[Federal Register Volume 81, Number 9 (Thursday, January 14, 2016)]
[Rules and Regulations]
[Pages 1900-1922]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-00617]
=======================================================================
-----------------------------------------------------------------------
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; 4(d) Rule for the
Northern Long-Eared Bat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), finalize a
rule under authority of section 4(d) of the Endangered Species Act of
1973 (Act), as amended, that provides measures that are necessary and
advisable to provide for the conservation of the northern long-eared
bat (Myotis septentrionalis), a bat species that occurs in 37 States,
the District of Columbia, and 13 Canadian Provinces.
DATES: This rule is effective February 16, 2016.
ADDRESSES: This final 4(d) rule, the final environmental assessment,
biological opinion, and list of references are available on the
Internet at http://www.regulations.gov under Docket No. FWS-R5-ES-2011-
0024 and at http://www.fws.gov/midwest/Endangered. Comments and
materials we received, as well as supporting documentation we used in
preparing this final 4(d) rule, are available for public inspection at
http://www.regulations.gov, and by appointment, during normal business
hours at: U.S. Fish and Wildlife Service, Twin Cities Ecological
Services Field Office, 4101 American Blvd. East, Bloomington, MN 55425;
telephone (612) 725-3548, ext. 2201; or facsimile (612) 725-3609.
FOR FURTHER INFORMATION CONTACT: Peter Fasbender, Field Supervisor,
U.S. Fish and Wildlife Service, Twin Cities Ecological Services Field
Office, 4101 American Blvd. East, Bloomington, MN 55425; telephone
(612) 725-3548, ext. 2210; or facsimile (612) 725-3609. 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
The need for the regulatory action and how the action will meet
that need: Consistent with section 4(d) of the Act, this final 4(d)
rule provides measures that are tailored to our current understanding
of the conservation needs of the northern long-eared bat.
On April 2, 2015, we published a document that is both a final rule
to list the northern long-eared bat as a threatened species and an an
interim 4(d) rule to provide measures that are necessary and advisable
to provide for the conservation of the northern long-eared bat. At that
time, we opened a 90-day public comment period on the interim rule, and
we committed to publish a final 4(d) rule by December 31, 2015, and to
complete review pursuant to the National Environmental Policy Act
(NEPA). Previously, on January 16, 2015, we published a proposed 4(d)
rule with a 60-day public comment period. Therefore,we have had two
comment periods totaling 150 days on two versions of the 4(d) rule.
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 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: This
final species-specific 4(d) rule prohibits purposeful take of northern
long-eared bats throughout the species' range, except in instances of
removal of northern long-eared bats from human structures, defense of
human life (including public health monitoring), removal of hazardous
trees for protection of human life and property, and authorized capture
and handling of northern long-eared bats by individuals permitted to
conduct these same activities for other
[[Page 1901]]
bats until May 3, 2016. After May 3, 2016, individuals who wish to
capture and handle northern long-eared bats for recovery purposes will
need a permit pursuant to section 10(a)(1)(A) of the Act.
Incidental take resulting from otherwise lawful activities will not
be prohibited in areas not yet affected by white-nose syndrome (WNS).
WNS is a fungal disease affecting many hibernating U.S. bat species.
Ninety- to one-hundred-percent mortality has been seen in bats affected
by the disease in the eastern United States.
Take of northern long-eared bats in their hibernacula (which
includes caves, mines, and other locations where bats hibernate in
winter) is prohibited in areas affected by WNS, unless permitted under
section 10(a)(1)(A) of the Act. Take of northern long-eared bats inside
of hibernacula may include disturbing or disrupting hibernating
individuals when they are present as well as the physical or other
alteration of the hibernaculum's entrance or environment when bats are
not present if the result of the activity will impair essential
behavioral patterns, including sheltering northern long-eared bats.
For northern long-eared bats outside of hibernacula, we have
established separate prohibitions from take for activities involving
tree removal and activities that do not involve tree removal.
