.'' Economic considerations are in addition to 
such data and cannot be part of the basis for the species' status 
determination, which includes the 4(d) rule. The rationale for sole use 
of best scientific and commercial information available is provided in 
the legislative history for the 1982 amendments to the Act, which 
describes the purposes of the amendments using the following language: 
``to prevent non-biological considerations from affecting [listing] 
decisions,'' Conf. Rep. (H.R.) No. 97-835 (1982) (``Conf. Rep.''), at 
19. As noted in the House Report, economic considerations have no 
relevance to determinations regarding the status of species and the 
economic analysis requirements of Executive Order 12291, and such 
statutes as the RFA and the Paperwork Reduction Act, will not apply to 
any phase of the listing process. Conf. Rep. (H.R.) No. 97-835 (p. 
24153; 1982).
    Comment 43: One commenter requested that the Service be more 
involved with assessing, approving, and enforcing actions affecting 
species protected under the Act so that the State agencies are not left 
with the burden of interpreting the 4(d) rule.
    Our Response: We acknowledge the importance of our conservation 
partnership with State agencies and the role they play when 
interpreting rules for federally listed species in response to public 
inquiries. In addition to providing Frequently Asked Questions 
documents about the 4(d) rule, our local field offices are available to 
provide technical assistance. State agencies can direct questions to 
field offices to assist with the interpretation of the 4(d) rule in 
addition to requesting assistance when enforcing protections for 
federally protected species.
    Comment 44: Another commenter recommended that non-Federal 
management plans, including analyses of potential impacts from ongoing 
and proposed activities (within the time covered), be more 
``programmatic'' in nature, such as ``worst case'' estimates included 
in some Army INRMP endangered species management components (ESMCs).
    Our Response: While we are available to provide technical 
assistance to private landowners, we do not have the authority to tell 
private landowners how to manage their properties. The suggestion 
described by the commenter would be a relatively unique and specific 
situation to occur. We anticipate that people will follow the intent of 
the 4(d) rule and, as such, will apply appropriate management for the 
species to their properties.
General Biology, Ecology, and Population Issues
    Comment 45: Several commenters provided critiques of the data and 
methodologies used in the SSA. One commenter expressed concerns that 
the data they provided for the SSA was the best possible outcome and 
worried that all the data might be inflated. Another commenter 
indicated concern that the ``moderate'' resiliency class included both 
populations that were declining and were not declining. Yet another 
commenter stated that the Service did not adequately articulate 
uncertainties related to the model.
    Our Response: The data for the SSA was collected and analyzed 
according to established scientific procedures. Expert solicitation and 
peer review provided opportunities for public comment, and all analysis 
and decisions were based on the data provided. We rely on and trust 
that land managers provided accurate data.
    The SSA report provides a description of the approach and method 
used to delineate demographic populations. The report also describes 
how the moderate category is a transitional resilience category, in 
which population sizes range from 102 to 248 active clusters and 
consist of both increasing and stable populations. The moderate 
category populations, unlike those in the high and very high 
categories, may vary considerably in their resilience depending on 
population size, management, and the spatial distribution and density 
of active clusters (USFWS 2022, p. 113).

[[Page 85306]]

    We also described uncertainties within the SSA report, including 
the uncertainties associated with performing analyses with an imputed 
data set. With imputed data, a single value is provided for each 
missing value and analyzed as though it were true, while in reality 
there is uncertainty about the value of each missing observation (USFWS 
2022, p. 227).
    All of the issues raised were either already addressed in the SSA 
report or have been incorporated into the SSA report and/or this final 
rule.
    Comment 46: One commenter provided details about concerns that the 
way the 2003 recovery plan delineated populations of red-cockaded 
woodpeckers was incorrect.
    Our Response: SSA reports are scientific documents meant to be a 
single source for the species' biological information needed to inform 
decision-making in the rule. The SSA report did not use the same 
population boundaries as the 2003 recovery plan. As reviewed in the 
2003 recovery plan, red-cockaded woodpecker populations functioned as 
demographically closed populations due to infrequent long-distance 
dispersal (USFWS 2003, pp. 25, 32). In the 2003 recovery plan, 
territory densities or distances among territories were not defined to 
explicitly categorize demographic populations. In the SSA, we instead 
used red-cockaded woodpecker dispersal data from long-term monitoring 
data and radio-telemetry studies to spatially delimit demographic 
populations according to nearest neighbor active clusters within 6 km 
(3.7 miles) (USFWS 2022, pp. 80-82). Ultimately, we delineated 124 
demographic populations. In the SSA report, the essential support 
population this commenter referenced was split into nine demographic 
populations for our analysis. Although we are not currently 
contemplating changes to the 2003 recovery plan, we will consider this 
commenter's suggestion if we embark on any revisions to this plan.
Population Stressors
    Comment 47: One commenter shared that, according to the North 
American Breeding Bird Survey, the woodpecker has had a cumulative 
population decline of 86 percent between 1966 and 2014, with an average 
of over 3.3 percent population decline per year (Red-cockaded 
Woodpecker Life History); they believed this decline would continue 
until the species becomes extinct.
    Our Response: The Breeding Bird Survey is a roadside survey of 
North American birds that primarily covers the continental United 
States and southern Canada. Every June, experienced birders volunteer 
to conduct surveys along established roadside routes to facilitate the 
estimation of population change for birds that are encountered during 
surveys. Although the Breeding Bird Survey provides a very large data 
set, there are potential problems with estimates of population change 
that are derived from Breeding Bird Survey data. Therefore, ``regional 
credibility measures'' are used to check certain attributes of the 
survey data, such as relative abundance on survey routes, precision of 
trends, and the completeness of the data set. It is possible that data 
analysis can be inaccurate and imprecise, depending on the level of 
data deficiency in a region; thus, the data are categorized into three 
credibility categories to assist in assessing reliability of the 
results. The Breeding Bird Survey results for the red-cockaded 
woodpecker reflect that the majority of the data are in the red 
category, meaning the data have important deficiencies and are not of 
sufficient quality to use in estimates of population change or for 
other reasons.
    Decades of species-specific, red-cockaded woodpecker survey data 
have been obtained using standardized data collection methodology, and 
are the data that the Service relied upon in the SSA and to inform this 
rule. These data sets provide a large amount of high-quality data for 
assessing attributes of red-cockaded woodpecker populations and 
informing management decisions. Data collected during red-cockaded 
woodpecker surveys represent the best available species' information 
and are superior to species' data provided by the Breeding Bird Survey 
and any other means.
    Comment 48: Several commenters believed that because a majority of 
populations have low resiliency to stochastic events and threats 
(primarily due to small population sizes), they remain in immediate 
danger of extirpation and do not have sufficient resiliency to warrant 
downlisting.
    Our Response: These commenters correctly accounted for the number 
of demographic populations in the low and very low resiliency 
categories. However, the majority (65 percent) of total active clusters 
(5,062 active clusters out of 7,794 total active clusters) across the 
range of the species are in the 16 moderate-to-very-high resiliency 
populations. Furthermore, of the 98 populations for which we had 
sufficient data to measure growth rates, only 13 percent are in 
decline; in other words, 87 percent of red-cockaded woodpecker 
populations (for which we had sufficient data) are stable or 
increasing, including the vast majority of low and very low resiliency 
populations (USFWS 2022, pp. 112-116). These stable and positive growth 
rates are indicative of the positive effects of red-cockaded woodpecker 
conservation management programs on these locations and the ability of 
such management to offset inherently low or very low population 
resilience.
    In summary, after evaluating the threats to the species and 
assessing the cumulative effect of the threats under the section 
4(a)(1) factors, we find that the stressors identified above continue 
to negatively affect the red-cockaded woodpecker, but new restoration 
techniques and changes in silvicultural practices have led to 
stabilization of the red-cockaded woodpeckers' viability and even 
resulted in a substantial increase in the number and distribution of 
populations. Sixty-five percent of all current red-cockaded woodpecker 
clusters are within moderately, highly, or very highly resilient 
populations, and populations are spread across multiple ecoregions, 
providing for redundancy and representation. Given these current levels 
of resiliency, redundancy, and representation, we conclude that the 
red-cockaded woodpecker is not currently in danger of extinction 
throughout all or a significant portion of its range (i.e., it no 
longer meets the definition of an endangered species).
    Comment 49: Multiple commenters expressed concern about the 
continued loss of suitable habitat constraining population growth of 
the species, with one commenter stating that the Service did not 
adequately address carrying capacity issues in the SSA report.
    Our Response: We recognize that some habitat loss may still be 
occurring and acknowledge that the lingering impacts of historical 
clearcutting and incompatible forest management, and conversion to 
urban and agricultural land still negatively affect the ability of red-
cockaded woodpecker populations to grow, even when managed, as the 
carrying capacity of suitable forest areas across much of the range can 
be quite low. However, restoration activities such as prescribed fire 
and strategic placement of recruitment clusters can reduce gaps between 
populations and increase habitat and population size toward current 
carrying capacity. These activities are occurring across the range of 
the red-cockaded woodpecker on properties actively managed for red-
cockaded woodpecker conservation (85 FR 63474 at 63479, October 8, 
2020).
    Carrying capacity was taken into consideration when assessing 
population size within the foreseeable

[[Page 85307]]

future in the simulations and scenarios run in the SSA. Values for each 
population were acquired from property and population managers who 
estimated carrying capacity for their populations at the end of the 25-
year period. Carrying capacity reflected the estimated future amount of 
nesting and foraging habitat, and whether a potential increase in 
active territories to capacity was the result of recruitment clusters, 
budding, or pioneering (USFWS 2022, pp. 12-13). Additionally, we 
acknowledged in the SSA report (USFWS 2022, p. 14) that carrying 
capacity may have been underestimated in our analysis. The high 
densities of red-cockaded woodpeckers that occur in high-quality 
habitat suggest that carrying capacity estimates are overly 
conservative. If so, greater growth than our conservative simulations 
project and larger differences between management scenarios are 
possible.
    Comment 50: One commenter shared their concern that small 
woodpecker populations in low-quality habitats, experiencing additional 
stressors, can quickly lose their pools of helper birds, leading to 
rapid population decline.
    Our Response: Helpers are non-breeding adult offspring that remain 
on their natal territories for one or more years after fledging. 
Helpers assist in the rearing of young and other essential activities 
during years of delayed dispersal or until becoming replacement 
breeders on their natal territories. Annual levels of productivity and 
mortality may affect the following year's total number of helpers and 
the total number of groups with helpers found within a small red-
cockaded woodpecker population; however, these variables do not 
similarly affect the total number of potential breeding groups (PBGs) 
in that same population. We acknowledge that small population size and 
limited availability of resources are impacting the species' viability 
within the foreseeable future, thus contributing to our decision to 
reclassify the red-cockaded woodpecker as a threatened species to 
ensure continued protections under the Act.
Climate Change and Catastrophic Events
    Comment 51: Multiple commenters expressed that red-cockaded 
woodpeckers will not be able to shift to new areas or habitats, given 
their reliance on old, mature pines, rendering them even more 
vulnerable to climate-related stressors. One commenter suggested the 
need to protect and restore new habitats as climate refugia to ensure 
the continued survival of red-cockaded woodpeckers.
    Our Response: We agree that red-cockaded woodpeckers are habitat 
specialists that rely on habitat management occurring in specific 
areas; they thus have limited capacity to shift their range in response 
to future climate changes. The majority of clusters are in moderate to 
very high resiliency populations, and 87 percent of populations with 
sufficient data indicate stable to increasing growth rates (USFWS 2022, 
pp. 107-112). However, if climate change decreases the suitability of 
habitat in certain parts of the species' range, as DeMay and Walters 
(2019, entire) suggest, it could increase extinction risk, due to the 
lack of unoccupied suitable habitat at more northern latitudes. Since 
red-cockaded woodpeckers have limited capacity to shift their range, 
ongoing, nimble habitat management applications, designed to meet 
changing climate conditions, will help the species achieve long-term 
population viability. Thus, while the species' limited capacity to 
shift their range is not currently manifesting in any declines in 
resiliency, redundancy, or representation, it is possible that, without 
effective management, this limited capacity could result in future 
viability declines. We cannot predict the scope of these potential 
declines due to limitations in our modeling. Consequently, while 
enhancing the resiliency of inland populations could further increase 
species' viability in the face of future impacts from climate change, 
the species currently has sufficient resiliency, redundancy, and 
representation such that it no longer meets the definition of an 
endangered species and warrants reclassification to a threatened 
species.
    Comment 52: Public commenters suggested that the Service 
inadequately analyzed the potential synergistic effects of climate 
change on other stressors, such as large wind events, wildfires, sea 
level rise, tornadoes, ice storms, and pine beetles.
    Our Response: In the SSA report, we discuss the stressors that 
wildfire (USFWS 2022, pp. 126-127); large wind events, tornadoes, sea 
level rise, and ice storms (USFWS 2022, pp. 84, 96, 121); and pine 
beetles (USFWS 2022, pp. 84, 126) can present to the species. While 
these natural disturbances are already occurring in parts of the 
species' range, effective management after disturbances (e.g., 
installing artificial cavities, reducing hazardous fuels, and restoring 
forests to suitable habitat) results in these disturbances currently 
only influencing individuals or temporarily affecting populations. As a 
result, these stressors are not currently having detrimental species-
level effects. As evaluated in the SSA, the stable to increasing 
population trend in 87 percent of the populations demonstrates that 
effective management has ameliorated these stressors such that they 
only have isolated and temporary negative effects (USFWS 2022, p. 112).
    However, as these commenters suggest, uncertainty remains as to how 
these stressors may influence the species in the future. We were not 
able to model how resiliency of red-cockaded woodpecker populations 
might change in the future as a result of bark beetle outbreaks, sea 
level rise, tornados, drought, and other influences due to 
inconsistency in or unavailability of data (USFWS 2022, appendix 2, pp. 
6-7). Should these stressors increase their scope or intensity in the 
future, and should effective management not keep pace with these 
increases, they could start to negatively affect populations, though we 
do not know of any research suggesting this will occur. We fully expect 
this post-disturbance management to continue into the foreseeable 
future, and we have structured our final 4(d) rule to facilitate the 
continuation of such management. The information these commenters 
provided supports our conclusion that, while the red-cockaded 
woodpecker is not currently in danger of extinction, the effects of 
climate change, paired with uncertain future management means that the 
species continues to meet the definition of a threatened species.
General Stressors
    Comment 53: One commenter suggested that the Service did not 
adequately consider the cumulative effects of stressors on red-cockaded 
woodpeckers when making the decision to downlist the species.
    Our Response: We incorporated the cumulative effects of stressors 
into the SSA when we characterize the current and future condition of 
the species. In order to assess the current and future condition of the 
species, we completed an iterative analysis that encompassed and 
incorporated threats individually and then accumulated and evaluated 
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 
integrated the cumulative effects of the factors and replaced a 
standalone cumulative effects analysis. To help clarify, we have added 
a brief discussion of cumulative effects to the

[[Page 85308]]

Summary of Biological Status and Threats section of this rule.
    Comment 54: Multiple commenters took issue with the fact that the 
proposed downlisting did not consider the effects of southern pine 
beetles as a potential stressor.
    Our Response: We agree that loss of cavity trees resulting from 
both outbreak (i.e., epidemic) and non-outbreak (i.e., endemic) 
southern pine beetles can substantially impact red-cockaded 
woodpeckers, as noted in the SSA report (USFWS 2022, pp. 39-40). In the 
SSA report we detail how southern pine beetles do not directly impact 
red-cockaded woodpeckers but do directly impact cavity trees. Southern 
pine beetle outbreaks can be minor or locally significant through 
killing the cavity trees and other pines used for foraging. The 
practice of thinning stands with outbreaks can cause direct loss of 
active clusters; however, the long-term benefits of stopping the 
outbreak often outweigh the short-term impacts of losing a few clusters 
(USFWS 2022, p. 84). Even though the SSA report provided a description 
of issues facing the red-cockaded woodpecker as it relates to southern 
pine beetles, these variables were not explicitly modeled; instead, 
they were implicitly present in the resulting models in the intercept 
and residual error terms, to the extent that they affected changes in 
population size over time (USFWS 2022, appendix 2, p. 5). Despite known 
outbreak events within red-cockaded woodpecker habitat (USFWS 2022, p. 
140), 87 percent of populations evaluated in the SSA demonstrate stable 
to increasing growth rates, illustrating the effectiveness of currently 
ongoing active management such as described in the SSA report regarding 
species-level impacts from hurricanes (USFWS 2022, p. 112).
    Comment 55: Multiple commenters suggested that we did not 
adequately consider the stressor of diseases, such as avian keratin 
disorder, in our SSA report or proposed rule.
    Our Response: Given that avian keratin disorder research is 
ongoing, we could not explicitly include the data in the species-wide 
analysis (USFWS 2022, appendix 2, p. 5). Currently, there is no 
evidence that this disease or other novel diseases are having more than 
an individual-level effect on the species.
4(d) Rule Take Prohibitions
    Comment 56: One commenter expressed their concern that potential 
section 9 violations are not being properly investigated, resulting in 
no punitive actions taken.
    Our Response: We encourage the commenter to bring any information 
about specific potential section 9 violations to the attention of our 
Office of Law Enforcement.
    Comment 57: One commenter expressed frustration that the Service 
did not account for economic costs when developing the 4(d) rule and 
indicated that failing to do so would make people see red-cockaded 
woodpeckers as a liability. Additionally, they indicated that the 
Service did not have sufficient justification for extending 
restrictions and costs associated with the section 9 prohibition and 
that this approach does not meet the ``necessary and advisable'' 
standard.
    Our Response: In 1982, Congress amended the Act to add the 
requirement that listing determinations are to be made solely on the 
basis of the best scientific and commercial data available. In the 
Conference Report for the 1982 amendments to the Act, Congress 
specifically stated that economic considerations are not to be 
considered in determinations regarding the status of species and that 
the economic analysis requirements of Executive Order 12291 and such 
statutes as the Regulatory Flexibility Act do not apply to any phase of 
determining the listing status of an entity under the Act. If we 
determine that a species is a threatened species under the Act, part of 
our consideration for completing the listing process is to consider 
what regulations are necessary and advisable to provide for the 
conservation of the species under section 4(d) of the Act. As a result, 
a cost benefit analysis is not part of the process required to propose 
or finalize a section 4(d) rule.
    We described on page 6120 of the revised proposed rule (87 FR 6118, 
February 3, 2022) that we have developed revisions to the section 4(d) 
rule that are designed to address the red-cockaded woodpecker's 
specific threats and conservation needs. The statute does not require 
us to make a ``necessary and advisable'' finding with respect to the 
adoption of specific prohibitions under section 9; however, we find 
that this rule as a whole satisfies the requirement in section 4(d) of 
the Act to issue regulations deemed necessary and advisable to provide 
for the conservation of the red-cockaded woodpecker.
    As stated in the revised proposed rule, the section 4(d) rule will 
provide for conservation of the red-cockaded woodpecker by adopting the 
same prohibitions that apply to an endangered species under section 9 
of the Act and 50 CFR 17.21 and several exceptions to those 
prohibitions (87 FR 6118 at 6122, February 3, 2022). Included in the 
proposed rule are the revisions to the proposed section 4(d) rule that 
are designed to address the red-cockaded woodpecker's specific threats 
and conservation needs (87 FR 6118 at 6120, February 3, 2022). These 
revisions have been carried forward into this final 4(d) rule.
4(d) Rule Exceptions
    Comment 58: One commenter requested that the Service provide 
additional guidance in the Background, or in subsequent documents, to 
enable land managers to understand beneficial silviculture and 
management actions that would minimize incidental take versus actions 
that would likely be adverse for which the exceptions would apply.
    Our Response: We acknowledge this concern and are committed to 
continuing to provide guidance pertaining to silvicultural and habitat 
management actions on red-cockaded woodpecker conservation. Additional 
guidance is also available by contacting the local Ecological Services 
Field Office.
    Comment 59: Multiple commenters expressed concern that Federal 
agencies will start harvesting the older age classes of pines for the 
purpose of red-cockaded woodpecker habitat management or to gain timber 
sales revenue. They requested that take exemptions provided under this 
rule not extend to the removal of older age classes of pines and that 
such activities be undertaken only in consultation with the Service.
    Our Response: We acknowledge the importance of older pine trees for 
red-cockaded woodpecker management; however, it is important to note 
that the incidental take exceptions in this 4(d) rule are intended to 
encourage necessary and beneficial habitat restoration and species' 
management to advance recovery. To increase and maintain sustainable 
current and future habitat, red-cockaded woodpecker populations may 
require conversion of older age class stands of loblolly, slash, or 
other planted pines to site-appropriate species, as well as 
regenerating stands of older pines thereby providing a diversity of 
age-classes necessary to ensure the availability of foraging and 
nesting habitat in the future. We recognize that short-term adverse 
effects to red-cockaded woodpecker may be necessary to provide improved 
habitat quality and quantity in the long term with the expectation of 
increasing numbers of

