6118 Federal Register / Vol. 87, No. 23 / Thursday, February 3, 2022 / Proposed Rules 

* * * * * 

Martha Williams, 

Principal Deputy Director, Exercising the 

Delegated Authority of the Director, U.S. Fish 

and Wildlife Service. 

[FR Doc. 2022–02298 Filed 2–2–22; 8:45 am] 

BILLING CODE 4333–15–C 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R4–ES–2019–0018; 

FF09E22000 FXES1113090FEDR 223] 

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: Proposed rule; revisions and 

reopening of comment period. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce the 

reopening of the comment period on our 

October 8, 2020, proposed rule to 

reclassify the red-cockaded woodpecker 

(Dryobates borealis) as a threatened 

species with a rule issued under section 

4(d) of the Endangered Species Act of 

1973 (Act), as amended. This action will 

allow all interested parties the 

opportunity to comment on the revised 

proposed section 4(d) rule language set 

forth in this document, which addresses 

concerns raised in the public comments 

we received on the October 8, 2020, 

proposed rule. Comments previously 

submitted on the proposed 

reclassification of the red-cockaded 

woodpecker and previously proposed 

section 4(d) rule need not be 

resubmitted, as they will be fully 

considered in preparation of the final 

determination. 

DATES: The public comment period on 

the proposed rule that published on 

October 8, 2020, at 85 FR 63474, is 

reopened. We will accept comments 

received or postmarked on or before 

March 7, 2022. 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. 

ADDRESSES: You may submit comments 

by one of the following methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: https://

www.regulations.gov. In the Search box, 

enter FWS–R4–ES–2019–0018, which is 

the docket number for this rulemaking. 

Then, click on the Search button. On the 

resulting page, in the panel on the left 

side of the screen, under the Document 

Type heading, check the Proposed Rule 

box to locate this document. You may 

submit a comment by clicking on 

‘‘Comment.’’ 

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

to: Public Comments Processing, Attn: 

FWS–R4–ES–2019–0018, 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 https:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see 

Information Requested, below, for more 

information). 

Availability of supporting materials: 

This document and supporting 

materials (including the species status 

assessment report and references cited) 

are available at https://

www.regulations.gov under Docket No. 

FWS–R4–ES–2019–0018 and at the 

Southeast Regional Office (see FOR

FURTHER INFORMATION CONTACT). 

FOR FURTHER INFORMATION CONTACT: 

Aaron Valenta, Chief, Division of 

Restoration and Recovery, U.S. Fish and 

Wildlife Service, Southeast Regional 

Office, 1875 Century Boulevard, 

Atlanta, GA 30345; telephone 404–679– 

4144. 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 the October 8, 2020, and 

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 and information from 

other governmental agencies, Native 

American Tribes, the scientific 

community, industry, or any other 

interested party concerning these 

proposed rules. 

We particularly seek comments or 

information on regulations that are 

necessary and advisable for the 

conservation and management of the 

red-cockaded woodpecker, including 

whether the measures outlined in this 

document for the revised proposed 

section 4(d) rule are necessary and 

advisable for the conservation of the 

red-cockaded woodpecker. Specifically, 

we seek comments on: 

(1) Whether the included prohibitions 

in the revised proposed section 4(d) rule 

would adequately and appropriately 

provide for the conservation of the redcockaded woodpecker; 

(2) Whether it is appropriate to except 

incidental take that results from redcockaded woodpecker management and 

military training activities on 

Department of Defense (DoD) 

installations with a Service-approved 

integrated natural resources 

management plan (INRMP); 

(3) Whether different or additional 

conditions, if any, should be applied to 

the exception for DoD installations in 

order to provide adequately for the 

conservation of the red-cockaded 

woodpecker; 

(4) Whether it is appropriate to except 

incidental take that results from habitat 

management activities intended to 

restore or maintain red-cockaded 

woodpecker habitat on Federal land 

management agency properties; 

(5) Whether different or additional 

conditions, if any, should be applied to 

the exception for Federal land 

management agency properties in order 

to provide adequately for the 

conservation of the red-cockaded 

woodpecker; 

(6) Whether it is appropriate to except 

incidental take associated with 

prescribed burns and the application of 

herbicides on private lands when 

compatible with maintaining any 

known red-cockaded woodpecker 

populations; 

(7) Whether different or additional 

conditions, if any, should be applied to 

the exception for prescribed burns and 

the application of herbicides on private 

lands in order to provide adequately for 

the conservation of the red-cockaded 

woodpecker; 

(8) Whether it is appropriate to except 

incidental take that results from the 

installation of artificial cavity inserts 

and drilled cavities on public and 

private lands; 

(9) Whether different or additional 

conditions, if any, should be applied to 

the exception for the installation of 

artificial cavities in order to provide 

adequately for the conservation of the 

red-cockaded woodpecker; 

(10) Whether we should provide 

additional clarity on the minimum 

diameter of trees that are appropriate for 

selection for installation of artificial 

cavities and, if so, what the best 

available science indicates regarding a 

universally applicable minimum tree 

diameter; 

(11) Whether any other forms of take 

should be excepted from the 

prohibitions in the revised proposed 

section 4(d) rule; 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 87, No. 23 / Thursday, February 3, 2022 / Proposed Rules 6119 

(12) Whether there are additional 

provisions the Service may wish to 

consider for the section 4(d) rule in 

order to conserve, recover, and manage 

the red-cockaded woodpecker; and 

(13) Whether or how the Service 

could provide additional guidance or 

methods to streamline the 

implementation of the proposed section 

4(d) rule for the red-cockaded 

woodpecker. 

If you submitted comments or 

information on the October 8, 2020, 

proposed rule (85 FR 63474) during the 

comment period that was open from 

October 8, 2020, to December 7, 2020, 

please do not resubmit these comments. 

Any such comments are already part of 

the public record of this rulemaking 

proceeding, and we will fully consider 

them in the preparation of our final 

determination. Our final determination 

will take into consideration all written 

comments and any additional 

information we receive during both 

comment periods. 

Please include sufficient information 

with your submission (such as scientific 

journal articles or other publications) to 

allow us to verify any scientific or 

commercial information you include. 

Please note that submissions merely 

stating support for, or opposition to, the 

action under consideration without 

providing supporting information, 

although noted, will not be considered 

in making a determination, as section 

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

determinations as to whether any 

species is an endangered or a threatened 

species must be made solely on the 

basis of the best scientific and 

commercial data available. 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in 

ADDRESSES. We request that you send 

comments only by the methods 

described in ADDRESSES. 

