Federal Register / Vol. 80, No. 11 / Friday, January 16, 2015 / Proposed Rules 2371 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R5–ES–2011–0024; 

4500030113] 

RIN 1018–AY98 

Endangered and Threatened Wildlife 

and Plants; Listing the Northern LongEared Bat With a Rule Under Section 

4(d) of the Act 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule and reopening of 

comment period. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

create a species-specific rule under 

authority of section 4(d) of the 

Endangered Species Act of 1973, as 

amended (Act), that provides measures 

that are necessary and advisable to 

provide for the conservation of the 

northern long-eared bat (Myotis 

septentrionalis), should we determine 

this species warrants listing as a 

threatened species under the Act. In 

addition, we announce the reopening of 

the public comment period on the 

October 2, 2013, proposed rule to list 

the northern long-eared bat as an 

endangered species under the Act. 

DATES: We will accept comments 

received or postmarked on or before 

March 17, 2015. Comments submitted 

electronically using the Federal 

eRulemaking Portal (see ADDRESSES, 

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

Eastern Time on the closing date. We 

must receive requests for public 

hearings, in writing, at the address 

shown in FOR FURTHER INFORMATION

CONTACT by March 2, 2015. 

ADDRESSES: You may submit comments 

by one of the following methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: http://

www.regulations.gov. In the Search box, 

enter FWS–R5–ES–2011–0024, which is 

the docket number for this rulemaking. 

You may submit a comment by clicking 

on ‘‘Comment Now!’’ 

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

or hand-delivery to: Public Comments 

Processing, Attn: FWS–R5–ES–2011– 

0024; Division of Policy and Directives 

Management; U.S. Fish and Wildlife 

Service; 4401 N. Fairfax Drive, MS 

2042–PDM; Arlington, VA 22203. 

We request that you send comments 

only by one of the methods described 

above. We will post all comments on 

http://www.regulations.gov. This 

generally means that we will post any 

personal information you provide us 

(see the Public Comments section below 

for more information). 

FOR FURTHER INFORMATION CONTACT: 

Tony Sullins, Endangered Species 

Chief, Midwest Regional Office, 5600 

American Blvd. West, Suite 990, 

Bloomington, MN 55437, by telephone 

612–725–3548 or by facsimile 612–725– 

3548. Persons who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

On October 2, 2013, the Service 

proposed to list the northern long-eared 

bat as an endangered species (78 FR 

61046). To date, we solicited public 

comment on this proposal on three 

separate occasions, totaling 180 days. 

Through these public comment periods, 

we received numerous comments and 

additional information suggesting we 

evaluate listing the northern long-eared 

bat as a threatened species with a 

species-specific rule under section 4(d) 

of the Act excepting specific forms of 

take. The Service has not yet made a 

final listing decision regarding the 

status of the northern long-eared bat 

(e.g., not warranted, threatened, or 

endangered); however, in our review of 

public comments we did determine that 

if threatened status is warranted, a 

species-specific rule under section 4(d) 

of the Act rule may be advisable. 

Therefore, this document consists of: (1) 

A proposed rule under section 4(d) of 

the Endangered Species Act of 1973, as 

amended (Act; 16 U.S.C. 1531 et seq.), 

that outlines the prohibitions, and 

exceptions to those prohibitions, 

necessary and advisable to provide for 

the conservation of the northern longeared bat; and (2) a reopening of the 

comment period for the proposed rule to 

list the northern long-eared bat as an 

endangered species under the Act. 

The Need for the Regulatory Action and 

How the Action Will Meet That Need 

Based on information received during 

three open comment periods and a time 

extension, the Service is considering 

multiple public comments and 

additional information to determine if 

listing as a threatened species may be 

appropriate. If threatened status is 

appropriate, Section 4(d) of the Act 

specifies that, for threatened species, the 

Secretary shall issue such regulations as 

she deems necessary and advisable to 

provide for the conservation of the 

species. Further, a 4(d) rule may 

identify activities that would not be 

prohibited under section 9 of the Act. 

Although the Service has not yet 

made a final listing determination for 

the northern long-eared bat, we are 

proposing this 4(d) rule in the event that 

our final listing determination is to list 

the species as a threatened species. If we 

list the species as an endangered species 

or find that it does not warrant listing, 

we will withdraw this proposed rule. If 

we list the species as a threatened 

species, we intend to publish a final 

4(d) rule concurrent with, and as a 

component of, the final listing rule. 

Consistent with section 4(d) of the Act, 

this proposed 4(d) rule provides 

measures that are tailored to our current 

understanding of the conservation needs 

of the northern long-eared bat. 

Statement of Legal Authority for the 

Regulatory Action 

Under section 4(d) of the Act, the 

Secretary of the Interior has discretion 

to issue such regulations as she deems 

necessary and advisable to provide for 

the conservation of the species. The 

Secretary also has the discretion to 

prohibit by regulation with respect to a 

threatened species, any act prohibited 

by section 9(a)(1) of the Act. 

Summary of the Major Provisions of the 

Regulatory Action in Question 

The proposed species-specific 4(d) 

rule prohibits purposeful take of 

northern long-eared bats throughout its 

range except in instances of removal of 

northern long-eared bats from human 

dwellings and authorized capture and 

handling of northern long-eared bat by 

individuals permitted to conduct these 

same activities for other listed bats. 

In areas not affected by white nose 

syndrome (WNS), a disease currently 

affecting many U.S. bat populations, all 

incidental take resulting from any 

otherwise lawful activity will be 

excepted from prohibition. 

In areas affected by WNS, all 

incidental take prohibitions apply 

except that take attributable to forest 

management practices, maintenance and 

limited expansion of transportation and 

utility rights-of-way, removal of trees 

and brush to maintain prairie habitat, 

and limited tree removal projects shall 

be excepted from the take prohibition, 

provided these activities protect known 

maternity roosts and hibernacula. 

