3976 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Proposed Rules 

the most restrictive car in the train 

between the brake tests described in 

§§ 232.205 through 232.207: 

(1) A written or electronic record is 

maintained in the cab of the controlling 

locomotive that includes the following 

information for each car: 

(i) Its location in the train; 

(ii) The reporting mark and car 

number; 

(iii) The date, time, and location of its 

most recent Class I or IA brake test; 

(iv) The identification and 

qualification of the person who 

performed the test (qualified person or 

qualified mechanical inspector, as 

defined in § 232.5); and 

(v) An accurate calculation of the 

mileage remaining under paragraph (a) 

or (b) of this section, as applicable; 

(2) The copy of this cab record must 

be updated at each location to reflect 

changes in the train consist; and 

(3) In the event of disruption of 

communication with the eABS system, 

a train is permitted to move based upon 

the mileage permitted to the most 

restrictive car as reported in the cab 

record. 

(e) Notwithstanding §§ 232.205 

through 232.209, a Class I, Class IA, or 

Class II brake test is not required to be 

performed at the following locations for 

a train consisting solely of cars operated 

under this section: 

(1) A location where one or more cars 

are removed from any location in the 

train; 

(2) A location where any car meeting 

the requirements of paragraph (a) or (b) 

of this section is added to a train; or 

(3) A location where the motive 

power for the train consist is changed. 

(f) The eABS system must maintain 

the integrity and availability of records, 

including but not limited to: 

(1) Recognition of a unique identifier 

associated with each person that authors 

records in the eABS system, with 

provisions to ensure that records 

containing such identifier accurately 

reflect that the individual associated 

with the identifier authored the record; 

(2) Implementation of means to 

ensure that stored records contain all 

information required in paragraph (a)(3) 

of this section; 

(3) Implementation of means to 

ensure that each record containing the 

statements described in paragraph (a)(3) 

of this section identifies as a qualified 

mechanical inspector any person 

performing a Class I brake test who 

meets the criteria for a qualified 

mechanical inspector, as defined in 

§ 232.5; 

(4) Accessibility for FRA review and 

monitoring at any time. Records in the 

eABS system must be made 

immediately available upon request to 

FRA and State inspectors under part 212 

of this chapter for inspection and 

copying for no less than 30 days after 

entry or last amendment; and 

(5) Procedures to minimize the effect 

of breakdown or malfunction, including 

redundant storage of records, and means 

to communicate and record the 

information required by paragraph (a)(3) 

of this section when access to the eABS 

system is unavailable. 

(g) Records in the eABS system may 

only be modified for the following 

purposes: 

(1) Correction of records, provided the 

eABS system stores amended records 

separately from the original records and 

the amended record clearly identifies 

the information being amended; and 

(2) To update the calculation of 

mileage remaining until the next Class 

I brake test is required. 

(h) An accurate calculation of the 

mileage remaining under paragraph (a) 

or (b) of this section must, at minimum: 

(1) Be based upon the number of 

miles the car has traveled as part of a 

train; 

(2) Be updated for the car as soon as 

practicable after departure of the car in 

a train, but no later than the time at 

which the car departs in any subsequent 

train; and 

(3) Be inclusive of any excess mileage 

accumulated between brake tests. Such 

excess mileage shall be reported as a 

negative number. 

(i) The eABS system must retain 

records for a minimum of one year from 

the records’ creation. 

(j) FRA’s Associate Administrator for 

Railroad Safety may revoke a railroad’s 

authority to utilize the provisions of this 

section, in whole or in part, if: 

(i) FRA finds that the railroad’s eABS 

system or the records contained in the 

railroad’s eABS system are not properly 

secure, are inaccessible to FRA or the 

railroad’s employees, or fail to 

adequately track and monitor the 

movement of equipment operating 

pursuant to this section; or 

(ii) The railroad demonstrates a record 

of repeated or willful noncompliance 

with the provisions of this part or parts 

215 and 229 of this chapter. 

(2) Revocation may be limited to 

specific locations, equipment, 

environmental conditions, train routes, 

employees, or eABS systems. 

(3) FRA will record such a 

determination in writing, state the basis 

for such action, establish conditions of 

revocation, including a specific period 

of suspension or conditions for the 

restoration of the authority to utilize the 

provisions of this section, and provide 

a copy of the document to the railroad. 

Issued in Washington, DC. 

Quintin C. Kendall, 

Deputy Administrator. 

[FR Doc. 2020–28870 Filed 1–14–21; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R5–ES–2019–0056; 

FF09E22000 FXES11130900000 201] 

RIN 1018–BD65 

Endangered and Threatened Wildlife 

and Plants; Reclassifying Furbish’s 

Lousewort (Pedicularis furbishiae) 

From Endangered to Threatened 

Status With a Section 4(d) Rule 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

reclassify (downlist) Furbish’s 

lousewort (Pedicularis furbishiae) from 

an endangered species to a threatened 

species under the Endangered Species 

Act of 1973, as amended (Act), and we 

propose a rule under section 4(d) of the 

Act to promote the conservation of 

Furbish’s lousewort. This information is 

based on a thorough review of the best 

available scientific and commercial 

information, which indicates the threats 

to the species have been reduced to the 

point that the species no longer meets 

the definition of an endangered species 

under the Act. We request information 

and comments from the public on this 

proposal. 

DATES: We will accept comments 

received or postmarked on or before 

March 16, 2021. Comments submitted 

electronically using the Federal 

eRulemaking Portal (see ADDRESSES, 

below) must be received by 11:59 p.m. 

Eastern Time on the closing date. We 

must receive requests for a public 

hearing, in writing, at the address 

shown in FOR FURTHER INFORMATION

CONTACT by March 1, 2021. 

ADDRESSES: You may submit comments 

by one of the following methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: http://

www.regulations.gov. In the Search box, 

enter FWS–R5–ES–2019–0056, which is 

the docket number for this rulemaking. 

Then, click on the Search button. On the 

resulting page, in the Search panel on 

the left side of the screen, under the 

Document Type heading, click on the 

Proposed Rule box to locate this 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Proposed Rules 3977 

document. You may submit a comment 

by clicking on ‘‘Comment Now!’’ 

(2) By hard copy: Submit by U.S. mail: 

Public Comments Processing, Attn: 

FWS–R5–ES–2019–0056; U.S. Fish and 

Wildlife Service, MS: PRB/3W, 5275 

Leesburg Pike, Falls Church, VA 22041– 

3803. 

We request that you send comments 

only by the methods described above. 

We will post all comments on http://

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see Public 

Comments, below, for more 

information). 

Document availability: This proposed 

rule and supporting documents 

including the 5-year review, the 

Recovery Plan, and the species status 

assessment (SSA) report are available at 

http://www.regulations.gov under 

Docket No. FWS–R5–ES–2019–0056, 

and at the Maine Ecological Services 

Field Office (see FOR FURTHER

INFORMATION CONTACT). 

FOR FURTHER INFORMATION CONTACT: 

Project Leader, Maine Ecological 

Services Field Office, 306 Hatchery 

Road, East Orland, ME 04431; telephone 

207–902–1567. Persons who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Relay 

Service at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Information Requested 

We intend that any final action 

resulting from this proposed rule will be 

based on the best scientific and 

commercial data available and be as 

accurate and as effective as possible. 

Therefore, we request comments or 

information from other concerned 

governmental agencies, Native 

American tribes, the scientific 

community, industry, or any other 

interested parties concerning this 

proposed rule. 

We particularly seek new information 

not already included in the species 

status assessment report concerning: 

(1) Reasons we should or should not 

reclassify Furbish’s Lousewort 

(Pedicularis furbishiae) under the Act 

(16 U.S.C. 1531 et seq.). 

(2) New biological or other relevant 

data concerning any threat (or lack 

thereof) to this plant and existing 

regulations that may be addressing these 

or any of the threats described in this 

proposed rule or the species status 

assessment report. 

(3) New information concerning the 

population size or trends of Furbish’s 

lousewort. 

(4) New information or data on the 

projected and reasonably likely impacts 

to Furbish’s lousewort or its habitat 

associated with climate change. 

(5) New information on planned 

development activities within the range 

of Furbish’s lousewort that may 

adversely affect or benefit the plant. 