If you submit information via https:// 

www.regulations.gov, your entire 

submission—including any personal 

identifying information—will be posted 

on the website. If your submission is 

made via a hardcopy that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post all hardcopy submissions 

on https://www.regulations.gov. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection 

on https://www.regulations.gov. 

The final decision may differ from 

this revised proposed rule, based on our 

review of all information we receive 

during this rulemaking proceeding, 

including both comment periods. We 

may change the parameters of the 

prohibitions or the exceptions to those 

prohibitions in this proposed section 

4(d) rule if we conclude it is appropriate 

in light of comments and new 

information received. For example, we 

may establish additional exceptions to 

the prohibitions in the final rule if we 

conclude that the activities would 

facilitate or are compatible with the 

conservation and recovery of the 

species. We may also expand the 

prohibitions to include prohibiting 

additional activities if we conclude that 

those additional activities are not 

compatible with conservation of the 

species. 

Background 

We will only discuss those topics 

directly relevant to the revisions we are 

proposing to the section 4(d) rule in this 

document. For more information on the 

species, its habitat, and previous 

Federal actions concerning the redcockaded woodpecker, refer to the 

proposed rule published in the Federal 

Register on October 8, 2020 (85 FR 

63474). 

In our October 8, 2020, proposed rule, 

we proposed to reclassify the redcockaded woodpecker as a threatened 

species with a section 4(d) rule that 

provided specific prohibitions and 

exceptions that we determined 

necessary and advisable for the 

conservation of the red-cockaded 

woodpecker. These originally proposed 

prohibitions included prohibiting 

incidental take resulting from damage or 

conversion of currently occupied redcockaded woodpecker nesting and 

foraging habitat to other land uses that 

results in conditions not able to support 

red-cockaded woodpeckers; forest 

management practices in currently 

occupied red-cockaded woodpecker 

nesting and foraging habitat; operation 

of vehicles or mechanical equipment, 

the use of floodlights, activities with a 

human presence, other actions 

associated with construction and repair, 

or extraction activities in an active 

cavity tree cluster during the redcockaded woodpecker breeding season; 

installation of artificial cavity inserts, 

drilled cavities, or cavity restrictor 

plates; inspecting cavity contents, 

including, but not limited to, use of 

video scopes, drop lights, or mirrors 

inserted into cavities; activities that 

render active cavity trees unusable to 

red-cockaded woodpeckers; and the use 

of insecticide or herbicide on any 

standing pine tree within 0.50-mile from 

the center of an active cavity tree cluster 

of red-cockaded woodpeckers (85 FR 

63498, October 8, 2020). 

The species-specific exceptions in the 

October 8, 2020, proposed rule included 

excepting incidental take caused by redcockaded woodpecker management and 

military training activities on DoD 

installations with a Service-approved 

INRMP; habitat restoration activities 

carried out in accordance with a 

management plan providing for redcockaded woodpecker conservation 

developed in coordination with, and 

approved by, the Service or a State 

conservation agency; and operation of 

vehicles or mechanical equipment, the 

use of lights at night, or activities with 

a human presence in active cavity tree 

cluster during the red-cockaded 

woodpecker breeding season, under 

some circumstances. 

We accepted comments on the 

October 8, 2020, proposed rule for 60 

days, ending December 7, 2020. The 

public comments we received during 

that public comment period indicated 

significant confusion regarding the 

intent of the Service’s proposed section 

4(d) rule and how it could impact 

activities that may affect the redcockaded woodpecker. 

Based on these comments, we propose 

a revised section 4(d) rule for the redcockaded woodpecker. We request 

public comments on the revised 

proposed section 4(d) rule set forth in 

this document. We will provide a more 

detailed response to all of the comments 

we have already received on the October 

8, 2020, proposed rule in our final 

determination; however, our revisions 

in this document generally address the 

overarching comments and concerns we 

received from the public regarding the 

proposed section 4(d) rule set forth in 

the October 8, 2020, proposed rule. 

New Information and Revisions to 

Proposed 4(d) Rule 

Background 

Section 4(d) of the Act contains two 

sentences. The first sentence states that 

the Secretary of the Interior (Secretary) 

shall issue such regulations as she 

deems necessary and advisable to 

provide for the conservation of species 

listed as threatened. The U.S. Supreme 

Court has noted that statutory language 

like ‘‘necessary and advisable’’ 

demonstrates a large degree of deference 

to the agency (see Webster v. Doe, 486 

U.S. 592 (1988)). Conservation is 

defined in the Act to mean the use of 

all methods and procedures which are 

necessary to bring any endangered 

species or threatened species to the 

point at which the measures provided 

pursuant to the Act are no longer 


khammond on DSKJM1Z7X2PROD with PROPOSALS
6120 Federal Register / Vol. 87, No. 23 / Thursday, February 3, 2022 / Proposed Rules 

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 

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 included 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 section 

4(d) rules that do not address all 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 [or her] with regard to 

the permitted activities for those 

species. [S]he may, for example, permit 

taking, but not importation of such 

species, or [s]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). 

In practice, consistent with the two 

sentences in section 4(d), the Secretary 

has two mechanisms to provide for the 

conservation of threatened species in a 

section 4(d) rule. One mechanism is to 

promulgate prohibitions similar to those 

in section 9 of the Act. As discussed 

above, section 4(d) grants particularly 

broad discretion to the Service for 

prohibiting acts discussed in section 9. 

As noted in Sweet Home Chapter of 

Communities for a Great Oregon v. 

Babbitt, this ‘‘second sentence gives [the 

Service] discretion to apply any or all of 

the [section 9] prohibitions to 

threatened species without obliging it to 

support such actions with findings of 

necessity,’’ because ‘‘[o]nly the first 

sentence . . . contains the ‘necessary 

and advisable’ language and mandates 

formal individualized findings’’ (Sweet 

Home Chapter of Communities for a 

Great Oregon v. Babbitt, 1 F.3d 1, 8 

(D.C. Cir. 1993), modified on other 

grounds on reh’g, 17 F.3d 1463 (D.C. 

Cir. 1994), rev’d on other grounds, 515 

U.S. 687 (1995)). 