Incidental take of northern long-eared bats outside of hibernacula
resulting from activities other than tree removal is not prohibited.
Incidental take resulting from tree removal is prohibited if it: (1)
Occurs within a 0.25 mile (0.4 kilometer) radius of known northern
long-eared bat hibernacula; or (2) cuts or destroys known occupied
maternity roost trees, or any other trees within a 150-foot (45-meter)
radius from the known maternity tree during the pup season (June 1
through July 31). Incidental take of northern long-eared bats as a
result of the removal of hazardous trees for the protection of human
life and property is also not prohibited.
Peer review and public comment: We sought comments on our proposed
4(d) rule from independent specialists to ensure that this rule is
based on scientifically sound data, assumptions, and analyses. We also
considered all comments and information we received during the comment
periods on the proposed and interim 4(d) rules.
Previous Federal Actions
Please refer to the proposed (78 FR 61046; October 2, 2013) and
final (80 FR17974; April 2, 2015) listing rules for the northern long-
eared bat for a detailed description of previous Federal actions
concerning this species. On January 16, 2015, we published a proposed
4(d) rule (80 FR 2371) for the northern long-eared bat and on April 2,
2015, we published an interim 4(d) rule (80 FR 17974) for this species.
Background
The northern long-eared bat is a wide-ranging species that is found
in a variety of forested habitats in summer and hibernates in caves,
mines, and other locations in winter. WNS is the main threat to this
species and has caused a precipitous decline in bat numbers (in many
cases, 90-100 percent) where the disease has occurred. Declines in the
numbers of northern long-eared bats are expected to continue as WNS
extends across the species' range. For more information on the northern
long-eared bat, its habitat, and WNS, please refer to the October 2,
2013, proposed listing (78 FR 61046) and the April 2, 2015, final
listing (80 FR 17974) rules.
The Act (16 U.S.C. 1531 et seq.) 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. The Secretary also has the discretion to prohibit by
regulation, with respect to any threatened wildlife species, any act
prohibited under section 9(a)(1) of the Act with respect to endangered
species. Exercising this discretion under section 4(d) of the Act, the
Service developed general prohibitions (50 CFR 17.31) and exceptions to
those prohibitions (50 CFR 17.32) under the Act that apply to most
threatened wildlife species.
In addition, for threatened species, under the authority of section
4(d) of the Act, the Service may develop prohibitions and exceptions
that are tailored to the specific conservation needs of the species. In
such cases, some of the prohibitions and authorizations under 50 CFR
17.31 and 17.32 may be appropriate for the species and be incorporated
into a separate, species-specific, rule under section 4(d) of the Act.
These rules 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.
Definitions
This final rule uses several definitions and provisions contained
in the Act and its implementing regulations.
The Act and its implementing regulations (50 CFR part 17) define
take as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture
or collect, or to attempt to engage in any such conduct.
The term ``harass'' (50 CFR 17.3) means 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.
The term ``harm'' (50 CFR 17.3) means an act which actually kills
or injures wildlife. Such act may include significant habitat
modification or degradation where it actually kills or injures wildlife
by significantly impairing essential behavioral patterns, including
breeding, feeding or sheltering.
``Purposeful take'' includes the capture and handling of individual
bats. Take in this manner includes both capture and handling to remove
bats from human structures and take that is for research purposes
(e.g., attaching a radiotracking device). Other purposeful take would
include intentional removal of bats from hibernacula or the intentional
killing or harassing of bats under any circumstance.
``Human structures'' are defined as houses, garages, barns, sheds,
and other buildings designed for human entry.