(6) Information on regulations that are 

necessary and advisable to provide for 

the conservation of Furbish’s lousewort 

and that the Service can consider in 

developing a 4(d) rule for the species. In 

particular, information concerning the 

extent to which we should include any 

of the section 9 prohibitions in the 4(d) 

rule or whether any other forms of take 

should be excepted from the 

prohibitions in the 4(d) rule. 

Please include sufficient information 

with your submission (such as scientific 

journal articles or other publications) to 

allow us to verify any scientific or 

commercial information you include. 

Please note that submissions merely 

stating support for or opposition to the 

action under consideration without 

providing supporting information, 

although noted, will not be considered 

in making a determination, as section 

4(b)(1)(A) of the Act directs that 

determinations as to whether any 

species is an endangered or threatened 

species must be made ‘‘solely on the 

basis of the best scientific and 

commercial data available.’’ 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in 

ADDRESSES. We request that you send 

comments only by the methods 

described in ADDRESSES. 

If you submit information via http:// 

www.regulations.gov, your entire 

submission—including any personal 

identifying information—will be posted 

on the website. If your submission is 

made via a hard copy that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post all hard copy submissions 

at http://www.regulations.gov. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection at 

http://www.regulations.gov. 

Public Hearing 

Section 4(b)(5) of the Act provides for 

a public hearing on this proposal, if 

requested. Requests must be received by 

the date specified in DATES. Such 

requests must be sent to the address 

shown in FOR FURTHER INFORMATION

CONTACT. We will schedule a public 

hearing on this proposal, if requested, 

and announce the date, time, and place 

of the hearing, as well as how to obtain 

reasonable accommodations, in the 

Federal Register at least 15 days before 

the hearing. For the immediate future, 

we will provide these public hearings 

using webinars that will be announced 

on the Service’s website, in addition to 

the Federal Register. The use of these 

virtual public hearings is consistent 

with our regulations at 50 CFR 

424.16(c)(3). 

Supporting Documents 

A species status assessment (SSA) 

team prepared an SSA report for 

Furbish’s lousewort. The SSA team was 

composed of biologists from the Service 

and the State of Maine Natural Areas 

Program. The SSA report represents a 

compilation of the best scientific and 

commercial data available concerning 

the status of the species, including the 

impacts of past, present, and future 

factors (both negative and beneficial) 

affecting the species. 

In accordance with our July 1, 1994, 

peer review policy (59 FR 34270; July 1, 

1994), our August 22, 2016, Director’s 

Memo on the Peer Review Process, and 

the Office of Management and Budget’s 

December 16, 2004, Final Information 

Quality Bulletin for Peer Review 

(revised June 2012), we solicited 

independent scientific reviews of the 

information contained in the Furbish’s 

lousewort SSA report. We solicited 

independent peer review of the SSA 

report by four individuals with 

expertise in Furbish’s lousewort, 

botany, ice scour and flooding regimes 

of the St. John River, and landscape 

ecology; we received comments from 

three of the four peer reviewers. In 

addition, we received comments from 

the State of Maine and Canada. The SSA 

report can be found at http://

www.regulations.gov under Docket No. 

FWS–R5–ES–2019–0056, and on the 

Maine Ecological Services Field Office 

website at: https://www.fws.gov/ 

mainefieldoffice/Furbish_

lousewort.html. In preparing this 

proposed rule, we incorporated the 

results of these reviews, as appropriate, 

into the final SSA report, which is the 

foundation for this proposed rule. 

Because we will consider all 

comments and information we receive 

during the comment period, our final 

determinations may differ from this 

proposal. Based on the new information 

we receive (and any comments on that 

new information), we may conclude that 

the species is endangered instead of 

threatened, or we may conclude that the 

species does not warrant listing as either 

an endangered species or a threatened 

species. Such final decisions would be 

a logical outgrowth of this proposal, as 

3978 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Proposed Rules 

long as we: (1) Base the decisions on the 

best scientific and commercial data 

available after considering all of the 

relevant factors; (2) do not rely on 

factors Congress has not intended us to 

consider; and (3) articulate a rational 

connection between the facts found and 

the conclusions made, including why 

we changed our conclusion. 

Previous Federal Actions 

Furbish’s lousewort was listed as an 

endangered species on April 26, 1978 

(43 FR 17910). We completed a recovery 

plan in 1983 (USFWS 1983) and revised 

it in 1991 (USFWS 1991). The revised 

recovery plan presented updated lifehistory and population information, and 

updated information on the threats to 

the species. A second revision recovery 

plan was signed on September 26, 2019 

and on February 21, 2019, a 5-year 

status review was completed (USFWS 

2019b) and concluded that Furbish’s 

lousewort should be downlisted to a 

threatened species under the Act. 

I. Proposed Reclassification 

Determination 

Background 

A thorough review of Furbish’s 

lousewort is presented in the SSA report 

(USFWS 2020), found at http://

www.regulations.gov under Docket 

FWS–R5–ES–2019–0056, which is 

briefly summarized here. 

Species Information 

Furbish’s lousewort was first named 

and described in 1882 (Watson, S. 1882, 

entire) and is recognized as a valid 

taxon. A thorough review of the 

taxonomy, life history, and ecology of 

Furbish’s lousewort is presented in the 

SSA report. 

Furbish’s lousewort is an herbaceous 

perennial plant that occurs on the 

intermittently flooded, ice-scoured 

banks of the St. John River. It is endemic 

to Maine with a few, small 

subpopulations in northwestern New 

Brunswick, Canada. The population of 

Furbish’s lousewort is comprised of 20 

subpopulations associated with suitable 

habitat that occurs along portions of a 

225-kilometer (140-mile) section of the 

St. John River. The plant is recognized 

early in the growing season by a basal 

rosette of fern-like leaves. By midsummer, mature plants produce one or 

more flowering stems that grow to about 

50 to 80 centimeters (20 to 30 inches) 

in height. The stems have alternate, 

widely spaced, fern-like leaves along 

their length and are topped by a tight 

cluster (inflorescence) of small, yellow, 

tube-like flowers that bloom only a few 

at a time. Furbish’s lousewort has two 

distinct growth stages: Vegetative 

(immature, nonflowering) individuals 

that grow as a basal rosette of leaves and 

reproductive (flowering) plants. 

Furbish’s lousewort does not spread 

clonally, and plants are established 

exclusively by sexual reproduction and 

seed (Stirrett 1980, p. 23; Menges 1990, 

p. 53). Flowering occurs at a minimum 

of 3 years once plants reach a certain 

size leaf area. Reproductive plants 

emerge in May and produce an average 

of 2 to 3 flowering stems; each stem has 

one or more inflorescences, and each 

inflorescence has up to 25 flowers. 

Flowers bloom several at a time from 

about mid-July to the end of August 

(Stirrett 1980, p. 24; Menges et al. 1986). 

Furbish’s lousewort is pollinated by a 

single species of bumble bee, the halfblack bumble bee (Bombus vagans) 

(Macior 1978, entire). About 50 percent 

of flowers produce egg-shaped seed 

capsules that ripen in late-September 

after which the tiny (1 millimeter) seeds 

are dropped (Menges et al. 1985, 1986; 

Gawler 1983, p. 27; Gawler et al. 1986, 

entire). Seeds lack mechanisms for wind 

or animal dispersal, and most drop near 

the parent plant. Each mature plant 

tends to form a colony around itself. 

During spring floods, it is conceivable 

that some seeds may disperse downriver (Stirrett 1980, pp. 26–27; Menges 

1990, p. 53). The seeds germinate in 

moist, cool microhabitats having 

minimal herbaceous or woody plant 

competition or leaf litter, such as mosscovered soil or parts of the river bank 

that are constantly wet. Furbish’s 

lousewort lacks seed dormancy; 

seedlings result only from the previous 

year’s reproduction (Menges 1990, p. 

54). Seedlings emerge in June through 

August and have two true leaves during 

their first growing season (Gawler et al. 

1987, entire). Like most species of 

Pedicularis, seedlings of Furbish’s 

lousewort are obligate hemiparasites 

and obtain part of their nutrition from 

root attachments with a perennial host 

plant. The species seems to be a hostgeneralist, perhaps relying on nitrogen 

fixing host plants in the mineral poor 

soil in which it grows (Macior 1980, 

entire). The lifespan of adult flowering 

plants is uncertain. 