[[Page 85309]]

red-cockaded woodpecker. While incidental take resulting from these 
activities may be excepted under certain circumstances, Federal action 
agencies would still need to fulfill their section 7 obligations under 
the Act. Through section 7 consultation, we would have the opportunity 
to review these activities and provide input on how to minimize impacts 
to the species.
    Comment 60: One public commenter recommended that 50 CFR 
17.41(h)(4)(iii) exceptions for private properties be strengthened by 
making the following changes: (1) explicitly incorporating the methods 
of cavity tree protections from the 2003 recovery plan into the rule 
and (2) requiring a take permit with specific requirements for how to 
avoid and minimize disturbances to roosting and nesting behavior when 
applying herbicide or prescribed burning.
    Our Response: (1) The methods and levels of cavity tree protection 
needed varies across properties and ownership according to local 
habitat conditions, availability of resources for management, and 
several other factors; thus, land managers have latitude to incorporate 
appropriate, site-specific measures into their red-cockaded woodpecker 
habitat management plans, as long as those measures provide sufficient 
cavity tree protections. (2) These types of habitat management 
parameters are appropriately addressed in a population's red-cockaded 
woodpecker habitat management plan rather than a legal regulation, such 
as this rule.
    Comment 61: Several public commenters requested the Service define 
the following terminology in the rule: (1) ``known active cluster,'' 
(2) ``red-cockaded woodpecker habitat restoration and management,'' and 
(3) ``conditions not able to support red-cockaded woodpeckers.''
    Our Response: (1) ``Active cluster'' is defined in the revised rule 
as a cluster in which one or more of the cavity trees exhibit fresh 
resin as a result of red-cockaded woodpecker activity or in which one 
or more red-cockaded woodpeckers are observed, and the word ``known'' 
is used in this context by the common definition found to be generally 
recognized in Merriam-Webster's dictionary. Our intent for the term 
``known active cluster'' is to encourage private landowners to pursue 
certain types of voluntary forest management activities (i.e., 
prescribed burns and herbicide application) in a way that reduces 
impacts to the species but also removes any potential barriers to the 
implementation of this beneficial forest management, such as fear of 
prosecution for take of the red-cockaded woodpecker. (2) Red-cockaded 
woodpecker habitat restoration and management encompasses a variety of 
activities designed to improve conditions for the species but that must 
be developed on site-specific bases to account for local habitat 
complexities. (3) The minimum habitat and resource conditions needed to 
support red-cockaded woodpeckers exhibit variation within and among 
populations across the species' range and are dependent on site-
specific conditions and, therefore, are not quantifiable in this rule 
in a standard way that is representative of every population.
    Comment 62: One public commenter expressed concern about language 
in the October 8, 2020, proposed rule (85 FR 63474) that indicated take 
would be limited to only ``active cavity trees or suitable foraging 
habitat'' and stated that this limitation could drastically reduce a 
red-cockaded woodpecker group's ability to persist given their 
dependency upon old pines for foraging and nesting.
    Our Response: The rule language noted by the commenter was intended 
to give an example of take but was not meant to be a comprehensive list 
of what could cause take for the species. Under the Act, take is 
defined as ``to harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect, or attempt to engage in any such conduct.'' This 
language was removed in the most recent proposed rule (87 FR 6118, 
February 3, 2022).
    Comment 63: One public commenter requested that State employees 
continue to report any red-cockaded woodpecker injuries, deaths, or 
other impacts in a manner consistent with section 10 permittees if they 
are excepted by the proposed 4(d) rule.
    Our Response: The 4(d) rule does not change this reporting process. 
Under section 6, State agencies will continue to report red-cockaded 
woodpecker injuries, deaths, and/or other impacts to the Service.
    Comment 64: One commenter requested exceptions for incidental take 
resulting from other forest management activities, specifically 
mechanical brush clearing and thinning operations.
    Our Response: We recognize the need for and support mechanical 
brush clearing and thinning when conducted to maintain or enhance red-
cockaded woodpecker foraging and nesting habitat. However, incidental 
take resulting from such activities is not anticipated when conducted 
outside red-cockaded woodpecker clusters as it is not expected to 
significantly impair essential behavioral patterns, including breeding, 
feeding, or sheltering. Within clusters during the breeding season, 
these activities may repeatedly disturb roosting and nesting red-
cockaded woodpeckers, thereby significantly impairing essential 
behavioral patterns, including breeding, feeding, or sheltering, 
potentially resulting in cavity abandonment or nest failure thus 
resulting in incidental take. Within clusters outside the breeding 
season, these activities are not anticipated to result in incidental 
take when avoided within at least 1 or 2 hours of dawn and dusk. Thus, 
flexibility exists to conduct such activities with red-cockaded 
woodpecker clusters outside the breeding season without the need for a 
take exception.
4(d) Rule Artificial Cavity Provisions
    Comment 65: One public commenter expressed support of the Service's 
efforts to automate/streamline the permitting process associated with 
installing artificial cavity inserts, but questioned if it would 
require much more effort to amend permits if the Service employee is 
already going to have to review and file documentation letters for new 
trainees.
    Our Response: We agree that this specific exception may not be 
substantial for all practitioners, but many partners have expressed 
that the permitting approval process is significantly delayed. To help 
clarify, we will be requiring only an acknowledgement letter from the 
certified trainer that the trainee has met the certification 
requirement. The letter should go to the Service's National Red-
cockaded Woodpecker Coordinator and not through the permit process.
    Comment 66: A few public commenters stated that there should be no 
exception for take associated with installation of artificial cavities 
and cavity restrictors, with several commenters expressing concern over 
risks associated with cavity restrictors if they are not installed and 
monitored properly.
    Our Response: We acknowledge that we have had reports where red-
cockaded woodpeckers have been adversely impacted due to issues related 
to artificial cavities. However, we advocate that proper installation 
protocols and training, onsite supervision, and attentive cavity 
maintenance scheduling will reduce potential adverse impacts. For 
example, take that occurs from the installation of artificial cavities 
and cavity restrictors is unfortunate; however, because proper training 
and maintenance protocols remain as they always have been, we expect 
take from artificial cavity

[[Page 85310]]

installation and restrictor plates to remain limited across the range.
    Comment 67: Multiple commenters provided feedback pertaining to the 
minimum diameter of trees for artificial cavity installation, as well 
as recommendations for cavity maintenance (e.g., screening damaged 
unusable artificial cavity inserts, checking cavity trees annually) and 
safe installation practices (i.e., inspection by a federally permitted 
biologist).
    Our Response: The current standards for cavity tree selection and 
artificial cavity installation continue to satisfy the best available 
science standard and will remain as the standards used to guide 
artificial cavity tree selection and installation. We currently support 
the artificial cavity standards defined by Allen (1991, p. 19), Copeyon 
(1990, pp. 303-311), and USFWS (2022, pp. 85-87). For the cavity insert 
technique, the guidance requires selected trees to have a minimum of 
15-inch diameter at cavity height, while the drilled cavity technique, 
generally, requires knowledge of the tree's sapwood (3.5 inches or 
less) to heartwood (7 inches or more) ratios at cavity height.
    We agree that attending to unsuitable cavities or cavities in 
disrepair should be part of a regular maintenance routine. Many of the 
procedures used to protect red-cockaded woodpeckers from unsuitable 
cavity conditions includes screening to minimize adverse effects. The 
SSA report describes protocols and procedures that are designed and 
intended to avoid and limit potential adverse effects to red-cockaded 
woodpeckers for both suitable and unsuitable cavities that have fallen 
into disrepair (USFWS 2022, pp. 22, 41, 42, and 53).
    Comment 68: One public commenter suggested that the training 
requirements for the number of installed artificial cavity inserts and 
drilled cavities be the same as the existing permit requirements and 
provided some potential detailed language to include in the rule in 
Sec.  17.41(h)(4)(iv)(A).
    Our Response: The training requirements are not the same as the 
permit requirements so that the trainer is able to ensure the 
proficiency and skill level appropriate for the situation, as 
determined by the trainer. Training requirements for the number of 
installed artificial cavity inserts and drilled cavities can be 
obtained from the Service's National Red-cockaded Woodpecker 
Coordinator.
4(d) Rule Military Exception
    Comment 69: Many public commenters expressed concern that the INRMP 
process is insufficient and indicated mistrust that military 
installations would maintain the highest level of ecosystem habitat 
management without requirements in place.
    Our Response: The Sikes Act states that INRMPs shall reflect mutual 
agreement of the military service, the Service, and the States on the 
conservation, protection, and management of fish and wildlife 
resources. Mutual agreement is reflected by signature of the plan or 
letter of concurrence. As such, we believe that the INRMP process is 
sufficient and trust in the commitment of the military installations to 
implement them.
    Comment 70: One commenter questioned why the DoD installation 
exception was needed given existing Army Red-cockaded Woodpecker 
Guidelines already provide reduced restrictions as installations 
approach, meet, and/or exceed their population goals.
    Our Response: The conditions described in the 1996 ``Management 
Guidelines for the Red-Cockaded Woodpecker on Army Installations'' 
would still apply as site conditions dictate their applicability; 
however, newly constructed INRMPs would better align with the 
conditions proposed in the 4(d) rule. In part, this is because the 
Army's Red-cockaded Woodpecker Guidelines were developed and 
implemented with the red-cockaded woodpecker listed as endangered, 
which in turn requires installations to develop an ESMC. It is clear 
then that not all the requisites of an ESMC will be applicable under 
the 4(d) rule. Additionally, site-specific military operations are not 
part of the Army-wide guidelines but are proposed as an integral 
component to best utilize the 4(d) rule's structure. Finally, with the 
implementation of the 4(d) rule, it is likely the Army may consider 
revising their guidelines to better align with the 4(d) rule.
    Comment 71: Regarding the DoD installation exception, one commenter 
expressed concern that the Service approval of INRMPs would be a 
continuation of historical practices but with more exception 
requirements. Additionally, without the Service's approval of an INRMP, 
there is no valid exception for any take incidental to military 
training or management to maintain or restore red-cockaded woodpecker 
habitat and that the Service's denial of an INRMP approval could, by 
this exception, appear to be an additional form of notification for 
joint resolution among agencies, or to lead to formal consultation.
    Our Response: The Sikes Act states that INRMPs shall reflect mutual 
agreement of the military service, the Service, and the States on the 
conservation, protection, and management of fish and wildlife 
resources. If the process of approving INRMPs, by way of the 
requirements of the Sikes Act, were at a point of impasse between the 
Service and the DoD, then we agree that a notification for joint 
resolution among agencies or a request to enter formal consultation are 
potential solutions to achieve resolution.
    Comment 72: Commenters recommended numerous additional conditions 
and amendments be applied to the exceptions for DoD installations. A 
summary of some of the recommendations include: (1) Creating standards 
for the INRMP process, (2) using a population-driven approach for the 
exceptions (for example, excluding the DoD exception for installations 
with populations in decline that have not met population goals), (3) 
requiring compliance with management guidelines for exceptions to 
apply, and (4) requiring that each INRMP under this rule has an ESMC.
    Our Response: ``Standards'' would be valuable and are likely to 
enhance both INRMPs and new project proposals when articulating the 
expectations for evaluating and implementing red-cockaded woodpecker 
management applications under the 4(d) rule. Of course, we would 
likewise prefer that take, under either scenario, is limited. However, 
because many red-cockaded woodpecker populations have site-specific 
conditions, we anticipate local plan and project determinations to be 
most effective when guarding against population reductions. We 
anticipate red-cockaded woodpecker managers to align with, and continue 
to work toward, the regionwide description of the desired future 
condition that characterizes the optimal red-cockaded woodpecker 
habitat conditions.
    Comment 73: One commenter requested clarification around long-term 
habitat projects in the vicinity of military bases currently being used 
by some military installations to offset destruction of red-cockaded 
woodpecker habitat. They indicated that these programs attempt to rely 
on an installation's promises that it will restore off-base habitat 
that it has acquired, which may not be suitable for either nesting or 
foraging, to offset takes from the destruction of currently suitable 
nesting and/or foraging habitat within the installation. This commenter 
asked that the Service not allow this by, at a minimum, ensuring that 
the long-term habitat projects do not fall under the ``habitat 
management and military

[[Page 85311]]

training activities'' outlined in the proposed rule.
    Our Response: Section 4(d) of the Act requires that the Secretary 
issue regulations that are necessary and advisable to provide for the 
conservation of threatened species. Similarly, the intent of the INRMP 
is to follow the ESA and provide regulatory flexibility for the 
conservation of protected species. As a reminder, there are no changes 
in section 7 responsibilities for Federal agencies due to a 4(d) rule. 
With regard to the commenter's concerns, there are rigorous 
requirements through formal consultation with the Service that would 
have to be met before an Army ``compatible use buffer'' property could 
be used as an offset (e.g., land is permanently encumbered for 
protections, an endowment is set up to provide funding for management, 
the land has been validated by way of a spatially explicit population 
model that red-cockaded woodpecker will occupy the habitat in the 
future, there is a unique management plan). The details of consultation 
language, along with the parameters identified, would be reflected in 
the INRMP.
4(d) Rule Provisions for Prescribed Burning and Herbicides
    Comment 74: A public commenter reported concerns that most private 
landowners are unlikely to contact a State agency prior to burning and 
that State agencies may not be aware of the protected status of the 
species.
    Our Response: There are already requirements in place for private 
landowners to contact State wildlife agencies when conducting 
prescribed fires within red-cockaded woodpecker populations. Given the 
many decades of cooperation between the Service and the State wildlife 
agencies, and the past and present conservation programs enacted for 
the conservation of the red-cockaded woodpecker by these State wildlife 
agencies, we contend that all State wildlife agencies in the range of 
the red-cockaded woodpecker are aware of the species' status under the 
Act.
    Comment 75: One commenter stated that there is a risk of take 
occurring during prescribed burns on private lands for clusters lacking 
intensive monitoring, and that raking around cavity trees can only 
minimize the risk. Another commenter stated that habitat management 
intended to benefit the species should not result in take and requested 
a distinction in the exceptions for both Federal and private lands for 
take of actual woodpeckers compared to forms of harm or harassment.
    Our Response: Take can result knowingly or otherwise, by direct and 
indirect impacts, and intentionally or incidentally. Additionally, 
there is a difference between short-term take of an individual and the 
long-term benefit to the conservation of the species from habitat 
management actions taken to benefit the species. This section 4(d) rule 
would prohibit take on both public and private lands with exceptions as 
described in Sec.  17.41(h)(4)(ii)-(iii). Incidental take that results 
from activities such as prescribed burns could be allowed under certain 
authorizations, including being excepted under this section 4(d) rule, 
authorized by a permit under the Act (e.g., section 10(a)(1)(A) permit 
issued for a CBA, section 10(a)(1)(B) permit issued for an HCP), or 
exempted through section 7 consultation (e.g., consultations that cover 
landowners enrolled in NRCS or Partners for Fish and Wildlife 
conservation programs).
    Given the array of management activities and how each could result 
in one or more forms of incidental take, distinguishing between take of 
individuals directly through killing or indirectly through harm or 
harassment affecting other aspects of the species' ecology or behavior 
is not practical as both may result in lethal take. Federal agencies 
would still consult under section 7 of the Act if their actions may 
affect red-cockaded woodpecker, and if take is anticipated, the form of 
take would be identified in the subsequent biological opinion. This 
includes intraservice section 7 consultation for the issuance of 
section 10(a)(1)(A) permits for existing SHAs or future CBAs on private 
land, which identify the anticipated forms of take. Additionally, we 
agree that managers have a responsibility to avoid killing red-cockaded 
woodpeckers, as we included language that Federal land management 
agencies must incorporate appropriate conservation measures to minimize 
or avoid adverse effects of excepted habitat management activities on 
the red-cockaded woodpecker foraging habitat, on clusters, and on the 
species' roosting and nesting behavior to the maximum extent 
practicable.
4(d) Rule Exception for Service- or State-Approved Management Plans
    Comment 76: One commenter noted that not all State agencies 
involved in red-cockaded woodpecker conservation have section 6 
cooperative agreements with the Service and thus are not able to 
utilize exceptions. Additionally, they stated that many conservation 
plans required for section 6 cooperative agreements with the Service 
are out of date or lack the level of detail necessary for red-cockaded 
woodpecker management.
    Our Response: We acknowledge that not all State agencies conducting 
red-cockaded woodpecker management activities have section 6 agreements 
with the Service. Section 6 cooperative agreements are limited to a 
State agency that establishes and maintains an adequate and active 
program for the conservation of endangered species and threatened 
species fitting the requirements of section 6(c)(1). Given the 
requirements, section 6 is often limited to State wildlife agencies 
with State regulatory authority, thus other State agencies that may 
manage for red-cockaded woodpeckers on their lands are ineligible.
    We also acknowledge that State conservation plans throughout the 
red-cockaded woodpecker range vary and recognize that State agencies 
possess valuable expertise and foster crucial relationships with State 
conservation agency partners contributing to woodpecker conservation. 
The exceptions for conservation actions (50 CFR 17.31(b)) apply only to 
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.
    Comment 77: In general, commenters recommended additional detail 
and conditions be added to the Federal land management agency exception 
(Sec.  17.41(h)(4)(ii)). A summary of the recommendations include: (1) 
Clarify in the Background how the three requirements will be assessed, 
(2) use a population-driven approach for the exceptions, (3) conduct 
thorough Service review of proposed take due to management/restorations 
actions, and (4) add clarification on types of analyses and information 
in Federal habitat management plans with regard to ``habitat management 
actions.''
    Our Response: Population dynamics of the red-cockaded woodpecker 
are complex, involving number of adults and helpers and amount, type, 
and spatial arrangement of suitable roosting, nesting, and foraging 
habitat. Therefore, we believe it is appropriate for Ecological 
Services Field Office staff and species leads to cooperate with Federal 
partners during preparation, review, and/or revision of Federal plans, 
annual reviews, and/or reporting requirements, if applicable, and 
section 7 consultations. Because of this complexity, we chose not to 
specify how the three requirements associated with the exception for 
Federal land management agency properties will be

[[Page 85312]]

assessed or a limit to any decline or reduction in the property 
population size that may result because of implementing beneficial 
conservation management.
    Federal land management agencies often cooperate with the Service 
and the States to prepare their habitat management plans (e.g., LRMPs 
and National Wildlife Refuge comprehensive conservation plans (CCPs)) 
and incorporate management methods to sustain and increase red-cockaded 
woodpecker populations as detailed in the 2003 recovery plan. Also, 
they have established procedures to give Federal, State, and local 
governments and the public adequate notice and an opportunity to 
participate in the planning process. Lastly, under this or any section 
4(d) rule Federal land management agencies would still need to fulfill 
their section 7 obligations under the Act. As a result, Service 
approval of Federal agency habitat management plans is not needed for 
this exception to apply for the red-cockaded woodpecker.
    While this 4(d) rule does not provide additional guidance 
reflecting our intent for plans or detailed guidance describing the 
kinds of information expected in the exception, it is important to note 
that this 4(d) rule would not alter or invalidate the 2003 recovery 
plan. Recovery plans are not regulatory documents, but rather provide a 
strategy to guide conservation and recovery of listed species.
    Comment 78: One commenter suggests that the Service should (1) 
provide examples of suitable management plan details in the Background 
section, (2) provide consistent guidance to Federal agencies on the 
kinds of measures needed to effectively minimize and avoid adverse 
effects, and (3) require an analysis of the effects of certain types of 
management, which the Service should also be willing to provide as 
guidance or by other forms.
    Our Response: Population dynamics of the red-cockaded woodpecker 
are complex, including but not limited to number of adults and helpers 
and amount, type, and spatial arrangement of suitable roosting, 
nesting, and foraging habitat. Therefore, we believe it is appropriate 
for Ecological Services Field Office staff and species leads to 
cooperate with Federal partners during preparation, review, and/or 
revision of Federal plans, annual reviews, and/or reporting 
requirements, if applicable, and section 7 consultations. Much of the 
guidance and examples being requested are already provided in various 
forms (e.g., 2003 recovery plan, Management Guidelines for the Red-
cockaded Woodpecker on Army Installations, Service memos, site-specific 
red-cockaded woodpecker consultation documents, among other sources).
    Comment 79: One commenter suggests that the term ``maximum extent 
practicable'' be deleted as it could be misinterpreted.
    Our Response: If a Federal agency's ability to manage for the 
species is limited for any reason, this information will be described 
with justification in their consultation with us. Federal agencies are 
responsible for implementing the recovery goals and subsequent recovery 
criteria and should share the goal of moving the red-cockaded 
woodpecker to the point where the size, number, and distribution of 
populations will be sufficient to be delisted in the future. As a 
result, the terminology ``maximum extent practicable'' has remained in 
the final rule.
    Comment 80: One public commenter requested that ``State 
conservation agency'' be defined in the rule and requested a table 
listing the agencies within each State that are authorized to permit 
red-cockaded woodpecker impacts.
    Our Response: We will still be responsible for issuing and managing 
all section 10 permits and Federal agencies will continue to consult 
with us on activities that may affect the red-cockaded woodpecker. 
State agencies are responsible for the State-approved plans but are 
unable to permit or approve take under the ESA. As a result, it would 
not be necessary to include a table listing the specific State agencies 
responsible for authorizing permits.
    Comment 81: Several commenters expressed some confusion regarding 
SHAs. One commenter requested clarification regarding the numbers cited 
in the rule for active clusters (295) and above baseline clusters (241) 
on Safe Harbor properties. They wanted to know if the 295 referred to 
baseline clusters. Another commenter asked that there be exception for 
SHAs, now known as CBAs, only if the ``above baseline'' clusters have 
exceeded State recovery goals.
    Our Response: The description of red-cockaded woodpecker clusters 
and SHAs in the proposed 4(d) rule did not specify the number of 
baseline red-cockaded woodpecker clusters enrolled in these agreements. 
The number provided for active clusters includes both above baseline 
and baseline active clusters. The number provided for above baseline 
clusters on Safe Harbor properties includes both active and inactive 
above baseline clusters. Currently there are 273 red-cockaded 
woodpecker active clusters (both above baseline and baseline) in SHAs 
across the species' range; 295 was written in error. We have excluded 
this level of detail in the rule to simplify the language and focus on 
our intended description that this section 4(d) rule does not alter 
this valuable program or the permits associated with it.
    The regulations being promulgated by this 4(d) rule do not change 
or authorize the reduction of baseline clusters associated with 
existing SHAs or future CBAs. Take exceptions for privately owned 
properties would not provide any additional flexibility. The permits 
associated with existing SHAs and future CBAs authorize take associated 
with prescribed burns, herbicide use, and other activities, as long as 
landowners follow the stipulations in their SHA or CBA and do not 
decrease the number of red-cockaded woodpecker clusters below their 
baseline. Restricting excepted take to only above baseline clusters 
would not provide additional protection to red-cockaded woodpecker 
populations on private lands and may disincentivize beneficial habitat 
management. Additionally, limiting these exceptions to only properties 
exceeding their recovery goal could be detrimental to red-cockaded 
woodpecker populations below their recovery goal that require habitat 
management activities necessary to ensure sustainable nesting and 
foraging habitat. Excepted take resulting from the habitat management 
activities described in this 4(d) rule is intended to increase and 
maintain sustainable current and future habitat. We recognize that 
short-term adverse effects to red-cockaded woodpecker may be necessary 
to provide improved habitat quality and quantity in the long term with 
the expectation of increasing numbers of red-cockaded woodpecker.
    Comment 82: One commenter questioned why properties enrolled in 
SHAs have ``baseline'' and ``above baseline'' and military 
installations have ``protected'' and ``unprotected'' clusters, but that 
similar mechanisms are not in place for the USFS, State agencies, and 
private landowners not enrolled in SHAs, now known as CBAs.
    Our Response: All public land managers and applicable State land 
management agencies are able to enroll and participate in the 
Conservation Benefit Agreement program. While the mechanism for 
``protected'' and ``unprotected'' clusters was originally developed for 
military installations, if the USFS, State agencies, and private 
landowners would like the same coverage, they can seek consultation

[[Page 85313]]

with the Service. It is important to note that, in this context, 
``unprotected'' and ``protected'' clusters only pertains to areas where 
military training can or cannot occur. Only training that would not be 
expected to impact red-cockaded woodpeckers could occur within 
``unprotected'' clusters, whereas military training cannot occur within 
``protected'' clusters.
    Comment 83: One public commenter suggested that the Service except 
take associated with activities done in accordance with the private 
lands guidelines set forth in the 2003 recovery plan. The commenter 
stated that the plan clearly lists habitat management practices that 
benefit the species and that forest landowners are already implementing 
across the landscape.
    Our Response: The Service is not excepting take associated with 
activities done in accordance with the private lands guidelines. We 
support beneficial forest management practices conducted in accordance 
with the private lands guidelines in the 2003 recovery plan guidelines. 
Incidental take resulting from such activities is not anticipated when 
they are conducted outside red-cockaded woodpecker clusters or inside 
red-cockaded woodpecker clusters outside the breeding season but not 
within at least 1 or 2 hours of dawn and dusk as such activities are 
not expected to significantly impair essential behavioral patterns, 
including breeding, feeding, or sheltering. Within clusters during the 
breeding season, these activities may repeatedly disturb roosting and 
nesting red-cockaded woodpeckers thereby significantly impairing 
essential behavioral patterns, including breeding, feeding, or 
sheltering, potentially resulting in cavity abandonment or nest 
failure, thus resulting in incidental take. Thus, flexibility exists to 
conduct such activities within red-cockaded woodpecker foraging habitat 
and nesting habitat outside the breeding season without the need for a 
take exception.
    Comment 84: One public commenter asked if the Service is required 
to request a formal intraservice section 7 consultation on the effect 
of any final 4(d) rule. They noted that they did not see any 
information about this requirement in the proposed rule and expressed 
that this would be an opportunity to provide additional guidance to 
agencies and landowners on how best to manage for the species.
    Our Response: The Service is required to conduct an intraservice 
section 7 consultation on any final 4(d) rule. We described this 
consultation requirement in the revised proposed rule (87 FR 6118, 
February 3, 2022). In the rule we clarify that section 7(a)(2) of the 
Act requires Federal agencies, including the Service, to ensure that 
any action they fund, authorize, or carry out is not likely to 
jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of designated critical habitat of such species.
4(d) Rule General Issues
    Comment 85: We received multiple comments on the 4(d) rule as 
originally proposed in our October 8, 2020, proposed rule (85 FR 
63474). These comments expressed confusion and concern about the 
framing of the prohibitions and exceptions. Some commenters believed 
the 4(d) rule, as originally proposed, was overly restrictive (even 
more restrictive than the regulations that apply while the species is 
listed as endangered), while other commenters believed the proposed 
4(d) rule provided inadequate protection.
    Our Response: We reconsidered the proposed 4(d) rule and published 
a revised proposed 4(d) rule on February 3, 2022 (87 FR 6118). The 
revisions addressed the vast majority of concerns raised in the public 
comments on the October 8, 2020, proposed rule (85 FR 63474).