Secondly, section 4(d) provides the 

Secretary discretion to issue such 

regulations as she deems necessary and 

advisable to provide for the 

conservation of species listed as 

threatened. Therefore, in addition to 

prohibiting relevant forms of take, 

section 4(d) rules can allow other forms 

of take by excepting this take from the 

prohibitions. These exceptions can 

encourage managers to pursue activities 

that benefit the species but that might 

result in take, especially if this take 

would not result in considerable 

detrimental effects to the species. If the 

Service excepts take associated with 

these beneficial activities in a section 

4(d) rule, managers can implement these 

activities without fear of violating 

section 9 of the Act, even if take occurs. 

Exercising this authority under 

section 4(d) of the Act, we have 

developed revisions to the proposed 

section 4(d) rule that are designed to 

address the red-cockaded woodpecker’s 

specific threats and conservation needs. 

Although the statute does not require us 

to make a ‘‘necessary and advisable’’ 

finding with respect to the adoption of 

specific prohibitions under section 9, 

we find that this rule as a whole satisfies 

the requirement in section 4(d) of the 

Act to issue regulations deemed 

necessary and advisable to provide for 

the conservation of the red-cockaded 

woodpecker. 

As the Service concluded in its 

October 8, 2020, proposed rule to 

reclassify the red-cockaded woodpecker 

from endangered to threatened (85 FR 

63474), the red-cockaded woodpecker is 

likely to become in danger of extinction 

within the foreseeable future primarily 

due to threats stemming from lack of 

suitable habitat. Given these threats, the 

intent of this revised proposed section 

4(d) rule is to enhance population 

resiliency and to make it easier to carry 

out the habitat and species management 

activities that enhance the availability of 

the species’ key habitat and resource 

needs, which are outlined in the redcockaded woodpecker’s species status 

assessment (SSA) report (U.S. Fish and 

Wildlife Service (USFWS) 2020a, pp. 

74–87). This means that this proposed 

section 4(d) rule would prohibit take to 

protect the species, while also providing 

exceptions to these take prohibitions to 

encourage necessary and beneficial 

habitat restoration and species’ 

management to advance recovery. 

The red-cockaded woodpecker 

requires cavity trees, nesting habitat, 

and foraging habitat (USFWS 2020a, pp. 

81–85). Red-cockaded woodpeckers rely 

on cavities for nesting and roosting 

(USFWS 2020a, p. 31). 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 2020a, p. 30). In 

addition, old pines have a higher 

incidence of the heartwood decay that 

greatly facilitates cavity excavation 

(USFWS 2020a, p. 30). As we explain in 

the 2003 red-cockaded woodpecker 

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 

savannahs with large old pines for 

nesting and roosting (i.e., nesting 

habitat) (USFWS 2020a, p. 30). Cavity 

trees, with rare exception, occur in open 

stands with little or no hardwood 

midstory and few or no overstory 

hardwoods (USFWS 2020a, p. 30). 

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 2020a, p. 39). 

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 2020a, p. 

129). The proposed rule to downlist the 

red-cockaded woodpecker from 

endangered to threatened emphasized 

this conservation reliance and indicated 

that the future persistence of the species 

will require these management actions 

to continue (85 FR 63474; October 8, 

2020). As such, in addition to providing 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 87, No. 23 / Thursday, February 3, 2022 / Proposed Rules 6121 

prohibitions necessary to protect 

individuals, the revised proposed 

section 4(d) rule provides exceptions 

that would 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 

revised proposed section 4(d) rule 

encourage beneficial habitat 

management on Federal lands, 

compatible prescribed burns and use of 

herbicides on private 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 revised proposed 4(d) 

rule retains the proposed exception for 

take that results from activities 

authorized by a permit under the Act, 

which includes permits we have issued 

or will issue under the valuable safe 

harbor agreement program. Together, 

these prohibitions and exceptions 

would maintain and restore essential 

nesting and foraging resources for the 

species, improving the availability of 

suitable habitat, and would 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 would also support 

conservation of the native pine-grass 

ecosystems upon which the species 

depends. 

The provisions of this revised 

proposed 4(d) rule would promote 

conservation of the red-cockaded 

woodpecker by prohibiting take that can 

directly or indirectly impact population 

demographics. It would 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 the 

Service to propose downlisting the 

species from endangered to threatened. 

Private landowners’ safe harbor 

agreements, DoD’s INRMPs, U.S. Forest 

Service land and resource management 

plans (LRMPs), and National Wildlife 

Refuge System habitat management 

plans 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 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 revised 

proposed 4(d) rule does not invalidate 

or replace these successful programs. In 

fact, the revised proposed 4(d) rule 

would continue to encourage private 

landowners to participate in the safe 

harbor agreement program and would 

provide 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 revised 

proposed section 4(d) rule are only one 

of the many tools the Service can use to 

promote the conservation of the redcockaded woodpecker. For example, if 

this 4(d) rule is finalized, private 

landowners and some State agencies 

may still pursue regulatory flexibility 

through existing mechanisms that 

currently promote the species’ 

conservation, such as safe harbor 

agreements or habitat conservation 

plans. These effective mechanisms 

would continue to provide considerable 

assurances for landowners. 

Similarly, this 4(d) rule would not 

change a private landowner’s ability to 

enroll in Natural Resources 

Conservation Service or Partners for 

Fish and Wildlife conservation 

programs. These Federal programs 

provide technical and financial 

assistance to private landowners to 

support habitat management on working 

lands that will benefit wildlife and other 

natural resources in the open-pine 

systems of the southeastern United 

States. Nationwide, these programs help 

conserve or restore hundreds of 

thousands of acres of wildlife habitat 

every year (USFWS 2020b, p. 4). As a 

result of the consultations these Federal 

programs conduct with the Service, 

enrolled private 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 revised proposed 

4(d) rule, if finalized, would not alter 

these programs. We encourage private 

landowners to continue participating in 

these valuable private lands 

conservation programs. 

Rules under 4(d) of the Act do not and 

cannot remove Federal agencies’ section 

7 consultation obligations (see 

‘‘Implications for Implementation,’’ 

below). While this revised proposed 

4(d) rule may facilitate a streamlined 

consultation for beneficial habitat 

management projects, Federal agencies 

would still consult under section 7 of 

the Act if their actions may affect redcockaded woodpeckers. Specifically, 

Federal agencies can consult with the 

Service regarding their project to 

minimize effects to the red-cockaded 

woodpecker and, if needed, the Service 

would develop a biological opinion and 

accompanying incidental take statement 

that exempts the Federal agency from 

the prohibitions in the 4(d) rule, for a 

specific amount of incidental take, 

while carrying out their planned project. 