Further, removal of hazardous trees for 

the protection of human life or property 

shall be excepted from the take 

prohibition. 

Public Comments 

To allow the public to comment 

simultaneously on this proposed 

species-specific 4(d) rule and the 

proposed listing rule, we also announce 


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2372 Federal Register / Vol. 80, No. 11 / Friday, January 16, 2015 / Proposed Rules 

the reopening of the comment period on 

the Service’s October 2, 2013, proposed 

rule to list the northern long-eared bat 

as an endangered species under the Act. 

If the result of our final listing 

determination concludes that threatened 

species status is appropriate for the 

northern long-eared bat, we intend to 

finalize the species-specific 4(d) rule 

with the final listing rule. Therefore, we 

request comments or information from 

other concerned Federal and State 

agencies, the scientific community, or 

any other interested party concerning 

the proposed listing and the proposed 

4(d) rule. We also are seeking peer 

review comments from knowledgeable 

individuals with scientific expertise to 

review our analysis of the best available 

science and application of that science 

and to provide any additional scientific 

information to improve this proposed 

rule. We will consider all comments and 

information received during our 

preparation of a final determination on 

the status of the species and the rule 

under section 4(d) of the Act, if 

threatened status is determined. 

Accordingly, if our final decision is to 

list the species as a threatened species, 

and we determine that it is necessary 

and advisable to promulgate a species 

specific 4(d) rule under the Act, any 

4(d) rule we finalize may differ from 

this proposal based on specific public 

comments and any new information that 

may become available. 

With regard to the proposed 4(d) rule, 

we particularly seek comments 

regarding: 

(1) Whether measures outlined in this 

proposed rule under section 4(d) of the 

Act are necessary and advisable for the 

conservation and management of the 

northern long-eared bat. 

(2) Whether it may be appropriate to 

except incidental take as a result of 

other categories of activities beyond 

those covered in this proposed rule and, 

if so, under what conditions and with 

what conservation measures. 

(3) Whether the Service should 

modify the portion of this rule under 

section 4(d) of the Act that defines how 

the portion of the northern long-eared 

bat range will be identified as the ‘‘WNS 

buffer zone.’’ We are seeking comments 

regarding the factors and process we 

used to delineate where on the ground 

we believe WNS is likely affecting the 

northern long-eared bat and whether 

that delineation should incorporate 

political boundaries (e.g., county lines) 

for ease in describing the delineated 

area to the public. 

(4) Additional provisions the Service 

may wish to consider for a rule under 

section 4(d) of the Act in order to 

conserve, recover, and manage the 

northern long-eared bat. 

Please note that comments merely 

stating support for or opposition to the 

actions 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 a threatened or endangered 

species must be made ‘‘solely on the 

basis of the best scientific and 

commercial data available.’’ 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in 

ADDRESSES. We request that you send 

comments only by the methods 

described in ADDRESSES. 

If you submit information via http:// 

www.regulations.gov, your entire 

submission—including any personal 

identifying information—will be posted 

on the Web site. 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 http://www.regulations.gov. Please 

include sufficient information with your 

comments to allow us to verify any 

scientific or commercial information 

you include. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection 

on http://www.regulations.gov, or by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, Midwest Regional Office (see 

FOR FURTHER INFORMATION CONTACT). 

Previous Federal Actions 

For a complete list of previous 

Federal actions, see the proposed rule to 

list the northern long-eared bat (78 FR 

61046). On October 2, 2013, we 

published in the Federal Register a 

proposed rule to list the northern longeared bat as an endangered species 

under the Act. The proposed rule had a 

60-day comment period, ending on 

December 2, 2013. On December 2, 

2013, we extended this comment period 

through January 2, 2014 (78 FR 72058). 

On June 30, 2014, we announced a 6- 

month extension of the final 

determination on the proposed listing 

rule for northern long-eared bat, and we 

reopened the public comment period on 

the proposed rule for 60 days, until 

August 29, 2014 (79 FR 36698). On 

November 18, 2014, we again opened 

the comment period for an additional 30 

days, which closed on December 18, 

2014 (79 FR 68657). During the 

comment period we received one 

request for a public hearing, which was 

held in Sundance, Wyoming, on 

December 2, 2014. 

Background 

On October 2, 2013, the Service 

proposed to list the northern long-eared 

bat as an endangered species. To date, 

we solicited public comment on this 

proposal on three separate occasions, 

totaling 180 days. Through these public 

comment periods, we received 

numerous comments and additional 

information suggesting we evaluate 

listing the northern long-eared bat as a 

threatened species with a speciesspecific rule under section 4(d) of the 

Act excepting specific forms of take. 

The Service has not yet made a final 

listing decision regarding the status of 

the northern long-eared bat (e.g., not 

warranted, threatened, or endangered); 

however, in our review of public 

comments we did determine that if 

threatened status is warranted, a 

species- specific rule under section 4(d) 

of the Act rule may be advisable. 

Therefore, this document consists of: (1) 

A proposed rule under section 4(d) of 

the Endangered Species Act of 1973, as 

amended (Act; 16 U.S.C. 1531 et seq.), 

that outlines the prohibitions, and 

exceptions to those prohibitions, 

necessary and advisable to provide for 

the conservation of the northern longeared bat; and (2) a reopening of the 

comment period for the proposed rule to 

list the northern long-eared bat as an 

endangered species under the Act. 

Unlike the Act’s provisions regarding 

endangered species, the Act does not 

specify particular prohibitions, or 

exceptions to those prohibitions, for 

threatened species. Instead, under 

section 4(d) of the Act, the Secretary of 

the Interior has the discretion to issue 

such regulations as she deems necessary 

and advisable to provide for the 

conservation of such species, including 

discretion to prohibit by regulation, 

with respect to any threatened species, 

any act prohibited under section 9(a)(1) 

of the Act. By delegation from the 

Secretary, the Service has exercised this 

discretion to promulgate regulations 

that apply general take and other 

prohibitions (50 CFR 17.31) to 

threatened species, while allowing 

exceptions to those prohibitions as 

authorized by permit (50 CFR 17.32). 