Recovery Criteria 

Section 4(f) of the Act directs us to 

develop and implement recovery plans 

for the conservation and survival of 

endangered and threatened species 

unless we determine that such a plan 

will not promote the conservation of the 

species. Recovery plans must, to the 

maximum extent practicable, include 

‘‘objective, measurable criteria which, 

when met, would result in a 

determination, in accordance with the 

provisions [of section 4 of the Act], that 

the species be removed from the list.’’ 

Recovery plans provide a roadmap for 

us and our partners on methods of 

enhancing conservation and minimizing 

threats to listed species, as well as 

measurable criteria against which to 

evaluate progress towards recovery and 

assess the species’ likely future 

condition. However, they are not 

regulatory documents and do not 

substitute for the determinations and 

promulgation of regulations required 

under section 4(a)(1) of the Act. A 

decision to revise the status of a species, 

or to delist a species is ultimately based 

on an analysis of the best scientific and 

commercial data available to determine 

whether a species is no longer an 

endangered species or a threatened 

species, regardless of whether that 

information differs from the recovery 

plan. 

There are many paths to 

accomplishing recovery of a species, 

and recovery may be achieved without 

all of the criteria in a recovery plan 

being fully met. For example, one or 

more criteria may be exceeded while 

other criteria may not yet be 

accomplished. In that instance, we may 

determine that the threats are 

minimized sufficiently and that the 

species is robust enough that it no 

longer meets the definition of an 

endangered species or a threatened 

species. In other cases, we may discover 

new recovery opportunities after having 

finalized the recovery plan. Parties 

seeking to conserve the species may use 

these opportunities instead of methods 

identified in the recovery plan. 

Likewise, we may learn new 

information about the species after we 

finalize the recovery plan. The new 

information may change the extent to 

which existing criteria are appropriate 

for identifying recovery of the species. 

The recovery of a species is a dynamic 

process requiring adaptive management 

that may, or may not, follow all of the 

guidance provided in a recovery plan. 

On June 29, 1983, the Service 

completed the first recovery plan for 

Furbish’s lousewort (USFWS 1983). 

Following completion of this recovery 

plan, recovery activities enhanced our 

understanding about the life-history of 

the plant and about the populations. 

This information and the removal of the 

primary threat to the species at the time 

of listing (the proposed Dickey-Lincoln 

hydropower project) led to a revised 

recovery plan for Furbish’s lousewort, 

which was made final on July 2, 1991 

(USFWS 1991). The revised 1991 

recovery plan includes criteria for 

downlisting Furbish’s lousewort from 

endangered to threatened, but it does 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Proposed Rules 3979 

not provide delisting criteria due to lack 

of information regarding the species’ 

long-term population dynamics and 

viability. The 2019 5-year review 

(USFWS 2019a, pp. 2–3) states that, 

given the revised recovery plan is more 

than 25 years old, the downlisting 

criteria are no longer considered 

adequate; recent population data are not 

incorporated into the recovery criteria, 

and the plan lacks recent published and 

unpublished scientific information on 

Furbish’s lousewort and its habitat. In 

the 2019 5-year review, we conclude 

that a change in the species’ listing 

status to threatened is warranted 

because the Dickey-Lincoln hydropower 

project is no longer a threat, the species’ 

population rebounded from several 

severe ice-scour events, the population 

is widely distributed, and a single 

catastrophic event is unlikely to 

extirpate the species. 

In September 2019, the Service 

completed the Recovery Plan for the 

Furbish’s Lousewort (Pedicularis 

furbishiae), Second Revision (USFWS 

2019b), which was developed using the 

information in the SSA report for the 

species (USFWS 2020). In light of the 

recommendation to reclassify Furbish’s 

lousewort to a threatened species, the 

revised recovery plan includes criteria 

that describe the conditions indicative 

of a recovered species (delisting 

criteria). Specifically, the revised 

recovery plan contains two recovery 

criteria for delisting based on 

population status over a period of at 

least 30 years (three generations). The 

first criterion states that the 

metapopulation is viable, comprising a 

30-year median of 4,400 flowering stems 

or greater, and distributed with a 30- 

year median of 2,800 flowering stems or 

greater upriver in at least 6 

subpopulations with at least 3 good and 

3 fair subpopulations, and a 30-year 

median of 1,600 flowering stems or 

greater downriver in at least 9 

subpopulations with at least 3 good and 

6 fair subpopulations. Once the upriver 

and downriver criteria are reached, the 

median number of flowering stems for 

each respective river section will remain 

stable or increase over a period of at 

least 30 years without augmentation, 

reintroduction, or hand-pollinating of 

plants. Additionally, in New Brunswick, 

there is a 30-year median of 1,100 plants 

distributed among at least 5 

subpopulations. The second criterion 

states there is long-term habitat 

protection for all subpopulations in 

Maine that provides for the species’ 

needs throughout its life cycle (USFWS 

2019b, pp. 8–9). 

Based on the latest census (2018– 

2019), for criterion 1, the 30-year 

median for upriver subpopulations is 

1,817 flowering stems and 983 for 

downriver subpopulations. In 2018– 

2019 there were 6 subpopulations, 5 

good and 1 fair, in the upriver region 

and 3 subpopulations, 1 good and 2 fair, 

in the downriver region. In 2018–2019, 

the Maine population increased by 970 

flowering stems (43%). Canadian 

subpopulations remain at or below 

historic lows of about 150 plants at 5 

subpopulations, but few plants are 

flowering. For criterion 2, in 2019, The 

Maine Chapter of The Nature 

Conservancy purchased several areas of 

the St. John River corridor in 3 upriver 

townships. Currently, there is long-term 

habitat protection in 4 of 15 

subpopulations. A total of 9.26 miles of 

22.89 miles of Furbish’s lousewort 

habitat is protected, mostly in the 

upriver region. 

Regulatory and Analytical Framework 

Regulatory Framework 

Section 4 of the Act (16 U.S.C. 1533) 

and its implementing regulations (50 

CFR part 424) set forth the procedures 

for determining whether a species is an 

‘‘endangered species’’ or a ‘‘threatened 

species.’’ The Act defines an 

endangered species as a species that is 

‘‘in danger of extinction throughout all 

or a significant portion of its range,’’ and 

a threatened species as a species that is 

‘‘likely to become an endangered 

species within the foreseeable future 

throughout all or a significant portion of 

its range.’’ The Act requires that we 

determine whether any species is an 

‘‘endangered species’’ or a ‘‘threatened 

species’’ because of any of the following 

factors: 

(A) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; 

(B) Overutilization for commercial, 

recreational, scientific, or educational 

purposes; 

(C) Disease or predation; 

(D) The inadequacy of existing 

regulatory mechanisms; or 

(E) Other natural or manmade factors 

affecting its continued existence. 

These factors represent broad 

categories of natural or human-caused 

actions or conditions that could have an 

effect on a species’ continued existence. 

In evaluating these actions and 

conditions, we look for those that may 

have a negative effect on individuals of 

the species, as well as other actions or 

conditions that may ameliorate any 

negative effects or may have positive 

effects. 

We use the term ‘‘threat’’ to refer in 

general to actions or conditions that are 

known to or are reasonably likely to 

negatively affect individuals of a 

species. The term ‘‘threat’’ includes 

actions or conditions that have a direct 

impact on individuals (direct impacts), 

as well as those that affect individuals 

through alteration of their habitat or 

required resources (stressors). The term 

‘‘threat’’ may encompass—either 

together or separately—the source of the 

action or condition or the action or 

condition itself. 

However, the mere identification of 

any threat(s) does not necessarily mean 

that the species meets the statutory 

definition of an ‘‘endangered species’’ or 

a ‘‘threatened species.’’ In determining 

whether a species meets either 

definition, we must evaluate all 

identified threats by considering the 

species’ expected response, and the 

effects of the threats—in light of those 

actions and conditions that will 

ameliorate the threats—on an 

individual, population, and species 

level. We evaluate each threat and its 

expected effects on the species, then 

analyze the cumulative effect of all of 

the threats on the species as a whole. 

We also consider the cumulative effect 

of the threats in light of those actions 

and conditions that will have positive 

effects on the species, such as any 

existing regulatory mechanisms or 

conservation efforts. The Secretary 

determines whether the species meets 

the definition of an ‘‘endangered 

species’’ or a ‘‘threatened species’’ only 

after conducting this cumulative 

analysis and describing the expected 

effect on the species now and in the 

foreseeable future. 