``Incidental take'' is defined at 50 CFR 17.3 as any taking
otherwise prohibited, if such taking is incidental to, and not the
purpose of, an otherwise lawful activity. Examples of incidental take
(or non-purposeful take as it is sometimes referred to in this rule)
include land-management actions, such as implementation of forestry
practices, where bats may be harmed, harassed, or killed as a result of
those otherwise lawful actions. The actions contemplated in this rule
include a wide range of actions for purposes such as right-of-way
development and maintenance, forestry, land use for development
unrelated to wildlife management, management of lands as habitats other
than bat habitat (e.g., prairie), energy production and transmission,
and other activities.
Incidental take within the context of this rule is regulated in
distinct and separate manners relative to the geographic location of
the activity in question. For the purposes of this rule, we have
developed a map associated with the occurrence and spread of WNS. This
map will be updated by the first of each month as the disease spreads
throughout the range of the species and
[[Page 1902]]
posted at http://www.fws.gov/midwest/Endangered.
``Known hibernacula'' are defined as locations where northern long-
eared bats have been detected during hibernation or at the entrance
during fall swarming or spring emergence.
``Known, occupied maternity roost trees'' are defined as trees that
have had female northern long-eared bats or juvenile bats tracked to
them or the presence of females or juveniles is known as a result of
other methods.
``Tree removal'' is defined as cutting down, harvesting,
destroying, trimming, or manipulating in any other way the trees,
saplings, snags, or any other form of woody vegetation likely to be
used by northern long-eared bats.
WNS Zone
The WNS zone, as mapped, provides the boundary for the distinction
of implementation of this rule. To estimate the area impacted by WNS,
we have used data on the presence of the fungus causing the disease,
called Pseudogymnoascus destructans, or Pd, or evidence of the presence
of the disease (WNS) in the bats within a hibernaculum. Our final
listing determination provides additional information concerning Pd and
WNS (80 FR 17993; April 2, 2015). Confirmed evidence of infection at a
location within a county is mapped as a positive detection for the
entire county. In addition, we have added a 150-mile (241-kilometer
(km)) buffer to the Pd-positive county line to account for the spread
of the fungus from one year to the next. In instances where the 150-
mile (241-km) buffer line bisects a county, the entire county is
included in the WNS zone.
Over the past 5 years, an average of 96 percent of the new Pd or
WNS counties in any single year were within 150 miles (241 km) of a
county that was Pd- or WNS-positive in a prior year (Service 2015,
unpublished data). Pd is generally present for a year or two before
symptoms of WNS appear and mortality of bats begins to occur. Given the
relatively short amount of time between detection and population-level
impacts, it is important that we protect those buffer areas and the
bats within them with the same regulations as those in known WNS
positive counties. Therefore, the positive counties, plus a buffer
around them, are the basis for the WNS zone map.
Summary Comparison of the Interim 4(d) Rule and This Final Rule
Based on information we received in comment periods on the proposed
and interim 4(d) rules (see Summary of Comments and Recommendations
below), we revised the provisions of the interim 4(d) rule to better
reflect the disproportionate effect that the disease, WNS, has had and
will continue to have, we believe, on northern long-eared bat
populations.
In the interim rule, we used the term ``white-nose syndrome buffer
zone'' to identify ``the portion of the range of the northern long-
eared bat'' within 150 miles (241 km) of the boundaries of U.S.
counties or Canadian districts where the fungus Pseudogymnoascus
destructans (Pd) or WNS had been detected. For purposes of
clarification, in this final rule, we have changed the term ``white-
nose syndrome buffer zone'' to ``white-nose syndrome zone'' or ``WNS
zone.'' And we state that the ``WNS zone'' is ``the set of counties
within the range of the northern long-eared bat'' within 150 miles (241
km) of the boundaries of U.S. counties or Canadian districts where Pd
or WNS had been detected.