Final Reclassification Determination

Background

    A thorough review of the taxonomy, range and distribution, life 
history, and ecology of red-cockaded woodpecker is presented in the SSA 
report (USFWS 2022, pp. 16-34; available at https://www.regulations.gov 
at Docket No. FWS-R4-ES-2019-0018) and is briefly summarized here.
    Red-cockaded woodpeckers were first described as Picus borealis 
(Vieillot 1807, p. 66). However, in the recent 59th supplement to the 
checklist of North American birds by the American Ornithological 
Society (AOS), the AOS Committee on Classification and Nomenclature 
changed the classification of Picoides borealis to Dryobates borealis 
(Chesser et al. 2018, pp. 798-800). We accept the change of the red-
cockaded woodpecker's classification from Picoides borealis to 
Dryobates borealis, and in this final rule, we amend the scientific 
name to match the currently accepted AOS nomenclature.
    The red-cockaded woodpecker is a territorial, non-migratory bird 
species that makes its home in mature pine forests in the southeastern 
United States. The red-cockaded woodpecker is a relatively small 
woodpecker. Both male and female adult red-cockaded woodpeckers are 
black and white with a ladder back and large white cheek patches. Males 
have a tiny red streak, or red ``cockade'', on their upper cheek.
    Red-cockaded woodpeckers live in groups that share, and jointly 
defend, territories throughout the year. In cooperative breeding 
systems, some mature adults forgo reproduction and instead assist in 
raising the offspring of the group's breeding male and female (Emlen 
1991, entire). A potential breeding group (PBG) may consist of zero to 
as many as five helpers, but most PBGs consist of only a breeding pair 
plus one to two helpers.
    Young birds either disperse in their first year or remain on the 
natal territory and become helpers. First-year dispersal is the 
dominant strategy for females, but both strategies are common among 
males (Walters et al. 1988, pp. 287-301; Walters and Garcia 2016, pp. 
69-72). Male helpers may become breeders by inheriting breeding status 
on their natal territory or by dispersing to fill a breeding vacancy at 
another territory (Walters et al. 1992, p. 625). Female helpers almost 
never inherit the breeding position on their natal territory, instead 
relying on dispersal to neighboring territories to become breeders.
    Red-cockaded woodpeckers are unique among North American 
woodpeckers in that they nest and roost in cavities they excavate in 
living pines (Steirly 1957, p. 282; Jackson 1977, entire). Cavities are 
an essential resource for red-cockaded woodpeckers throughout the year, 
because the birds use them for roosting year-round, as well as nesting 
seasonally. The aggregation of active and inactive cavity trees within 
the area defended by a single group is termed the cavity tree cluster 
(Conner et al. 2001, p. 106).
    Red-cockaded woodpeckers were once common throughout open, fire-
maintained pine ecosystems, particularly longleaf pine that covered 
approximately 92 million acres before European settlement (Frost 1993, 
p. 20). Original pine forests were old and open, and contained a 
structure dominated by two layers, a canopy and diverse herbaceous 
ground cover, maintained by frequent low-intensity fire (Brockway et 
al. 2006, pp. 96-98).
    Currently, nesting and roosting habitat of red-cockaded woodpeckers 
varies across the species' range. The largest populations tend to occur 
in the longleaf pine woodlands and savannas of the East Gulf Coastal 
Plain, South Atlantic Coastal Plain, Mid-Atlantic Coastal Plain, and 
Carolina Sandhills (Carter 1971, p. 98; Hooper et al. 1982, entire; 
James 1995, entire; Engstrom et

[[Page 85314]]

al. 1996, p. 334). The shortleaf/loblolly forests of the Piedmont, 
Cumberlands, and Ouachita Mountain regions (Mengel 1965, pp. 306-308; 
Sutton 1967, pp. 319-321; Hopkins and Lynn 1971, p. 146; Steirly 1973, 
p. 80) are another important habitat type. Red-cockaded woodpeckers 
also occupy a variety of additional pine habitat types at the edges of 
their range, including slash (Pinus elliottii), pond (P. serotina), 
pitch (P. rigida), and Virginia pines (P. virginiana) (Steirly 1957, 
entire; Lowery 1974, p. 415; Mengel 1965, pp. 206-308; Sutton 1967, pp. 
319-321; Jackson 1971, pp. 12-20; Murphy 1982, entire).
    Once a common bird distributed contiguously across the southeastern 
United States, the red-cockaded woodpecker was estimated range-wide 
around the time of listing in 1970 to be fewer than 10,000 individuals 
(approximately 1,500 to 3,500 active clusters; an aggregate of cavity 
trees used by a group of woodpeckers for nesting and roosting) in 
widely scattered, isolated, and declining populations (Jackson 1971, 
pp. 12-20; Jackson 1978, entire; USFWS 1985, p. 22; Ligon et al. 1986, 
pp. 849-850). Today, the Service's conservative estimate is that there 
are 7,800 active clusters range-wide (USFWS 2022, pp. 16, 108-110), 
almost double the number of clusters that existed in 1995.

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. Under section 4(f)(1)(B)(ii), 
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 Lists of Endangered and 
Threatened Wildlife and Plants.
    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.
    The original recovery plan was issued by the Service on August 24, 
1979. A first revision was issued on April 11, 1995, and the second, 
and current, revision on January 27, 2003. The 2003 recovery plan 
provided management guidelines fundamental to the conservation and 
recovery of red-cockaded woodpeckers. The Service continues to strongly 
encourage the application of these guidelines to the management of 
woodpecker populations on public and private lands. Implementation of 
the 2003 recovery plan has been carried out through the incorporation 
of management guidelines for installing artificial cavities, management 
of cavity trees and clusters, translocation, silviculture, and 
prescribed fire into various Federal and State land management plans. 
In addition to the management guidelines, the 2003 recovery plan 
provides guidelines to private landowners for managing foraging habitat 
on private lands occupied by red-cockaded woodpeckers. After the 
issuance of the 2003 recovery plan, two additional sets of foraging 
guidelines were developed (USFWS 2005, entire). As described in the 
2005 guidance, the recovery standard for good quality foraging habitat 
is intended for recovery management to sustain and increase 
populations.
    The 2003 recovery plan contains both downlisting and delisting 
criteria (USFWS 2003, pp. 141-145). The current status of red-cockaded 
woodpecker partially meets the 2003 downlisting criteria. The number of 
red-cockaded woodpecker active clusters has increased from 5,627 to 
more than 7,800 since 2003 (USFWS 2022, entire). The population size 
objectives to meet applicable downlisting criteria have been met for 15 
of 20 designated populations. All of these designated populations show 
stable or increasing long-term population growth rates ([lambda] >= 1). 
However, not all of the designated recovery populations are 
demographically a single functional population as intended by the 2003 
recovery plan. Nine of the 20 designated recovery populations that 
count toward fulfilling downlisting population size criteria consist of 
multiple smaller demographic populations. Based on the largest single 
demographic population for a designated recovery population, 14 of 20 
designated recovery populations have achieved downlisting population 
size criteria. As to delisting criteria, because the delisting criteria 
all require all-natural cavities, none of the delisting criteria have 
been fully met. With continued forest management to retain and produce 
sufficient old pines for natural cavity excavation, future populations 
would no longer be dependent on artificial cavities. Regardless, there 
has been encouraging progress towards meeting the delisting criteria, 
as 12 of 29 demographically delineated populations corresponding to 
designated recovery populations currently have achieved population 
sizes that meet the delisting criteria. We described that status of the 
downlisting and delisting criteria in detail in the proposed rule (85 
FR 63474, October 8, 2020).
    For the red-cockaded woodpecker, although all of the population 
objectives from the 2003 recovery plan have yet to be reached, the 
primary recovery task of increasing existing populations on Federal and 
State lands has been successful, and the population growth rates 
indicate sufficient resiliency to stochastic disturbances with 
effective management. In addition, redundancy of moderate to very high 
resiliency populations suggests that risks from future catastrophic 
events to overall viability are low.

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

[[Page 85315]]

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 endangered and threatened species. On April 5, 2024, 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, and reclassify endangered and threatened species and what 
criteria we apply when designating listed species' critical habitat (89 
FR 24300). On the same day, the Service published a final rule revising 
our protections for endangered species and threatened species at 50 CFR 
17 (89 FR 23919). These final rules are now in effect and are 
incorporated into the current regulations. Our analysis for this final 
decision applied our current regulations. Given that we proposed 
reclassifying this species under our prior regulations (revised in 
2019), we have also undertaken an analysis of whether our decision 
would be different if we had continued to apply the 2019 regulations 
and we concluded that the decision would be the same. The analyses 
under both the regulations currently in effect and the 2019 regulations 
are available on https://www.regulations.gov.
    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.
    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 which is 
further described in the 2009 Memorandum Opinion on the foreseeable 
future from the Department of the Interior, Office of the Solicitor (M-
37021, January 16, 2009; ``M-Opinion,'' available online at https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf). 
The foreseeable future extends as far into the future as the Services 
can make reasonably reliable predictions about the threats to the 
species and the species' responses to those threats. We need not 
identify the foreseeable future in terms of a specific period of time. 
We will describe the foreseeable future on a case-by-case basis, using 
the best available data and taking into account considerations such as 
the species' life-history characteristics, threat-projection 
timeframes, and environmental variability. In other words, the 
foreseeable future is the period of time over which we can make 
reasonably reliable predictions. ``Reliable'' does not mean 
``certain''; it means sufficient to provide a reasonable degree of 
confidence in the prediction, in light of the conservation purposes of 
the Act.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological 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 our decision 
on whether the species should be reclassified as a threatened species 
under the Act. However, it does 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 red-cockaded woodpecker viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency is the ability of the species to withstand environmental and 
demographic stochasticity (for example, wet or dry, warm or cold 
years), redundancy is the ability of the species to withstand 
catastrophic events (for example, droughts, large pollution events), 
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment 
(for example, climate conditions, pathogens). In general, species 
viability will increase with increases in resiliency, redundancy, and 
representation (Smith et al. 2018, p. 306). 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 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

[[Page 85316]]

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, which we then 
used to inform our regulatory decision.
    The following is a summary of the key results and conclusions from 
the SSA report; the full SSA report (USFWS 2022, entire) can be found 
at Docket No. FWS-R4-ES-2019-0018 on https://www.regulations.gov and at 
https://ecos.fws.gov/ecp/species/7614.

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 report 
(USFWS 2022, entire) documents our comprehensive biological status 
review for the species, including an assessment of the potential 
threats to the species.
    The following is a summary of this status review and the best 
available information gathered since that time that have informed this 
decision. In the discussion below, we summarize the conclusions of that 
assessment, which we provide in full under Docket No. FWS-R4-ES-2019-
0018 on https://www.regulations.gov and at https://fws.gov/species/red-cockaded-woodpecker-dryobates-borealis.

Summary of Species Needs

    In the SSA report, we discuss individual-, population-, and 
species-level needs of the red-cockaded woodpecker in detail (USFWS 
2022, pp. 32-104). Red-cockaded woodpeckers require open pine woodlands 
and savannas with large, old pines for nesting and roosting. Old pines 
are required as cavity trees because cavity chambers must be completely 
within the heartwood to prevent pine resin in the sapwood from entering 
the chamber (Conner et al. 2001, pp. 79-155); a tree must be old and 
large enough to have sufficient heartwood to contain a cavity. In 
addition, old pines have a higher incidence of the heartwood decay that 
greatly facilitates cavity excavation. Cavity trees must be in open 
stands with little or no hardwood midstory and few or no overstory 
hardwoods. Hardwood encroachment on cavity trees resulting from fire 
suppression is a well-known cause of cluster abandonment.
    Red-cockaded woodpeckers also require adequate foraging habitat. 
Over 75 percent of the red-cockaded woodpecker's diet consists of 
arthropods. Individuals generally capture arthropods on and under the 
outer bark of live pines and in dead branches of live pines. A large 
proportion of the arthropods on pine trees crawl up into the trees from 
the ground, which implies the condition of the ground cover is an 
important factor influencing abundance of prey for red-cockaded 
woodpecker (Hanula and Franzreb 1998, entire). The density of pines has 
a negative relationship with arthropod abundance and biomass, likely 
due at least in part to the negative effect of pine density on ground 
cover, from which some of the prey comes (Hanula et al. 2000, entire). 
Arthropod abundance and biomass also increase with the age and size of 
pines (Hooper 1996, entire; Hanula et al. 2000, entire), which is 
another reason older pines are so critical to this species. 
Accordingly, suitable foraging habitat generally consists of mature 
pines with an open canopy, low densities of small pines, a sparse 
hardwood or pine midstory, few or no overstory hardwoods, and abundant 
native bunchgrass and forb groundcovers. Frequent fire likely increases 
foraging habitat quality by reducing hardwoods and by increasing the 
abundance and perhaps nutrient value of prey (James et al. 1997, 
entire; Hanula et al. 2000, entire; Provencher et al. 2002, entire). 
Thus, frequent growing season fire may be critical in providing red-
cockaded woodpeckers with abundant prey.
    For the red-cockaded woodpecker to maintain viability, its 
populations or some portion thereof must be resilient. The SSA assessed 
resiliency at the population level, primarily by evaluating the current 
population size as the number of active clusters and secondarily by the 
associated past growth rate. Ultimately, a resilient population of red-
cockaded woodpecker has a large number of active clusters and a 
positive growth trajectory. Red-cockaded woodpecker resiliency 
primarily depends upon a single factor: amount of managed suitable 
habitat.
    Representation provides the ability of the species to adapt to 
physical (e.g., climate conditions, habitat conditions or structure 
across large areas) and biological (e.g., novel diseases, pathogens, 
predators) changes in its environment presently and into the future; it 
is a proxy measure for the evolutionary capacity or flexibility of the 
species. Representation is the range of variation found in a species, 
and this adaptive diversity is the source of species' adaptive 
capabilities. The red-cockaded woodpecker's adaptive diversity can be 
thought of as the amount and spatial distribution of genetic and 
phenotypic diversity. By maintaining these two sources of adaptive 
diversity across a species' range, the responsiveness and adaptability 
of a species over time is preserved (USFWS 2022, pp. 90-104). The SSA 
evaluated representation based on the extent and variability of habitat 
characteristics across the geographical range of the species and 
characterized representative units for the red-cockaded woodpecker 
using ecoregions. This analysis generally followed the approach to 
representation used in the species' 2003 recovery plan (USFWS 2003, pp. 
148, 152-155).
    For the red-cockaded woodpecker to maintain viability, the species 
also needs to exhibit some degree of redundancy. Measured by the number 
of populations, their resiliency, and their distribution, redundancy 
increases the probability that the species has a margin of safety to 
withstand, or can bounce back from, catastrophic events. The SSA 
reported redundancy for red-cockaded woodpeckers as the total number 
and resilience of population segments and their distribution within and 
among representative units.
    In summary, a species needs a suitable combination of all three 
characteristics (resilience, representation, and redundancy) for long-
term viability.

Summary of Stressors

    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have 
analyzed the cumulative effects of identified threats and conservation 
actions on the species. To assess the current and future condition of 
the species, we evaluate the effects of all the relevant 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 primary risk factor (i.e., stressor) affecting the status of 
the red-cockaded woodpecker remains the lack of suitable habitat 
(Factor A). Wildfire, pine beetles, ice storms, tornadoes, hurricanes, 
and other naturally occurring disturbances that destroy pines used for 
cavities and foraging are stressors for the red-cockaded woodpecker 
(Factor E), especially given the high number of very small

[[Page 85317]]

woodpecker populations (Factor E) (USFWS 2022, pp. 40-41, 83-85, 105, 
121-129). The number and severity of major hurricanes (Bender et al. 
2010, entire; Knutson et al. 2010, entire; Walsh et al. 2014, pp. 41-
42) is expected to increase in response to global climate change, and 
this increase could also disproportionately affect the smaller, less 
resilient woodpecker populations (Factor E). With rare exception, the 
vast majority of red-cockaded woodpecker populations remain dependent 
on artificial cavities due to the absence of sufficient old pines for 
natural cavity excavation and habitat treatments to establish and 
maintain the open, pine-savanna conditions favored by the species 
(Factor E). These populations will decline without active and 
continuous management to provide artificial cavities and to sustain and 
restore forest conditions to provide suitable habitat for natural 
cavities and foraging similar to the historical conditions (Conner et 
al. 2001, pp. 220-239, 270-299; Rudolph et al. 2004, entire).
    Although published after the completion of the SSA report, a recent 
publication indicated potential effects of warming temperatures, 
resulting from climate change, on breeding phenology of red-cockaded 
woodpeckers. A description of this preliminary research has been 
incorporated below.
Habitat Loss and Degradation
    The primary remaining threats to the red-cockaded woodpecker's 
viability have the same fundamental cause: lack of suitable habitat. 
Historically, the significant impacts to red-cockaded woodpecker 
habitat occurred as a result of clearcutting, incompatible forest 
management, and conversion to urban and agricultural land uses. Both 
the longleaf pine and other open pine ecosystems were eliminated from 
much of their original range because of early (1700s) European 
settlement, widespread commercial timber harvesting, and the naval 
stores (turpentine) industry (1800s). Early to mid-1900 commercial tree 
farming, urbanization, and agriculture contributed to further declines. 
Much of the remaining habitat is very different from the vast, 
historical pine forests in which the red-cockaded woodpecker evolved. 
The second growth longleaf pine forests of today, rather than being 
dominated by centuries-old trees as the original forests were, are just 
reaching the age (90-100 years) required to meet all the needs of the 
red-cockaded woodpecker. Furthermore, in many cases, the absence of 
fire has caused the original open savannas to degrade into dense pine/
hardwood forest. Much of today's forest is young and dense, and 
dominated by loblolly pine, with a substantial hardwood component and 
little or no herbaceous groundcover (Noel et al. 1998, entire; Frost 
2006, pp. 37-38).
    The impacts from this clearcutting and incompatible forest 
management have been significantly curtailed and replaced by beneficial 
conservation management that sustains and increases populations; 
however, stressors caused by adverse historical practices still linger, 
including insufficient numbers of cavities, low numbers of suitable old 
pines, habitat fragmentation, degraded foraging habitat, and small 
populations. These lingering impacts can negatively affect the ability 
of populations to grow, even when populations are actively managed for 
growth, as the carrying capacity of suitable forest areas across much 
of the range can be quite low. However, restoration activities such as 
prescribed fire and strategic placement of recruitment clusters can 
reduce gaps between populations and increase habitat and population 
size toward current carrying capacity. These activities are occurring 
across the range of the red-cockaded woodpecker on properties actively 
managed for red-cockaded woodpecker conservation.
    Currently, stressors to the species resulting from exposure to 
habitat modification or destruction are lower, especially when compared 
to historical levels. Periodically, military training on DoD 
installations requires clearing of red-cockaded woodpecker habitat for 
construction of ranges, expansion of cantonments, and related 
infrastructure, but these installations have management plans to 
sustain and increase red-cockaded woodpecker populations. In addition, 
silvicultural management on Federal, State, and private lands also 
occasionally results in temporary impacts to habitat; for example, red-
cockaded woodpecker habitat may be unavoidably, but temporarily, 
adversely affected in old, even-aged loblolly pine stands that require 
regeneration prior to stand senescence to sustain a matrix of future 
suitable habitat for a net long-term benefit. Similarly, red-cockaded 
woodpecker habitat may be temporarily destroyed in areas where offsite 
loblolly, slash, or other pines are removed and replaced by the more 
fire-tolerant native longleaf pine. However, the net result of these 
activities is a long-term benefit, as the goal is to restore these 
areas to habitat preferred by woodpeckers.
Climate Change
    In 2019, DeMay and Walters published preliminary investigations 
that examined the ``effects of climate on breeding phenology and 
productivity in 19 populations across the range of the red-cockaded 
woodpecker'' (DeMay and Walters 2019, p. 1). They found that birds at 
higher latitudes appear to be adjusting the timing of breeding in 
response to warming temperatures; they are nesting earlier and have 
resultingly higher productivity. However, they found that birds in the 
southwestern portion of the range have been exhibiting declining 
productivity, even in populations with high-quality habitat and ongoing 
active management (e.g., Eglin Air Force Base); the authors 
hypothesized this decline in productivity could be due to ``a possible 
shift in acceptable climate conditions for the species'' or an 
inability of these populations to make appropriate adjustments to the 
timing of reproduction in the face of a changing climate.
    While the SSA report did not incorporate the findings of DeMay and 
Walters (2019), it did acknowledge that southwestern populations have 
lower productivity (USFWS 2022, p. 26) and referenced earlier research 
to similarly suggest that climate change has the potential to influence 
productivity through anticipated changes in temperature and 
precipitation patterns (USFWS 2022, p. 92; Schiegg et al. 2002, 
entire).Even with the lower productivity in the southwestern 
populations, it should be noted that the current species distribution 
covers 13 different ecoregions, all with unique climatic profiles, 
suggesting that the species has an increased ability to adapt.
Natural Disturbances
    Wildfire, pine beetles, ice storms, tornadoes, and hurricanes are 
naturally occurring disturbances that destroy pines used for cavities. 
The loss of pines can result in subsequent reductions to population 
size unless management actions are taken to reduce or ameliorate 
adverse impacts. These management actions include providing artificial 
cavities, reducing hazardous fuels, and restoring forests to suitable 
habitat following these events. These disturbances can also destroy or 
degrade foraging habitat and cause direct mortality of woodpeckers. 
Small populations are the most vulnerable to these disturbances as 
there are fewer individuals to recover from the disturbance, 
potentially resulting in poorer survival or reproduction for the 
population. See the SSA report for more information about these natural 
disturbances (USFWS 2022, pp. 121-129).