The Act does not define the term 

‘‘foreseeable future,’’ which appears in 

the statutory definition of ‘‘threatened 

species.’’ Our implementing regulations 

at 50 CFR 424.11(d) set forth a 

framework for evaluating the foreseeable 

future on a case-by-case basis. The term 

‘‘foreseeable future’’ extends only so far 

into the future as the Services can 

reasonably determine that both the 

future threats and the species’ responses 

to those threats are likely. In other 

words, the foreseeable future is the 

period of time in which we can make 

reliable predictions. ‘‘Reliable’’ does not 

mean ‘‘certain’’; it means sufficient to 

provide a reasonable degree of 

confidence in the prediction. Thus, a 

prediction is reliable if it is reasonable 

to depend on it when making decisions. 

It is not always possible or necessary 

to define foreseeable future as a 

particular number of years. Analysis of 

the foreseeable future uses the best 

scientific and commercial data available 

and should consider the timeframes 

applicable to the relevant threats and to 

the species’ likely responses to those 

3980 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Proposed Rules 

threats in view of its life-history 

characteristics. Data that are typically 

relevant to assessing the species’ 

biological response include speciesspecific factors such as lifespan, 

reproductive rates or productivity, 

certain behaviors, and other 

demographic factors. 

Analytical Framework 

The SSA report documents the results 

of our comprehensive biological status 

review of the best scientific and 

commercial data regarding the status of 

the species, including an assessment of 

the potential threats to the species. The 

SSA report does not represent a 

decision by the Service on whether 

Furbish’s lousewort should be 

reclassified under the Act. It does, 

however, provide the scientific basis 

that informs our regulatory decisions, 

which involve the further application of 

standards within the Act and its 

implementing regulations and policies. 

The following is a summary of the key 

results and conclusions from the SSA 

report; the full SSA report can be found 

online, see Supporting Documents. 

To assess Furbish’s lousewort 

viability, we used the three conservation 

biology principles of resiliency, 

redundancy, and representation (Shaffer 

and Stein 2000, pp. 306–310). Briefly, 

resiliency supports the ability of the 

species to withstand environmental and 

demographic stochastic events (for 

example, wet or dry, warm or cold 

years), redundancy supports the ability 

of the species to withstand catastrophic 

events (for example, droughts, large 

pollution events), and representation 

supports the ability of the species to 

adapt over time to long-term changes in 

the environment (for example, climate 

changes). In general, the more resilient 

and redundant a species is and the more 

representation it has, the more likely it 

is to sustain populations over time, even 

under changing environmental 

conditions. Using these principles, we 

identified the species’ ecological 

requirements for survival and 

reproduction at the individual, 

population, and species levels, and 

described the beneficial and risk factors 

influencing the species’ viability. 

The SSA process can be categorized 

into three sequential stages. During the 

first stage, we evaluated the individual 

species’ life-history needs. The next 

stage involved an assessment of the 

historical and current condition of the 

species’ demographics and habitat 

characteristics, including an 

explanation of how the species arrived 

at its current condition. The final stage 

of the SSA involved making predictions 

about the species’ responses to positive 

and negative environmental and 

anthropogenic influences. Throughout 

all of these stages, we used the best 

available information to characterize 

viability as the ability of a species to 

sustain populations in the wild over 

time. We use this information to inform 

our regulatory decision. 

Summary of Biological Status and 

Threats 

In this discussion, we review the 

biological condition of the species and 

its resources, and the threats that 

influence the species’ current and future 

condition, in order to assess the species’ 

overall viability and the risks to that 

viability. 

To assess the resiliency of Furbish’s 

lousewort, we reviewed the abundance 

of flowering and nonflowering 

individuals and colonization of 

populations through seed dispersal 

mechanisms; the dependency of 

populations on periodic ice scour and 

flooding; and the effects of climate 

change, and development. To assess the 

redundancy of Furbish’s lousewort, we 

evaluated how the distribution and 

biological status of subpopulations 

contribute to the species’ ability to 

withstand catastrophic events. 

Specifically, we examined how climate 

change and current and future 

development are likely to affect the 

number, sizes, and distribution of 

populations (USFWS 2020, pp. 38–39; 

42–48; 52–59). To assess representation, 

we evaluated the environmental 

diversity within and among 

subpopulations. 

Summary of Current Condition 

Furbish’s lousewort functions as a 

metapopulation. Unlike a continuous 

population, a metapopulation has 

spatially discrete local subpopulations, 

in which migration between 

subpopulations is significantly 

restricted. In the SSA report, we define 

subpopulations as separated by a mile 

or more of unsuitable habitat based 

primarily on the limitations of the 

species’ pollinator, the half-black 

bumblebee. Studies of Bombus species 

typically exhibit foraging distances of 

less than 1 kilometer (0.62 miles) from 

their nesting sites. Based on this 

criterion, we identify 15 subpopulations 

of Furbish’s lousewort in Maine and 5 

in New Brunswick, Canada, that form 

the basis for our analysis of the current 

condition of the species. For our 

analysis, we first qualitatively assessed 

the subpopulations as ‘‘good,’’ ‘‘fair,’’ or 

‘‘poor,’’ including the subpopulations 

attributes: abundance, density, and 

current status as compared to the site 

history. We designated sites where 

Furbish’s lousewort is currently absent 

(locally extirpated) as ‘‘very poor.’’ 

Next, we evaluated each 

subpopulation according to three habitat 

criteria: The amount of potential habitat, 

the condition of the forested riparian 

buffer, and the prevalence of shoreline 

erosion. We selected these habitat 

criteria to describe habitat quality 

because of their influence on the species 

resource needs (USFWS 2020, p.11, 

table 2). We assigned a score of 3 (good), 

2 (fair), 1 (poor), or 0 (very poor) to each 

subpopulation and habitat criterion 

(USFWS 2020, pp. 31–32). The rankings 

for the 15 subpopulations in Maine are 

2 good, 2 fair to good, 3 fair, and 8 poor. 

On average, the upriver subpopulations 

rank higher than the downriver 

subpopulations because of the high 

quality habitat and low pressures from 

development. Six of the 15 

subpopulations in Maine are currently 

extirpated (all downriver 

subpopulations). In New Brunswick, all 

5 subpopulations rank as poor (USFWS 

2020, pp. 33–36). There is marked 

difference in habitat conditions and 

stressors upriver and downriver. 

Upriver habitat is more extensive and 

occurs in a managed industrial forest. 

Downriver habitats (including New 

Brunswick) are smaller and more 

fragmented. 

Risk Factors 

Based on the life-history and habitat 

needs of Furbish’s lousewort, and in 

consultation with species’ experts, as 

well as experts in botany, ice scour and 

flooding of the St. John River, and 

landscape ecology, we identify the 

potential stressors (negative influences), 

the contributing sources of those 

stressors, and how conservation 

measures to address those stressors are 

likely to affect the species’ current 

condition and viability (USFWS 2020, 

pp. 21–31). We evaluate how these 

stressors may be currently affecting the 

species and whether, and to what 

extent, they would affect the species in 

the future (USFWS 2020, pp. 40–57). 

The stressors most likely to affect the 

viability of Furbish’s lousewort are: (1) 

Development resulting in habitat loss, 

erosion, and fragmentation; and (2) 

climate change that causes the current 

trends of warmer winters that affect the 

ice dynamics, flooding, and overall 

disturbance regime of the St. John River. 

Historical land use patterns influence 

Furbish’s lousewort habitat today; the 

land use upriver of the town of Allagash 

is undeveloped, while the downriver 

landscapes in Maine and farther 

downriver in New Brunswick are 

dominated by agriculture and small 

villages. Changes in land use on the 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Proposed Rules 3981 

banks of the St. John River in downriver 

areas have occurred through the clearing 

of vegetation, especially trees, for 

agriculture, individual house lots, and 

roads. These land use changes within 

the St. John River valley may have 

negatively affected habitat of some 

Furbish’s lousewort subpopulations 

through removal or reduction of forested 

riparian buffers and subsequent loss of 

shade critical to the species’ growth and 

reproduction. Areas cleared of forest, 

and impermeable surfaces associated 

with development, have led to the 

erosion and subsidence of the 

unconsolidated glacial till soils, and 

caused slumping and erosion of 

Furbish’s lousewort habitat. There are 

modest predicted trends of future 

development for the St. John River 

Valley that are described in the SSA 

Report (USFWS 2020, p. 47). Future 

development will likely occur in the 

center of larger towns and expand into 

some areas currently in agricultural land 

use, this could cause slumping and 

erosion in Furbish’s lousewort habitat. 