The interim 4(d) rule generally applies the prohibitions of 50 CFR
17.31 and 17.32 to the northern long-eared bat, which means that the
interim rule, among other things, prohibits the purposeful take of
northern long-eared bats throughout the species' range, but the interim
rule includes exceptions to the purposeful take prohibition. The
exceptions for purposeful take are: (1) In instances of removal of
northern long-eared bats from human structures (if actions comply with
all applicable State regulations); and (2) for authorized capture,
handling, and related activities of northern long-eared bats by
individuals permitted to conduct these same activities for other bat
species until May 3, 2016. Under the interim rule, incidental take is
not prohibited outside the WNS zone if the incidental take results from
otherwise lawful activities. Inside the WNS zone, there are exceptions
for incidental take for the following activities, subject to certain
conditions: Implementation of forest management; maintenance and
expansion of existing rights-of-way and transmission corridors; prairie
management; minimal tree removal; and removal of hazardous trees for
the protection of human life and property.
This final 4(d) rule does not generally apply the prohibitions of
50 CFR 17.31 to the northern long-eared bat. This rule continues to
prohibit purposeful take of northern long-eared bats throughout the
species' range, except in certain cases, including instances of removal
of northern long-eared bats from human structures and for authorized
capture, handling, and related activities of northern long-eared bats
by individuals permitted to conduct these same activities for other bat
species until May 3, 2016. After May 3, 2016, a permit pursuant to
section 10(a)(1)(A) of the Act is required for the capture and handling
of northern long-eared bats. Under this rule, incidental take is still
not prohibited outside the WNS zone.
We have revised the interim rule's language concerning incidental
take inside the WNS zone. Under this final rule, within the WNS zone,
incidental take is prohibited only if: (1) Actions result in the
incidental take of northern long-eared bats in hibernacula; (2) actions
result in the incidental take of northern long-eared bats by altering a
known hibernaculum's entrance or interior environment if the alteration
impairs an essential behavioral pattern, including sheltering northern
long-eared bats; or (3) tree-removal activities result in the
incidental take of northern long-eared bats when the activity either
occurs within 0.25 mile (0.4 kilometer) of a known hibernaculum, or
cuts or destroys known occupied maternity roost trees, or any other
trees within a 150-foot (45-meter) radius from the maternity roost
tree, during the pup season (June 1 through July 31). Take of northern
long-eared bats in their hibernacula may include disturbing or
disrupting hibernating individuals when they are in the hibernacula.
Take of northern long-eared bat also includes the physical or other
alteration of the hibernaculum's entrance or environment when bats are
not present if the result of the activity will impair essential
behavioral patterns, including sheltering northern long-eared bats. Any
take resulting from otherwise lawful activities outside known
hibernacula, other than tree removal, is not prohibited, as long as it
does not change the bat's access to or quality of a known hibernaculum
for the species. This final rule makes these revisions because, in
areas impacted by WNS, the most important conservation actions for the
northern long-eared bat are to protect bats in hibernacula and
maternity roost trees, and to continue to monitor populations in summer
habitat (e.g., identify where the species continues to survive after
the detection of Pd or WNS and determine the factors influencing its
resilience), while developing methods to abate WNS as quickly as
possible.
Under this rule, we individually set forth prohibitions on
possession and other acts with unlawfully taken northern long-eared
bats, and on import and export of northern long-eared bats. These
prohibitions were included in the interim 4(d) through the general
application of the prohibitions of 50 CFR 17.31 to the northern long-
eared bat. Under this rule, take of the northern
[[Page 1903]]
long-eared bat is also not prohibited for the following: Removal of
hazardous trees for protection of human life and property; take in
defense of life; and take by an employee or agent of the Service, of
the National Marine Fisheries Service, or of a State conservation
agency that is operating a conservation program pursuant to the terms
of a cooperative agreement with the Service. Regarding these three
exceptions, take in defense of life was not included in the interim
4(d) rule, but the other two exceptions were, either through the
general application of 50 CFR 17.31 or through a specific exception
included in the interim 4(d) rule.
Provisions of the 4(d) Rule for the Northern Long-Eared Bat
For a threatened species, the Act does not specify prohibitions, or
exceptions to those prohibitions, relative to take of the species.