Alternately, the Service may issue a rule 

under section 4(d) of the Act that 

establishes specific prohibitions and 

exceptions that are tailored to the 

specific conservation needs of a 

particular species (see 50 CFR 17.31(c)). 


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In such cases, some of the prohibitions 

and authorizations under 50 CFR 17.31 

and 17.32 may be appropriate for the 

species and incorporated into the rule, 

but the 4(d) rule will also include 

provisions that are tailored to the 

specific conservation needs of the 

threatened species and may be more or 

less restrictive than the general 

provisions at 50 CFR 17.31. The final 

species-specific 4(d) rule will contain 

all the applicable prohibitions and 

exceptions. 

This document discusses only those 

topics directly relevant to the proposed 

4(d) rule for the northern long-eared bat. 

For more information on the northern 

long-eared bat and its habitat, please 

refer to the October 2, 2013, proposed 

listing rule, (78 FR 61046), which is 

available online at http://

www.regulations.gov (at Docket Number 

FWS–R5–ES–2011–0024) or from the 

Midwest Regional Office (see FOR

FURTHER INFORMATION CONTACT). 

Provisions of the Proposed 4(d) Rule for 

the Northern Long-Eared Bat 

Under section 4(d) of the Act, the 

Secretary may publish a species-specific 

rule that modifies the standard 

protections for threatened species with 

prohibitions and exceptions tailored to 

the conservation of the species that are 

determined to be necessary and 

advisable. Under this proposed 4(d) 

special rule, the Service proposes that 

all of the prohibitions under 50 CFR 

17.31 and 17.32 will apply to the 

northern long-eared bat and are 

necessary and advisable to provide for 

the conservation of the species, except 

as noted below. The proposed rule 

under section 4(d) of the Act will not 

remove, or alter in any way, the 

consultation requirements under section 

7 of the Act. 

As discussed in the October 2, 2013, 

proposed rule (78 FR 61046), the 

primary factor supporting the proposed 

determination of endangered species 

status for the northern long-eared bat is 

the disease, white-nose syndrome 

(WNS). We further determined that 

other threat factors, including forest 

management activities, wind-energy 

development, habitat modification, 

destruction and disturbance, and other 

threats may have cumulative effects to 

the species in addition to WNS; 

however, they have not independently 

caused significant, population-level 

effects on the northern long-eared bat. 

Based upon information received during 

public comment periods, we are 

reanalyzing the species status to 

determine if listing as threatened is 

appropriate. Therefore, we are 

proposing this rule under section 4(d) of 

the Act and seeking public review and 

comment on it so in the event we 

determine that the northern long-eared 

bat meets the definition of a threatened 

species instead of an endangered 

species we can finalize this 4(d) rule, 

which provides exceptions to the 

prohibitions for some of these activities 

that cause cumulative effects, as we 

deem necessary and advisable for the 

conservation of the species concurrently 

with our final listing determination. 

We conclude that certain activities 

described in this section of the 

preamble, when conducted in 

accordance with the conservation 

measures identified herein, will provide 

protection for the northern long-eared 

bat during its most sensitive life stages. 

These activities are: Forest management 

activities, subject to certain time 

restrictions, maintenance and minimal 

expansion of existing rights-of-way and 

transmission corridors (also subject to 

certain restrictions), native prairie 

management, other projects resulting in 

minimal tree removal, hazard tree 

removal, removal of bats from and 

disturbance within human structures, 

and capture, handling, attachment of 

radio transmitters, and tracking 

northern long-eared bats for a 1-year 

period following the effective date of the 

final rule. The Service proposes that 

incidental take that is caused by these 

activities implemented on private, State, 

tribal, and Federal lands will not be 

prohibited provided those activities 

abide by the conservation measures in 

the rule and are otherwise legal and 

conducted in accordance with 

applicable State, Federal, tribal, and 

local laws and regulations. 

Buffer Zone Around WNS and 

Pseudogymnoascus destructans (the 

Fungus That Causes WNS) Positive 

Counties (WNS Buffer Zone) 

Currently, not all of the range of 

northern long-eared bat is affected by 

WNS. In the proposed listing (78 FR 

61046), the Service concluded that the 

proposed status determination of 

endangered species was primarily based 

on the impacts from WNS, and that the 

other threats, when acting on the 

species alone, were not causing the 

species to be in danger of extinction. 

Given this information, the Service 

proposes that while all purposeful take 

will be prohibited with the exception of 

removal of bats from human dwellings 

and survey and research efforts 

conducted within a 1-year period 

following the effective date of the final 

rule. All other take incidental to other 

lawful activities will be allowed in 

those areas of the northern long-eared 

bat range not in proximity to 

documented occurrence of WNS or 

Pseudogymnoascus destructans, as 

identified by the Service. 

Currently, WNS is mainly detected by 

surveillance at bat hibernacula. Thus, 

our direct detection of the disease is 

limited largely to wintering bat 

populations in the locations where they 

hibernate. However, bats are known to 

leave hibernacula and travel great 

distances, sometimes hundreds of miles, 

to summer roosts. Therefore, the 

impacts of the disease are not limited to 

the immediate vicinity around bat 

hibernacula, but have an impact on a 

landscape scale. For northern long-eared 

bats, as with all species, this means that 

the area of influence of WNS is much 

greater than the counties known to 

harbor affected hibernacula, resulting in 

impacts to a much larger section of the 

species’ range. To fully represent the 

extent of WNS, we must also include 

these summer areas. 