Furbish’s lousewort is identified as 

one of Maine’s plant species most 

vulnerable to climate change (Jacobson 

et al. 2009, p. 33). The species depends 

on periodic disturbance of the riverbank 

from ice scour that is not too frequent 

or too infrequent and not too severe. 

Climate change is expected to affect the 

ice regime of northern rivers, including 

the St. John, by increasing the frequency 

and severity of ice scour and flood 

events (USFWS 2020, p. 23). River ice 

models for the St. John River 

demonstrate that key variables 

influencing the frequency and severity 

of ice scour, jamming, and flooding are 

caused by midwinter temperatures 

above freezing, midwinter precipitation 

in the form of rain, and increasing river 

flows (Beltaos and Prowse 2009, pp. 

134–137). Beltaos (2002, entire) 

developed a hydroclimatic analysis for 

the upper St. John River using long-term 

climate and flow records. He 

documented that a small rise in winter 

air temperatures over the past 80 years 

has resulted in a substantial increase in 

the number of mild winter days and the 

amount of winter rainfall, which were 

previously rare occurrences in this 

region. These two factors augment river 

flows, causing increased breakup of ice 

cover, increased peak flows in late 

winter, and a higher frequency of spring 

ice jams and flooding (USFWS 2020, p. 

24). Increasing summer temperatures 

may also affect Furbish’s lousewort. The 

climate envelope of the species has not 

been described, but its closest genetic 

relatives are all arctic plants that require 

cool, moist environments. We are 

uncertain about the maximum summer 

temperatures and moisture deficits that 

Furbish’s lousewort can withstand 

(USFWS 2020, p. 27). 

Several conservation actions are in 

place and may reduce some of the 

stressors to Furbish’s lousewort or 

provide habitat protection (see 

Conservation Efforts for Furbish’s 

lousewort, for more information). 

Summary of Future Conditions Analysis 

We assess two timeframes for 

characterizing the condition of Furbish’s 

lousewort in the future. We selected the 

years 2030 and 2060, as a period for 

which we can reasonably project effects 

of the stressors and plausible 

conservation efforts. Climate change 

information for these timeframes is 

based on the available information 

contained in climate predicting models 

provided through the U.S. Geological 

Survey (USGS) Climate Change Viewer, 

Summary of the Upper St. John River 

Watershed, Aroostook County, Maine 

(USGS 2017a, b, entire). The timeframes 

of 2030 and 2060 capture approximately 

1 to 2, and 4 to 5 generations of 

Furbish’s lousewort, respectively. 

Development information for this 

timeframe is available in municipal 

comprehensive plans (Town of Fort 

Kent 2012, entire) and The University of 

Maine Sustainability Solutions Initiative 

(USFWS 2020, p. 41). 

For each of the two timeframes, 2030 

and 2060, we developed three future 

scenarios: continuation, best case, and a 

worse case. We provide a range of 

reasonable, plausible effects for 

development and climate change. For 

climate change scenarios, we use data 

from representative concentration 

pathways (RCPs) of greenhouse gas 

(GHG) concentration trajectories 

adopted by the International Panel on 

Climate Change (IPCC). The three RCPs 

selected, RCP 2.6, RCP 4.5, and RCP 8.5, 

reflect a wide range of possible changes 

in future anthropogenic greenhouse gas 

emissions. RCP 2.6 is a scenario that 

assumes that global greenhouse gas 

emissions have peaked and will decline 

after 2020. The continuation scenario 

assumes moderate increases in GHG 

emissions (RCP 4.5), moderate increases 

in development downriver, and 

conservation measures continuing or 

being reduced slightly. The best case 

scenario assumes low GHG emissions 

(RCP 2.6), conservation measures 

remaining in place, and no further 

development downriver. The worse case 

scenario assumes high GHG emissions 

and moderate increases of GHG 

emissions into the future (RCP 8.5), 

modest levels of development, and 

reduced conservation measures (USFWS 

2020, p. 48). All future predictions are 

uncertain; therefore, we qualify them 

using relative terms of likelihood; 

adopted terminology specified by the 

IPCC (2014). Based on the future 

analysis, we predict that by 2030 there 

is a higher likelihood that, in all three 

scenarios, the metapopulation of the 

Furbish’s lousewort will continue to 

decline due to local extirpations of 

downriver subpopulations. By 2060, we 

predict that it is likely that the overall 

viability of the metapopulation will be 

greatly reduced from current conditions, 

and a few subpopulations will persist 

upriver in Maine. We predict that there 

is a high likelihood that in both the 

continuation and worse case scenarios 

the metapopulation will no longer be 

viable; it will be extirpated throughout 

most of its range; and the few plants that 

remain would be concentrated at 

upriver sites. 

We note that, by using the SSA 

framework to guide our analysis of the 

scientific information documented in 

the SSA report, we have not only 

analyzed individual effects on the 

species, but we have also analyzed their 

potential cumulative effects. We 

incorporate the cumulative effects into 

our SSA analysis when we characterize 

the current and future condition of the 

species. Our assessment of the current 

and future conditions encompasses and 

incorporates the threats individually 

and cumulatively. Our current and 

future condition assessment is iterative 

because it accumulates and evaluates 

the effects of all the factors that may be 

influencing the species, including 

threats and conservation efforts. 

Because the SSA framework considers 

not just the presence of the factors, but 

to what degree they collectively 

influence risk to the entire species, our 

assessment integrates the cumulative 

effects of the factors and replaces a 

standalone cumulative effects analysis. 

The SSA report contains a more 

detailed discussion on our evaluation of 

the biological status of the species and 

the influences that may affect its 

continued existence. Our conclusions 

are based upon the best available 

scientific and commercial data, 

including the judgments of the species’ 

experts and peer reviewers. See the SSA 

report for a complete list of the species’ 

experts and peer reviewers and their 

affiliations. 

Existing Regulatory Mechanisms 

Section 4(b)(1)(A) of the Act requires 

that the Service take into account ‘‘those 

efforts, if any, being made by any State 

or foreign nation, or any political 

subdivision of a State or foreign nation, 

to protect such species.’’ In relation to 

3982 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Proposed Rules 

Factor D under the Act, we interpret this 

language to require the Service to 

consider relevant Federal, State, and 

Tribal laws, regulations, and other such 

binding legal mechanisms that may 

ameliorate or exacerbate any of the 

threats we describe in threat analyses 

under the other four factors or otherwise 

enhance the species’ conservation. We 

give the strongest weight to statutes and 

their implementing regulations and to 

management direction that stems from 

those laws and regulations. 

Municipal shoreline zoning in Maine 

now provides partial protection of 

Furbish’s lousewort habitat (USFWS 

2020, Appendix 1). As established by 

State law in 2013, the shoreline zone 

extends to 250 feet from the high water 

line all along the St. John River. Zoning 

prohibits clear cutting within 50 feet of 

the river; openings located greater than 

50 feet from the river (or 75 feet from 

the river for a few subpopulations in 

organized towns) are restricted to a 

maximum of 0.3 acres, and no more 

than 40 percent of the forest in the 250- 

foot zone can be harvested in a 10-year 

period (Maine Department of 

Environmental Protection Mandatory 

Shoreland Zoning Title 38, Chapter 3, 

§§ 435–449). Organized towns have the 

option to designate lousewort habitats 

as resource protection subdistricts, 

which would provide more stringent 

measures. Currently, no towns have 

designated any resource protection 

subdistricts for the lousewort (USFWS 

2020, p. 28). 

The New Brunswick Clean Water Act 

provides shoreline protections that 

convey a benefit to the Furbish’s 

lousewort in Canada. The New 

Brunswick Department of 

Environmental and Local Government 

acts as the regulatory entity responsible 

for issuing all watercourse alteration 

permits. Guidelines for implementing 

the regulations specify that no heavy 

equipment may be operated within 15 

meters of the bank of a watercourse, no 

ground disturbance may occur within 

30 meters of a watercourse, and only 30 

percent of the total merchantable trees 

may be removed from a 30-meter buffer 

zone every 10 years. All activities taking 

place within 30 meters of a watercourse 

that is either one hectare or larger in 

area or that involve the removal, 

deposit, or disturbance of the water, 

soil, or vegetation require a permit 

(USFWS 2020, p. 29). 