[[Page 85318]]

    Habitat destruction caused by hurricanes is the most acute and 
potentially catastrophic disturbance because hurricanes can impact 
entire populations. As noted in the SSA report, of the 124 current 
demographic populations, about 63 populations in the East Gulf Coastal 
Plain, West Gulf Coastal Plain, the lower portion of the Upper West 
Gulf Coastal Plain, and Florida Peninsula ecoregions are vulnerable to 
potential catastrophic impacts of hurricanes, particularly major 
hurricanes. Fifty-six of these 63 populations (89 percent) are 
identified as low or very low resiliency in the SSA report, which makes 
them significantly vulnerable to adverse impacts from exposure to 
hurricanes. In addition, the frequency of intense Atlantic basin 
hurricanes, particularly major Category 4 and 5 storms, may be expected 
to increase in response to global climate change during the 21st 
century (Bender et al. 2010, entire; Knutson et al. 2010, entire; Walsh 
et al. 2014, pp. 41-42, Vecchi et al. 2021, entire). That being said, 
we are unable to precisely predict the location and frequency of future 
storms affected by climate change relative to particular red-cockaded 
woodpecker populations, which is why we are unable to identify specific 
populations as being at risk from hurricanes. While larger populations 
(greater than 400 active clusters) are the most likely to withstand a 
strike by a major hurricane (e.g., Hooper et al. 1990, entire; Hooper 
and McAdie 1995, entire; Watson et al. 1995, entire), smaller 
populations are more vulnerable to adverse effects from them, including 
extirpation, as well as to the effects of recurring storms that 
subsequently deplete cavity trees and foraging habitat, causing 
reductions in population size. However, these smaller populations may 
be able to withstand and persist after hurricanes if biologists and 
land managers implement prompt, effective post-storm recovery actions, 
such as installing artificial cavities, reducing hazardous fuels, and 
restoring forests to suitable habitat. Such actions have been occurring 
after storm events for managed populations, such as the quick response 
after Hurricane Michael in October 2018.

Summary of Conservation Management

    As noted above, the red-cockaded woodpecker is a conservation-
reliant species and responds well to active management. The vast 
majority of properties on public lands harboring red-cockaded 
woodpeckers have implemented management programs to sustain or increase 
populations consistent with population size objectives in the 2003 
recovery plan or other plans (e.g., INRMP, USFS management plans, 
National Wildlife Refuge (NWR) management plans). Plans are specific to 
each property or management unit but generally contain the same core 
features (e.g., cavity management, translocation, prescribed burning). 
The most comprehensive plans call for intensive cavity management with 
the installation of artificial cavities to offset cavity loss in 
existing territories, maintenance of sufficient suitable cavities to 
avoid loss of active territories, and creation of new territories with 
recruitment clusters and artificial cavities in restored or suitable 
habitat to increase population size. The development of techniques to 
construct artificial cavities (Copeyon 1990, entire; Allen 1991, 
entire) offsets the lack of natural cavities and provides managers a 
new tool to greatly increase cavity availability. Fortunately, red-
cockaded woodpeckers readily adapt to these artificial cavities, with 
thousands installed since the early 1990s. These cavity management 
activities are necessary until mature forests are restored with 
abundant old pines 65 and more years of age for natural cavity 
excavation.
    Managers also reduce fragmentation by restoring and increasing 
habitat with strategic placement of recruitment clusters to reduce gaps 
within and between populations. Furthermore, red-cockaded woodpecker 
subadults from large or stable donor populations are translocated to 
augment growth of small, vulnerable populations. Of the current 124 
demographic populations, 108 are small (fewer than 99 active clusters) 
with inherently very low or low resiliency. These are the most 
vulnerable to future extirpation due to stochastic demographic and 
environmental factors and inbreeding depression. Inbreeding depression 
in small, fragmented populations of up to 50 to 100 active clusters 
without adequate immigration can further increase the probability of 
decline and future extirpation; for these populations, red-cockaded 
woodpecker translocation programs reduce risks of adverse inbreeding 
impacts. As noted in the SSA report (see Current Condition, below), 
while resiliency is moderate for 10 of the current populations with 100 
to 249 active clusters, and 6 populations exhibit high or very high 
resiliency, potential adaptive genetic variation is still expected to 
decline in all red-cockaded woodpecker populations (Bruggeman 2010, p. 
22, appendix B, pp. 39-42; Bruggeman et al. 2010, entire; Bruggeman and 
Jones 2014, pp. 29-33). Effective management programs to sustain even 
the smallest populations are critical to reduce the risks of 
inbreeding, establish genetic connectivity among fragmented 
populations, and maintain ecological diversity and life-history 
demographic variation as patterns of representation within and across 
broad ecoregions.
    Additionally, managers are implementing compatible silviculture 
methods to sustain, restore, and increase habitat with an increased use 
of effectively prescribed fire. Finally, managers are implementing 
monitoring programs looking at both habitat and populations to provide 
feedback for effective management. The future persistence of the 
species will require these management actions to continue. In order to 
facilitate this, we have structured our final 4(d) rule to encourage 
the continuation of such management. However, while many of the 
landowners and managers within the range of the species have committed 
to continuing to implement their conservation programs into the future, 
we do not have certain commitments that all current management will 
continue.
    In the SSA report, we identified 124 current demographic 
populations with a total of 7,794 active clusters. Seventy-one of the 
124 currently delineated red-cockaded woodpecker populations occur on 
lands solely owned and managed by Federal agencies, with 4,033 current 
active clusters. Seven additional populations with 2,026 active 
clusters occur on lands that are under mixed Federal and State 
ownership but are predominately managed by Federal agencies. Thirty-one 
populations are on lands managed solely by State agencies, with 557 
active clusters. Thus, 88 percent of delineated populations with 6,616 
active clusters (85 percent of all 7,794 active clusters in 124 
populations) are on lands managed entirely by Federal and State 
agencies with statutes to require management plans addressing the 
conservation of natural resources. Two populations occur in a matrix of 
public and private lands, mostly Federal and State properties, with 816 
active clusters. One population with 20 active clusters is managed by a 
State agency and private landowner.
    There are additional active clusters of red-cockaded woodpeckers on 
nongovernmental lands enrolled in SHAs, but as noted above, we did not 
have adequate data to spatially delineate all demographic populations 
on these lands. Of the 933 active clusters managed by landowners with 
existing SHAs in 8 States (Alabama, Florida, Georgia, Louisiana, North 
Carolina,

[[Page 85319]]

South Carolina, Texas, and Virginia), demographic populations with 
respective population sizes have not been delineated for approximately 
558 active clusters.
    Below is a summary of the types of management plans that include 
elements directed at red-cockaded woodpecker management and 
conservation. Note that the numbers of populations below do not 
necessarily add up to the 124 current demographic populations 
identified in the SSA report, because some populations cross property 
boundaries and are managed by more than one landowner.
Department of Defense
    Within the range of the red-cockaded woodpecker, the DoD manages 
habitat for 14 populations, 5 of which are in the moderate to very high 
resiliency categories, and 9 are in the low to very low resiliency 
categories. The Sikes Act requires DoD installations to conserve and 
protect the natural resources within their boundaries. INRMPs are 
planning documents that outline how each military installation with 
significant natural resources will manage those resources, while 
ensuring no net loss in the capability of an installation to support 
its military testing and training mission. Within the range of the red-
cockaded woodpecker, all DoD installations have current INRMPs that 
address protection and recovery of the species, both through broader 
landscape-scale ecosystem stewardship and more specific management 
activities targeted directly at red-cockaded woodpecker conservation. 
These activities include providing artificial cavities to sustain 
active clusters, installing recruitment clusters to increase population 
size, sustaining and increasing habitat through compatible forest 
management and prescribed fire, and increasing the number and 
distribution of old pines for natural cavity excavation. Each 
installation has a red-cockaded woodpecker property or population size 
objective with provisions for monitoring. For most installations, a 
schedule is available for reducing certain military training 
restrictions in active clusters in response to increasing populations 
and attaining population size thresholds.
U.S. Forest Service
    The USFS manages habitat for 49 red-cockaded woodpecker populations 
on 17 National Forests and the Savannah River Site Unit (owned by the 
Department of Energy but managed by the USFS). Of these populations, 10 
have moderate to very high resiliency and 39 identified as having low 
or very low resiliency. Under the National Forest Management Act of 
1976 (16 U.S.C. 1600 et seq.), National Forests are required to develop 
plans that provide for multiple use and sustained yield of forest 
products and services, which includes timber, outdoor recreation, 
range, watershed, fish and wildlife, and wilderness resources. These 
plans, called ``land and resource management plans'' (LRMPs) and their 
amendments, have been developed for every National Forest in the 
current range of the red-cockaded woodpecker. The LRMPs for National 
Forests in three States (Louisiana, North Carolina, and Texas) predate 
the Service's 2003 recovery plan. Nevertheless, all National Forests 
(even those with outdated LRMPs) have implemented management strategies 
to protect and manage red-cockaded woodpecker habitat and increase 
populations.
    Current LRMPs approved prior to the 2003 recovery plan were 
developed in coordination with the Forest Service's 1995 regional plan 
for managing the red-cockaded woodpecker on southern National Forests 
(USFS 1995, entire). The 1995 regional plan includes most of the new 
and integrated management methods (Rudolph et al. 2004, entire) to 
sustain and increase populations as incorporated in the recovery plan. 
These include installing artificial cavities, increasing population 
size with recruitment clusters, and restoring suitable habitat with 
forest management treatments and prescribed fire. Some of the more 
recent LRMPs, such as for National Forests in Mississippi, are more 
broadly programmatic, but incorporate the 2003 recovery plan by 
reference for appropriate conservation methods and objectives.
U.S. Fish and Wildlife Service
    The National Wildlife Refuge (NWR) System manages 14 NWRs with red-
cockaded woodpeckers, with 10 NWRs supporting rangewide species 
recovery. In the SSA report, we considered 3 of 19 populations found on 
NWRs to be moderate to very high resiliency while 16 have low to very 
low resiliency. Under the NWR System Improvement Act of 1997 (Pub. L. 
105-57), NWRs prepare comprehensive conservation plans (CCPs), which 
provide a blueprint for how to manage for the purposes of each refuge; 
address the biological integrity, diversity, and environmental health 
of a refuge; and facilitate compatible wildlife-dependent recreation. 
NWRs have assigned population objectives from the 2003 recovery plan 
through their CCPs or modified in their habitat management plans. 
Specific tasks in these plans include installation of artificial 
cavities; translocation; establishing recruitment clusters; population 
monitoring; prescribed fire; and silvicultural treatments, such as mid-
story removal, thinning of younger stands, and, where necessary, 
increasing stand age diversity with regeneration of pine stands.
National Park Service
    Within the Big Cypress National Preserve (Preserve) in Florida, the 
National Park Service (NPS) manages two red-cockaded woodpecker 
populations, one with low and the other with very low resilience. The 
NPS's plans do not include specific provisions for red-cockaded 
woodpecker management; however, at the Preserve, the NPS conducts 
prescribed fire to maintain and improve the south Florida slash pine 
forest communities that support the species. The NPS also allows FFWCC 
biologists to conduct red-cockaded woodpecker surveys, monitor, 
periodically install a limited number of artificial cavities, and 
conduct translocations on occasion. From surveys and monitoring by the 
FFWCC, 75 percent of all cavity trees within the Preserve consist of 
natural cavities, which is an unusually high number relative to other 
populations, reflecting the predominately old condition of the Big 
Cypress south Florida slash pine forests (Spickler 2019, pers. comm.).
State Lands
    The States of Arkansas, Florida, Georgia, Louisiana, North 
Carolina, Oklahoma, South Carolina, Texas, and Virginia have red-
cockaded woodpecker populations on State-owned lands. All or parts of 
40 currently delineated populations occur on State lands. Seven 
populations on or partially on State lands have moderate to very high 
resiliency, while 32 populations have low to very low resiliency. These 
properties range from State Forest Service or Forest Commission 
holdings to Department of Wildlife, Department of Natural Resources, 
and State Park Service properties. The mission, and therefore the 
extent and type of management, of each unit varies. For example, some 
State lands are managed generally to provide ecosystem benefits, such 
as managing pine-dominated forests with prescribed fire. However, other 
State properties implement proactive conservation management 
specifically for the red-cockaded woodpecker. For example, the FFWCC 
manages all of its properties under the umbrella of the Florida Red-
cockaded Woodpecker Management Plan, with

[[Page 85320]]

other specific plans for the agency's WMAs.
Other Lands
    Eight States have a Service-approved programmatic SHA with a 
section 10(a)(1)(A) enhancement of survival permit under the Act to 
enroll non-Federal landowners that voluntarily provide beneficial 
management. Of 459 enrolled non-Federal landowners, one is for a State 
property and all others are private nongovernmental lands. All or parts 
of 12 currently delineated demographic populations are covered under a 
current SHA. Again, we are aware of additional active clusters covered 
under SHAs, but we lack the data to delineate them as demographic 
populations. SHAs, now known as CBAs, are partnerships between 
landowners and the Service involving voluntary agreements under which 
the property owners receive formal regulatory assurances from the 
Service regarding their management responsibilities in return for 
contributions to benefit the listed species.
    For the red-cockaded woodpecker, this includes voluntary 
commitments by landowners to maintain and enhance red-cockaded 
woodpecker habitat to support baseline active clusters, which is the 
number of clusters at the time of enrollment, and additional above-
baseline active clusters that increase in response to beneficial 
management. Beneficial management includes the maintenance and 
enhancement of existing cavity trees and foraging habitat through 
activities such as prescribed fire, mid-story thinning, seasonal 
limitations for timber harvesting, and management of pine stands to 
provide suitable foraging habitat and cavity trees. Because above-
baseline active clusters and habitat covered under these plans can be 
returned to ``baseline'' conditions, any population growth on lands 
covered by existing SHAs or future CBAs may not be permanent. In 
addition, enrolled landowners can terminate their agreement at any 
time. However, fewer than 5 of the 459 enrolled landowners have ever 
used their permit authorities to return the number of active clusters 
to baseline conditions, and only 12 landowners have terminated their 
agreement. There currently are 241 active above-baseline clusters in 
the program.
    In summary, the red-cockaded woodpecker is a conservation-reliant 
species, but one that responds very well to active management. The 
majority of red-cockaded woodpecker populations are managed under plans 
that address population enhancement and habitat management to sustain 
or increase populations, and to meet the 2003 recovery plan objectives 
for primary core, secondary core, and essential support populations. We 
expect these property owners will continue to implement their 
respective management plans while the species is listed as threatened, 
as the red-cockaded woodpecker will remain protected under the Act and 
the 2003 recovery plan is still applicable.

Current Condition

Resiliency
    In the SSA report, we identified 124 demographic populations across 
the range of the red-cockaded woodpecker for which sufficient data were 
available to complete the SSA analysis for the recent past to current 
condition. We acknowledge there are other small occurrences of red-
cockaded woodpeckers, particularly on private lands; however, spatial 
data for these other occurrences were incomplete, so for purposes of 
the SSA analysis, and subsequently throughout this final rule, we 
focused only on the 124 demographic populations that could be spatially 
delineated. The SSA categorizes two important parameters related to 
current population resiliency: current population size and associated 
population growth rate. Population resilience size categories are 
defined as follows: very low (fewer than 30 active clusters); low (30 
to 99 active clusters); moderate (100 to 249 active clusters); high 
(250 to 499 active clusters); and very high (greater than or equal to 
500 active clusters).
    Population resilience size-classes were derived from spatially 
explicit individual-based models and simulations for this species 
(Letcher et al. 1998, entire; Walters et al. 2002, entire), the 
performance of which have been reasonably validated with reference to 
actual populations (Schiegg et al. 2005, entire; Walters et al. 2011, 
entire). We also considered subsequent modifications of these models 
and simulations that incorporated adverse effects of inbreeding 
depression on population persistence and growth (Daniels et al. 2000, 
entire; Schiegg et al. 2006, entire). These models were developed from 
extensive biological data and specifically designed to incorporate the 
dynamics of the red-cockaded woodpecker's cooperative breeding system 
that are not accurately represented in other types of population models 
(Zieglar and Walters 2014, entire). These models simulated populations 
of different initial sizes under natural conditions without any 
limiting habitat and cavity conditions that could impair population 
growth.
    We consider these results as indicators of inherent resilience 
because effects of conservation management actions to sustain and 
increase populations were not simulated. These beneficial management 
practices would include installation of recruitment clusters with 
artificial cavities to induce new red-cockaded woodpecker groups and 
translocation to augment the size and growth of small populations. The 
vast majority of the 124 current populations have been, and currently 
are, subject to specific conservation management actions for this 
species, including recruitment clusters. Thus, the inherent resilience 
size-classes derived from population models and simulations have been 
further qualified by actual growth rates as indicators of effects of 
beneficial management for this conservation-reliant species.
    Populations with very low resiliency (fewer than 30 active 
clusters) are the most vulnerable to future extirpation following 
stochastic events, with declining growth and extirpation likely in 50 
years. Populations with low resiliency (30 to 99 active clusters) are 
more persistent, but remain vulnerable to declining growth, inbreeding 
depression, and extirpation. Inbreeding depression reduces red-cockaded 
woodpecker egg hatching rates and survival of fledglings (Daniels and 
Walters 2000a, entire). Inbreeding in red-cockaded woodpeckers is a 
consequence of breeding among close relatives in response to naturally 
short dispersal distances of related birds among nearby breeding 
territories, exacerbated by small populations and fragmentation among 
populations that reduce immigration rates of unrelated individuals 
(Daniels and Walters 2000a, entire; 2000b, entire; Daniels et al. 2000, 
entire; Schiegg et al. 2002, entire; 2006, entire).
    The consequences of inbreeding depression further reduce population 
growth rates and increase the probabilities of extirpation in 
populations in sizes up to about 100 active clusters (Daniels et al. 
2000, entire; Schiegg et al. 2006, entire). The largest populations 
with low resiliency may have long-term average growth rates ([lambda] 
or lambda) near 1.0 (a [lambda] of 1.00 is considered stable, less than 
1.00 is declining, and greater than 1.00 is increasing), but with slow 
rates of decline and a high risk of inevitable future extirpation.
    The moderate resiliency category (100 to 249 active clusters) is a 
large transitional class. Smaller populations without inbreeding likely 
will

[[Page 85321]]

experience a slow decline, but without extirpation, in 25 to 50 years 
because the populations in at least some territories will survive, 
although as much smaller and more vulnerable populations. The largest 
populations in the moderate resiliency category may be relatively 
stable or nearly so. Populations with a high resiliency (250 to 499 
active clusters) on average should be stable except perhaps for the 
very smallest, which may have average growth rates slightly less than 
1.00.
    In high resiliency populations, adverse demographic effects of 
inbreeding depression are not expected. Populations in the very high 
resiliency class (greater than or equal to 500 active clusters) are 
stable and the most resilient, with average growth rates of 1.0 or 
slightly greater. Based on the most recent data, 3 red-cockaded 
woodpecker populations fall within the very high resilience category 
(totaling 2,143 clusters); 3 are in high resilience populations (1,364 
total clusters); 10 are in moderate resilience populations (1,555 total 
clusters); 37 are in low resilience populations (1,923 total clusters); 
and 71 are in very low resilience populations (809 total clusters). In 
short, of the estimated 7,794 active clusters distributed among 124 
populations across the range of the species, 5,062, or 65 percent, are 
in 16 moderate to very high resiliency populations.
    The second resiliency parameter measured in the SSA was growth rate 
of the populations. For the SSA, there was only sufficient GIS data to 
delineate past demographic populations with population size data to 
compute past-to-current growth rates for 98 of the 124 populations. Of 
these 98 populations, the Service determined that 13 (13.3 percent) 
were declining ([lambda] < 1.00), 19 (19.4 percent) were stable 
([lambda] = 1.00-1.02). and 66 (67.3 percent) were increasing ([lambda] 
< 1.02). Combining growth rates with population sizes of these 98 
populations, growth rates have been stable to increasing for all of 
those moderate, high, and very high resiliency populations where growth 
rate could be measured.
    Of the 86 very low and low resiliency populations where growth rate 
could be measured, 73 populations demonstrated stable and positive 
growth rates, with several populations showing very high growth rates. 
This is indicative of the positive effects of red-cockaded woodpecker 
conservation management programs on these locations and the ability of 
such management to offset inherently low or very low population 
resilience. Growth rates are decreasing in only 13 (15 percent) of the 
low and very low resiliency populations where growth rate could be 
measured.
    Current population conditions in the SSA report were derived from 
the number and location of active clusters primarily in 2016 and 2017. 
These conditions did not take into account Hurricane Michael, which 
came ashore near Mexico Beach, Florida, on October 10, 2018, as a 
Category 4 storm. More than 1,500 cavity trees were blown down or 
damaged in populations in the Apalachicola National Forest, Silver Lake 
WMA, Jones Ecological Research Center, and Tate's Hell State Forest 
(Dunlap 2018, entire; McDearman 2018, entire). These represented three 
demographic populations: Apalachicola National Forest-St. Marks NWR-
Tate's Hell State Forest, Jones Ecological Research Center, and Silver 
Lake WMA. The effects of Hurricane Michael did not change current 
conditions for these populations in terms of their resilience size-
classes as described in the SSA report, and as summarized here.
    After Hurricane Michael, 870 clusters were rapidly assessed in 
Apalachicola National Forest where 1,410 cavity trees were damaged or 
blown down, followed by the installation of 682 artificial cavities 
(Dunlap 2018, entire). In 2018, prior to this hurricane, the 
Apalachicola National Forest population survey estimate was 833 active 
clusters (Casto 2018, pers. comm.). After the hurricane, the 2019 
survey estimate was 857 active clusters (Casto 2019, pers. comm). At 
Silver Lake WMA, 154 cavity trees were damaged or lost; however, within 
2 weeks of the storm more than 90 artificial cavities were installed 
(Burnham 2019a, p. 9). The pre-storm population was 36 active clusters 
and 32 PBGs, with a post-storm decline to 33 active clusters and 28 
PBGs (Burnham 2019b, p. 6). About 24 percent of all cavity trees at the 
Jones Ecological Research Center were damaged or destroyed (Rutledge 
2019, p. 13). The pre-storm Jones Center population was 38 active 
clusters with 34 PBGs (Henshaw 2019, p. 4). Post-storm, after 
installation of artificial cavities, there were 40 active clusters with 
31 PBGs (Henshaw 2019, p. 4). At Tate's Hell State Forest, about 23 of 
527 cavity trees among 61 active clusters and 51 PBGs were blown down 
(Alix 2018, pers. comm.). After post-storm management, the Tate's Hell 
State Forest currently consists of 64 active clusters and 54 PBGs (Alix 
2020, pers. comm.).
    The total increase of active clusters from all of the properties 
demonstrates that with prompt, active management, the vulnerability of 
these populations to stochastic events can potentially be reduced. 
Additional intermediate and long-term habitat restoration treatments at 
these properties are still required to reduce hazardous fuels from 
large and small woody debris, restore habitat, and implement 
reforestation or regeneration in the most severely damaged pine stands. 
Overall, we do not anticipate that Hurricane Michael will affect long-
term viability of these populations. However, we will continue to 
evaluate the success of the emergency, intermediate, and long-term 
response efforts.
    In summary, although most of red-cockaded woodpecker populations 
for which we have data are still small and remain vulnerable to 
stochastic events and possibly inbreeding depression, the vast majority 
of populations are showing stable or increasing growth rates, and the 
majority of birds and clusters occur in a few large, resilient 
populations. Of the 98 populations for which trend data are available, 
only 13 percent are declining. In addition, over 65 percent of red-
cockaded woodpecker clusters are currently in moderate to very high 
resiliency populations.
Representation
    We evaluated representation based on the extent and variability of 
habitat characteristics across the species' geographical range. For the 
red-cockaded woodpecker, the SSA report characterizes representative 
units using ecoregions, which align with the recovery units identified 
in the 2003 recovery plan (USFWS 2003, pp. 145-161). These ecoregions 
are broad areas defined by physiography, topography, climate, and major 
historical and current forest types and thus serve as surrogates for 
the variability of habitat characteristics across the species' range, 
such as ecology, life history, geography, and genetics. There are 
currently 13 ecoregions containing at least one red-cockaded woodpecker 
population: (1) Cumberland Ridge and Valley; (2) Florida Peninsula 
(South/Central Florida); (3) East Gulf Coastal Plain; (4) Mid-Atlantic 
Coastal Plain; (5) Ouachita Mountains; (6) Piedmont; (7) South Atlantic 
Coastal Plain; (8) Sandhills; (9) Upper East Gulf Coastal Plain; (10) 
Upper West Gulf Coastal Plain; (11) West Gulf Coastal Plain; (12) Gulf 
Coast Prairie and Marshes; and (13) Mississippi River Alluvial Plain. 
In the SSA report, figures 20 and 24 provide maps illustrating the 
ecoregions (USFWS 2022, pp. 93, 111), and figure 25 includes the 
historical county records for the range of the species (USFWS 2022, p. 
118).
    The historical range of the red-cockaded woodpecker included the 
entire distribution of longleaf pine