Overall, northern long-eared bats are 

not considered to be long-distance 

migrants, typically dispersing 40–50 

miles (64–80 kilometers) from their 

hibernacula. However, other bat species 

that disperse much further distances are 

also vectors for WNS spread and may 

transmit the disease to northern longeared bat populations. It has been 

suggested that the little brown bat 

(Myotis lucifugus), in particular, be 

considered a likely source of WNS 

spread across eastern North America. 

Little brown bats tend to migrate greater 

distances, particularly in the western 

portions of their range, with distances 

up to 350 miles (563 km) or more 

recorded (See Ellison 2008, p. 21; 

Norquay et al. 2013, p. 510). In a recent 

study, reporting on bat band recoveries 

of little brown bats over a 21-year 

period, Norquay et al. (2013, pp. 509– 

510) describe recaptures between 

hibernacula and summer roosts with a 

maximum distance of 344 miles (554 

km) and a median distance of 288 miles 

(463 km). 

For the purpose of this rule, the 

portion of the northern long-eared bat 

range that is considered to be affected 

by WNS is that area within 150 miles 

(241 km) of the boundary of U.S. 

counties or Canadian districts where the 

fungus Pseudogymnoascus destructans 

or WNS has been detected. We 

acknowledge that 150 miles (241 km) 

does not capture the full range of 

potential WNS infection, but represents 

a compromise distance between the 

known migration distances of northern 

long-eared bats and little brown bats 

that is suitable for our purpose of 

estimating the extent of WNS infection 

on the northern long-eared bat. 

Anywhere outside of the geographic 


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area defined by these parameters, 

northern long-eared bat populations will 

not be considered to be experiencing the 

impacts of WNS. 

The Service proposes to define the 

term ‘‘WNS buffer zone’’ as the portion 

of the range of the northern long-eared 

bat within 150 miles of the boundaries 

of U.S. counties or Canadian districts 

where the fungus Pseudogymnoascus 

destructans or WNS has been detected. 

For purposes of this proposed 4(d) 

rule, coordination with the local Service 

Ecological Services field office is 

recommended to determine whether 

specific locations fall within the WNS 

buffer zone. For more information about 

the current known extent of WNS and 

150-mile (241-km) buffer, please see 

http://www.fws.gov/midwest/

endangered/mammals/nlba/. 

Conservation Measures 

The Service proposes that take 

incidental to certain activities 

conducted in accordance with the 

following habitat conservation 

measures, as applicable, will not be 

prohibited (i.e., excepted from the 

prohibitions): 

(i) Occur more than 0.25 mile (0.4 km) 

from a known, occupied hibernacula; 

(ii) Avoid cutting or destroying 

known, occupied maternity roost trees 

during the pup season (June 1–July 31); 

and 

(iii) Avoid clearcuts within 0.25 (0.4 

km) mile of known, occupied maternity 

roost trees during the pup season (June 

1–July 31). 

Note that activities that may cause 

take of northern long-eared bat that do 

not use these conservation measures 

may still be done, but only after 

consultation with the Service. This 

means that, while the resulting take 

from such activities is not excepted by 

this rule, the take may be authorized 

through other means provided in the 

Act (i.e., section 7 consultation or an 

incidental take permit). 

For purposes of this proposed rule 

and the conservation measures listed 

above, coordination with the local 

Service Ecological Services field office 

is recommended to determine the 

specific locations of the ‘‘known 

hibernacula’’ and ‘‘known maternity 

roosts.’’ These locations will be 

informed by records in each State’s 

Natural Heritage database, Service 

records, other databases, or other survey 

efforts. Hibernacula are generally 

defined as locations where one or more 

northern long-eared bats have been 

detected during hibernation or outside 

during staging or swarming. Similarly, 

maternity roosts are generally defined 

through roost records in each State’s 

Natural Heritage database, Service 

records, other databases, or other survey 

efforts for northern long-eared bat or 

other bat species. 

These conservation measures aim to 

protect the northern long-eared bat 

during its most sensitive life stages. 

Hibernacula are an essential habitat and 

should not be destroyed or modified 

(any time of year). In addition, there are 

periods of the year when northern longeared bats are concentrated at and 

around their hibernacula (fall, winter, 

and spring). Northern long-eared bats 

are susceptible to disruptions near 

hibernacula in the fall, when they 

congregate to breed and increase fat 

stores, which are depleted from 

migration, before entering hibernation. 

During hibernation, northern long-eared 

bat winter colonies are susceptible to 

direct disturbance. Briefly in spring, 

northern long-eared bats yet again use 

the habitat surrounding hibernacula to 

increase fat stores for migration to their 

summering grounds. This feeding 

behavior is particularly important for 

the females, who must obtain enough fat 

stores to carry not only themselves, but 

also their unborn pups, to their summer 

home range. In the summer maternity 

season, northern long-eared bat 

maternity colonies are especially 

vulnerable during the time after the 

pups are born, but before pups are able 

to fly (the non-volant period or pup 

season). During this time, pups are 

unable to flee danger without the 

assistance of their mothers, thus 

increasing the potential for activities 

affecting maternity roosts to kill and 

injure individual bats. Once the pups 

can fly, this risk is reduced because the 

pups will have the ability to flee their 

roost if it is being cut or otherwise 

damaged, potentially avoiding harm, 

injury, or mortality. 

The Service concludes that a 0.25- 

mile (0.4-km) buffer should be sufficient 

to protect most known, occupied 

hibernacula and hibernating colonies. 

This buffer will provide basic protection 

for the hibernacula and hibernating bats 

in winter from direct impacts, such as 

filling, excavation, blasting, noise, and 

smoke exposure. This buffer will also 

protect some roosting and foraging 

habitat around the hibernacula. 

Northern long-eared bats have been 

found up to 8.2 miles (13.2 km) from 

their hibernacula during the fall, 

although the majority of roosts were 

within 1.6 miles (2.6 km) (Lowe 2012, 

p. 32), using habitat within that area for 

roosting, foraging, and swarming. 