Several parcels that support Furbish’s 

lousewort have permanent protection. 

Since 2001, the New England Forestry 

Foundation has had a 754,673-acre 

conservation easement on lands along 

the St. John River where Furbish’s 

lousewort occurs. The easement protects 

approximately 6.2 percent of the total 

population in Maine and restricts 

development rights in perpetuity. In 

2019, The Maine Chapter of The Nature 

Conservancy purchased several areas of 

the St. John River corridor. The Maine 

Bureau of Parks and Lands (Bureau) 

owns a large unit in the town of 

Allagash that provides several hundred 

feet of Furbish’s lousewort habitat, 

approximately 2 percent of the 

population in Maine. The Bureau’s 

integrated resource policy requires that 

MBPL promote the conservation of 

federally listed species. One of the five 

subpopulations in New Brunswick is 

permanently protected (USFWS 2020, 

pp. 29–30). 

The Furbish’s lousewort was listed on 

Canada’s Schedule 1 of the Species at 

Risk Act (SARA) in June 2003 and was 

initially designated as endangered by 

the Committee on the Status for 

Endangered Wildlife in Canada 

(COSEWIC) in 1980. With this 

proclamation, protection and recovery 

measures were developed and 

implemented. 

The Furbish’s lousewort is protected 

by New Brunswick’s Endangered 

Species Act. Under this Act, it is 

prohibited to kill, harm or collect this 

species or disturb its habitat 

(Government of New Brunswick 2020). 

As discussed, Furbish’s lousewort and 

its habitat receives some protection from 

regulatory mechanisms in both the 

United States and Canada. In the U.S., 

the State of Maine and municipal 

regulations provide partial protection 

for shorefronts, which includes 

protections of riparian habitats where 

the Lousewort could be located. These 

state and municipal regulations are 

enforced through local and state 

ordinances. They were not designed to 

protect Furbish lousewort from direct 

take, and as such, the species is not 

regulated from direct take on private 

lands in Maine. In Canada, where 

populations are at historic lows, the 

New Brunswick regulates heavy 

equipment use and buffer zones, as well 

as, prohibits take of Furbish’s lousewort 

through the New Brunswick Endangered 

Species Act. Furbish’s lousewort is 

further regulated as a schedule 1 species 

at risk under SARA. Collectively these 

regulations provide protections in 

Canada for the Furbish’s lousewort and 

its habitat. 

Conservation Efforts for Furbish’s 

lousewort 

Since Furbish’s lousewort was listed 

in 1978, various recovery actions have 

improved the status of the species. For 

example: 

• In 1986, Congress deauthorized the 

construction of the Dickey-Lincoln 

hydropower project (Pub. L. 99–662), 

which was the primary threat to the 

species at the time of listing (USFWS 

2020, p. 27). 

• St. John River Resource Protection 

Plan (Plan): Industrial forest landowners 

voluntarily signed the Plan beginning in 

1982, with revisions in 1992, 2002, and 

2012. The intent of the Plan is to protect 

the natural values and traditional 

recreational uses of the river. The 

primary value of the Plan to the 

conservation of Furbish’s lousewort is 

that it does not allow commercial and 

residential development, subdivisions, 

water impoundments, and utility 

projects on land along the St. John River 

owned by signatory landowners. 

• Since 2009, the Service’s Partners 

for Fish and Wildlife Program has 

partnered with a small business owner 

in Aroostook County, Maine to restore 

riparian forests that are potential habitat 

for Furbish’s lousewort. Through this 

partnership, they have collaborated with 

37 landowners encompassing 40 

parcels). To date, $110,000 has been 

invested, and trees were planted along 

4.6 miles of river, creating 55.2 acres of 

forested riparian habitat (USFWS 2020, 

pp. 30–31). 

• The Furbish’s lousewort occurs 

only on private lands in Canada. 

Therefore, private landowner 

stewardship is vitally important. Several 

nonprofit organizations collaborated to 

create the George Stirret Nature 

Preserve, a protected area around one 

population of lousewort. The Nature 

Trust of New Brunswick contacted 

private landowners surrounding the 

remaining areas where Furbish’s 

lousewort grows and developed 15 

voluntary private landowner 

stewardship agreements to encourage 

and support stewardship practices 

(Dowding 2020). 

These recovery actions and other 

supporting data that we analyzed 

indicate that some of the threats 

identified at the time of listing have 

been ameliorated or reduced in areas 

occupied by Furbish’s lousewort, and 

that the species’ status has improved, 

primarily due to the Congressional 

deauthorization of the Dickey-Lincoln 

hydropower project. However, more 

recent threats associated with climate 

change may impede the plant’s ability to 

recover. 

Determination of Furbish’s Lousewort 

Status 

Section 4 of the Act (16 U.S.C. 1533) 

and its implementing regulations (50 

CFR part 424) set forth the procedures 

for determining whether a species meets 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Proposed Rules 3983 

the definition of endangered species or 

a threatened species. The Act defines an 

‘‘endangered species’’ as a species that 

is ‘‘in danger of extinction throughout 

all or a significant portion of its range,’’ 

and ‘‘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.’’ For a more detailed 

discussion on the factors considered 

when determining whether a species 

meets the definition of an endangered 

species or a threatened species and our 

analysis on how we determine the 

foreseeable future in making these 

decisions, please see Regulatory and 

Analytical Framework. 

Status Throughout All of Its Range 

After evaluating threats to the species 

and assessing the cumulative effect of 

the threats under the section 4(a)(1) 

factors, we determined that the 

Furbish’s lousewort no longer meets the 

definition of endangered. This 

determination is based on the following: 

The removal of the primary threat at the 

time of listing, the Dickey-Lincoln 

hydropower project; the ability of the 

species to rebound after several severe 

ice scouring events; the species 

continues to be found at sites beyond its 

known distribution at the time of the 

original listing; and over 25 percent of 

the overall population is located on 

protected lands. Additionally, long-term 

census data demonstrate that the 

Furbish’s lousewort is resilient to 

stochastic events such as periodic ice 

scour and flooding. Redundancy in the 

downriver subpopulations has 

diminished, though the conditions in 

the upriver subpopulations has 

remained constant. Thus, after assessing 

the best available information, we 

conclude that the Furbish’s lousewort 

no longer meets the Act’s definition of 

an endangered species. Therefore, we 

proceed with determining whether 

Furbish’s lousewort meets the Act’s 

definition of a threatened species. 

The information indicates that, at the 

species level, development (Factor A), 

that causes habitat loss, erosion, and 

fragmentation, and climate change 

(Factor E), that causes the current trends 

of warmer winters that affect the ice 

dynamics, flooding, and the overall 

disturbance regime of the St. John River, 

are the most influential factors affecting 

Furbish’s lousewort now and into the 

future. The existing state and Canadian 

regulations (Factor D) are not 

considered adequate to alleviate the 

identified threats. Furbish’s lousewort is 

listed as endangered by the State of 

Maine; however, the lack of take 

prohibitions for plants under this law 

limits its ability to protect the species 

from the habitat-based threats that it 

faces. Canada’s SARA and New 

Brunswick’s Act have a provision to 

protect species designated as 

endangered when found on federal 

lands; however, the Furbish’s lousewort 

does not occur on any federal lands in 

Canada. In both future timeframes, 2030 

and 2060, under our projected 

‘‘continuation’’ and ‘‘worse case’’ 

scenarios, we predict the species’ 

resiliency, redundancy, and 

representation to diminish significantly, 

indicating that the species is likely to 

become in danger of extinction within 

the next 40 years. While the downriver 

subpopulations are predicted to 

experience the most diminishment, 

even the current upriver stronghold is 

predicted to decline, indicating an 

increased risk of extinction of the entire 

metapopulation beyond the near term. 

Furbish’s lousewort has a particular 

niche and appears to have very little 

adaptation potential. Hence, changes to 

the ice-scour regime, due to climate 

change, are highly likely to have 

significant impacts to the species within 

the foreseeable future. Under both 

timeframes analyzed, the downriver 

subpopulations are predicted to be in 

poor condition, thereby putting extra 

importance on the upriver 

subpopulations to maintain the species’ 

viability. However, even under the 2030 

timeframe, the upriver subpopulations 

are predicted to be significantly 

diminished. Thus, after assessing the 

best available information, we conclude 

that Furbish’s lousewort is not currently 

in danger of extinction but is likely to 

become in danger of extinction within 

the foreseeable future, throughout all of 

its range. 