Finally, this revised proposed 4(d) 

rule would not alter or invalidate the 

2003 red-cockaded woodpecker 

recovery plan. Recovery plans are not 

regulatory documents, but rather they 

provide a strategy to guide the 

conservation and recovery of the redcockaded woodpecker. While this 

revised proposed 4(d) rule does not 

incorporate certain specific guidelines 

from the 2003 recovery plan (e.g., 

survey protocols, training requirements 

for acquiring a section 10(a)(1)(A) 

permit to monitor the species), as 

suggested by some commenters, these 

provisions may still be applicable under 

the 4(d) rule. 

This revised proposed 4(d) rule would 

apply only when and if we make a final 

determination that the red-cockaded 

woodpecker should be reclassified as a 

threatened species. Finally, if finalized, 

the only portion of this document that 

would have regulatory effect is the text 

presented below under Proposed 

Regulation Promulgation (i.e., the text 

we propose to add as paragraph (h) of 

§ 17.41 of title 50 of the Code of Federal 

Regulations (CFR) (50 CFR 17.41(h))); 

the explanatory text above and in 

Provisions of the Revised Proposed 

Section 4(d) Rule below merely clarifies 

the intent of these proposed 

amendments to the regulations. 

Provisions of the Revised Proposed 

Section 4(d) Rule 

Prohibitions 

In the October 8, 2020, proposed 

downlisting rule (85 FR 63474), the 

Service proposed specific provisions 


khammond on DSKJM1Z7X2PROD with PROPOSALS
6122 Federal Register / Vol. 87, No. 23 / Thursday, February 3, 2022 / Proposed Rules 

that prohibited incidental take 

associated with activities that would 

result in the further loss or degradation 

of red-cockaded woodpecker habitat, 

including damage to or loss of cavity 

trees, among other practices, to 

specifically protect the species’ key 

habitat needs. However, comments 

submitted by the general public, Federal 

agencies, and the States during the 

public comment period on the October 

8, 2020, proposed rule expressed 

confusion regarding these provisions. 

Many commenters believed the Service 

was prohibiting the activities it 

referenced in the proposed 4(d) rule. For 

example, commenters believed the 

Service was prohibiting all use of 

herbicides in habitat management, given 

the prohibition on incidental take that 

resulted from herbicide use. The 

Service’s intent in the October 8, 2020, 

proposed rule was to prohibit incidental 

take that results from certain types of 

habitat management and land use, not to 

prohibit the activities themselves. 

However, given this confusion regarding 

the language in the October 8, 2020, 

proposed rule, this revised proposed 

rule describes prohibitions in a 

different, but more familiar, way. 

Consistent with the discretion 

provided by section 4(d), our revisions 

to the proposed section 4(d) rule would 

provide for the conservation of the redcockaded woodpecker by adopting the 

same prohibitions that apply to an 

endangered species under section 9 of 

the Act and 50 CFR 17.21. These are the 

same prohibitions that currently apply 

to the red-cockaded woodpecker while 

it is listed as an endangered species. 

Specifically, except as otherwise 

authorized or permitted, this revised 

proposed 4(d) rule would continue to 

prohibit: Importing or exporting redcockaded woodpeckers; take of redcockaded 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. As they do now, 

these prohibitions would apply 

throughout the species’ range, on both 

public and private lands. Over the past 

four decades, while the species was 

listed as an endangered species, these 

prohibitions have provided an 

understandable, broadly accepted 

framework for protecting red-cockaded 

woodpeckers and the habitat resources 

upon which they depend. 

Identical to the regulations that apply 

under endangered status, the 

prohibitions in this revised proposed 

section 4(d) rule would prohibit all 

forms of take of red-cockaded 

woodpeckers within the United States. 

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. The 

Service has further defined the terms 

‘‘harm’’ and ‘‘harass’’ in regulation (50 

CFR 17.3). To ‘‘harm’’ entails an act 

which actually kills or injures fish or 

wildlife (50 CFR 17.3). Such an act may 

include significant habitat modification 

or degradation which actually kills or 

injures fish or wildlife by significantly 

impairing essential behavioral patterns, 

including breeding, feeding or 

sheltering (50 CFR 17.3). To ‘‘harass’’ 

involves an intentional or negligent act 

or omission which creates the 

likelihood of injury to wildlife by 

annoying it to such an extent as to 

significantly disrupt normal behavioral 

patterns which include, but are not 

limited to, breeding, feeding, or 

sheltering (50 CFR 17.3). Take can result 

knowingly or otherwise, by direct and 

indirect impacts, and intentionally or 

incidentally. 

As discussed in the SSA report for the 

species, effective monitoring, research, 

and translocation are an important 

element of the active management that 

promotes red-cockaded woodpecker 

conservation and recovery. However, in 

this revised proposed section 4(d) rule, 

we propose to prohibit all forms of take, 

which would include capturing, 

handling, and similar activities. Such 

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 assure these 

activities continue to be conducted 

correctly by properly trained personnel, 

the proposed section 4(d) rule would 

continue 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. 

In essence, this rule would prohibit 

take under all circumstances, unless 

otherwise excepted in the section 4(d) 

rule (discussed below), authorized by a 

permit under the Act (e.g., section 

10(a)(1)(A) permit issued for a safe 

harbor agreement, section 10(a)(1)(B) 

permit issued for a habitat conservation 

plan), or exempted through section 7 

consultation (including the 

consultations that cover landowners 

enrolled in Natural Resources 

Conservation Service or Partners for 

Fish and Wildlife conservation 

programs). Because the prohibitions in 

this proposed rule exactly match those 

that currently apply under endangered 

status, if managers (e.g., landowners, 

Federal agencies, utility companies) are 

currently carrying out compatible land 

use activities without resulting in take 

of the species, the provisions in this 

proposed rule would not affect their 

ability to continue conducting those 

activities; this 4(d) rule also would not 

alter Federal agencies’ current and 

continued obligation to conduct 

necessary section 7 consultation on 

these activities. 

Prohibiting all forms of take on both 

public and private lands will provide 

clear measures necessary and advisable 

to ensure the species continues to 

maintain or improve its demographics. 