However, given that northern long-eared 

bats are not locally abundant and 

compose a small proportion of the total 

number of bats in any given 

hibernaculum (Barbour and Davis 1969, 

p. 77; Mills 1971, p. 625; Caire et al. 

1979, p. 405; Caceres and Barclay 2000, 

pp. 2–3) and the species is rarely 

recorded in concentrations of more than 

100 in a single hibernaculum (Barbour 

and Davis, 1969, p. 77), we do not 

expect that all of the habitat around a 

hibernaculum would be necessary for 

these purposes. Therefore, our best 

judgment is that protection of the 

habitat within 0.25 mile (0.4 km) of 

hibernacula should provide sufficient 

habitat to meet the needs of most 

hibernating populations. 

The Service concludes that, in 

addition to preservation of actual 

known maternity roosts, a 0.25-mile 

(0.4-km) buffer for all clearcutting 

activities will be sufficient to protect the 

habitat surrounding known maternity 

roosts during the pup season. This 

buffer will prevent the cutting of known 

occupied maternity roost trees during 

the pup season from clearcutting 

activities and protect some habitat for 

known maternity colonies. Northern 

long-eared bats in the summer have an 

approximate average maximum foraging 

distance of 1.5 miles (2.4 km) from a 

roost tree (Sasse and Perkins, 1996, p. 

95; Badin, 2014, p. 76), and average 

home range size has been documented 

between 44–460 acres (Lacki et al. 2009, 

p. 1169; Owen et al. 2003, p. 353; Carter 

and Feldhamer 2005, p. 264). Based on 

this information, our best judgment is 

that the amount of land within 0.25 mile 

(0.4 km) of a maternity roost, or 128 

acres, will provide sufficient roosting, 

foraging, and commuting habitat to 

sustain most colonies for the duration of 

the pup season. 

Forest Management 

The Service proposes that incidental 

take that is caused by forest 

management, when carried out in 

accordance with the conservation 

measures, will not be prohibited. Forest 

management includes the suite of 

activities used to maintain and manage 

forest ecosystems, including, but not 

limited to, timber harvest and other 

silvicultural treatments, prescribed 

burning, invasive species control, 

wildlife openings, and temporary roads. 

Such activities should also adhere to 

any applicable State water quality best 

management practices, where they exist. 

Although forest ecosystems may include 

non-forested land cover types, such as 

wetlands and upland openings, this 

category of activities generally 

maintains forested landcover. We do not 

consider conversion of a mixed forest 

into an intensively managed 

monoculture pine plantation as forest 

management covered under this 


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proposed rule, as typically these types 

of monoculture pine plantations provide 

very poor-quality bat habitat. 

Where northern long-eared bats are 

present when these forest management 

activities are performed, bats could be 

exposed to habitat alteration or loss or 

direct disturbance (i.e., heavy 

machinery) or removal of maternity 

roost trees (i.e., harvest). In general, 

however, the northern long-eared bat is 

considered to have more flexible habitat 

requirements than other bat species 

(Carter and Feldhamer 2005, pp. 265– 

266; Timpone et al. 2010, pp. 120–121), 

and most types of forest management 

should provide suitable habitat for the 

species over the long term (with the 

exception of conversion to monoculture 

pine forest, as discussed above). Based 

upon information obtained during 

previous comment periods on the 

proposed rule to list the bat as an 

endangered species, approximately 2 

percent of forests in States within the 

range of the northern long-eared bat are 

impacted by forest management 

activities annually (Boggess et al, 2014, 

p. 9). Of this amount, in any given year 

a smaller fraction of forested habitat is 

impacted during the active season when 

pups and female bats are most 

vulnerable. These impacts are addressed 

by the above conservation measures 

proposed for inclusion in this rule. 

Therefore, we anticipate that habitat 

modifications resulting from activities 

that manage forests would not 

significantly affect the conservation of 

the northern long-eared bat. Further, 

although activities performed during the 

species’ active season (roughly April 

through October) may directly kill or 

injure individuals, implementation of 

the conservation measures provided for 

in the proposed rule will limit overall 

take by protecting currently known 

populations during their more 

vulnerable life stages. 

Maintenance and Limited Expansion of 

Existing Rights-of-Way and 

Transmission Corridors 

The Service proposes that incidental 

take that is caused by activities for the 

purpose of maintenance and limited 

expansion of existing rights-of-way and 

transmission corridors, when carried 

out in accordance with the conservation 

measures, will not be prohibited (i.e., 

will be excepted from the prohibitions). 

Rights-of-way (ROW) and transmission 

corridors are in place for activities such 

as transportation (i.e., highways, 

railways), utility transmission lines, and 

energy delivery (pipelines), though they 

are not limited to just these types of 

corridors. The Service proposes that 

take of the northern long-eared bat will 

not be prohibited provided the take is 

incidental to activities within the 

following categories: 

(1) Routine maintenance within an 

existing corridor or ROW, carried out in 

accordance with the previous described 

conservation measures. 

(2) Expansion of a corridor or ROW by 

up to 100 feet (30 m) from the edge of 

an existing cleared corridor or ROW, 

carried out in accordance with the 

previously described conservation 

measures. 

General routine maintenance is 

designed to limit vegetation growth, 

within an existing footprint, so that 

operations can continue smoothly. 

These activities may include tree 

trimming or removal, mowing, and 

herbicide spraying. However, depending 

on the purpose of the corridor or ROW, 

maintenance may only be performed 

infrequently and trees and shrubs may 

encroach into, or be allowed to grow 

within, the ROW until such a time as 

maintenance is required. Expansion of 

these areas requires removal of 

vegetation along the existing ROW to 

increase capacity (e.g., road widening). 