Status Throughout a Significant Portion 

of Its Range 

Under the Act and our implementing 

regulations, a species may warrant 

listing if it is in danger of extinction or 

likely to become so in the foreseeable 

future throughout all or a significant 

portion of its range. The court in Center 

for Biological Diversity v. Everson, 2020 

WL 437289 (D.D.C. Jan. 28, 2020) 

(Center for Biological Diversity), vacated 

the aspect 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’’ (79 FR 37578; July 1, 2014) 

that provided that the Services do not 

undertake an analysis of significant 

portions of a species’ range if the 

species warrants listing as threatened 

throughout all of its range. Therefore, 

we proceed to evaluating whether the 

species is endangered in a significant 

portion of its range-that is, whether 

there is any portion of the species’ range 

for which both (1) the portion is 

significant; and, (2) the species is in 

danger of extinction in that portion. 

Depending on the case, it might be more 

efficient for us to address the 

‘‘significance’’ question or the ‘‘status’’ 

question first. We can choose to address 

either question first. Regardless of 

which question we address first, if we 

reach a negative answer with respect to 

the first question that we address, we do 

not need to evaluate the other question 

for that portion of the species’ range. 

Following the court’s holding in 

Center for Biological Diversity, we now 

consider whether there are any 

significant portions of the species’ range 

where the species is in danger of 

extinction now (i.e., endangered). In 

undertaking this analysis for Furbish’s 

lousewort, we choose to address the 

status question first-we consider 

information pertaining to the geographic 

distribution of both the species and the 

threats that the species faces to identify 

any portions of the range where the 

species is endangered. 

The statutory difference between an 

endangered species and a threatened 

species is the time horizon in which the 

species becomes in danger of extinction; 

an endangered species is in danger of 

extinction now while a threatened 

species is not in danger of extinction 

now but is likely to become so in the 

foreseeable future. Thus, we considered 

the time horizon for the threats that are 

driving the Furbish’s lousewort to 

warrant listing as a threatened species 

throughout all of its range. We 

examined the following threats: 

Development and climate change, 

including cumulative effects. As stated 

in the section Status Throughout All of 

Its Range above, we predict the species 

is likely to become in danger of 

extinction within the next 40 years. We 

recognize that the downriver 

subpopulations are small, and habitat is 

less extensive and fragmented. 

However, the risk of extinction to the 

population is low, and does not 

currently meet the threshold of 

endangered. We selected 40 years for 

the foreseeable future as a period for 

which we can reasonably project effects 

of the stressors and potential 

conservation efforts. The time frame of 

2060 will capture approximately four to 

five generations of the Furbish’s 

lousewort. We believe this timeframe 

will allow observation of changes in the 

condition of the species without 

increasing uncertainty about the nature 

and intensity of stressors beyond a 

reasonable level. 

3984 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Proposed Rules 

The best scientific and commercial 

data available indicate that the time 

horizon on which the threats of 

development and climate change to 

Furbish’s lousewort and the responses 

to those threats are likely to occur is the 

foreseeable future. In addition, the best 

scientific and commercial data available 

do not indicate that any of threats of 

development and climate change to 

Furbish’s lousewort and the response to 

those threats are more immediate in any 

portions of the species’ range. Therefore, 

we determine that the Furbish’s 

lousewort is not in danger of extinction 

now in any portion of its range, but that 

the species is likely to become in danger 

of extinction within the foreseeable 

future throughout all of its range. This 

is consistent with the courts’ holdings 

in Desert Survivors v. Department of the 

Interior, No. 16-cv-01165–JCS, 2018 WL 

4053447 (N.D. Cal. Aug. 24, 2018), and 

Center for Biological Diversity v. Jewell, 

248 F. Supp. 3d, 946, 959 (D. Ariz. 

2017). 

Determination of Status 

Our review of the best available 

scientific and commercial information 

indicates that Furbish’s lousewort meets 

the definition of a threatened species. 

Therefore, we propose downlisting 

Furbish’s lousewort as a threatened 

species in accordance with sections 

3(20) and 4(a)(1) of the Act. 

II. Proposed Rule Issued Under Section 

4(d) of the Act 

Background 

Section 4(d) of the Act contains two 

sentences. The first sentence states that 

the ‘‘Secretary shall issue such 

regulations as he deems necessary and 

advisable to provide for the 

conservation’’ of species listed as 

threatened. The U.S. Supreme Court has 

noted that statutory language like 

‘‘necessary and advisable’’ demonstrates 

a large degree of deference to the agency 

(see Webster v. Doe, 486 U.S. 592 

(1988)). Conservation is defined in the 

Act to mean the use of all methods and 

procedures which are necessary to bring 

any endangered species or threatened 

species to the point at which the 

measures provided pursuant to the Act 

are no longer necessary. Additionally, 

the second sentence of section 4(d) of 

the Act states that the Secretary may by 

regulation prohibit with respect to any 

threatened species any act prohibited 

under section 9(a)(1), in the case of fish 

or wildlife, or section 9(a)(2), in the case 

of plants. Thus, the combination of the 

two sentences of section 4(d) provides 

the Secretary with wide latitude of 

discretion to select and promulgate 

appropriate regulations tailored to the 

specific conservation needs of the 

threatened species. The second sentence 

grants particularly broad discretion to 

the Service when adopting the 

prohibitions under section 9. 

The courts have recognized the extent 

of the Secretary’s discretion under this 

standard to develop rules that are 

appropriate for the conservation of a 

species. For example, courts have 

upheld rules developed under section 

4(d) as a valid exercise of agency 

authority where they prohibited take of 

threatened wildlife or include a limited 

taking prohibition (see Alsea Valley 

Alliance v. Lautenbacher, 2007 U.S. 

Dist. Lexis 60203 (D. Or. 2007); 

Washington Environmental Council v. 

National Marine Fisheries Service, 2002 

U.S. Dist. Lexis 5432 (W.D. Wash. 

2002)). Courts have also upheld 4(d) 

rules that do not address all of the 

threats a species faces (see State of 

Louisiana v. Verity, 853 F.2d 322 (5th 

Cir. 1988)). As noted in the legislative 

history when the Act was initially 

enacted, ‘‘once an animal is on the 

threatened list, the Secretary has an 

almost infinite number of options 

available to him with regard to the 

permitted activities for those species. He 

may, for example, permit taking, but not 

importation of such species, or he may 

choose to forbid both taking and 

importation but allow the transportation 

of such species’’ (H.R. Rep. No. 412, 

93rd Cong., 1st Sess. 1973). 

Exercising this authority under 

section 4(d), the Service has developed 

a proposed species-specific 4(d) rule 

that is designed to address the threats 

and conservation needs of Furbish’s 

lousewort. Although the statute does not 

require the Service to make a ‘‘necessary 

and advisable’’ finding with respect to 

the adoption of specific prohibitions 

under section 9, we find that this rule 

as a whole satisfies the requirement in 

section 4(d) of the Act to issue 

regulations deemed necessary and 

advisable to provide for the 

conservation of Furbish’s lousewort. As 

discussed above in the Determination 

section, the Service has concluded that 

Furbish’s lousewort is likely to become 

in danger of extinction within the 

foreseeable future primarily due to 

climate change and development. The 

provisions of this proposed 4(d) rule 

would promote conservation of 

Furbish’s lousewort by deterring certain 

activities that would negatively impact 

the species in knowing violation of any 

law or regulation of the State of Maine, 

including any State trespass laws. The 

provisions of this proposed 4(d) rule are 

one of many tools that the Service 

would use to promote the conservation 

of Furbish’s lousewort. This proposed 

4(d) rule would apply only if and when 

the Service makes final the 

reclassification of Furbish’s lousewort 

as a threatened species. 

Provisions of the Proposed 4(d) Rule 

This proposed 4(d) rule would 

provide for the conservation of 

Furbish’s lousewort by prohibiting the 

following activities, except as otherwise 

authorized: Removal and reduction to 

possession from areas under Federal 

jurisdiction; malicious damage or 

destruction on any such area; or 

removal, cutting, digging up, or damage 

or destruction on any other area in 

knowing violation of any law or 

regulation of any State or in the course 

of any violation of a State criminal 

trespass law. 