Regulating both intentional and 

incidental take would help preserve the 

species’ remaining populations and 

decrease synergistic, negative effects 

from other stressors, while allowing 

beneficial activities that do not result in 

take to continue to occur. The Service 

seeks comments on these prohibitions 

(see Information Requested, above). 

Exceptions 

The revised proposed section 4(d) 

rule would also provide for the 

conservation of the species by 

promulgating exceptions to the 

prohibitions discussed above; these 

exceptions would allow for routine law 

enforcement activities, for defense of 

life, to aid sick or injured birds, and for 

incidental take associated with the 

active habitat management this species 

uniquely requires. These exceptions 

would promote the maintenance and 

restoration of the habitat resources 

(cavity trees, nesting habitat, and 

foraging habitat) crucial to red-cockaded 

woodpecker recovery and conservation. 

At the outset, the revised proposed 

section 4(d) rule outlines several 

standard exceptions to the prohibitions 

that are identical to exceptions that 

currently apply to the red-cockaded 

woodpecker and other endangered 

species. First, we propose to except 

certain actions that may be otherwise 

prohibited by this rule but that are 

authorized by permits under 50 

CFR 17.32. Currently, activities that are 

prohibited by 50 CFR 17.21, which 

applies to endangered species, may be 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 87, No. 23 / Thursday, February 3, 2022 / Proposed Rules 6123 

permitted by permits issued under 50 

CFR 17.22 for the red-cockaded 

woodpecker. Accordingly, the inclusion 

of this provision referencing 50 CFR 

17.32 does not result in a change from 

the status quo. This means 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 a safe harbor 

agreement or habitat conservation plan), 

any take that occurs as a result of 

activities covered by this permit would 

remain exempted from the 

aforementioned prohibitions on take; in 

other words, the manager would not be 

liable for any take for which they 

already have a permit, as long as they 

continue to comply with the 

stipulations in the permit. This 

exception also applies to the permits 

that private landowners or some State 

agencies already hold as a result of a 

safe harbor agreement or habitat 

conservation plan. This revised 

proposed section 4(d) rule would not 

invalidate any part of a landowner’s 

existing safe harbor agreement, habitat 

conservation plan, or permit. We 

encourage landowners to continue 

operating within the parameters of their 

safe harbor agreement, habitat 

conservation plan, and associated 

permits. As long as landowners 

continue to comply with the provisions 

of these permits, any take that occurs as 

a result of covered activities would be 

exempted from the prohibitions on take 

in this rule. 

Furthermore, the Service encourages 

landowners to continue to enroll in the 

safe harbor agreement program. Exactly 

like the regulatory regime that applies 

while the species is listed as 

endangered, any new permits issued 

under the authority of the safe harbor 

agreement program would provide 

landowners with additional 

management flexibility and exemption 

from some of the take prohibitions in 

this proposed rule. Safe harbor 

agreements are partnerships between 

landowners and the Service or between 

the State 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 to bolster their 

populations with additional abovebaseline active clusters that emerge 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. Permits issued under safe harbor 

agreements allow enrolled landowners 

to return their properties to ‘‘baseline’’ 

conditions at any time. Since its 

inception in the 1990s, the safe harbor 

program has successfully promoted the 

recovery of red-cockaded woodpeckers; 

due to the concerted efforts of private 

landowners enrolled in the program, the 

number of red-cockaded clusters on 

private lands has increased. As 

described in the proposed downlisting 

rule (85 FR 63474; October 8, 2020), 12 

populations with 342 active clusters 

reside entirely on private lands, of 

which 10 populations with 295 active 

clusters are managed by landowners 

enrolled in the safe harbor agreement 

program. There currently are 241 active 

above-baseline clusters in the program. 

This revised proposed section 4(d) rule 

would not alter this valuable program or 

the permits associated with it. 

Second, we propose to incorporate 

standard exceptions that currently apply 

to the red-cockaded woodpecker and 

endangered species, including 

exceptions that allow take in defense of 

life; allow take by an employee of the 

Service, Federal land management 

agency, or State conservation agency to 

aid sick or injured red-cockaded 

woodpeckers, dispose of dead 

specimens, or salvage dead specimens 

for scientific research; and allow 

individuals to take the species if they 

have a valid migratory bird 

rehabilitation permit if such action is 

necessary to aid a sick, injured, or 

orphaned listed migratory bird. We also 

propose a standard regulatory exception 

to allow Federal and State law 

enforcement officers to possess, deliver, 

carry, transport or ship individuals 

taken in violation of the Act as 

necessary in performing their official 

duties and that allow those with a valid 

migratory bird rehabilitation permit to 

possess or transport a listed migratory 

bird species. All of these standard 

exceptions currently apply while the 

species is listed as endangered, and they 

would continue to apply if we finalize 

the reclassification of red-cockaded 

woodpeckers to a threatened species 

with this revised proposed 4(d) rule. 

Next, we propose to incorporate an 

exception that does not currently apply 

while the woodpecker is listed as 

endangered. This exception from 50 

CFR 17.31(b) allows employees or 

agents of the Service or State 

conservation agencies operating under a 

cooperative agreement with the Service 

in accordance with section 6(c) of the 

Act to take red-cockaded woodpeckers 

in order to carry out conservation 

programs for the species. The Service 

can only apply the exception in 50 CFR 

17.31(b) to take prohibitions for 

threatened species. The Service 

recognizes the special and unique 

relationship with our State conservation 

agency partners in contributing to 

conservation of listed species. States 

solely own and manage lands occupied 

by at least 31 demographic populations 

and oversee State-wide safe harbor 

agreements that have enrolled 459 nonFederal landowners covering 

approximately 2.5 million acres (85 FR 

63474; October 8, 2020). 

State agencies also often possess 

scientific data and valuable expertise on 

the status and distribution of 

endangered, threatened, and candidate 

species of wildlife and plants. State 

agencies, because of their authorities 

and their close working relationships 

with local governments and 

landowners, are in a unique position to 

assist the 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, any qualified employee or 

agent of a State conservation agency that 

is a party to a cooperative agreement 

with the Service in accordance with 

section 6(c) of the Act, who is 

designated by his or her agency for such 

purposes, would be able to conduct 

activities designed to conserve the redcockaded woodpecker that may result in 

otherwise prohibited take without 

additional authorization (i.e., without a 

permit). Most State conservation 

agencies within the range of redcockaded woodpeckers have already 

worked with the Service to develop 

valid cooperative agreements under 

section 6(c) of the Act that include 

conservation programs for red-cockaded 

woodpeckers. 