Northern long-eared bats can occupy 

various species and sizes of trees when 

roosting. Because of their wide variety 

of habitat use when roosting and 

foraging, it is possible that they may be 

using trees within or near existing 

ROWs. Therefore, vegetation removal 

within or adjacent to an existing ROW 

may remove maternity roost trees and 

foraging habitat. Individuals may also 

temporarily abandon the areas, avoiding 

the physical disturbance until the work 

is complete. While ROW corridors can 

be large in overall distance, due to the 

small scale of the habitat alteration 

involved in maintenance of the existing 

footprint, potential take is limited. No 

new forest fragmentation is expected as 

this expands existing open corridors. 

We also expect that excepting take 

prohibitions from ROW maintenance 

and limited expansion will encourage 

co-location of new linear projects within 

existing corridors. We conclude that the 

overall impact of ROW maintenance and 

limited expansion activities is not 

expected to adversely affect 

conservation and recovery efforts for the 

species. 

Prairie Management 

The Service proposes that incidental 

take that is caused by activities for the 

purpose of prairie management, when 

carried out in accordance with the 

conservation measures, will not be 

prohibited (i.e., will be excepted from 

the prohibitions). In some areas of the 

northern long-eared bat range, tree and 

shrub species are overtaking prairie 

areas. Landowners and agencies 

working to establish or conserve prairies 

have to remove trees and brush in order 

to maintain grasslands. Maintenance 

activities include cutting, mowing, 

burning, or herbicide use on woody 

vegetation to minimize encroachment 

into prairies (Grassland Heritage 

Foundation Web site, accessed 

December 23, 2014). If these prairies are 

not managed, they can eventually 

become shrub or forest lands sometimes 

in as few as 40 years (Briggs et al. 2002 

and Ratajczak et. al 2001). We conclude 

that the overall impact of prairie 

management is not expected to 

adversely affect conservation and 

recovery efforts for the species. 

Projects Resulting in Minimal Tree 

Removal 

The Service proposes that incidental 

take that results from projects causing 

minimal tree removal, when carried out 

in accordance with the conservation 

measures, will not be prohibited (i.e., 

will be excepted from the prohibitions). 

Throughout the millions of acres of 

forest habitat in the northern long-eared 

bat range, many activities involve 

cutting or removal of individual or 

limited numbers of trees, but do not 

significantly change the overall nature 

and function of the local forested 

habitat. Some of these activities include 

firewood cutting, shelterbelt renovation, 

removal of diseased trees, tree removal 

for other small projects (i.e., culvert 

replacement), habitat restoration for fish 

and wildlife conservation, and backyard 

landscaping. These ongoing activities 

can occur throughout the northern longeared bat range, but we do not believe 

they materially affect the local forest 

habitat for this species and in some 

cases increase habitat availability in the 

long term. We conclude that the overall 

impact of projects causing minimal tree 

removal is not expected to adversely 

affect conservation and recovery efforts 

for the species. 

Hazardous Tree Removal 

The Service proposes that incidental 

take that is caused by removal and 

management of hazardous trees will not 

be prohibited (i.e., will be excepted 

from the prohibitions). Removal of 

hazardous trees is typically done as 

deemed necessary for human safety or 

for the protection of human facilities. 

Hazardous trees typically have defects 

in their roots, trunk, or branches that 

make them likely to fall, with the 

likelihood of causing personal injury or 

property damage. The limited removal 

of these hazardous trees may be widely 

dispersed but limited, and should result 

in very minimal incidental take of 


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2376 Federal Register / Vol. 80, No. 11 / Friday, January 16, 2015 / Proposed Rules 

northern long-eared bat. Therefore, the 

Service proposes that take incidental to 

the removal of hazardous trees will not 

be prohibited. We recommend that, 

wherever possible, removal of 

hazardous trees be done during the 

winter, when these trees will not be 

occupied by bats. We conclude that the 

overall impact of removing hazardous 

trees is not expected to adversely affect 

conservation and recovery efforts for the 

species. 

Removal of Bats From and Disturbance 

Within Human Dwellings 

The Service proposes that take that is 

caused by removal of bats from and 

disturbance within human dwellings 

will not be prohibited (i.e., will be 

excepted from the prohibitions), 

provided those actions comply with all 

applicable State laws. Northern longeared bats have further been 

documented roosting in human-made 

structures, such as buildings, barns, a 

park pavilion, sheds, cabins, under 

eaves of buildings, behind window 

shutters, and in bat houses (Mumford 

and Cope 1964, p. 72; Barbour and 

Davis 1969, p. 77; Cope and Humphrey 

1972, p. 9; Amelon and Burhans 2006, 

p. 72; Whitaker and Mumford 2009, p. 

209; Timpone et al. 2010, p. 119; Joe 

Kath 2013, pers. comm.). We conclude 

that the overall impact of bat removal 

from human dwellings is not expected 

to adversely affect conservation and 

recovery efforts for the species. In 

addition, we provide the following 

recommendations: 

(A) Minimize use of pesticides (e.g., 

rodenticides) and avoid use of sticky 

traps in and around structures with 

roosting bats. 

(B) If bats (of any species) are using 

structures (e.g., barns or other 

outbuildings) as roosts, and these 

structures are proposed for removal, 

removal should be performed outside of 

the summer maternity season, unless 

there are human health or safety 

concerns associated with the structure. 

Contact a nuisance wildlife specialist 

for humane exclusion techniques. 