Instead, under Section 4(d) of the Act, the Secretary has discretion to
issue regulations deemed to be necessary and advisable for the
conservation of a threatened species. By regulation, the Secretary has
determined that take prohibitions for endangered species are also
applicable to threatened species unless a special rule is issued under
section 4(d) for a particular threatened species. Under this 4(d) rule,
we have applied several of the prohibitions specified in the Act for
endangered species and the provisions of 50 CFR 17.32 (permit
regulations) to the northern long-eared bat as described below.
For this 4(d) rule, the Service has completed a biological opinion
under Section 7 of the Act on our action of finalizing this rule. In
addition, the biological opinion provides for streamlined consultation
for all federal agency actions that may affect the northern long-eared
bat; therefore, the scope of the biological opinion included the
finalization and implementation of the 4(d) rule. The biological
opinion resulted in a non-jeopardy determination. Provided Federal
action agencies follow the criteria outlined in this rule and implement
the streamlined consultation process outlined in the biological
opinion, their section 7 consultation requirements will be met. If
unable to follow these criteria, standard section 7 procedures will
apply.
Exceptions to the Purposeful Take Prohibition
We have exempted the purposeful take of northern long-eared bats
related to the protection of human health and safety. A very small
percentage of bats may be infected with rabies or other diseases that
can be transmissible to humans. When there is the possibility that a
person has been exposed to a diseased bat, it is important that they
coordinate with medical professionals (e.g., doctor, local health
department) to determine the appropriate response. When warranted to
protect human health and safety, we have exempted from the take
prohibition of northern long-eared bats in defense of one's own life or
the lives of others, including for public health monitoring purposes
(i.e., collecting a bat after human exposure and submitting for disease
testing).
We have also exempted the purposeful take of northern long-eared
bats related to removing the species from human structures, but only if
the actions comply with all applicable State regulations. Northern
long-eared bats have occasionally been documented roosting in human-
made structures, such as houses, barns, pavilions, sheds, cabins, and
bat houses (Mumford and Cope 1964, p. 480; 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 structures is not expected to adversely affect
conservation and recovery efforts for the species. In addition, we
provide the following recommendations:
Minimize use of pesticides (e.g., rodenticides) and avoid
use of sticky traps as part of bat evictions/exclusions.
Conduct exclusions during spring or fall unless there is a
perceived public health concern from bats present during summer and/or
winter.
Contact a nuisance wildlife specialist for humane
exclusion techniques.
We have exempted the purposeful take that results from actions
relating to capture, handling, and related activities for northern
long-eared bats by individuals permitted to conduct these same
activities for other species of bats until May 3, 2016. Under the
interim rule, for a period of 1 year from the interim rule's effective
date (May 3, 2016), we had exempted the purposeful take that is caused
by the authorized capture, handling, and related activities (e.g.,
attachment of radio transmitters for tracking) of northern long-eared
bats by individuals permitted to conduct these same activities for
other bats. We have continued the exemption through the expiration date
established by the interim rule. After May 3, 2016, a permit pursuant
to section 10(a)(1)(A) of the Act is required for the capture and
handling of northern long-eared bats,except that associated with bat
removal from human structures. We determined that it was important to
regulate the intentional capture and handling of northern long-eared
bats through the Act's scientific permit process to help ensure that
the surveyor's qualifications and methods used are adequate to protect
individual bats and provide reliable survey results.
Incidental Take Outside of the WNS Zone Not Prohibited
Incidental take in areas that have not yet been impacted by WNS
(i.e., in areas outside the WNS zone) is not prohibited by this final
rule. We believe the level of take associated with on-going land
management and development actions, including all actions that may
incidentally take the northern long-eared bat, do not individually or
cumulatively affect healthy bat populations. As noted in our decision
to list the northern long-eared bat as a threatened species, WNS is the
primary cause of the species' decline, and we would not have listed the
northern long-eared bat if not for the impact of WNS. In addition, we
conclude that regulating incidental take in areas not affected by WNS
is not expected to change the rate at which WNS progresses across the
range of the species. In other words, regulating incidental take
outside the WNS zone will not influence the future impact of the
disease throughout the species' range or the status of the species. For
these reasons, we have concluded that the prohibition of incidental
take outside of the WNS zone is not necessary and advisable for the
protection and recovery of the species. Incidental take, therefore, is
not prohibited outside of the WNS zone.