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 


khammond on DSKJM1Z7X2PROD with PROPOSALS
6124 Federal Register / Vol. 87, No. 23 / Thursday, February 3, 2022 / Proposed Rules 

States’ cooperative agreements. State 

agencies may also enroll in 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 Service seeks comments 

on the inclusion of this exception (see 

Information Requested, above). 

Finally, unlike the regulations that 

apply to the species under endangered 

status, we propose additional 

exceptions to the take prohibitions in 

this revised proposed 4(d) rule that 

would facilitate continued and 

increased implementation of beneficial 

management practices that contribute to 

the conservation of the species. 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 red-cockaded woodpecker SSA 

report illustrate that it could take ‘‘many 

decades . . . to attain a desired future 

ecosystem condition in which redcockaded 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 2020a, p. 12). The speciesspecific exceptions in this revised 

proposed section 4(d) rule aim to 

facilitate management that would 

protect and enhance red-cockaded 

woodpecker populations. 

Conservation of red-cockaded 

woodpeckers as a species depends 

primarily on the conservation of 

populations on Federal properties (e.g., 

National forests, DoD installations) for 

several reasons. First, the vast majority 

of red-cockaded woodpeckers in 

existence today are on Federal lands 

(USFWS 2020a, pp. 106–108; 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 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 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 

safe harbor program (USFWS 2003, pp. 

188–189). 

Therefore, the species-specific 

exceptions in this revised proposed 4(d) 

rule address private lands and Federal 

properties differently for three reasons. 

First, these entities have differing 

recovery responsibilities. Second, the 

Service would retain additional 

involvement in Federal agencies’ habitat 

management activities as a result of 

section 7 consultation obligations. 

Third, there are other flexible programs 

that permit take that are already 

available to some State conservation 

agencies and private landowners (e.g., 

permits issued from safe harbor 

agreements and habitat conservation 

plans, Partners for Fish and Wildlife 

program, Natural Resources 

Conservation Service private landowner 

programs). 

First, we propose 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 

proposal, 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 firetolerant native pines such as longleaf 

pine; planting and seeding native, siteappropriate 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 INRMPs 

and to achieve red-cockaded 

woodpecker recovery objectives. These 

plans and guidelines all contain an 

‘‘Endangered Species Management 

Component’’ (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.), the 

Service is 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, the Service 

conducts 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. If 

this revised proposed section 4(d) rule 

is finalized, DoD installations would 

still need to comply with the Sikes Act 

requirement to obtain Service approval 

of INRMPs and would still need to 

fulfill their section 7 obligations under 

the Act, including 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 revised 

proposed section 4(d) rule would 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 longestablished guidelines (e.g., 

Management Guidelines for the Redcockaded 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 the 

Service 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 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 87, No. 23 / Thursday, February 3, 2022 / Proposed Rules 6125 

INRMP would not be excepted under 

this proposed 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 proposed 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 proposed 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 revised proposed 

section 4(d) rule would 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 the Service, and 

we expect this to continue if we 

downlist the species. This monitoring 

could inform adaptive management and 

course corrections 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. In fact, Fort Bragg, Fort 

Stewart, Eglin Air Force Base, Fort 

Benning, and Camp Blanding all have 

achieved or surpassed their 2003 redcockaded woodpecker 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 it can balance the effects of military 

training. 

Some comments we received on the 

October 8, 2020, proposed downlisting 

rule (85 FR 63474) raised concerns this 

exception for Service-approved INRMPs 

could be too open-ended to be 

sufficiently protective of the species. 

However, given the close, formal 

involvement the Service has in 

reviewing and approving INRMPs under 

the Sikes Act, the species-specific 

beneficial management prescriptions 

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 would still occur for 

these plans to ensure conservation 

activities do not jeopardize the species, 

we find that the management resulting 

from INRMPs would continue to 

advance the conservation of the species, 

even if incidental take occurs. 

Therefore, this revised proposed section 

4(d) rule would except 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. The 

Service seeks comments on this 

exception (see Information Requested, 

above). 

Second, we propose 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 

revised proposed 4(d) rule (see 

Proposed 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 Service 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 

activities in a Federal habitat 

management plan that includes a redcockaded woodpecker management 

component, which addresses factors 

including, but not limited to, the redcockaded 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 

objectives. 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 

National Wildlife Refuge System’s 

comprehensive conservation plans 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 

documentation associated with the 

section 7 consultation process. The 

inclusion of ‘‘clusters’’ in this provision 

would ensure Federal land managers are 

adequately protecting nesting habitat 

and cavity trees, in addition to foraging 

habitat, while executing their planned 

beneficial habitat management 

activities. The Service expects the redcockaded woodpecker components of 

these Federal management plans to 

allow for adaptive management and 

frequent re-evaluation 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 revised proposed section 4(d) rule 

would require each Federal property to 

share an annual property report with the 

Service 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 the Service, and 

we expect this to continue if we 

downlist the species. The reporting 

Federal agencies provide as part of 

section 7 consultations would also 

qualify as this annual property report. 

As a result of this proposed provision 

in the section 4(d) rule, we would, 

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 


khammond on DSKJM1Z7X2PROD with PROPOSALS
6126 Federal Register / Vol. 87, No. 23 / Thursday, February 3, 2022 / Proposed Rules 

significantly among sites and properties, 

to the extent that it would be extremely 

difficult to prescribe a universal 

condition by which this exception 

would apply. Therefore, in this section 

4(d) rule, we propose that incidental 

take associated with these activities 

would 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 revised 

proposed 4(d) rule, Federal agencies 

must also incorporate appropriate 

conservation measures to minimize the 

adverse effects of these activities on redcockaded 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, the Service would have the 

opportunity to review these restoration 

projects and provide input on how to 

minimize impacts to the species. 

Again, the Service seeks to 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 revised proposed 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 would not 

require these agencies to rewrite these 

management plans or to reinitiate 

section 7 consultation on these plans or 

on relevant projects. Moreover, because 

this revised proposed section 4(d) rule 

would not remove or alter the obligation 

of Federal agencies to complete section 

7 consultation on their management 

plans, the Service would 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 redcockaded woodpecker. As part of this 

section 7 process, the Service would 

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 would be excepted 

under the section 4(d) rule. 