[[Page 85322]]

ecosystems, but the species also inhabited open shortleaf, loblolly, 
slash pine, and Virginia pine forests, especially in the Ozark-Ouachita 
Highlands and the southern tip of the Appalachian Highlands with 
occasional occurrences noted for New Jersey, Pennsylvania, Maryland, 
and Ohio (Costa and Walker 1995, pp. 86-87). Red-cockaded woodpeckers 
no longer occur in six ecoregions (Ozarks, Central Mixed-Grass 
Prairies, Cross Timbers and Southern Mixed-Grass Prairies, Northern 
Atlantic Coast, Central Appalachian Forest, and Southern Blue Ridge). 
The 2003 recovery plan did not consider recovery in these areas to be 
essential to the conservation of the species.
    In the 13 ecoregions containing the species, red-cockaded 
woodpeckers occupy a wide variety of pine-dominated ecological settings 
scattered across a broad geographic range. Considerable geographic 
variation in habitat types exists, illustrating the species' ability to 
adapt to a wide range of ecological conditions within the constraints 
of mature or old growth, southern pine ecosystems. However, of these 13 
ecoregions, only 4 currently have populations that are considered to 
have high or very high resiliency (East Gulf Coastal Plain, South 
Atlantic Coastal Plain, Sandhills, and Mid-Atlantic Coastal Plain), and 
6 have populations that are low or very low resiliency (Florida 
Peninsula, Ouachita Mountains, Cumberland Ridge and Valley, Piedmont, 
Gulf Coast Prairie and Marshes, and Mississippi River Alluvial Plain). 
Of those six, the latter four have only one or two populations each (a 
total of six populations), meaning these ecoregions, and the ecology, 
life history, geography, and genetics they represent, are particularly 
vulnerable to stochastic events. However, five of the six populations 
in these four ecoregions all demonstrate stable or increasing growth 
rates (growth rate for the sixth, Mitchell Lake in the Piedmont 
Ecoregion, could not be measured), primarily because they are being 
actively managed.
    With regards to the genetic component of the ecoregions, a genetic 
analysis of material prior to 1970 in eight ecoregions indicates the 
species appears to have been a single genetic unit or population 
without significant genetic structure or differentiation (Miller et al. 
2019, entire). The best available range-wide genetic data indicate a 
loss of genetic variation after 1970 with development of significant 
contemporary genetic structure among ecoregions. This structuring is 
most likely in response to fragmentation of this historically more 
widespread and abundant species, reduced dispersal between populations 
and regions, and genetic drift (Stangel et al. 1992, entire; Haig et 
al. 1994, p. 590; Haig et al. 1996, p. 730; Miller et al. 2019, 
entire). However, the similarity of genetic parameters between the 
1992-1995 and 2010-2014 periods indicates that a further significant 
loss of genetic diversity with an increase in differentiation among 
ecoregions may have been ameliorated by conservation management that 
began in the 1990s to rapidly increase populations and translocate 
individuals from large populations to augment small populations (Miller 
et al. 2019, entire). Mitochondrial DNA haplotype diversity has 
declined significantly since the pre-1970s, but not to the extent of a 
loss of any phylogenetically distinct lineages that may represent 
evolutionarily significant units (Miller et al. 2019, pp. 9-10).
    In summary, the species no longer persists in six ecoregions where 
it was historically present. However, it is still currently represented 
in the 13 remaining ecoregions, and this level of representation has 
not decreased further since the 2003 recovery plan revision, which did 
not consider the extirpated ecoregions necessary for recovery. 
Nevertheless, while populations persist in the 13 ecoregions, many of 
the ecoregions contain only populations that have low or very low 
resiliency, and 4 ecoregions only have 1 or 2 populations, which are 
all low or very low resiliency, making them vulnerable to stochastic 
events.
Redundancy
    In the SSA report, redundancy for red-cockaded woodpeckers is 
characterized by the number of resilient populations and their 
distribution within each ecoregion. Of the 124 current populations, 
there are 3 populations that have very high resiliency, 3 with high, 10 
with moderate, 37 with low, and 71 with very low resiliency. As noted 
above, 4 of 13 ecoregions currently harbor high or very high resiliency 
populations: East Gulf Coastal Plain (2 populations), Mid-Atlantic 
Coastal Plain (1 population), Sandhills (2 populations), and South 
Atlantic Coastal Plain (1 population). In terms of redundancy, only two 
ecoregions, East Gulf Coastal Plain and Sandhills, have more than one 
population classified as having high or very high resiliency, and only 
these two ecoregions also have more than two populations classified as 
having moderate to very high resiliency. Redundancy of smaller 
populations is higher with a greater number of populations in the 
moderate, low, and very low resiliency categories within and across 
ecoregions. Four ecoregions (South Atlantic Coastal Plain, Mid-Atlantic 
Coastal Plain, West Gulf Coastal Plain, and Upper East Gulf Coastal 
Plain) have two populations exhibiting moderate to high resiliency, and 
thus some level of redundancy in terms of resilient populations. Most 
of the populations in these regions have moderate resiliency. The 
greatest number of current populations reside in the Mid-Atlantic 
Coastal Plain (24) and Florida Peninsula (22), although most of these 
are in the very low and low resiliency class. However, even for the 
more resilient populations, habitat fragmentation has resulted in wide 
gaps between forested areas, meaning there is little connectivity 
between populations.
    Across the range of the red-cockaded woodpecker, the populations 
with the most resiliency (high or very high) tend to be in the eastern 
half of the range and in coastal or near coastal ecoregions rather than 
interior. Florida Peninsula and the western ecoregions currently have 
populations in the moderate to very low resiliency categories. This 
concentration of the more resilient populations in coastal and near 
coastal areas could affect the species' ability to withstand 
catastrophic events such as hurricanes. Particularly for these 
populations, post-storm management actions are critical, as they can 
mitigate cavity loss and reduce hazardous fire fuels.
    In summary, a species needs a suitable combination of all three 
characteristics (resiliency, representation, and redundancy) for long-
term viability. Based on our analysis of the three factors, the red-
cockaded woodpecker demonstrates some degree of stability or 
improvement in all three factors. The species' viability is reduced 
over historical levels, but habitat conditions and population numbers 
are improving. In terms of resiliency, most of the populations are 
still quite small, but the vast majority are stable or even growing. 
The species has not lost any representative populations since the 2003 
revised recovery plan, and while a few ecoregions still contain only 
one or two populations, most of these populations are stable or 
growing. Finally, there is a fair degree of redundancy within 
ecosystems across the range of the species, although, again, most of 
these populations are still quite small and are isolated from each 
other. The improving viability of the red-cockaded woodpecker has been 
largely due to intensive, extensive management, including actions 
immediately after

[[Page 85323]]

large storm events to offset cavity loss and reduce hazardous fuels. 
Without this intervention, many populations, especially the low and 
very low resilience populations, likely would have been extirpated.

Future Conditions

    Our analysis of stressors and risk factors, as well as the past, 
current, and future influences on what the red-cockaded woodpecker 
needs for long-term viability, revealed that the primary predictor of 
future viability of the species is the continuation of active 
management (including cavity management, midstory treatment such as 
prescribed fire, and translocation efforts).
    We assessed future red-cockaded woodpecker population growth, 
population size (active clusters), and resiliency by first modeling 
past trends and variation in population size of demographically 
delineated populations as affected by factors including management 
treatments (e.g., number of artificial cavities, recruitment clusters, 
birds received by translocations, and frequency of prescribed fire and 
midstory hardwood control), dominant pine species, the density of 
active clusters, and parameters to account for unexplained sources of 
variation to population size by this procedure (USFWS 2022, chapter 6 
and appendix 2). We obtained historical information for 87 
demographically delineated populations and were also able to 
extrapolate missing data for certain populations by imputation with an 
expectation-maximization algorithm (USFWS 2022, appendix 1). 
Populations were separately modeled as small (6 to 29 clusters), medium 
(30 to 75 clusters), and large (more than 75 clusters) classes. 
Populations with fewer than six active clusters were not modeled 
because of high variation in growth rates.
    For past growth rate of small populations, the most important 
variables were the number of new recruitment clusters, number of new 
artificial cavities in previously existing clusters (cavity 
management), midstory treatments by prescribed fire or mechanical 
methods, number of red-cockaded woodpeckers translocated into the 
population, and dominant pine type. Translocation had the greatest 
positive effect on growth of any management technique. For medium 
populations, recruitment clusters and midstory treatments by prescribed 
fire were significant management covariates. The best model for large 
populations included recruitment clusters, cavity management, and 
spatial configuration of active clusters. In all cases, effects of 
recruitment clusters, cavity management, midstory treatment, and 
translocation were positive.
    We then used the best assessed future growth and conditions for 
each red-cockaded woodpecker population to assess viability under four 
future 25-year management scenarios: Low management, medium management, 
high management, and the ``manager's expectation.'' In the manager's 
expectation scenario, we elicited estimates for red-cockaded woodpecker 
conservation management treatments (e.g., number of artificial 
cavities, number of recruitment clusters, midstory treatments, 
prescribed fire frequency, translocation, etc.) from property 
biologists, foresters, and managers.
    For the low management scenario, values for each management 
covariate (e.g., cavity management, prescribed fire treatments, number 
of recruitment clusters, midstory hardwood treatment, translocation) 
were set to zero. However, this scenario does not reflect no 
management, but rather, the absence of management techniques specific 
to red-cockaded woodpeckers and instead a reliance on ecosystem 
management. Thus, some baseline habitat management, which would 
indirectly provide some nesting and foraging habitat, would be expected 
under the low management scenario. However, because most of the past 
populations for which we had sufficient data have been actively managed 
more aggressively than this scenario, we were unable to accurately 
model this type of minimal baseline habitat management. Therefore, 
future simulated population growth in the low management scenario is 
probably overestimated. Management covariate parameters for the medium 
management scenario assume the average of the past parameters employed 
to conserve red-cockaded woodpeckers over the past 20 years will 
continue into the future. For the high management scenario, management 
treatments for simulated populations reflect the parameter values in 
the 90th percentile of all past population treatments, as if 
populations were more intensely and extensively managed. The high 
management scenario thus represents projections of what might 
potentially be achieved should the species be systematically managed 
more intensively across its range than it has been in the past. The 
manager's expectation scenario was based on what the experts, described 
above, thought was the most likely annual future number of recruitment 
clusters, artificial cavities, prescribed fire treatments, and other 
management parameters at 5-year intervals for a 25-year period.
    We chose to project 25 years into the future because the 
combination of species' response to natural factors and management and 
the ability of managers to accurately predict future management 
treatments becomes highly uncertain at longer intervals. This is the 
timeframe in which the 95 percent confidence intervals around the 
future scenario modeling have reasonable bounds of uncertainty. This 
timeframe, given the species' life history, is also sufficient to 
identify any effects of stressors or conservation measures on the red-
cockaded woodpecker's viability at both population and species levels. 
Finally, 25 years represents four to five generations of red-cockaded 
woodpecker, which would be sufficient time for population-level impacts 
from stressors and management to be detected. Additionally, the red-
cockaded woodpecker is a conservation-reliant species that depends on 
open, mature southern pine forests that are developed and maintained by 
fire. These forest conditions do not currently occur without management 
due to the history of fire-exclusion, incompatible forest management, 
and other land uses. Planning and successfully implementing management 
and treatments for each active cluster and population requires 
extensive resources that are difficult for managers to accurately 
predict for longer than 25 years. In addition to a population's 
response to management, there is natural variation in nest success, 
number of fledglings, survival of young-of-year and adults, and 
cooperative breeding dynamics with replacement of adult breeders by 
other birds dispersing from other territories. In turn, this affects 
annual variation in population size (active clusters) and patterns of 
population growth or decline. Simulations of future population 
conditions under different management scenarios included effects of 
some management treatments, though not all, as model parameters. 
However, effects of these management treatment parameters did not 
account for all sources of annual variation affecting population size 
that still occurred in the model and simulations. Because of the 
variation in future simulated population size at 25 years (USFWS 2022, 
appendix 2), future estimates of population size after 25 years are 
more uncertain.
    Table 1 summarizes the model outputs for the four scenarios at the 
end of the 25-year simulation period. Data from 106 of the 124 current 
populations were available for future simulations. Of those 106 
populations, initial

[[Page 85324]]

populations with fewer than 6 active clusters were not simulated unless 
they demographically merged with other populations to create new, 
larger populations during the 25-year period. In addition, the total 
number of simulated future populations at year 25 are not equal among 
management scenarios because of the different number of initial 
populations that demographically merge to establish new populations. In 
other words, a lower number of populations at the end than the start 
for each scenario does not mean that all those populations were 
extirpated, rather some of the populations increased and merged to 
create new, larger populations. Therefore, the initial starting number 
of populations, and predicted number of populations at the end of the 
simulation period, varied. We also compare the results of current and 
future population resiliency classes as percentages in this final rule 
rather than absolute numbers because of this variation. Furthermore, 
although the initial starting numbers varied for each of the scenarios 
for the reasons discussed above, we present the current condition of 
the 124 demographic populations as the starting place for each of these 
scenarios. The current condition (Past-to-Current in table 1) for these 
populations are: 57.3 percent have very low resiliency, 29.8 percent 
have low, 8.1 percent have moderate, 2.4 percent have high, and 2.4 
percent have very high. For more details on the model, please see the 
SSA report (USFWS 2022, pp. 132-138, appendix 1, appendix 2).

 Table 1--Resilience Summary Based on Current Condition and Population Simulations Under Four Future Management
                                                    Scenarios
----------------------------------------------------------------------------------------------------------------
                                                                    Population resilience category percentages
                     Model series/scenario                      ------------------------------------------------
                                                                  Very low    Low    Moderate   High   Very high
----------------------------------------------------------------------------------------------------------------
Past-to-Current................................................       57.3    29.8        8.1     2.4        2.4
Future Low.....................................................       61.7    14.8       11.1     6.2        6.2
Future Medium..................................................       25.0    45.2       15.5     8.3        6.0
Future High....................................................       22.2    39.5       21.0    11.1        6.2
Future Manager's...............................................       28.6    42.9       14.3     8.3        5.9
----------------------------------------------------------------------------------------------------------------

Low Management Scenario
    At the end of the 25-year simulation period, the predicted 
resiliency for the resulting 81 simulated demographic populations is: 
6.2 percent of populations (5) very high; 6.2 percent (5) high; 11.1 
percent (9) moderate; 14.8 percent (12) low; and 61.7 percent (50) very 
low. The low management scenario projects a modest increase in the 
percentage of current populations of moderate to very high resiliency 
from about 13 percent (16) to about 24 percent (19) of the 81 simulated 
populations compared to current conditions, but the majority of the 
populations that currently have low resiliency decline sufficiently to 
transition into the very low resiliency category. The projected outcome 
of this scenario clearly demonstrates the dependence of red-cockaded 
woodpecker population resiliency on intensive, species-specific 
management.
Medium Management Scenario
    At the end of the 25-year simulation period, the predicted 
resiliency for the resulting 84 simulated demographic populations is: 
6.0 percent of populations (5) very high; 8.3 percent (7) high; 15.5 
percent (13) moderate; 45.2 percent (38) low; and 25.0 percent (21) 
very low. The medium management scenario projected a more substantial 
increase in the percentage of populations of moderate to very high 
resiliency from about 13 percent (16) to about 30 percent (25) of the 
populations. At the other end, the percentage of low and very low 
resiliency populations decreased.
High Management Scenario
    At the end of the 25-year simulation period, the predicted 
resiliency for the resulting 81 demographic populations are as follows: 
6.2 percent of populations (5) very high; 11.1 percent (9) high; 21.0 
percent (17) moderate; 39.5 percent (32) low; and 22.2 percent (18) 
very low. The high management scenario projected an even more 
substantial increase in the percentage of populations of moderate to 
very high resiliency, increasing to about 38 percent (31) of the 
populations. However, the land base available for conservation has a 
substantial effect on the growth of these populations under this 
scenario. For example, none of the populations with low or very low 
resiliency in this scenario has the carrying capacity on their 
respective managed properties to transition to a higher resiliency 
category, regardless of the intensive management reflected in this 
scenario. Thus, there are 50 red-cockaded woodpecker populations that, 
in the absence of acquisition of additional habitat for population 
expansion, will always remain small regardless of the management 
efforts.
Manager's Expectation Scenario
    At the end of the 25-year simulation period, the predicted 
resiliency for the resulting 84 demographic populations is: 5.9 percent 
of the populations (5) very high; 8.3 percent (7) high; 14.3 percent 
(12) moderate; 42.9 percent (36) low; and 28.6 percent (24) very low. 
The results are very similar to the medium management scenario.
Future Representation and Redundancy of the Species
    Under all management scenarios, five populations in four ecosystems 
are predicted to have very high resiliency (East Gulf Coastal Plain 
(2), Sandhills (1), Mid-Atlantic Coastal Plain (1), and South Atlantic 
Coastal Plain (1)). Under the Manager's Expectation and medium 
management scenarios, seven populations in five ecosystems are 
considered to have high resiliency (East Gulf Coastal Plain (2), South 
Atlantic Coastal Plain (1), Sandhills (2), Upper West Gulf Coastal 
Plain (1), and West Gulf Coastal Plain (1)). Also, compared to current 
conditions, the greater number of future high and very high resiliency 
populations are more widely distributed among ecoregions and include 
the western geographic range; however, over the whole range of the 
woodpecker, the occurrence of high and very high resiliency populations 
is most concentrated in the East Gulf Coastal Plain and Sandhills 
ecoregions.
    Only two ecoregions (Cumberland Ridge and Valley and Gulf Coast 
Prairie and Marshes) have no simulated populations of moderate to very 
high resiliency in the manager's expectation, medium management, and 
high management scenarios, compared to six ecoregions (Florida 
Peninsula, Ouachita Mountains, Cumberland Ridge and

[[Page 85325]]

Valley, Piedmont, Gulf Coast Prairie and Marshes, and Mississippi River 
Alluvial Plain) that currently do not have moderate to very high 
resiliency populations. The one current population in the Mississippi 
River Alluvial Plain ecoregion was not simulated in the future. In the 
low management scenario, four ecoregions (Cumberland Ridge and Valley, 
Gulf Coast Prairie and Marshes, Ouachita Mountains, and Piedmont) that 
currently only have low or very low resiliency populations are not 
projected to gain any moderate to very high resiliency populations at 
25 years.
Summary of Future Condition
    The total number of simulated populations at 25 years varied 
slightly among the management scenarios because of a different number 
of initial populations that demographically merged during simulations 
to establish new and larger populations. Results of the manager's 
expectation and medium management scenarios were most similar, while 
the low management and high management scenarios represented more 
extreme future resiliency conditions. These simulations, particularly 
for the low management and high management scenarios, illustrate the 
extent to which the red-cockaded woodpecker is a conservation-reliant 
species that responds positively to management, and how successful 
management can sustain small populations with low or very low 
resiliency.
    In all scenarios, most populations at year 25 were still in the 
very low, low, and moderate resiliency categories. However, the 
majority of populations were projected to be stable or increasing in 
all but the low management scenario, highlighting how successful 
management can sustain even small populations. The low management 
scenario illustrates that without adequate species-level management, in 
contrast to ecosystem management alone, very little increase in the 
number of moderate to very high resiliency populations can be expected 
and small populations of low or very low resiliency are unlikely to 
persist. The high management scenario represents the limit of what can 
be accomplished given the current land base and carrying capacity to 
support populations. However, management at current levels, as 
represented by the medium management scenario, further increases the 
number of moderate to very high resiliency populations and projects 
that small populations can be preserved. In addition, at current (or 
greater) levels of future management, redundancy and representation are 
expected to improve significantly in response to increasing 
populations.
    See the SSA report (USFWS 2022, entire) for a more detailed 
discussion of our evaluation of the biological status of the red-
cockaded woodpecker 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.