Capture, Handling, Attachment of Radio 

Transmitters, and Tracking Northern 

Long-Eared Bats for 1 Year 

For a limited period of 1 year from the 

effective date of this rule, the Service 

proposes that purposeful take that is 

caused by the authorized capture, 

handling, attachment of radio 

transmitters, and tracking of northern 

long-eared bats by individuals permitted 

to conduct these same activities for 

other listed bats will be excepted from 

the prohibitions. One method of 

determining presence/probable absence 

of northern long-eared bats is to conduct 

mist-netting at summer sites or harp 

trapping at hibernacula. Gathering of 

this information is essential to monitor 

the distribution and status of northern 

long-eared bats over time. In addition, 

northern long-eared bats are often 

captured incidentally to survey and 

study efforts targeted at other bat 

species (e.g., Indiana bats). It is 

necessary and advisable for the 

conservation of northern long-eared bats 

to provide an exception for the 

purposeful take associated with these 

normal survey activities conducted by 

qualified individuals to promote and 

encourage the gathering of information 

following standard procedures 

(including decontamination) as these 

data will help us conserve and recover 

this species. To receive an exception, 

proponents must have an existing 

research permit under section 

10(a)(1)(A) of the Act (or similar State 

collector’s permit applications in the 

northeast region of the Service) for other 

listed bat species. The rationale for this 

limited time period is that a final listing 

decision is expected at the start of the 

bat field season, and it will be difficult 

to amend all permits in time for this 

year. 

The Service concludes, for the reasons 

specified above, that all of the 

conservation measures, prohibitions, 

and exceptions identified herein 

individually and cumulatively are 

necessary and advisable for the 

conservation of the northern long-eared 

bat and will promote the conservation of 

the species across its range. 

Table 1 (below) summarizes the 

details of the species-specific proposed 

4(d) rule for the northern long-eared bat. 

Is the area 

affected by 

WNS 

(WNS 

buffer 

zone)? 

Take prohibitions at 50 

CFR 17.31 and 17.32 

Take exceptions 

Purposeful Incidental 

No ............ All apply, with the following exceptions listed here.Actions with the intent to remove northern longeared bats from within human dwellings and 

that comply with all applicable State regulations.

Any incidental take of northern long-eared bats resulting from otherwise lawful activities. 

Actions relating to capture, handling, attachment 

of radio transmitters, and tracking of northern 

long-eared bats by individuals permitted to conduct these same activities for other bats, for a 

period of 1 year following the effective date of 

the final rule.

Yes .......... All apply, with the following exceptions listed here.Actions with the intent to remove northern longeared bats from within human dwellings and 

that comply with all applicable State regulations.

Implementation of forest management, maintenance and expansion of existing rights-of-way 

and transmission corridors, native prairie management, and minimal tree removal projects 

that: 

• Occur more than 0.25 mile (0.4 km) from a 

known, occupied hibernacula; 

• avoid cutting or destroying known, occupied maternity roost trees during the pup season (June 

1–July 31); and 

• avoid clearcuts within 0.25 (0.4 km) miles of 

known, occupied maternity roost trees during 

the pup season (June 1–July 31). 


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Federal Register / Vol. 80, No. 11 / Friday, January 16, 2015 / Proposed Rules 2377 

Is the area 

affected by 

WNS 

(WNS 

buffer 

zone)? 

Take prohibitions at 50 

CFR 17.31 and 17.32 

Take exceptions 

Purposeful Incidental 

Actions relating to capture, handling, attachment 

of radio transmitters, and tracking of northern 

long-eared bat by individuals permitted to conduct these same activities for other bats, for a 

period of 1 year following the effective date of 

the final rule.

Removal of hazard trees for the protection of 

human life and property. 

Peer Review 

In accordance with our joint policy 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), we will seek 

the expert opinions of at least three 

appropriate and independent specialists 

regarding this proposed rule. The 

purpose of such review is to ensure that 

our determination of status for this 

species is based on scientifically sound 

data, assumptions, and analyses. We 

will send peer reviewers copies of this 

proposed rule concurrent with 

publication in the Federal Register. We 

will invite these peer reviewers to 

comment, during the reopening of the 

public comment period, on our use and 

interpretation of the science used in 

developing our proposed rule to list the 

northern long-eared bat and this 

proposed rule under section 4(d) of the 

Act. 

We will consider all comments and 

information we receive during the 

comment period on this proposed rule 

during preparation of a final 

rulemaking. Accordingly, the final 

decision may differ from this proposal. 

Required Determinations 

Clarity of the Rule 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: (a) Be logically organized; 

(b) use the active voice to address 

readers directly; (c) use clear language 

rather than jargon; (d) be divided into 

short sections and sentences; and (e) use 

lists and tables wherever possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in ADDRESSES. To 

better help us revise the proposed rule, 

your comments should be as specific as 

possible. For example, you should tell 

us the numbers of the sections or 

paragraphs that are unclearly written, 

which sections or sentences are too 

long, the sections where you feel lists or 

tables would be useful, etc. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501, et seq.) 

This rule does not contain any 

collections of information that require 

approval by the Office of Management 

and Budget (OMB) under the Paperwork 

Reduction Act. This rule will not 

impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor and a person is not 

required to respond to a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.) 

We have determined that 

environmental assessments and 

environmental impact statements, as 

defined under the authority of the 

National Environmental Policy Act of 

1969, need not be prepared in 

connection with listing a species as an 

endangered or threatened species under 

the Endangered Species Act. We 

published a notice outlining our reasons 

for this determination in the Federal 

Register on October 25, 1983 (48 FR 

49244). We intend to incorporate this 

proposed rule under section 4(d) of the 

Act into our final determination 

concerning the listing of the species or 

withdrawal of the proposal if new 

information is provided that supports 

that decision. 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994 

(Government-to-Government Relations 

with Native American Tribal 

Governments; 59 FR 22951), Executive 

Order 13175 (Consultation and 

Coordination with Indian Tribal 

Governments), and the Department of 

the Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. In 

accordance with Secretarial Order 3206 

of June 5, 1997 (American Indian Tribal 

Rights, Federal–Tribal Trust 

Responsibilities, and the Endangered 

Species Act), we readily acknowledge 

our responsibilities to work directly 

with tribes in developing programs for 

healthy ecosystems, to acknowledge that 

tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to tribes. 