Additionally, Federal agencies would 

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 would need to 

reinitiate consultation (see 

‘‘Implications for Implementation,’’ 

below, for more detail on section 7 

processes under section 4(d) rules). 

This provision would not except take 

that results 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 4(d) rule, incidental 

take that results from those activities 

could still be exempted from the 

prohibitions in this 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 revised proposed 

section 4(d) rule match those that 

currently apply under endangered 

status, if Federal agencies are currently 

conducting management activities 

without resulting in take of redcockaded woodpeckers, this rule would 

not affect their ability to continue 

conducting those activities, 

independent of this exception. 

In short, if incidental take of redcockaded woodpeckers occurs as a 

result of Federal land management 

agencies carrying out habitat 

management activities, as defined in the 

revised proposed rule, this take would 

not be prohibited, as long as: (1) The 

habitat management activities were 

implemented specifically to restore or 

maintain red-cockaded woodpecker 

habitat; (2) the Federal agency details 

these habitat management activities in a 

habitat management plan; (3) the 

Federal 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 

agency provides annual reporting to the 

Service. The Service seeks comments on 

this exception (see Information 

Requested, above). 

Third, we include an exception to 

encourage private landowners who are 

not enrolled in the safe harbor 

agreement 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 2020a, p. 129). This 

provision would not change the 

measures in any existing safe harbor 

agreements or habitat conservation 

plans. 

While Federal lands bear additional 

responsibility when it comes to 

achieving the recovery goals for redcockaded woodpeckers, private 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 revised proposed section 

4(d) rule would continue to encourage 

voluntary red-cockaded woodpecker 

conservation on private lands through 

the successful safe harbor agreement 

program. 

The proposed exception would 

further support compatible forest 

management on private lands, while 

continuing to maintain existing 

populations and would be especially 

relevant for landowners that do not 

currently participate in the safe harbor 

agreement program. This exception 

would except incidental take caused by 

application of prescribed burns or 

herbicides on private lands when 

compatible with maintaining any 

known red-cockaded woodpecker 

populations, provided that the 

landowner, or their representative: (1) 

Follows applicable best management 

practices for prescribed burns and 

applicable Federal and State laws; (2) 

applies herbicides in a manner 

consistent with applicable best 

management practices and applicable 

Federal and State laws, including 

Environmental Protection Agency label 

restrictions and herbicide application 

guidelines as prescribed by 

manufacturers; 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. 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 87, No. 23 / Thursday, February 3, 2022 / Proposed Rules 6127 

The first condition on this provision 

requires landowners to follow 

applicable best management practices 

for prescribed burns. States and 

counties within the range of redcockaded woodpecker provide guidance 

documents with these best management 

practices 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 

Best Management Practices Manual; 

Recommended Forestry Best 

Management Practices for Louisiana). 

The third condition on this provision 

calls for private landowners to 

incorporate reasonable preventative 

measures to reduce any direct adverse 

effects of these activities on redcockaded woodpeckers they already 

know to roost or nest on their property 

to the maximum extent practicable, 

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 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 the Service prescribes, 

although the methods the Service 

outlines for cavity tree protection in its 

red-cockaded woodpecker 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 would also only be 

relevant 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 property, 

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 would 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 landowners 

may wish to take advantage of this 

exception by following best 

management practices 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. If a private 

landowner follows these best 

management practices 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 under this proposed rule. 

This provision would only except 

incidental take associated with 

prescribed burns or the use of 

herbicides when the use of these 

management practices are compatible 

with maintaining any known redcockaded woodpecker populations on 

their property; in other words, if a 

private landowner wishes to pursue a 

prescribed burn that could impair redcockaded woodpecker population 

dynamics in the long term, this 

exception would not cover any 

incidental take that results from that 

burn, even if the landowner follows 

relevant best management practices. 

Finally, if landowners are already 

enrolled in the safe harbor program, this 

exception would not provide any 

additional flexibility; the permits 

associated with safe harbor agreements 

authorize take associated with 

prescribed burns, herbicide use, and 

other activities, as long as landowners 

follow the stipulations in their safe 

harbor agreement and do not decrease 

the number of red-cockaded 

woodpecker clusters below their 

baseline. 

The Service’s 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 

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 redcockaded woodpecker recovery to the 

point of downlisting; this provision 

would continue to encourage this 

compatible or beneficial management. 

We also continue to encourage private 

landowners to participate in existing 

valuable conservation programs that 

promote forest management that 

benefits red-cockaded woodpeckers and 

provide take allowances for 

participating landowners through other 

means (e.g., permits issued as part of the 

safe harbor program or habitat 

conservation plans, Partners for Fish 

and Wildlife and Natural Resources 

Conservation Service private landowner 

programs, and the associated section 7 

consultations these Federal programs 

conduct with the Service that provide 

allowances for incidental take 

associated with beneficial conservation 

practices). The Service seeks comment 

on this exception (see Information 

Requested, above). 

Finally, the proposed rule would 

except 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 the Service continues to 

encourage the installation of artificial 

cavities. However, we also acknowledge 

that there are proper techniques to 

install cavity inserts, drill cavities, or 

install cavity restrictor plates, 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, drilled 

cavities, or cavity restrictor plates. 

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 find it is necessary and 

advisable for the section 4(d) rule to 

remove any potential hurdles to the 

efficient and effective provisioning and 

maintenance of artificial cavities. We, 

therefore, provide an exception to take 

prohibitions in this revised proposed 

rule for the installation, maintenance, 

and replacement of artificial cavity 

inserts and drilled cavities on public 

and private lands. However, this 

exception would only apply if the 

individual conducting the installation 

has either held a valid Service permit 

for that purpose and has continued to 


khammond on DSKJM1Z7X2PROD with PROPOSALS
6128 Federal Register / Vol. 87, No. 23 / Thursday, February 3, 2022 / Proposed Rules 

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 and restrictor 

plates. After the apprentice has 

completed their training, the trainer 

must provide a letter to the apprentice 

and to the U.S. Fish and Wildlife 

Service Regional red-cockaded 

woodpecker recovery coordinator; the 

letter would outline the training the 

apprentice received and would serve as 

a record of the apprentice’s training. 

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); (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 red-cockaded woodpecker 

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 installation guidelines in the 

proposed 4(d) rule and incidental take 

occurs as a result of artificial cavity 

installation, the installer would 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 would not be liable 

for such take under this proposed rule. 