Prohibitions and Exemptions Related to Incidental Take Inside the WNS
Zone
Our approach to designing the regulatory provisions for the
northern long-eared bat inside the WNS zone reflects the significant
role WNS plays as the central threat affecting the species. For other
threatened species, habitat loss or other limiting factors usually
contribute to the decline of a species. In these situations,
regulations are needed to address either the habitat loss or the other
limiting factors.
The northern long-eared bat is not habitat-limited and has
demonstrated a great deal of plasticity within its environment (e.g.,
living in highly fragmented forest habitats to contiguous forest blocks
from the southern United States to Canada's Yukon Territory) in the
absence of WNS. For the northern long-eared bat, land management and
[[Page 1904]]
development actions that have been on-going for centuries (e.g., forest
management, forest conversion) have not been shown to have significant
negative impacts to northern long-eared bat populations.
As WNS continues to move across the range of the species, northern
long-eared bat populations have declined and will continue to decline.
Declines in northern long-eared bat populations in WNS-positive regions
have been significant, and northern long-eared bats are now relatively
rare on those landscapes. As populations decline as a result of WNS,
the chances of any particular activity affecting northern long-eared
bats becomes more remote. Therefore, in the WNS zone, we focused the
regulatory provisions on sensitive life stages at known, occupied
maternity roost trees and hibernacula.
We developed regulations that provide some level of protection to
the species where it persists in the face of WNS. However, we have
provided flexibility so that the regulated public will seek to conserve
the species and foster its recovery at sites where it has been lost
should tools to address WNS become available or where the species shows
signs of resilience. Further, because we believe recovery of this
species will require many partnerships across the species' range,
minimizing regulatory impacts on activities inconsequential to northern
long-eared bat populations provides an important step in building
partnerships for the species' recovery.
The northern long-eared bat is a forest-dependent species,
typically roosting in trees. In establishing regulations that are
necessary and advisable for the conservation of the species, we have
tailored species-specific regulatory provisions toward potential
impacts to trees. For the incidental take of bats outside of
hibernacula, we have specifically established two sets of provisions:
the first set applies to activities that do not involve tree removal
and the second applies to activities that do involve tree removal. By
tree removal, we mean cutting down, harvesting, destroying, trimming,
or manipulating in any other way the trees, saplings, snags, or any
other form of woody vegetation that is likely to be used by the
northern long-eared bat.
In this final 4(d) rule, we have limited the prohibition of
incidental take of northern long-eared bats to specific circumstances.
This does not mean that all activities that could result in the
incidental take of the northern long-eared bat will do so. The relative
exposure of the species and the species response to a potential
stressor are critical considerations in evaluating the potential for
incidental take to occur. For example, under the discussion of tree
removal, below, we describe what is prohibited by the final 4(d) rule
in the WNS zone and provide examples of how other activities could be
implemented in a way that avoids the potential for incidental take.
Hibernacula
Northern long-eared bats predominantly overwinter in hibernacula
that include caves and abandoned mines. For additional details about
the characteristics of the hibernacula selected by northern long-eared
bats, see the final listing determination (80 FR 17974; April 2, 2015).
Northern long-eared bats have shown a high degree of philopatry (using
the same site over multiple years) for a hibernaculum (Pearson 1962, p.
30), although they may not return to the same hibernaculum in
successive seasons (Caceres and Barclay 2000, p. 2).