Determination of Red-Cockaded Woodpecker 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

    Red-cockaded woodpeckers were once considered a common bird across 
the southeastern United States. At the time of listing in 1970, the 
species was severely threatened by lack of adequate habitat due to 
historical logging, incompatible forest management, and conversion of 
forests to urban and agricultural uses. Fire-maintained old growth pine 
savannas, on which the species depends, were extremely rare. What 
little habitat remained was mostly degraded due to fire suppression and 
silvicultural practices that hindered the development of older, larger 
trees needed by the species for cavity development and foraging. Even 
after listing, the species continued to decline. However, new 
restoration techniques, such as artificial cavities, along with changes 
in silvicultural practices and wider use of prescribed fire to recreate 
open pine parkland structure, has led to stabilization of the species' 
viability and resulted in an increase in the number and distribution of 
populations. The majority of populations for which we were able to 
determine trends are stable or increasing ([lambda] = 1.0 or greater), 
and only 13 percent are declining. Specifically, of the 86 very low and 
low resiliency populations where growth rate could be measured, 73 
populations demonstrated stable and positive growth rates, with several 
populations showing very high growth rates. This is indicative of the 
positive effects of red-cockaded woodpecker conservation management 
programs on these locations and the ability of such management to 
offset inherently low or very low population resilience. Additionally, 
there are currently at least 124 populations across 13 ecoregions.
    As discussed under Future Conditions above, in the SSA report, 
future population conditions under different management scenarios were 
simulated and modeled to 25 years into the future, and we determined 
that we can rely on the timeframe presented in the scenarios and 
predict how future stressors and management will affect the red-
cockaded woodpecker.
    When we modeled future scenarios, the majority of populations were 
projected to be stable or increasing in all but the low management 
scenario, highlighting how successful management can sustain even small 
populations. Future management at current and recent past levels, as 
represented by the medium management scenario, further increases the 
number of moderate to very high resiliency populations and projects 
that small populations can be preserved. In addition, at current (or 
greater) levels of management, redundancy and representation are 
expected to significantly improve because most populations are expected 
to increase in size across the ecoregions.
    The red-cockaded woodpecker continues to face a variety of 
stressors due to inadequate habitat across its range, but these are now 
mostly legacy stressors resulting from historical forest conversion and 
fire suppression practices rather than current habitat loss. These 
legacy stressors include insufficient numbers of cavities and suitable, 
abundant old pines for natural cavity excavation; habitat fragmentation 
and its effects on genetic variation, dispersal, and connectivity to 
support demographic populations; lack of suitable foraging habitat for 
population growth and expansion; and small populations. The species 
also continues to face stress from natural events, especially 
hurricanes, the frequency and

[[Page 85326]]

intensity of which may continue to increase in the future.
    Active conservation management over many decades has allowed the 
species' populations to expand, even in the face of this historically 
limited habitat and natural disturbances. However, red-cockaded 
woodpeckers rely on, and will continue to rely almost completely on, 
active management by property managers and biologists to install 
artificial cavities and manage clusters, restore additional habitat and 
strategically place recruitment clusters to improve connectivity, 
control the hardwood midstory through prescribed fire and silvicultural 
treatments, and translocate individuals to augment small populations 
and minimize loss of genetic variation. In addition, emergency response 
after severe storms and other natural disasters will continue to be 
necessary to prevent cluster abandonment and minimize wildfire fuel 
loading. However, both the emergency response and routine management 
are well-understood and are currently being implemented across the 
range of the woodpecker, and much of the red-cockaded woodpecker's 
currently occupied habitat is now protected under various management 
plans. As a conservation-reliant species, securing management 
commitments for the foreseeable future would ensure that red-cockaded 
woodpecker populations grow or are maintained. This conclusion is 
reinforced by the future scenario simulations, which indicate that 
management efforts equal to or greater than current levels will further 
increase the number of moderate to very high resiliency populations and 
preserve small populations.
    After evaluating the threats to the species and assessing the 
cumulative effect of the threats under the section 4(a)(1) factors, we 
find that, while the legacy stressors identified above continue to 
negatively affect the red-cockaded woodpecker, new restoration 
techniques and changes in silvicultural practices have led to 
stabilization of the red-cockaded woodpecker's viability and even 
resulted in a substantial increase in the number and distribution of 
populations such that the species is not currently in danger of 
extinction. Sixty-five percent of all current red-cockaded woodpecker 
clusters are within moderate, high, or very highly resilient 
populations, and populations are spread across multiple ecoregions, 
providing for redundancy and representation. However, the species 
remains highly dependent on continued conservation management and the 
majority of populations contain small numbers of clusters, which could 
be especially vulnerable to hurricanes or other natural disturbances in 
the foreseeable future without prompt management response.
    We expect current conservation management to continue into the 
foreseeable future given that many of the landowners and managers 
within the range of the species have committed to continuing to 
implement their conservation programs and that we have structured our 
final 4(d) rule to facilitate the continuation of such management. 
However, absent the protections of the Act, we do not have commitments 
that all current management will continue and that it will adapt as 
necessary to effectively address emerging stressors (e.g., intensifying 
hurricanes). The absence of commitments to implement effective 
conservation efforts into the future for this conservation reliant 
species increases the risk of extinction in the foreseeable future. 
Thus, after assessing the best available information, we conclude that 
the red-cockaded woodpecker is not 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 
within 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 red-cockaded woodpecker, 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.
    We evaluated the range of the red-cockaded woodpecker to determine 
if the species is in danger of extinction now in any portion of its 
range. The range of a species can theoretically be divided into 
portions in an infinite number of ways. We focused our analysis on 
portions of the species' range that may meet the definition of an 
endangered species. For red-cockaded woodpecker, we considered whether 
the threats or their effects on the species are greater in any 
biologically meaningful portion of the species' range than in other 
portions such that the species is in danger of extinction now in that 
portion.
    The statutory difference between an endangered species and a 
threatened species is the timeframe 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 within the foreseeable future. Thus, we reviewed 
the best scientific and commercial data available regarding the time 
horizon for the threats that are driving the red-cockaded woodpecker to 
warrant listing as a threatened species throughout all of its range.
    We then considered whether these threats or their effects are 
occurring in any portion of the species' range such that the species is 
in danger of extinction now in that portion of its range. We examined 
the following threats: natural disasters such as hurricanes and 
vulnerability due to small population sizes and fragmentation, 
including cumulative effects. Other identified stressors, such as 
inadequate habitat, are uniform throughout the red-cockaded 
woodpecker's range. Although hurricanes may impact populations across 
the red-cockaded woodpecker's range, return intervals are shorter and 
impacts are more pronounced in near-coastal populations compared to 
inland populations (USFWS 2022, pp. 121-

[[Page 85327]]

124). Furthermore, while small populations occur throughout the 
species' range, we found a portion of the range that may have a 
different extinction risk due to a concentration of threats from the 
combination of both hurricanes and small population sizes in the 
Florida Peninsula, West Gulf Coastal Plain, and the southernmost near-
coastal extension of the Upper West Gulf Coastal Plain ecoregions. This 
means these populations when combined together may constitute a portion 
of the species' range where the species could have a different status.
    Despite the vulnerability of these areas to hurricanes, this 
stressor is not currently accelerating extinction risk in this portion 
of the range due to effective conservation management. Populations can 
withstand and persist after hurricanes if biologists and land managers 
implement prompt, effective post-storm recovery actions, such as 
installing artificial cavities, reducing hazardous fuels, and restoring 
forests to suitable habitat. Such actions have been occurring after 
storm events for managed populations, such as the quick response after 
Hurricane Michael in October 2018. Both this emergency response and 
routine management are well-understood and are currently being 
implemented across the range of the woodpecker. In addition, much of 
the red-cockaded woodpecker's currently occupied habitat is now 
protected under various management plans. As such, despite the regular 
occurrence of hurricanes within red-cockaded woodpecker habitat, 
especially in the coastal areas in the Florida Peninsula, West Gulf 
Coastal Plain, and the southernmost near-coastal extension of the Upper 
West Gulf Coastal Plain ecoregions, 89 percent of the populations for 
which we have trend data demonstrate stable to increasing growth rates 
in this portion of the range, illustrating the effectiveness of 
currently ongoing active management in preventing broad impacts from 
hurricanes and other stressors (USFWS 2022, p. 112). Catastrophic risk 
from natural events is being effectively managed (e.g., through prompt 
post-storm response) such that the species is not currently in danger 
of extinction in this portion of the range.
    However, we also noted in the proposed rule and in this final rule 
that the frequency of major hurricanes (Bender et al. 2010, entire; 
Knutson et al. 2010, entire; Walsh et al. 2014, pp. 41-42) may increase 
in the future in response to global climate change, and this increase 
could disproportionately affect the smaller, less resilient woodpecker 
populations. Immediate management response after natural disasters is 
key to preventing cluster abandonment in all populations and is 
critical to keeping smaller populations from being extirpated 
altogether. As a conservation-reliant species, securing management 
commitments for the foreseeable future, including commitments for 
effective post-storm response, would ensure that red-cockaded 
woodpecker populations grow or are maintained. However, given potential 
increased negative impacts from hurricanes in the future and due to the 
lack of certainty that effective post-storm response will continue in 
the foreseeable future, we find that red-cockaded woodpeckers are 
likely to become endangered within the foreseeable future throughout 
all of their range. This risk may be particularly high in the 
foreseeable future in the Florida Peninsula, West Gulf Coastal Plain, 
and the southernmost near-coastal extension of the Upper West Gulf 
Coastal Plain ecoregions. However, although some threats to the red-
cockaded woodpecker are concentrated in the Florida Peninsula, West 
Gulf Coastal Plain, and the southernmost near-coastal extension of the 
Upper West Gulf Coastal Plain ecoregions, the timing of the effects of 
the threats and the species' anticipated responses in that portion is 
the same as that for the entire range for the foreseeable future. As a 
result, the red-cockaded woodpecker is not in danger of extinction now 
in this portion of its range.
    We also considered whether the portion of the species' range that 
contains low or very low resiliency populations could constitute a 
portion that provides a basis for determining that the species is in 
danger of extinction in a significant portion of its range. However, 
based on our analysis, we did not find that this portion of the 
species' range, or any combination of areas that lack moderate, high, 
or very high resiliency populations, met the definition of an 
endangered species. Managers are currently applying active management 
to these small populations. As a result of this active management, the 
vast majority of these low or very low resiliency populations have 
stable or increasing growth rates, evidencing the effectiveness of this 
active management in supporting the persistence of these small 
populations. Of the 108 demographic populations in low or very low 
resiliency classes, 86 have data on growth rates; 86 percent of these 
populations have growth rates greater than or equal to one (USFWS 2022, 
pp. 108-110). Under this current paradigm, these small populations are 
not currently in danger of extinction due to the active management 
(e.g., translocation, habitat management, artificial cavity 
installation) that supports their stability and growth. However, as we 
discuss above, given potential increased negative impacts from other 
stressors (e.g., hurricanes) in the foreseeable future and due to the 
lack of certainty that all active woodpecker management will continue 
at current rates in the foreseeable future, we find that the red-
cockaded woodpecker meets the definition of threatened as the species 
is likely to become endangered within the foreseeable future throughout 
all of its range. These smaller populations will likely be particularly 
sensitive to these potential changes in stressors and management in the 
future. Therefore, although within the Florida Peninsula, West Gulf 
Coastal Plain, and the southernmost near-coastal extension of the Upper 
West Gulf Coastal Plain ecoregions, the red-cockaded woodpecker may be 
more vulnerable to future changes in threats and conservation, the best 
scientific and commercial data available do not indicate that the 
species' responses to the threats are such that the red-cockaded 
woodpecker is in danger of extinction now within the Florida Peninsula, 
West Gulf Coastal Plain, and the southernmost near-coastal extension of 
the Upper West Gulf Coastal Plain ecoregions. Therefore, we determine 
that the species 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 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 apply the aspects of the Final Policy, including the definition 
of ``significant'' that those court decisions held were invalid.

Determination of Status

    Our review of the best scientific and commercial data available 
indicates that the red-cockaded woodpecker meets the definition of a 
threatened species. Therefore, we are downlisting the red-cockaded 
woodpecker as a threatened species in accordance with sections 3(20) 
and 4(a)(1) of the Act.

Available Conservation Measures

    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems

[[Page 85328]]

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. With this downlisting of the red-
cockaded woodpecker, conservation measures continue to be provided 
including recognition as a listed species, planning and implementation 
of recovery actions, requirements for Federal protection, and 
prohibitions against certain practices. As discussed above, the 2003 
recovery plan provides guidelines for installing artificial cavities, 
management of cavity trees and clusters, translocation, silviculture, 
prescribed fire under the management guidelines, and guidelines for 
managing foraging habitat on private lands under the private land 
guidelines. In addition, section 7(a)(1) and 7(a)(2) responsibilities 
of Federal agencies remain.
    Section 7 of the Act is titled Interagency Cooperation and mandates 
all Federal action agencies to use their existing authorities to 
further the conservation purposes of the Act and to ensure that their 
actions are not likely to jeopardize the continued existence of listed 
species or adversely modify critical habitat. Regulations implementing 
section 7 are codified at 50 CFR part 402.
    Section 7(a)(2) states that each Federal action agency shall, in 
consultation with the Secretary, ensure that any action they authorize, 
fund, or carry out is not likely to jeopardize the continued existence 
of a listed species or result in the destruction or adverse 
modification of designated critical habitat. Each Federal agency shall 
review its action at the earliest possible time to determine whether it 
may affect listed species or critical habitat. If a determination is 
made that the action may affect listed species or critical habitat, 
formal consultation is required (50 CFR 402.14(a)), unless the Service 
concurs in writing that the action is not likely to adversely affect 
listed species or critical habitat. At the end of a formal 
consultation, the Service issues a biological opinion, containing its 
determination of whether the federal action is likely to result in 
jeopardy or adverse modification.
    Examples of discretionary actions for the red-cockaded woodpecker 
that may be subject to consultation procedures under section 7 are land 
management or other landscape-altering activities on Federal lands 
administered by the DoD, USFS, USFWS, NWR, Federal Highway 
Administration, and U.S. Department of Energy as well actions on State, 
Tribal, local, or private lands that require a Federal permit (such as 
a permit from the U.S. Army Corps of Engineers under section 404 of the 
Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from the Service 
under section 10 of the Act) or that involve some other Federal action 
(such as funding from the Federal Highway Administration, Federal 
Aviation Administration, or the Federal Emergency Management Agency). 
Federal actions not affecting listed species or critical habitat--and 
actions on State, Tribal, local, or private lands that are not 
federally funded, authorized, or carried out by a Federal agency--do 
not require section 7 consultation. Federal agencies should coordinate 
with the local Service Field Office (see FOR FURTHER INFORMATION 
CONTACT) with any specific questions on Section 7 consultation and 
conference requirements.
    Please contact us if you are interested in participating in 
recovery efforts for the red-cockaded woodpecker. Additionally, we 
invite you to submit any new information on this species whenever it 
becomes available and any information you may have for recovery 
implementation purposes (see FOR FURTHER INFORMATION CONTACT).
    It is the policy of the Services, as published in the Federal 
Register on July 1, 1994 (59 FR 34272), to identify to the extent known 
at the time a species is listed, specific activities that will not be 
considered likely to result in violation of section 9 of the Act. To 
the extent possible, activities that will be considered likely to 
result in violation will also be identified in as specific a manner as 
possible. The intent of this policy is to increase public awareness of 
the effect of a listing on proposed and ongoing activities within the 
range of the species. Although most of the prohibitions in section 9 of 
the Act apply to endangered species, sections 9(a)(1)(G) and 9(a)(2)(C) 
of the Act prohibit the violation of any regulation under section 4(d) 
pertaining to any threatened species of fish or wildlife, or threatened 
species of plant, respectively. Section 4(d) of the Act directs the 
Secretary to promulgate protective regulations that are necessary and 
advisable for the conservation of threatened species. As a result, we 
interpret our policy to mean that, when we list a species as a 
threatened species, to the extent possible, we identify activities that 
will or will not be considered likely to result in violation of the 
protective regulations under section 4(d) for that species.
    At this time, we are unable to identify specific activities that 
will or will not be considered likely to result in violation of section 
9 of the Act beyond what is already clear from the descriptions of 
prohibitions and exceptions established by protective regulation under 
section 4(d) of the Act.
    Questions regarding whether specific activities would constitute 
violation of section 9 of the Act should be directed to the Georgia 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Protective Regulations 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 species. 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. 
With these two sentences in section 4(d), Congress delegated broad 
authority to the Secretary to determine what protections would be 
necessary and advisable to provide for the conservation of threatened 
species, and even broader authority to put in place any of the section 
9 prohibitions, for a given species.
    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 upheld, as a valid 
exercise of agency authority, rules developed under section 4(d) that 
included limited prohibitions against takings (see Alsea Valley 
Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington 
Environmental Council v. National Marine Fisheries Service, 2002 WL 
511479 (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

[[Page 85329]]

[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).
    The provisions of this species' protective regulations under 
section 4(d) of the Act are one of many tools that we will use to 
promote the conservation of the red-cockaded woodpecker. Nothing in 
4(d) rules 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 the red-cockaded woodpecker.
    As mentioned previously in Available Conservation Measures, Section 
7(a)(2) of the Act requires Federal agencies, including the Service, to 
ensure that any action they authorize, fund, or carry out is not likely 
to jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of designated critical habitat of such species. These requirements are 
the same for a threatened species regardless of what is included in a 
4(d) rule.
    Section 7 consultation is required for Federal actions that ``may 
affect'' a listed species regardless of whether take caused by the 
activity is prohibited or excepted by a 4(d) rule (``blanket rule'' or 
species-specific 4(d) rule). A 4(d) rule does not change the process 
and criteria for informal or formal consultations and does not alter 
the analytical process used for biological opinions or concurrence 
letters. For example, as with an endangered species, if a Federal 
agency determines that an action is ``not likely to adversely affect'' 
a threatened species, this will require our written concurrence (50 CFR 
402.13(c). Similarly, if a Federal agency determines that an action is 
``likely to adversely affect'' a threatened species, the action will 
require formal consultation and the formulation of a biological opinion 
(50 CFR 402.14(a)). Because consultation obligations and processes are 
unaffected by 4(d) rules, we may consider developing tools to 
streamline future intra-Service and inter-Agency consultations for 
actions that result in forms of take that are not prohibited by the 
4(d) rule (but that still require consultation). These tools may 
include consultation guidance, Information for Planning and 
Consultation effects determination keys, template language for 
biological opinions, or programmatic consultations.
    The red-cockaded woodpecker requires cavity trees, nesting habitat, 
and foraging habitat (USFWS 2022, pp. 83-87). Red-cockaded woodpeckers 
rely on cavities for nesting and roosting (USFWS 2022, p. 33). Old 
pines are required as cavity trees because cavity chambers must be 
completely within the heartwood to prevent pine resin in the sapwood 
from entering the chamber and because heartwood diameter is a function 
of tree age (Jackson and Jackson 1986, pp. 319-320; Clark 1993, pp. 
621-626; USFWS 2022, p. 32). In addition, old pines have a higher 
incidence of the heartwood decay that greatly facilitates cavity 
excavation (USFWS 2022, p. 32). As we explain in the 2003 recovery 
plan, given that the species requires these cavities to complete its 
life cycle, the number of suitable cavities available can limit 
population size (USFWS 2003, p. 20). Thus, the recovery plan states, 
``to prevent loss of occupied territories, existing cavity trees should 
be protected, so that a sufficient number of suitable ones are 
maintained at all times'' (USFWS 2003, p. 20).
    Red-cockaded woodpeckers also require open pine woodlands and 
savannas with large old pines for nesting and roosting (i.e., nesting 
habitat) (USFWS 2022, p. 32). Cavity trees, with rare exception, occur 
in open stands with little or no hardwood midstory and few or no 
overstory hardwoods (USFWS 2022, p. 32). Suitable foraging habitat 
generally consists of mature pines with an open canopy, low densities 
of small pines, a sparse hardwood or pine midstory, few or no overstory 
hardwoods, and abundant native bunchgrass and forb groundcovers (USFWS 
2022, p. 41).
    Additionally, the red-cockaded woodpecker is a conservation-reliant 
species ``highly dependent on active conservation management with 
prescribed fire, beneficial and compatible silvicultural methods to 
regulate forest composition and structure, the provision of artificial 
cavities where natural cavities are insufficient, translocation to 
sustain and increase small vulnerable populations, and effective 
monitoring to identify limiting biological and habitat factors for 
management'' (USFWS 2022, p. 131). We emphasize this conservation 
reliance in the proposed rule (85 FR 63474, October 8, 2020) and 
indicate that the future persistence of the species will require these 
management actions to continue. As such, in addition to providing 
prohibitions necessary to protect individuals, the section 4(d) rule 
provides exceptions that will maintain and restore these essential 
nesting and foraging resources for the species (i.e., cavity trees, 
nesting habitat, and foraging habitat), which will advance the species' 
recovery and conservation.
    Specifically, the exceptions in the section 4(d) rule encourage 
beneficial habitat management on Federal lands, compatible prescribed 
burns and use of herbicides on eligible private and other non-Federal 
lands, and the provision of artificial cavities throughout the species' 
range. These activities provide considerable benefit to the species and 
its habitat by maintaining or increasing the quantity and quality of 
cavity trees, nesting habitat, and foraging habitat. Additionally, this 
section 4(d) rule retains the exception for take that results from 
activities authorized by a permit under the Act, which includes permits 
we have issued under the SHA program or will issue under the CBA 
program. Together, these prohibitions and exceptions will maintain and 
restore essential nesting and foraging resources for the species, 
improving the availability of suitable habitat, and will promote 
continued recovery.
    Additionally, one of the primary purposes of the Act is to provide 
a means whereby the ecosystems upon which endangered and threatened 
species depend may be conserved (16 U.S.C. 1531(b)); crafting a section 
4(d) rule for red-cockaded woodpecker that encourages habitat 
management that benefits the species will also support conservation of 
the native pine-grass ecosystems upon which the species depends.
    The provisions of this section 4(d) rule will promote conservation 
of the red-cockaded woodpecker by prohibiting take that can directly or 
indirectly impact population demographics. They also promote 
conservation of the species by providing more flexibility for 
incidental take that may result from activities that maintain and 
restore requisite habitat features.
    Moreover, we acknowledge and commend the accomplishments of our 
Federal partners, State agencies, nongovernmental organizations, and 
private landowners in providing conservation for the red-cockaded 
woodpecker for the past four decades. This intensive management has 
facilitated population growth since the time of listing, thereby 
allowing us to downlist the species from endangered to threatened. 
Private and other non-Federal landowners' SHAs and HCPs, DoD's INRMPs, 
USFS LRMPs, and the NWR System's CCPs currently provide specific 
measures for the active management and conservation of the species 
throughout its range, which have aided in the recovery of the species 
and its habitat. Overall, the majority of red-cockaded woodpecker 
populations

[[Page 85330]]

are managed under plans that address population enhancement and habitat 
management to sustain or increase populations and to meet the 2003 
recovery plan objectives for primary core, secondary core, and 
essential support populations (USFWS 2003, pp. 156-159). Our section 
4(d) rule does not invalidate or replace these successful programs. In 
fact, the section 4(d) rule continues to encourage participation in the 
CBA program, previously known as the SHA program, and provides 
incentives for public land managers and applicable State land 
management agencies to continue providing specific management for the 
benefit of the species and its habitat.
    The provisions of this section 4(d) rule are only one of the many 
tools we can use to promote conservation of the red-cockaded 
woodpecker. For example, private and other non-Federal landowners may 
still pursue regulatory flexibility through existing mechanisms that 
currently promote the species' conservation, such as CBAs or HCPs. 
These mechanisms will continue to provide considerable assurances for 
landowners.
    Similarly, this section 4(d) rule does not change an eligible 
private or other non-Federal landowner's ability to enroll in 
conservation programs such as those available through the NRCS or the 
Partners for Fish and Wildlife Program. These Federal programs provide 
technical and financial assistance to eligible private and other non-
Federal landowners to support habitat management for the benefit of 
wildlife and other natural resources in the open-pine systems of the 
southeastern United States, as well as other habitat types throughout 
the country. Nationwide, these programs help conserve or restore 
hundreds of thousands of acres of wildlife habitat every year. As a 
result of the consultations these Federal programs conduct with us, 
enrolled private and other non-Federal landowners already receive 
allowances for incidental take associated with beneficial conservation 
practices, without having to embark on a complex permitting process; 
the reclassification of the red-cockaded woodpecker and the section 
4(d) rule do not alter these programs. We encourage eligible private 
and other non-Federal landowners to continue participating in these 
valuable conservation programs.
    Finally, this section 4(d) rule does not alter or invalidate the 
2003 recovery plan. Recovery plans are not regulatory documents, but 
rather they provide a strategy to guide the conservation and recovery 
of the red-cockaded woodpecker.
    The only portion of this document that has regulatory effect is the 
text presented below under Regulation Promulgation (i.e., the text we 
add as paragraph (h) of Sec.  17.41 of title 50 of the Code of Federal 
Regulations (50 CFR 17.41(h)); the explanatory text above and in 
``Provisions of the 4(d) Rule'' below merely clarifies the intent of 
these regulations.