By letter dated July 29, 2014, we 

contacted known federally recognized 

tribal governments throughout the 

historical range of the northern longeared bat. We sought their input on our 

development of a proposed rule to list 

the northern long-eared bat and 

encouraged them to contact the Midwest 

Regional Office or Regional Native 

American contacts if any portion of our 

request was unclear or to request 

additional information. We did not 

receive any comments regarding this 

request. 

References Cited 

A complete list of all references cited 

in this proposed rule is available on the 

Internet at http://www.regulations.gov at 

Docket No. FWS–R5–ES–2011–0024 or 

upon request from the Endangered 

Species Chief, Midwest Regional Office 

(see FOR FURTHER INFORMATION CONTACT). 

Authors 

The primary authors of this proposed 

rule are the staff members of the 

Midwest Regional Office (see FOR

FURTHER INFORMATION CONTACT). 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, and 

Transportation. 

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 

at 78 FR 61046 (October 2, 2013) as 

follows: 


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2378 Federal Register / Vol. 80, No. 11 / Friday, January 16, 2015 / Proposed Rules 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

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

1544; 4201–4245; unless otherwise noted. 

■ 2. Amend § 17.11(h) by adding an 

entry for ‘‘Bat, northern long-eared’’ to 

the List of Endangered and Threatened 

Wildlife in alphabetical order under 

Mammals to read as set forth below: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species 

Historic range 

Vertebrate 

population 

where endangered or 

threatened 

Status When 

listed 

Critical 

habitat 

Special 

rules Common name Scientific name 

MAMMALS

* * * * * * * 

Bat, northern long-eared .. (Myotis septentrionalis) ... U.S.A. (AL, AR, CT, DE, 

DC, GA, IL, IN, IA, KS, 

KY, LA, ME, MD, MA, 

MI, MN, MS, MO, MT, 

NE, NH, NJ, NY, NC, 

ND, OH, OK, PA, RI, 

SC, SD, TN, VT, VA, 

WV, WI, WY); Canada 

(AB, BC, LB, MB, NB, 

NF, NS, NT, ON, PE, 

QC, SK, YT).

Entire ........... T ................ NA 17.40(n) 

*******

■ 3. Amend § 17.40 by adding paragraph 

(n) to read as follows: 

§ 17.40 Special rules—mammals. 

* * * * * 

(n) Northern long-eared bat (Myotis 

septentrionalis). The provisions of this 

rule are based upon the occurrence of 

white-nose syndrome (WNS), a disease 

affecting many U.S. bat populations. 

The term ‘‘WNS buffer zone’’ identifies 

the portion of the range of the northern 

long-eared bat within 150 miles of the 

boundaries of U.S. counties or Canadian 

districts where the fungus 

Pseudogymnoascus destructans or WNS 

has been detected. For current 

information regarding the WNS buffer 

zone, contact your local Service field 

office. Field office contact information 

may be obtained from the Service 

regional offices, the addresses of which 

are listed in 50 CFR 2.2. 

(1) Outside the WNS buffer zone, the 

following provisions apply to the 

northern long-eared bat: 

(i) Prohibitions. Except as noted in 

paragraphs (n)(1)(ii)(A) and (B) of this 

section, all the prohibitions and 

provisions of §§ 17.31 and 17.32 apply 

to the northern long-eared bat. 

(ii) Exceptions from prohibitions. 

(A) Purposeful take: 

(1) Take resulting from actions taken 

to remove northern long-eared bats from 

within human dwellings, if the actions 

comply with all applicable State 

regulations. 

(2) Take resulting from actions 

relating to capture, handling, 

attachment of radio transmitters, and 

tracking of northern long-eared bats by 

individuals permitted to conduct these 

same activities for other species of bat 

listed in § 17.11(h) until [INSERT DATE 

1 YEAR AFTER EFFECTIVE DATE OF 

FINAL RULE]. 

(B) Any incidental (non-purposeful) 

take of northern long-eared bats 

resulting from otherwise lawful 

activities. 

(2) Inside the WNS buffer zone, the 

following provisions apply to the 

northern long-eared bat: 

(i) Prohibitions. Except as noted in 

paragraphs (n)(2)(ii)(A) and (B) of this 

section, all prohibitions and provisions 

of §§ 17.31 and 17.32 apply to the 

northern long-eared bat. 

(ii) Exceptions from prohibitions. 

Take of northern long-eared bat is not 

prohibited in the following 

circumstances: 

(A) Purposeful take: 

(1) Take resulting from actions taken 

to remove northern long-eared bats from 

within human dwellings, if the actions 

comply with all applicable State 

regulations. 

(2) Take resulting from actions 

relating to capture, handling, 

attachment of radio transmitters, and 

tracking of northern long-eared bats by 

individuals permitted to conduct these 

same activities for other species of bat 

listed in § 17.11(h) until [INSERT DATE 

1 YEAR AFTER EFFECTIVE DATE OF 

FINAL RULE]. 

(B) Incidental take: 

(1) Implementation of forest 

management, maintenance and 

expansion of existing rights-of-way and 

transmission corridors, native prairie 

management, and minimal tree removal 

projects that: 

(i) Occur more than 0.25 mile (0.4 km) 

from a known, occupied hibernacula; 

(ii) Avoid cutting or destroying 

known, occupied maternity roost trees 

during the pup season (June 1–July 31); 

and 

(iii) Avoid clearcuts within 0.25 (0.4 

km) mile of known, occupied maternity 

roost trees during the pup season (June 

1–July 31). 

(2) Removal of hazardous trees for the 

protection of human life and property. 

* * * * * 

Dated: January 12, 2015. 

Daniel M. Ashe, 

Director, U.S. Fish and Wildlife Service. 

[FR Doc. 2015–00644 Filed 1–15–15; 8:45 am] 

BILLING CODE 4310–55–P 


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