Hibernacula are so significant to the northern long-eared bat that
they are considered a primary driver in the species distribution (e.g.,
Kurta 1982, p. 302). Northern long-eared bats are documented in
hibernacula in 29 of the 37 states in the species' range. Other States
within the species' range have no known hibernacula, which may reflect
that no suitable hibernacula are present, a limited survey effort, or
the northern long-eared bat's use of sites not previously identified as
suitable.
In general, bats select hibernacula because they have
characteristics that allow the bats to meet specific life-cycle
requirements. Factors influencing a hibernaculum's suitability include
its physical structure (e.g., openings, interior space, depth), air
circulation, temperature profile, and location relative to foraging
sites (Tuttle and Stevenson 1978, pp. 108-121).
Overwinter survival can be a particularly challenging period in the
northern long-eared bat's life cycle. Hibernating bats appear to
balance their physical condition (e.g., fat reserves upon entering
hibernation), hibernacula characteristics (e.g., temperature variation,
humidity), social resources (e.g., roosting singly or in groups), and
metabolic condition (i.e., degree of torpor, which is the state of
mental or physical inactivity) to meet overwinter survival needs. The
overwinter physiological needs of the species include maintaining body
temperature above freezing, minimizing water loss, meeting energetic
needs until prey again become available, and responding to disturbance
or disease. Because of this complex interplay of hibernacula
characteristics and bat physiology, changes to hibernacula can
significantly impact their suitability as well as the survival of any
hibernating bats.
In general, northern long-eared bats arrive at hibernacula in
August or September, enter hibernation in October and November, and
emerge from the hibernacula in March or April (Caire et al. 1979, p.
405; Whitaker and Hamilton 1998, p. 100; Amelon and Burhans 2006, p.
72). However, hibernation may begin as early as August (Whitaker and
Rissler 1992b, p. 56). Northern long-eared bats have been observed
moving among hibernacula throughout the winter (Griffin 1940a, p. 185;
Whitaker and Rissler 1992a, p. 131; Caceres and Barclay 2000, pp. 2-3).
Whitaker and Mumford (2009, p. 210) found that this species flies in
and out of some mines and caves in southern Indiana throughout the
winter.
Human disturbance of hibernating bats has long been considered a
threat to cave-hibernating bat species like the northern long-eared
bat. Modifications to bat hibernacula can affect the microclimate
(e.g., temperature, humidity) of the subterranean habitat, and thus the
ability of the cave or mine to support hibernating bats, including the
northern long-eared bat. Anthropogenic modifications to cave and mine
entrances may not only alter flight characteristics and access (Spanjer
and Fenton 2005, p. 1110), but may change airflow and alter internal
microclimates of the caves and mines, eliminating their utility as
hibernacula (Service 2007, p. 71). For example, Richter et al. (1993,
p. 409) attributed the decline in the number of Indiana bats at
Wyandotte Cave, Indiana (which harbors one of the largest known
population of hibernating Indiana bats (Myotis sodalis)), to an
increase in the cave's temperature resulting from restricted airflow
caused by a stone wall erected at the cave's entrance. In addition to
the direct access modifications to caves discussed above, debris
buildup at entrances or on cave gates can also significantly modify the
cave or mine site characteristics by restricting airflow and the course
of natural water flow. Water-flow restriction could lead to flooding,
thus drowning hibernating bats (Amelon and Burhans 2006, p. 72). Thomas
(1995, p. 942) used infrared detectors to measure flight activity in
hibernating northern long-eared bats and little brown bats in response
to the presence of a human observer. Flight activity significantly
increased with the presence of an observer, beginning within 30 minutes
[[Page 1905]]
of the visit, peaking 1.0 to 7.5 hours later, and remaining
significantly above baseline level for 2.5 to 8.5 hours. These results
suggest that hibernating bats are sensitive to non-tactile stimuli and
arouse and fly following human visits. Boyles and Brack's (2009) model
predicted that the survival rate of hibernating little brown bats drops
from 96 percent to 73 percent with human visitations to hibernacula.