While removal and reduction to 

possession from areas under Federal 

jurisdiction is not identified as an 

existing threat to Furbish’s lousewort, 

prohibiting this activity would maintain 

a deterrent that may become necessary 

in the future to support recovery of the 

species (e.g., should a Federal agency 

seek to conserve a population through 

land or easement acquisition). As 

discussed above under Summary of 

Biological Status and Threats, climate 

change and development are affecting 

the status of Furbish’s lousewort. 

Indirect effects associated with 

development, including loss of shade 

critical to growth and reproduction due 

to reduction of the forested riparian 

buffer, and erosion of habitat due to 

clearing of forested areas and runoff 

from creation of impermeable surfaces, 

have the potential to impact Furbish’s 

lousewort. Prohibiting certain activities, 

when in knowing violation of State law 

or regulation, would complement State 

efforts to conserve the species. 

Providing these protections would help 

preserve the species’ remaining 

subpopulation; slow its rate of decline; 

and decrease synergistic, negative 

effects from other stressors. 

We may issue permits to carry out 

otherwise prohibited activities, 

including those described above, 

involving threatened plants under 

certain circumstances. Regulations 

governing permits for threatened plants 

are codified at 50 CFR 17.72, which 

states that the Director may issue a 

permit authorizing any activity 

otherwise prohibited with regard to 

threatened species. That regulation also 

states that the permit shall be governed 

by the provisions of § 17.72 unless a 

special rule applicable to the plant is 

provided in §§ 17.73 to 17.78. We 

interpret that second sentence to mean 

that permits for threatened species are 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Proposed Rules 3985 

governed by the provisions of § 17.72 

unless a special rule provides otherwise. 

We recently promulgated revisions to 

§ 17.71 providing that § 17.71 will no 

longer apply to plants listed as 

threatened in the future. We did not 

intend for those revisions to limit or 

alter the applicability of the permitting 

provisions in § 17.72, or to require that 

every special rule spell out any 

permitting provisions that apply to that 

species and special rule. To the 

contrary, we anticipate that permitting 

provisions would generally be similar or 

identical for most species, so applying 

the provisions of § 17.72 unless a 

special rule provides otherwise would 

likely avoid substantial duplication. 

Moreover, this interpretation brings 

§ 17.72 in line with the comparable 

provision for wildlife at 50 CFR 17.32, 

in which the second sentence states that 

such permit shall be governed by the 

provisions of this section unless a 

special rule applicable to the wildlife, 

appearing in §§ 17.40 to 17.48, of this 

part provides otherwise. Under 50 CFR 

17.12 with regard to threatened plants, 

a permit may be issued for the following 

purposes: for scientific purposes, to 

enhance propagation or survival, for 

economic hardship, for botanical or 

horticultural exhibition, for educational 

purposes, or for other purposes 

consistent with the purposes and policy 

of the Act. Additional statutory 

exemptions from the prohibitions are 

found in sections 9 and 10 of the Act. 

The Service recognizes the special 

and unique relationship with our State 

natural resource agency partners in 

contributing to conservation of listed 

species. State agencies often possess 

scientific data and valuable expertise on 

the status and distribution of 

endangered, threatened, and candidate 

species of wildlife and plants. State 

agencies, because of their authorities 

and close working relationships with 

local governments and landowners, are 

in a unique position to assist the Service 

in implementing all aspects of the Act. 

In this regard, section 6 of the Act 

provides that the Service shall cooperate 

to the maximum extent practicable with 

the States in carrying out programs 

authorized by the Act. Therefore, in 

accordance with 50 CFR 17.71(b), any 

person who is a qualified employee or 

agent of a State conservation agency that 

is a party to a cooperative agreement 

with the Service in accordance with 

section (6)(c) of the Act and who is 

designated by his or her agency for such 

purposes would be able to conduct 

activities designed to conserve Furbish’s 

lousewort that may result in otherwise 

prohibited activities without additional 

authorization. 

Nothing in this proposed 4(d) rule 

would change in any way the recovery 

planning provisions of section 4(f) of the 

Act, the consultation requirements 

under section 7 of the Act, or the ability 

of the Service to enter into partnerships 

for the management and protection of 

Furbish’s lousewort. However, 

interagency cooperation may be further 

streamlined through planned 

programmatic consultations for the 

species between Federal agencies and 

the Service. We ask the public, 

particularly the State agencies and other 

interested stakeholders that may be 

affected by the proposed 4(d) rule, to 

provide comments and suggestions 

regarding additional guidance and 

methods that the Service could provide 

or use, respectively, to streamline the 

implementation of this proposed 4(d) 

rule (see Information Requested, above). 

III. Required Determinations 

Clarity of This Proposed Rule 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(1) Be logically organized; 

(2) Use the active voice to address 

readers directly; 

(3) Use clear language rather than 

jargon; 

(4) Be divided into short sections and 

sentences; and 

(5) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in ADDRESSES. To 

better help us revise the rule, your 

comments should be a specific as 

possible. For example, you should tell 

us the numbers of the sections or 

paragraphs that are unclearly written, 

which sections or sentences are too 

long, the sections where you feel lists or 

tables would be useful, etc. 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.) 

We have determined that 

environmental assessments and 

environmental impact statements, as 

defined under the authority of the 

National Environmental Policy Act 

(NEPA; 42 U.S.C. 4321 et seq.), need not 

be prepared in connection with 

determining and implementing a 

species’ listing status under the 

Endangered Species Act. We published 

a notice outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244) 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994 

(Government-to-Government Relations 

with Native American Tribal 

Governments; 59 FR 22951), Executive 

Order 13175 (Consultation and 

Coordination with Indian Tribal 

Governments), and the Department of 

the Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. In 

accordance with Secretarial Order 3206 

of June 5, 1997 (American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act), we readily acknowledge 

our responsibilities to work directly 

with Tribes in developing programs for 

healthy ecosystems, to acknowledge that 

Tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to Tribes. 

There are two federally recognized 

Tribes in northern Maine; however, no 

subpopulations of Furbish’s lousewort 

occur on Tribal lands. 

References Cited 

A complete list of references cited in 

this rulemaking is available on the 

internet at http://www.regulations.gov 

and upon request from the Maine 

Ecological Services Field Office (see FOR

FURTHER INFORMATION CONTACT). 

Authors 

The primary authors of this proposed 

rule are staff members of the Northeast 

Regional Office and the Maine 

Ecological Services Field Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

PART 17—ENDANGERED AND 

THREATENED WILDLIFE AND PLANTS 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 1531– 

1544; and 4201–4245, unless otherwise 

noted. 

■ 2. Amend § 17.12(h) by revising the 

entry for ‘‘Pedicularis furbishiae’’ under 

FLOWERING PLANTS in the List of 

3986 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Proposed Rules 

Endangered and Threatened Plants to 

read as follows: 

§ 17.12 Endangered and threatened plants. 

* * * * * 

(h) * * * 

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

Flowering Plants 

* * * * * * * * * 

Pedicularis furbishiae ....... Furbish’s lousewort ......... Wherever found .............. T 43 FR 17910, 4/26/1978; [Federal Register citation of the final rule]; 50 CFR 17.73(d).4d

* * * * * * * * * 

■ 3. Add § 17.73 to read as follows: 

§ 17.73 Special rules—flowering plants. 

(a) [Reserved] 

(b) [Reserved] 

(c) [Reserved] 

(d) Pedicularis furbishiae (Furbish’s 

lousewort)—(1) Prohibitions. Except as 

provided under paragraph (d)(2) of this 

section, you may not remove and reduce 

to possession the species from areas 

under Federal jurisdiction; maliciously 

damage or destroy the species on any 

such area; or remove, cut, dig up, or 

damage or destroy the species on any 

other area in knowing violation of any 

law or regulation of any State or in the 

course of any violation of a State 

criminal trespass law. 

(2) Exceptions from prohibitions. The 

following exceptions from the 

prohibitions apply to this species: 

(i) You may conduct activities 

authorized by permit under § 17.72. 

(ii) Qualified employees or agents of 

the Service or a State conservation 

agency may conduct activities 

authorized under § 17.71(b). 

Aurelia Skipwith 

Director,U.S. Fish and Wildlife Service. 

[FR Doc. 2020–28978 Filed 1–14–21; 8:45 am] 

BILLING CODE 4333–15–P