Provisions of the 4(d) Rule

Prohibitions

    Exercising the Secretary's authority under section 4(d) of the Act, 
we have developed a rule that is designed to address the red-cockaded 
woodpecker's conservation needs. As discussed previously in Summary of 
Biological Status and Threats, we have concluded that the red-cockaded 
woodpecker is likely to become in danger of extinction within the 
foreseeable future primarily due to lack of suitable roosting, nesting, 
and foraging habitat resulting from the legacy effects of historical 
logging, incompatible forest management, and conversion of forests to 
urban and agricultural uses. Section 4(d) requires the Secretary to 
issue such regulations as she deems necessary and advisable to provide 
for the conservation of each threatened species and authorizes the 
Secretary to include among those protective regulations any of the 
prohibitions that section 9(a)(1) of the Act prescribes for endangered 
species. We are not required to make a ``necessary and advisable'' 
determination when we apply or do not apply specific section 9 
prohibitions to a threatened species (In re: Polar Bear Endangered 
Species Act Listing and 4(d) Rule Litigation, 818 F. Supp. 2d 214, 228 
(D.D.C. 2011) (citing Sweet Home Chapter of Cmtys. for a Great Or. v. 
Babbitt, 1 F.3d 1, 8 (D.C. Cir. 1993), rev'd on other grounds, 515 U.S. 
687 (1995))). Nevertheless, even though we are not required to make 
such a determination, we have chosen to be as transparent as possible 
and explain below why we find that, if finalized, the protections, 
prohibitions, and exceptions in this rule as a whole satisfy the 
requirement in section 4(d) of the Act to issue regulations deemed 
necessary and advisable to provide for the conservation of the red-
cockaded woodpecker.
    The protective regulations for red-cockaded woodpecker incorporate 
prohibitions from section 9(a)(1) to address the threats to the 
species. The prohibitions of section 9(a)(1) of the Act, and 
implementing regulations codified at 50 CFR 17.21, make it illegal for 
any person subject to the jurisdiction of the United States to commit, 
to attempt to commit, to solicit another to commit or to cause to be 
committed any of the following acts with regard to any endangered 
wildlife: (1) import into, or export from, the United States; (2) take 
(which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect) within the United States, within the territorial 
sea of the United States, or on the high seas; (3) possess, sell, 
deliver, carry, transport, or ship, by any means whatsoever, any such 
wildlife that has been taken illegally; (4) deliver, receive, carry, 
transport, or ship in interstate or foreign commerce, by any means 
whatsoever and in the course of commercial activity; or (5) sell or 
offer for sale in interstate or foreign commerce. This protective 
regulation includes all of these prohibitions because the red-cockaded 
woodpecker is at risk of extinction in the foreseeable future and 
putting these prohibitions in place will help to prevent negative 
effects from other ongoing or future threats.
    In particular, this 4(d) rule will provide for the conservation of 
the red-cockaded woodpecker by prohibiting the following activities, 
unless they fall within specific exceptions or are otherwise authorized 
or permitted: importing or exporting red-cockaded woodpeckers; take of 
red-cockaded woodpeckers; possession and other acts with unlawfully 
taken specimens; delivering, receiving, transporting, or shipping red-
cockaded woodpeckers in interstate or foreign commerce in the course of 
commercial activity; and selling red-cockaded woodpeckers or offering 
red-cockaded woodpeckers for sale in interstate or foreign commerce.
    Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct. Some of these provisions have been further defined in 
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by 
direct and indirect impacts, intentionally or incidentally. Regulating 
take will help decrease synergistic, negative effects from other 
ongoing or future threats. Therefore, we are prohibiting take of the 
red-cockaded woodpecker, except for take resulting from those actions 
and activities specifically excepted by the 4(d) rule.
    As discussed in the SSA report for the species, effective 
monitoring, research, and translocation are important elements of the 
active management that promotes red-cockaded woodpecker conservation 
and recovery. However, in this section 4(d) rule, we prohibit all forms 
of take, which include capturing, handling, and similar activities. 
Such

[[Page 85331]]

activities include, but are not limited to, translocation, banding, 
collecting tissue samples, and research involving capturing and 
handling red-cockaded woodpeckers. While these activities are essential 
to conservation and recovery of the species, there are proper 
techniques to capturing and handling birds that require training and 
experience. Improper capture, banding, or handling can cause injury or 
even result in death of red-cockaded woodpeckers. Therefore, to ensure 
that these activities continue to be conducted correctly by properly 
trained personnel, the section 4(d) rule continues to prohibit take 
associated with translocation, banding, research, and other activities 
that involve capture or handling of red-cockaded woodpeckers; however, 
take that results from these activities could still be allowed under a 
section 10(a)(1)(A) permit.

Exceptions

    Exceptions to the prohibition on take include all of the general 
exceptions to the prohibition against take of endangered wildlife as 
set forth in 50 CFR 17.21 and additional exceptions, as described 
below.
    Despite these prohibitions regarding threatened species, we may 
under certain circumstances issue permits to carry out one or more 
otherwise-prohibited activities, including those described above. The 
regulations that govern permits for threatened wildlife state that the 
Director may issue a permit authorizing any activity otherwise 
prohibited with regard to threatened species. These include permits 
issued for the following purposes: for scientific purposes, to enhance 
propagation or survival, for economic hardship, for zoological 
exhibition, for educational purposes, for incidental taking, or for 
special purposes consistent with the purposes of the Act (50 CFR 
17.32). The statute also contains certain exemptions from the 
prohibitions, which are found in sections 9 and 10 of the Act.
    Furthermore, we encourage landowners to continue to enroll in the 
CBA program, previously known as the SHA program. Exactly like the 
regulatory regime that applies while the species is listed as 
endangered, any new permits issued under the authority of the CBA 
program will provide landowners with additional management flexibility 
and exemption from some of the take prohibitions in this rule. As 
discussed in greater detail above, CBAs are partnerships between 
landowners and us or between the State and us involving voluntary 
agreements under which the landowners receive formal regulatory 
assurances from us regarding their management responsibilities in 
return for contributions to benefit the listed species. This section 
4(d) rule does not alter this valuable program, or the permits 
associated with it.
    In addition, to further the conservation of the species, any 
employee or agent of the Service, any other Federal land management 
agency, the National Marine Fisheries Service, a State conservation 
agency, or a federally recognized Tribe, who is designated by their 
agency or Tribe for such purposes, may, when acting in the course of 
their official duties, take threatened wildlife without a permit if 
such action is necessary to: (i) Aid a sick, injured, or orphaned 
specimen; or (ii) dispose of a dead specimen; or (iii) salvage a dead 
specimen that may be useful for scientific study; or (iv) remove 
specimens that constitute a demonstrable but nonimmediate threat to 
human safety, provided that the taking is done in a humane manner; the 
taking may involve killing or injuring only if it has not been 
reasonably possible to eliminate such threat by live-capturing and 
releasing the specimen unharmed, in an appropriate area.
    Next, we incorporate the exception to take prohibitions for 
threatened species found in 50 CFR 17.31(b), which authorizes employees 
or agents of the Service or State conservation agencies operating under 
a cooperative agreement with us in accordance with section 6(c) of the 
Act to take red-cockaded woodpeckers in order to carry out conservation 
programs for the species. We recognize the special and unique 
relationship that we have 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 us in 
implementing all aspects of the Act. States solely own and manage lands 
occupied by at least 31 demographic populations and oversee State-wide 
SHAs, now known as CBAs, that have enrolled 459 non-Federal landowners 
covering approximately 2.5 million acres (85 FR 63474, October 8, 
2020).
    In this regard, section 6 of the Act provides that we must 
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 us in accordance with section 6(c) of the 
Act, who is designated by his or her agency for such purposes, will be 
able to conduct activities designed to conserve red-cockaded woodpecker 
that may result in otherwise prohibited take without additional 
authorization.
    This exception is very similar to an exception that currently 
applies while the woodpecker is listed as endangered (the exception 
under 50 CFR 17.21(c)(5)). While the exception in 50 CFR 17.31(b) is 
similar to the exception that currently applies while the species is 
listed as endangered (50 CFR 17.21(c)(5)), it does not provide the same 
limitations on take associated with carrying out conservation programs 
in States' cooperative agreements. State agencies may also enroll in 
the Conservation Benefit program, previously known as the Safe Harbor 
program, to receive permits that allow for certain types of take, if 
they are not otherwise covered by a cooperative agreement or otherwise 
prohibited.
    The 4(d) rule will also provide for the conservation of the species 
by allowing exceptions that incentivize conservation actions or that, 
while they may have some minimal level of take of the red-cockaded 
woodpecker, are not expected to rise to the level that would have a 
negative impact (i.e., would have only de minimis impacts) on the 
species' conservation. These exceptions will promote the maintenance 
and restoration of the habitat resources (cavity trees, nesting 
habitat, and foraging habitat) crucial to red-cockaded woodpecker 
recovery and conservation and not be subject to penalties and 
enforcement in accordance with section 11 of the Act.
    As discussed above, active management targeted at maintaining and 
restoring red-cockaded woodpecker populations and habitat is essential 
to the continued recovery of the species. The analyses in the SSA 
report illustrate that it could take ``many decades . . . to attain a 
desired future ecosystem condition in which red-cockaded woodpeckers 
are no longer dependent on artificial cavities and related special 
treatments. Without adequate species-level management, in contrast to 
ecosystem management alone, very little increase in the number of 
moderately to very highly resilient populations can be expected, and 
small populations of low or very low resilience are unlikely to 
persist'' (USFWS 2022, p. 14). The species-specific exceptions in this 
section 4(d) rule aim to facilitate

[[Page 85332]]

management that will protect and enhance red-cockaded woodpecker 
populations.
    For several reasons, conservation of red-cockaded woodpeckers as a 
species depends primarily on the conservation of populations on Federal 
properties (e.g., National Forests, NWRs, DoD installations). First, 
the vast majority of red-cockaded woodpeckers in existence today are on 
Federal lands (USFWS 2022, pp. 108-110; see table 7 in USFWS 2003, p. 
137). Second, Federal properties contain most of the land that can 
reasonably be viewed as potential habitat for red-cockaded woodpeckers 
(USFWS 1985, p. 133). Third, existing Federal statutes, especially the 
Act, require that Federal agencies conserve listed species and maintain 
biodiversity within their lands. Section 2(c)(1) of the Act declares 
that it is the policy of Congress that all Federal departments and 
agencies shall seek to conserve endangered species and threatened 
species (16 U.S.C. 1531(c)(1)); the Act defines conservation as the use 
of all methods and procedures necessary to bring an endangered species 
or threatened species to the point at which the measures provided 
pursuant to the Act are no longer necessary (16 U.S.C. 1532(3)). 
Private and other non-Federal landowners, in contrast, can contribute 
substantially to conservation, but such contributions above complying 
with the statutory prohibitions (e.g., direct harm) are voluntary. For 
those private and other non-Federal landowners that wish to increase 
the size of their population, we strongly encourage them to aim to 
achieve the recovery standard in the 2003 recovery plan or join the 
Conservation Benefit program, previously known as the Safe Harbor 
program (USFWS 2003, pp. 188-189).
    Therefore, the species-specific exceptions in this section 4(d) 
rule address eligible private and other non-Federal lands differently 
from Federal lands for three reasons. First, these entities have 
differing recovery responsibilities. Second, because of section 7 
consultation obligations, we will potentially be involved with Federal 
agencies' habitat management activities and any conservation activities 
that are authorized, funded, or carried out through Federal 
conservation programs on eligible private and other non-Federal lands. 
Third, there are other flexible programs that permit take that are 
already available to some State conservation agencies and other 
eligible private and non-Federal landowners (e.g., permits issued from 
existing SHAs, future CBAs, and HCPs and assistance provided by various 
conservation programs, such as those administered by NRCS and the 
Partners for Fish and Wildlife Program).
    First, we include an exception to the take prohibitions to allow 
incidental take on DoD installations that occurs as a result of 
implementing red-cockaded woodpecker habitat management and military 
training activities detailed in Service-approved INRMPs. In this rule, 
we define habitat management activities as activities intended to 
maintain or improve the quality and/or quantity of red-cockaded 
woodpecker habitat, including, but not limited to, prescribed burning; 
using herbicides and equipment to reduce midstory encroachment, thin 
overstocked pine stands, promote an open canopy pine system, and 
promote herbaceous groundcover; converting loblolly, slash, or other 
planted pines to more fire-tolerant native pines such as longleaf pine; 
planting and seeding native, site-appropriate pines and groundcover 
species; and regenerating areas of older pine forest, or any 
overrepresented age class, to increase and maintain sustainable current 
and future habitat.
    Within the range of the species, most DoD Army, Air Force, and 
Marine Corps installations have red-cockaded woodpecker management 
plans and guidelines incorporated into their Service-approved INRMPs to 
minimize the adverse effects of the military training activities 
outlined in the INRMPs and to achieve red-cockaded woodpecker recovery 
objectives. These plans and guidelines all contain an ESMC for red-
cockaded woodpecker conservation, which includes population size 
objectives, management actions to achieve conservation goals, 
monitoring and reporting, and specific training activities that are 
allowed or restricted within clusters and near cavity trees. Under the 
Sikes Act (16 U.S.C. 670 et seq.), we are required to review and 
approve INRMPs, when they are revised, at least every 5 years, and 
participate in annual reviews. In addition to this review and approval 
under the Sikes Act, we conduct section 7 consultation under the Act on 
INRMPs and ESMCs to ensure DoD installations' activities are not likely 
to jeopardize the continued existence of any listed species, including 
red-cockaded woodpeckers. Even with this exception in the section 4(d) 
rule, DoD installations will still need to comply with the Sikes Act 
requirement to obtain our approval of INRMPs and will still need to 
fulfill their section 7 obligations under the Act, including 
consulting, tracking and reporting amounts of incidental take that 
occur as a result of activities outlined in the INRMP (see 
``Implications for Implementation,'' below, for more detail on section 
7 processes under section 4(d) rules).
    In addition to excepting incidental take that results from red-
cockaded woodpecker habitat management activities in INRMPs, this 
section 4(d) rule will except incidental take associated with routine 
military training activities that are included in a Service-approved 
INRMP. The military training activities that DoD installations include 
in their INRMPs have been specifically designed to minimize incidental 
take of listed species, including red-cockaded woodpeckers. The DoD 
uses long-established guidelines (e.g., Management Guidelines for the 
Red-Cockaded Woodpecker on Army Installations (U.S. Army 1996, entire)) 
to inform minimization measures that reduce incidental take associated 
with military training. Moreover, the DoD conducts section 7 
consultation with us on the content of their INRMPs to ensure these 
military training activities will not jeopardize the species. Any 
incidental take resulting from new proposed training or construction 
activities that are not incorporated into a Service-approved INRMP are 
not excepted under this rule but could be exempted through an 
incidental take statement associated with a biological opinion 
resulting from a separate section 7 consultation under the Act. In 
other words, if a military installation's activities do not fall within 
the exceptions in this section 4(d) rule (i.e., they are not 
incorporated in a Service-approved INRMP) or are not otherwise covered 
in an existing section 7 biological opinion, incidental take that 
results from those activities could still be exempted from the 
prohibitions in this section 4(d) rule via a new biological opinion's 
incidental take statement as long as the activities will not jeopardize 
the continued existence of the species.
    To further ensure the DoD continues to monitor their red-cockaded 
woodpecker populations and habitats, the provisions in the section 4(d) 
rule will require each installation to share an annual property report 
regarding their red-cockaded woodpecker populations. This annual 
property report could include the property's recovery goal; the number 
of active, inactive, and recruitment clusters; information on habitat 
quality; and the number of artificial cavities the property installed. 
All military installations with red-cockaded woodpecker populations 
currently provide such a report to us, and we expect this to continue 
while the species is listed as threatened. This monitoring could inform 
adaptive

[[Page 85333]]

management during annual INRMP reviews.
    As a result of existing conservation programs under Service-
approved INRMPs, red-cockaded woodpecker populations have increased on 
all DoD installations. Of note, Fort Liberty, Fort Stewart, Eglin Air 
Force Base, Fort Moore, and Camp Blanding all have achieved or 
surpassed their 2003 recovery plan population size objectives and are 
expected to continue to manage towards larger populations (USFWS 2003, 
pp. xiii-xx, 212-213). Active and beneficial red-cockaded woodpecker 
management to increase population sizes on DoD installations has been 
an essential component of sustaining the species, and such management 
can balance the effects of military training.
    Given the close, formal involvement we have in reviewing and 
approving INRMPs under the Sikes Act, the species-specific beneficial 
management practices that DoD installations must incorporate into the 
ESMCs of these plans, the monitoring that the DoD installations must 
conduct, and the section 7 consultation that will still occur for these 
plans to ensure conservation activities do not jeopardize the species, 
we find that the management resulting from INRMPs will continue to 
advance the conservation of the species, even if incidental take 
occurs. Therefore, this section 4(d) rule excepts incidental take 
resulting from red-cockaded woodpecker habitat management and military 
training activities on DoD installations carried out in accordance with 
a Service-approved INRMP.
    Second, we include an exception to take prohibitions to allow 
incidental take that results from habitat management activities 
intended to restore or maintain red-cockaded woodpecker habitat on 
Federal land management agency properties; as noted earlier, we define 
``habitat management activities'' for the purposes of the section 4(d) 
rule (see Regulation Promulgation, below). We provide this exception 
separately from the aforementioned exception for DoD properties to 
account for the fact that the Sikes Act requires a different level of 
our involvement in the development of INRMPs and provides different 
standards for content in INRMPs than other Federal natural resource 
management planning processes.
    In order to benefit from this exception, Federal land management 
agencies must detail these planned habitat management activities in a 
Federal habitat management plan that includes a red-cockaded woodpecker 
management component, which addresses factors including, but not 
limited to, the red-cockaded woodpecker population size objective and 
the habitat management necessary to sustain, restore, or increase 
foraging habitat, nesting habitat, and cavity trees to attain 
population size objective. Suitable management plans may be stand-alone 
documents or may be step-down plans with red-cockaded woodpecker-
specific management components that implement more general plans (e.g., 
the habitat management plans that implement the NWR System's CCPs and 
red-cockaded woodpecker-specific amendments to LRMPs). In addition to 
describing these habitat management activities in a Federal habitat 
management plan, Federal land management agencies must also incorporate 
appropriate conservation measures to minimize or avoid adverse effects 
of these habitat management activities on red-cockaded woodpecker 
foraging habitat, on clusters, and on the species' roosting and nesting 
behavior to the maximum extent practicable; Federal agencies may 
identify these avoidance and minimization measures in these habitat 
management plans or in other documentation associated with the section 
7 consultation process. The inclusion of ``clusters'' in this provision 
ensures Federal land managers are adequately protecting nesting habitat 
and cavity trees, in addition to foraging habitat, while executing 
their planned beneficial habitat management activities. We expect the 
red-cockaded woodpecker components of these Federal management plans to 
allow for adaptive management and frequent reevaluation of appropriate 
conservation activities and minimization measures.
    Moreover, to further ensure Federal land management agencies 
continue to monitor their red-cockaded woodpecker populations and 
habitats, the provisions in the section 4(d) rule require each Federal 
property to share an annual property report with us regarding their 
red-cockaded woodpecker populations. This annual property report could 
include the property's recovery goal; the number of active, inactive, 
and recruitment clusters; information on habitat quality; and the 
number of artificial cavities the property installed. All Federal 
properties with red-cockaded woodpecker populations currently provide 
such a report to us, and we expect this practice to continue while the 
species is listed as threatened. The reporting Federal agencies provide 
as part of section 7 consultations will also qualify as this annual 
property report.
    As a result of this provision in the section 4(d) rule, we will, 
under certain conditions, except incidental take associated with 
habitat management activities on Federal lands that have short-term 
adverse effects to red-cockaded woodpeckers but that are intended to 
provide for improved habitat quality and quantity in the long term, 
with coinciding increases in numbers of red-cockaded woodpeckers, if 
these activities are detailed in a management plan that can adequately 
address site-specific considerations. Current and future red-cockaded 
woodpecker habitat conditions that require such restoration can vary 
significantly among sites and properties, to the extent that it would 
be ineffective to prescribe a universal condition by which this 
exception will apply. Therefore, in this section 4(d) rule, we state 
that incidental take associated with these activities will be excepted 
as long as the activities are intended to restore and maintain red-
cockaded woodpecker habitat and are detailed in a Federal agency 
habitat management plan. These management plans can strategically and 
accurately assess the site-specific conditions. According to the 
section 4(d) rule, Federal agencies must also incorporate appropriate 
conservation measures to minimize the adverse effects of these 
activities on red-cockaded woodpecker foraging habitat, on clusters, 
and on the species' roosting and nesting behavior. Because Federal 
agencies will still need to complete section 7 consultation, as 
appropriate, on these habitat management plans or projects, we will 
have the opportunity to review these restoration projects and provide 
input on how to minimize impacts to the species.
    Again, we encourage comprehensive, proactive management that 
results in red-cockaded woodpecker population growth and stability 
since, according to the 2003 recovery plan, ``development and 
maintenance of viable recovery populations is dependent on restoration 
and maintenance of appropriate habitat'' (USFWS 2003, p. 32). Continued 
conservation activities and beneficial land management are necessary to 
address the threats of habitat degradation and fragmentation, and it is 
the intent of this rule to encourage these activities.
    Most Federal properties within the range of the red-cockaded 
woodpecker already have management plans that detail habitat management 
activities specifically intended to restore or maintain red-cockaded 
woodpecker habitat; this exception will not require these agencies to 
rewrite these management plans or to reinitiate