We included this exception in our 

revised proposed 4(d) rule as a result of 

public comments on the October 8, 

2020, proposal that supported its 

incorporation. The Service seeks 

comments on this exception (see 

Information Requested, above). 

In addition to the exceptions we 

outline above, we may issue permits to 

carry out activities that could result in 

otherwise prohibited take of threatened 

wildlife under certain circumstances. 

Regulations governing permits are 

codified at 50 CFR 17.32. With regard to 

threatened wildlife, a permit may be 

issued for the following purposes: For 

scientific purposes, to enhance 

propagation or survival, for economic 

hardship, for zoological exhibition, for 

educational purposes, for incidental 

taking, or for special purposes 

consistent with the purposes of the Act. 

The statute also contains certain 

exemptions from the prohibitions, 

which are found in sections 9 and 10 of 

the Act. 

Implications for Implementation 

Nothing in this revised proposed 

section 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, 

as noted above; or the ability of the 

Service to enter into partnerships for the 

management and protection of the redcockaded woodpecker. However, 

interagency cooperation may be further 

streamlined through planned 

programmatic consultations for the 

species between Federal agencies and 

the Service, where appropriate. 

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. 

As a result of these provisions in the 

Act, if a Federal action may affect a 

listed species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. Examples of actions that are 

subject to the section 7 consultation 

process are 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, Federal 

Emergency Management Agency, 

Natural Resources Conservation Service, 

or Partners for Fish and Wildlife 

Program). Federal actions that do not 

affect 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. 

The trigger for consultation is whether 

a Federal action may affect a listed 

species or its critical habitat, not 

whether the action would 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 the Service’s 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 only results in take that is excepted 

under a section 4(d) rule, they must still 

pursue formal consultation with the 

Service and the Service must formulate 

a biological opinion that includes an 

incidental take statement. Even if a 

section 4(d) rule includes specific 

exceptions to take prohibitions, the 

Service 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, it would 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 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 proposed 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 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 87, No. 23 / Thursday, February 3, 2022 / Proposed Rules 6129 

7 consultation obligations, a section 4(d) 

rule can facilitate simplification of 

formal consultations. For example, as 

noted in our August 27, 2019, final rule 

regarding prohibitions for threatened 

species (84 FR 44753), in choosing to 

except take under certain circumstances 

in a section 4(d) rule, the Service has 

already determined that these forms of 

take are compatible with the species’ 

conservation, which can streamline our 

analysis of whether an action would 

jeopardize the continued existence of 

the species, making consultation more 

straightforward and predictable. The 

Service plans to develop tools to 

streamline formal consultation for 

activities that do not result in prohibited 

take of red-cockaded woodpeckers. For 

example, given the nature of activities 

that would be consistent with this 

revised proposed section 4(d) rule, and 

as the revised proposed section 4(d) rule 

includes an explanation for why such 

activities provide for the conservation of 

the species, the Service 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 

inserted verbatim 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 if 

or when this 4(d) rule is finalized, if 

their Federal action (e.g., management 

plan) has not changed. However, given 

the provisions in this revised proposed 

section 4(d) rule, Federal agencies may 

find that reinitiating consultation, 

although not required, could grant 

additional flexibilities for their 

management. 

We will consider tools to streamline 

section 7 consultation on activities that 

may result in take that is excepted 

under this revised proposed 4(d) rule. 

We ask the public, particularly Federal 

and State agencies and other interested 

stakeholders that may be affected by the 

proposed section 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 section 

4(d) rule (see Information Requested, 

above). 

References Cited 

A complete list of references cited in 

this document is available on the 

internet at https://www.regulations.gov 

and upon request from the person listed 

under FOR FURTHER INFORMATION

CONTACT, above. 

Authors 

The primary authors of this proposed 

rule are the staff members of the Fish 

and Wildlife Service’s Species 

Assessment Team and the Louisiana, 

Georgia, 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. 

Proposed Regulation Promulgation 

Accordingly, we propose to further 

amend part 17, subchapter B of chapter 

I, title 50 of the Code of Federal 

Regulations, as proposed to be amended 

on October 9, 2018, at 83 FR 50560, and 

October 8, 2020, at 85 FR 63474, 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 § 17.41 by revising 

paragraph (h) to read as follows: 

§ 17.41 Special 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, siteappropriate 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 redcockaded 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 redcockaded 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 §§ 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 

§ 17.21(b) for endangered wildlife. 

(ii) Take, as set forth at § 17.21(c)(1) 

for endangered wildlife. 


khammond on DSKJM1Z7X2PROD with PROPOSALS
6130 Federal Register / Vol. 87, No. 23 / Thursday, February 3, 2022 / Proposed Rules 

(iii) Possession and other acts with 

unlawfully taken specimens, as set forth 

at § 17.21(d)(1) for endangered wildlife. 

(iv) Interstate or foreign commerce in 

the course of commercial activity, as set 

forth at § 17.21(e) for endangered 

wildlife. 

(v) Sale or offer for sale, as set forth 

at § 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 § 17.32, such as 

permits associated with safe harbor 

agreements and habitat conservation 

plans. 

(ii) Take, as set forth at § 17.21(c)(2) 

through (4) for endangered wildlife, and 

§ 17.21(c)(6) and (7) for endangered 

migratory birds. 

(iii) Take, as set forth at § 17.31(b). 

(iv) Possess and engage in other acts 

with unlawfully taken red-cockaded 

woodpeckers, as set forth at 

§ 17.21(d)(2) for endangered wildlife, 

and § 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 U.S. 

Fish and Wildlife Service (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 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 owned properties. 

Application of prescribed burns or 

herbicides on private lands when 

compatible with maintaining any 

known 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, including 

Environmental Protection Agency label 

restrictions and herbicide application 

guidelines as prescribed by 

manufacturers; 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 in the past 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 

actively 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 of the trainer; 

and 

(iii) The apprentice has learned the 

proper maintenance and inspection 

procedures for cavities and restrictor 

plates. 

(B) If the individual conducting the 

installation is an apprentice, the 

apprentice’s trainer provides a letter to 

the apprentice and to the Service redcockaded 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); 

(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, 

Principal Deputy Director, Exercising the 

Delegated Authority of the Director, U.S. Fish 

and Wildlife Service. 

[FR Doc. 2022–02006 Filed 2–2–22; 8:45 am] 

BILLING CODE 4333–15–P 


khammond on DSKJM1Z7X2PROD with PROPOSALS