[[Page 85334]]

section 7 consultation on these plans or on relevant projects. 
Moreover, because this section 4(d) rule does not remove or alter the 
obligation of Federal agencies to complete section 7 consultation on 
their management plans, we will have the opportunity to review any 
major changes to these site-specific plans to ensure the Federal 
agency's habitat management activities are not likely to jeopardize the 
continued existence of any listed species, including the red-cockaded 
woodpecker. As part of this section 7 process, we will produce an 
incidental take statement for the estimated amount of take reasonably 
likely to occur as a result of the management plan's activities, even 
though that take is excepted under the section 4(d) rule. Additionally, 
Federal agencies will still track all incidental take, even if it is 
excepted under this provision. If they exceed the amount of take in 
this incidental take statement as a result of carrying out the 
activities in their management plan, they will need to reinitiate 
consultation (see ``Implications for Implementation,'' below, for more 
detail on section 7 processes under section 4(d) rules).
    This provision does not except take resulting from habitat 
management or other activities that provide no benefit to red-cockaded 
woodpecker recovery, even if these activities are also described in the 
Federal management plan; however, incidental take from such activities 
could still be exempted through an incidental take statement associated 
with a biological opinion resulting from section 7 consultation under 
the Act. In other words, if a Federal land management agency's 
activities cannot comply with the exceptions in this section 4(d) rule, 
incidental take that results from those activities could still be 
exempted from the prohibitions in this section 4(d) rule via a project-
specific section 7 consultation as long as the activities will not 
jeopardize the continued existence of the species. Finally, because the 
prohibitions in this section 4(d) rule match those that currently apply 
under an endangered status, if Federal agencies are currently 
conducting management activities without resulting in take of red-
cockaded woodpeckers, this rule will not affect their ability to 
continue conducting those activities, independent of this exception.
    In short, if incidental take of red-cockaded woodpeckers occurs as 
a result of Federal land management agencies carrying out habitat 
management activities, as defined in the rule, this take is not 
prohibited as long as: (1) the habitat management activities were 
implemented specifically to restore or maintain red-cockaded woodpecker 
habitat; (2) the Federal land management agency details these habitat 
management activities in a habitat management plan; (3) the Federal 
land management agency incorporates appropriate conservation measures 
to minimize or avoid adverse effects of these habitat management 
activities on red-cockaded woodpecker foraging habitat, on clusters, 
and on the species' roosting and nesting behavior to the maximum extent 
practicable; and (4) the Federal land management agency provides annual 
reporting to us.
    Third, we include an exception to encourage private and other non-
Federal landowners who are not enrolled in the existing SHA or future 
CBA program to carry out specific compatible forest management 
activities (namely, prescribed burns and application of herbicides), 
given the importance of these forest management tools for red-cockaded 
woodpecker recovery (USFWS 2022, p. 131). This provision does not 
change the measures in any existing SHAs or HCPs. While Federal lands 
bear additional responsibility when it comes to achieving the recovery 
goals for red-cockaded woodpeckers, private and other non-Federal lands 
still play an important role in the conservation of the species. They 
provide for connectivity between populations, which boosts resiliency, 
and support additional red-cockaded woodpecker clusters to enhance 
redundancy and representation of the species. This section 4(d) rule 
will continue to encourage voluntary red-cockaded woodpecker 
conservation on private and other non-Federal lands through the CBA 
program.
    The exception further supports compatible forest management on 
private and other non-Federal lands, while continuing to maintain 
existing populations and is especially relevant for landowners that do 
not currently participate in the SHA, now known as the CBA, program. 
This provision provides an exception to take prohibitions for 
incidental take caused by application of prescribed burns or herbicides 
on private and other non-Federal lands to create or maintain habitat 
(i.e., open pine ecosystems) or sustain and grow red-cockaded 
woodpecker populations, provided that the landowner, or their 
representative: (1) follows applicable BMPs for prescribed burns and 
applicable Federal and State laws; (2) applies herbicides in a manner 
consistent with applicable BMPs and applicable Federal and State laws; 
and (3) applies prescribed burns and herbicides in a manner that 
minimizes or avoids adverse effects to known active clusters and red-
cockaded woodpecker roosting and nesting behavior to the maximum extent 
practicable.
    The first condition on this provision requires landowners to follow 
applicable BMPs for prescribed burns. States and counties within the 
range of red-cockaded woodpecker provide guidance documents with these 
BMPs to ensure practitioners safely apply prescribed burns in a way 
that minimizes impacts to communities, riparian ecosystems, forest 
roads, and vegetation (e.g., North Carolina Forestry BMP Manual; 
Recommended Forestry BMPs for Louisiana).
    The second condition on this provision requires landowners to 
follow applicable Federal and State laws in addition to the BMPs when 
applying herbicide. Some management plans specify additional criteria 
for the use of herbicides in habitat management that would benefit red-
cockaded woodpeckers or their habitat.
    The third condition on this provision calls for private and other 
non-Federal landowners to incorporate reasonable preventative measures, 
to the maximum extent practicable, to reduce any direct adverse effects 
of these activities where red-cockaded woodpeckers are already known to 
roost or nest, increasing the net benefit that prescribed burns and 
herbicide application can provide to red-cockaded woodpecker habitat 
and clusters. However, it does not require these private and other non-
Federal landowners to survey for new clusters prior to carrying out a 
burn or using herbicides, nor does it require them to follow particular 
preventative measures we prescribe, although the methods we outline for 
cavity tree protection in our 2003 recovery plan can provide a helpful 
resource to landowners when identifying practical ways to minimize 
adverse effects (USFWS 2003, pp. 201-205). Thus, this measure asks that 
landowners responsibly apply prescribed burns and herbicides, without 
being unreasonably prohibitive on landowners' compatible or beneficial 
activities.
    This provision also is relevant only in situations where take might 
occur as a result of a prescribed burn or the application of 
herbicides. For example, if a landowner does not currently have any 
red-cockaded woodpecker cavity trees, clusters, or foraging woodpeckers 
on their land, then it is not possible for these activities to result 
in incidental take. Thus, this landowner can proceed with prescribed 
burns or the use of herbicides without the possibility of violating the 
take prohibitions in the section 4(d) rule because such activities

[[Page 85335]]

do not result in take. It is only when a prescribed burn or the use of 
herbicides could result in incidental take of red-cockaded woodpeckers 
that private and other non-Federal landowners may wish to take 
advantage of this exception by following BMPs and conducting activities 
in a manner that minimizes or avoids adverse effects to known active 
clusters and red-cockaded woodpecker roosting and nesting behavior to 
the maximum extent practicable. Under this section 4(d) rule, if a 
private or other non-Federal landowner follows these BMPs and 
incorporates reasonable preventative measures while conducting 
prescribed burns and applying herbicides, while incidental take is 
unlikely, if it were to occur, the landowner would not be liable for 
such take. This provision only provides an exception to the take 
prohibitions for incidental take associated with prescribed burns or 
the use of herbicides when the use of these management practices are 
associated with maintaining any known red-cockaded woodpecker 
populations on their land; in other words, if a private or other non-
Federal landowner wishes to pursue a prescribed burn that could impair 
red-cockaded woodpecker population dynamics in the long term, this 
exception does not cover any incidental take that results from that 
burn, even if the landowner follows relevant BMPs.
    Finally, if landowners are already enrolled in the Safe Harbor 
program, this exception does not provide any additional flexibility; 
the permits associated with SHAs authorize take associated with 
prescribed burns, herbicide use, and other activities as long as 
landowners follow the stipulations in their SHA and do not decrease the 
number of red-cockaded woodpecker clusters below their baseline.
    Our intent for this provision is to provide a simple means by which 
to encourage private and other non-Federal landowners to pursue certain 
types of voluntary forest management activities (i.e., prescribed burns 
and herbicide application) in a way that reduces impacts to the species 
but also removes any potential barriers to the implementation of this 
beneficial forest management, such as fear of prosecution for take. 
Collaboration with partners in the forestry industry and their 
voluntary conservation and restoration of red-cockaded woodpecker 
habitat has helped advance red-cockaded woodpecker recovery to the 
point of downlisting; this provision continues to encourage this 
compatible or beneficial management. We also continue to encourage 
eligible private and other non-Federal landowners to participate in 
existing conservation programs that promote forest management 
benefiting red-cockaded woodpeckers and provides take allowances for 
participating landowners through other means (e.g., permits issued from 
existing SHAs, future CBAs, and HCPs; assistance provided by various 
conservation programs, such as those administered by NRCS and the 
Partners for Fish and Wildlife Program; and the associated section 7 
consultations these Federal programs conduct with us that provide 
allowances for incidental take associated with beneficial conservation 
practices).
    Finally, the section 4(d) rule provides an exception to take 
prohibitions for incidental take that occurs as a result of the 
installation of artificial cavities as long as individuals conducting 
the installation have completed training, have achieved a certain level 
of proficiency as detailed below, and are following appropriate 
guidelines. As described above, maintaining an adequate number of 
suitable cavities in each woodpecker cluster is fundamental to the 
conservation of the species. Loss of natural cavity trees was a major 
factor in the species' decline, and availability of natural cavity 
trees currently limits many populations. Until a sufficient number of 
large, old pines becomes widely available, installation and maintenance 
of artificial cavities is an essential management tool to sustain 
populations and bring about population increases, and we continue to 
encourage the installation of artificial cavities. However, we also 
acknowledge that there are proper techniques to install cavity inserts 
or drill cavities, and these techniques require training and 
experience. Improperly installed artificial cavities can cause injury 
or even result in death of red-cockaded woodpeckers attempting to roost 
or nest in them. Currently, because the species is listed as 
endangered, individuals must seek a section 10(a)(1)(A) permit to 
install artificial cavity inserts or drilled cavities.
    However, we recognize that many of our partners have training and 
extensive experience in installing artificial cavities. Moreover, given 
the essential nature of artificial cavity installation for the 
continued conservation of the species, we want to remove any potential 
hurdles to the efficient and effective provisioning and maintenance of 
artificial cavities. Therefore, we provide an exception to take 
prohibitions in this rule for the installation, maintenance, and 
replacement of artificial cavity inserts and drilled cavities on public 
and private lands. However, this exception applies only if the 
individual conducting the installation has either held a valid Service 
permit for that purpose and has continued to install, maintain, and 
replace cavities since the expiration of their permit or has completed 
a period of apprenticeship under the direction of a person that has 
been involved in cavity installation for at least 3 years (the 
trainer).
    In order to complete their training, under the direct supervision 
of the trainer, the apprentice must install at least 10 drilled 
cavities, if they plan to install drilled cavities, or 10 inserts, if 
they plan to install inserts, and learn the proper maintenance and 
inspection procedures for cavities. After the apprentice has completed 
their training, the trainer must provide a letter to the apprentice and 
to our regional red-cockaded woodpecker recovery coordinator; the 
letter will outline the training the apprentice received and will serve 
as a record of the apprentice's training. Please note that a provision 
pertaining to restrictor plates, which was included in the proposed 
rule at proposed Sec.  17.41(h)(2)(iii) (February 3, 2022, 87 FR 6118), 
has been removed from this final rule as the result of advancements, 
such as the use of PVC (polyvinyl chloride) inserts, in preserving 
cavity integrity.
    Additionally, the individual conducting the installation must 
follow appropriate guidelines for the installation and use of 
artificial cavity inserts and drilled cavities, including: (1) 
Monitoring the cavity resource; (2) installing and maintaining the 
recommended number of suitable cavities in each cluster; (3) using the 
appropriate type of artificial cavity insert and method of artificial 
cavity installation; (4) installing artificial cavities as close to 
existing cavity trees as possible, preferably within 71 meters (200 
feet) when adding to an existing cluster; (5) selecting a tree that is 
of appropriate age or diameter when installing a cavity insert; (6) 
selecting the appropriate location for artificial cavity installation 
on the tree; and (7) protecting red-cockaded woodpeckers from sap 
leakage by ensuring that no artificial cavity has resin leaking into 
the chamber or entrance tunnel.
    The 2003 recovery plan can provide some additional detail on how an 
installer can ensure they successfully follow these guidelines (USFWS 
2003, pp. 175-178). If an installer does not comply with the 
qualification requirements (i.e., they have not held a valid Service 
permit or they have not completed the necessary training) or

[[Page 85336]]

with the installation guidelines in the section 4(d) rule and 
incidental take occurs as a result of artificial cavity installation, 
the installer will still be liable for this take. However, if an 
installer is qualified and follows the installation guidelines, while 
incidental take is highly unlikely, if it were to occur, the installer 
will not be liable for such take under this rule. We included this 
exception in our section 4(d) rule as a result of public comments on 
the October 8, 2020, proposal that supported its incorporation.

Implications for Implementation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    The trigger for consultation is whether a Federal action may affect 
a listed species or its critical habitat, not whether the action will 
result in prohibited take; species-specific section 4(d) rules, 
regardless of the take they prohibit or allow, cannot change this 
requirement to consult. Consultation is still required to satisfy the 
requirements of section 7(a)(2) of the Act to ensure that the activity 
will not jeopardize the species or result in adverse modification of 
critical habitat.
    Thus, if a Federal agency determines that their action is not 
likely to adversely affect a listed species or its critical habitat, 
they must still receive our written concurrence, even if this activity 
is excepted under a section 4(d) rule. If a Federal agency determines 
that their action is likely to adversely affect a listed species or its 
critical habitat, even if it results only in take that is excepted 
under a section 4(d) rule, they must still pursue formal consultation 
with us and we must formulate a biological opinion that includes an 
incidental take statement. Even if a section 4(d) rule includes 
specific exceptions to take prohibitions, we must still describe or 
enumerate the amount or extent of this incidental take that is 
reasonably certain to occur (i.e., in an incidental take statement), 
and the Federal action agency must monitor and report any such take 
that occurs. If an action agency's activities exceed the amount of 
incidental take enumerated in the incidental take statement, those 
activities will trigger reinitiation of the consultation, even if this 
excessive take is still excepted under the section 4(d) rule (see 
Center for Biological Diversity v. Salazar, 695 F.3d 893 (2012)). This 
system allows the agency to keep track of any take to stay abreast of 
the status of the species. The Federal action agency may also trigger 
reinitiation of consultation if they do not implement the action as 
described in the biological opinion or as directed in the section 4(d) 
rule.
    Even though section 4(d) rules do not remove or alter Federal 
agencies' section 7 consultation obligations, we will consider methods 
by which we might be able to streamline section 7 consultation on 
activities that may result in take that is excepted under this section 
4(d) rule. This information and determination can be used to inform and 
serve as part of the basis of our analysis of whether an action is 
likely to jeopardize the continued existence of the species, making 
consultation more straightforward and predictable. For example, because 
of the nature of activities that will be consistent with this section 
4(d) rule, and as the section 4(d) rule includes an explanation for why 
such activities provide for the conservation of the species, we could 
draft an analysis of the effects of these habitat management activities 
on the species for inclusion in all section 7 analyses that consider 
effects on the red-cockaded woodpecker. This analysis could be 
incorporated into any Service biological opinion (or action agency 
biological assessment), thereby creating efficiencies in the 
development of these documents and providing consistency for 
consultation on activities that are covered by the section 4(d) rule.
    Finally, if Federal agencies have already completed section 7 
consultation on particular projects, activities, or management plans 
and the biological opinion remains valid, they do not need to 
reinitiate consultation when the section 4(d) rule takes effect, if 
their Federal action (e.g., management plan) has not changed. However, 
given the provisions in this section 4(d) rule, Federal agencies may 
find that reinitiating consultation, although not required, could grant 
additional flexibilities for their ongoing actions and activities.

Required Determinations

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

    Regulations adopted pursuant to section 4(a) of the Act are exempt 
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et 
seq.) and do not require an environmental analysis under NEPA. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This includes 
listing, delisting, and reclassification rules, as well as critical 
habitat designations and species-specific protective regulations 
promulgated concurrently with a decision to list or reclassify a 
species as threatened. The courts have upheld this position (e.g., 
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical 
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife 
Service., 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d) 
rule)).

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, May 4, 1994), Executive Order 13175 
(Consultation and Coordination with Indian Tribal Governments), the 
President's memorandum of November 30, 2022 (Uniform Standards for 
Tribal Consultation; 87 FR 74479, December 5, 2022), and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with federally-recognized 
Tribes and Alaska Native Corporations 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. We did not receive any comments from Tribes on the proposed 
rulemaking, nor have we received any requests for government-to-
government consultation. As such, we have fulfilled our relevant 
responsibilities.

References Cited

    A complete list of references cited in this rulemaking is available 
on the

[[Page 85337]]

internet at https://www.regulations.gov and upon request from the 
Georgia Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this final rule are the staff members of the 
Fish and Wildlife Service's Species Assessment Team and the Georgia, 
Louisiana, and South Carolina Ecological Services Field Offices.

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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


0
2. Amend Sec.  17.11, in paragraph (h), in the List of Endangered and 
Threatened Wildlife by revising the entry for ``Woodpecker, red-
cockaded'' under BIRDS to read as set forth below:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
              Birds
 
                                                  * * * * * * *
Woodpecker, red-cockaded........  Dryobates borealis  Wherever found....  T              35 FR 16047, 10/13/
                                                                                          1970; 89 FR [INSERT
                                                                                          FIRST PAGE OF THE
                                                                                          FEDERAL REGISTER
                                                                                          DOCUMENT], 10/25/2024;
                                                                                          50 CFR 17.41(h).\4d\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


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


Sec.  17.41  Species-specific rules--birds.

* * * * *
    (h) Red-cockaded woodpecker (Dryobates borealis). (1) Definitions. 
For the purposes of this paragraph (h), we define the following terms:
    (i) Habitat management activities are activities intended to 
maintain or improve the quality and/or quantity of red-cockaded 
woodpecker habitat, including, but not limited to, prescribed burning; 
using herbicides and equipment to reduce midstory encroachment, thin 
overstocked pine stands, promote an open canopy pine system, and 
promote herbaceous groundcover; converting planted pines to more fire-
tolerant, site-appropriate native pines found within the associated 
native pine, fire-dependent ecosystem; planting and seeding native, 
site-appropriate pines and groundcover species; and regenerating areas 
of older pine forest to increase and maintain sustainable current and 
future habitat for red-cockaded woodpeckers.
    (ii) Cavity tree means any tree containing one or more active or 
inactive natural or artificial cavities.
    (A) An active cavity is a completed natural or artificial cavity or 
cavity start exhibiting fresh pine resin associated with red-cockaded 
woodpeckers' cavity maintenance, cavity construction, or resin well 
excavation.
    (B) An inactive cavity is a cavity that is not presently being used 
by red-cockaded woodpeckers.
    (C) A cavity start is a void formed in the bole of the tree during 
the initial stages of cavity excavation and can be active or inactive.
    (iii) Cluster means the aggregation of cavity trees within an area 
previously or currently used and defended by a single red-cockaded 
woodpecker group. A cluster may be active or inactive. A cluster 
encompasses the minimum convex polygon containing all of a group's 
cavity trees and the 61-meter (200-foot) buffer surrounding that 
polygon. The minimum cluster area size is 4.05 hectares (10 acres), as 
some clusters may contain only one cavity tree.
    (A) An active cluster is defined as a cluster in which one or more 
of the cavity trees exhibit fresh resin as a result of red-cockaded 
woodpecker activity or in which one or more red-cockaded woodpeckers 
are observed.
    (B) An inactive cluster is defined as a cluster that is not 
currently supporting any red-cockaded woodpeckers and shows no evidence 
of red-cockaded woodpecker activity.
    (C) A group is a red-cockaded woodpecker social unit, consisting of 
a breeding pair with one or more helpers, a breeding pair without 
helpers, or a solitary male.
    (iv) Foraging habitat is habitat that generally consists of mature 
pines with an open canopy, low densities of small pines, a sparse 
hardwood and/or pine midstory, few or no overstory hardwoods, and 
abundant native bunchgrass and forb groundcovers.
    (2) Prohibitions. The following prohibitions in this paragraph 
(h)(2) that apply to endangered wildlife also apply to the red-cockaded 
woodpecker. Except as provided under paragraphs (h)(3) and (4) of this 
section and Sec. Sec.  17.4 and 17.5, it is unlawful for any person 
subject to the jurisdiction of the United States to commit, to attempt 
to commit, to solicit another to commit, or cause to be committed, any 
of the following acts in regard to this species:
    (i) Import or export, as set forth at Sec.  17.21(b) for endangered 
wildlife.
    (ii) Take, as set forth at Sec.  17.21(c)(1) for endangered 
wildlife.
    (iii) Possession and other acts with unlawfully taken specimens, as 
set forth at Sec.  17.21(d)(1) for endangered wildlife.
    (iv) Interstate or foreign commerce in the course of commercial 
activity, as set forth at Sec.  17.21(e) for endangered wildlife.
    (v) Sale or offer for sale, as set forth at Sec.  17.21(f) for 
endangered wildlife.
    (3) General exceptions from prohibitions. In regard to this 
species, you may:
    (i) Conduct activities as authorized by a permit issued under Sec.  
17.32.
    (ii) Take, as set forth at Sec.  17.21(c)(2) through (4) for 
endangered wildlife, and Sec.  17.21(c)(6) and (7) for endangered 
migratory birds.
    (iii) Take, as set forth at Sec.  17.31(b).

[[Page 85338]]

    (iv) Possess and engage in other acts with unlawfully taken red-
cockaded woodpeckers, as set forth at Sec.  17.21(d)(2) for endangered 
wildlife and Sec.  17.21(d)(3) and (4) for endangered migratory birds.
    (4) Exceptions from prohibitions for specific types of incidental 
take. The following activities that cause take that is incidental to an 
otherwise lawful activity are not in violation of the prohibitions:
    (i) Department of Defense (DoD) installations. Red-cockaded 
woodpecker habitat management and military training activities on DoD 
installations carried out in accordance with a Service-approved 
integrated natural resources management plan, provided that the DoD 
installation reports annually to the Service regarding their red-
cockaded woodpecker populations.
    (ii) Federal land management agency properties. Habitat management 
activities intended to restore or maintain red-cockaded woodpecker 
habitat on Federal land management agency properties, provided that:
    (A) The Federal land management agency details these habitat 
management activities in a Federal habitat management plan;
    (B) The Federal habitat management activities incorporate 
appropriate conservation measures to minimize or avoid adverse effects 
of these habitat management activities on, but not limited to, red-
cockaded woodpecker foraging habitat, on clusters, and on the species' 
roosting and nesting behavior to the maximum extent practicable; and
    (C) The Federal land management agency reports annually to the 
Service regarding their red-cockaded woodpecker populations.
    (iii) Privately and other non-federally owned properties. 
Application of prescribed burns or herbicides on private and other non-
Federal lands to create or maintain habitat (i.e., open pine 
ecosystems) or sustain and grow red-cockaded woodpecker populations, 
provided that the landowner or their representative:
    (A) Follows applicable best management practices for prescribed 
burns and applicable Federal and State laws;
    (B) Applies herbicides in a manner consistent with applicable best 
management practices and applicable Federal and State laws; and
    (C) Applies prescribed burns and herbicides in a manner that 
minimizes or avoids adverse effects to known active clusters and red-
cockaded woodpecker roosting and nesting behavior to the maximum extent 
practicable.
    (iv) Artificial cavities. Installation, maintenance, and 
replacement of artificial cavity inserts and drilled cavities on public 
and private lands, provided that:
    (A) The individual conducting the installation, maintenance, or 
replacement has either:
    (1) Held a valid Service permit for that purpose, which expired 
after November 25, 2024, and has continued to install, maintain, and 
replace cavities since the expiration of their permit; or
    (2) Completed the following training procedures for the type of 
artificial cavity they plan to install, maintain, or replace:
    (i) The individual (``apprentice'') has completed a period of 
apprenticeship to learn proper installation, maintenance, and 
replacement procedures for artificial cavities under the direction of a 
person (``trainer'') who has been installing, maintaining, and 
replacing cavities for at least the past 3 years;
    (ii) The apprentice has installed at least 10 drilled cavities or 
10 inserts under direct supervision and to the satisfaction of the 
trainer; and
    (iii) The apprentice has learned the proper maintenance and 
inspection procedures for cavities.
    (B) If the individual conducting the installation is an apprentice, 
the apprentice's trainer provides a letter to the apprentice and to the 
Service red-cockaded woodpecker recovery coordinator that outlines the 
training the apprentice received, which will serve as a record of the 
apprentice's training.
    (C) The individual conducting the installation follows appropriate 
guidelines for the installation and use of artificial cavity inserts 
and drilled cavities, including, but not limited to:
    (1) Monitoring the cavity resource;
    (2) Installing and maintaining the recommended number of suitable 
cavities in each cluster;
    (3) Using the appropriate type of artificial cavity insert and 
method of artificial cavity installation;
    (4) Installing artificial cavities as close to existing cavity 
trees as possible, preferably within 71 meters (200 feet), when adding 
to an existing cluster;
    (5) Selecting a tree that is of appropriate age or diameter, when 
installing a cavity insert;
    (6) Selecting the appropriate location for artificial cavity 
installation on the tree; and
    (7) Protecting red-cockaded woodpeckers from sap leakage by 
ensuring that no artificial cavity has resin leaking into the chamber 
or entrance tunnel.
* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-23786 Filed 10-24-24; 8:45 am]
BILLING CODE 4333-15-P