Prior to the outbreak of WNS, Amelon and Burhans (2006, p. 73)
indicated that ``the widespread recreational use of caves and indirect
or direct disturbance by humans during the hibernation period pose the
greatest known threat to [the northern long-eared bat].''
Hibernacula and surrounding forest habitats play important roles in
the life cycle of the northern long-eared bat beyond the time when the
bats are overwintering. In both the early spring and fall, the
hibernacula and surrounding forested habitats are the focus of bat
activity in two separate periods referred to as ``spring staging'' and
``fall swarming.''
During the spring staging, bats begin to gradually emerge from
hibernation, exit the hibernacula to feed, but re-enter the same or
alternative hibernacula to resume daily bouts of torpor (Whitaker and
Hamilton 1998, p. 100). The staging period for the northern long-eared
bat is likely short in duration (Whitaker and Hamilton 1998, p. 100;
Caire et al. 1979, p. 405). In Missouri, Caire et al. (1979, p. 405)
found that northern long-eared bats moved into the staging period in
mid-March through early May. In Michigan, Kurta et al. (1997, p. 478)
determined that by early May, two-thirds of the Myotis species,
including the northern long-eared bat, had dispersed to summer habitat.
Beginning in mid to late summer, after their young have gained some
level of independence, northern long-eared bats exhibit a behavior near
hibernacula referred to as swarming. Both male and female northern
long-eared bats are present at swarming sites (often with other species
of bats). During this period, heightened activity and congregation of
transient bats around caves and mines is observed, followed later by
increased sexual activity and bouts of torpor prior to winter
hibernation (Fenton 1969, p. 601; Parsons et al. 2003, pp. 63-64; Davis
and Hitchcock 1965, pp. 304-306). The purposes of swarming behavior may
include introduction of juveniles to potential hibernacula, copulation,
and stopping over sites on migratory pathways between summer and winter
regions (Kurta et al. 1997, p. 479; Parsons et al. 2003, p. 64; Lowe
2012, p. 51; Randall and Broders 2014, pp. 109-110). The swarming
season for some species of the genus Myotis begins shortly after
females and young depart maternity colonies (Fenton 1969, p. 601). For
the northern long-eared bat, the swarming period may occur between July
and early October, depending on latitude within the species' range
(Fenton 1969, p. 598; Kurta et al. 1997, p. 479; Lowe 2012, p. 86; Hall
and Brenner 1968, p. 780; Caire et al. 1979, p. 405). The northern
long-eared bat may investigate several cave or mine openings during the
transient portion of the swarming period, and some individuals may use
these areas as temporary daytime roosts or may roost in forest habitat
adjacent these sites (Kurta et al. 1997, pp. 479, 483; Lowe 2012, p.
51). Little is known about northern long-eared bat roost selection
outside of caves and mines during the swarming period (Lowe 2012, p.
6).
Based on the importance of hibernacula to northern long-eared bats,
take is prohibited in and around the hibernacula within the WNS zone,
including activities that may alter the hibernacula at any time of the
year. Further, we have determined that when the conservation measures
for the northern long-eared bat included in this final 4(d) rule are
applied to areas within 0.25 mile (0.4 km) of the hibernacula, the
potential for negative impacts to individuals is significantly reduced.
Activities Not Involving Tree Removal Are Not Prohibited
Under this final 4(d) rule, activities within the WNS zone not
involving tree removal are not prohibited provided they do not result
in the incidental take of northern long eared bats in hibernacula or
otherwise impair essential behavioral patterns at known hibernacula. In
our final listing determination (80 FR 17974; April 2, 2015), we
identified a number of activities not involving tree removal that may
have direct or indirect effects on northern long-eared bats. These
activities have the potential to cause the incidental take of northern
long-eared bats and include activities such as the operation of
utility-scale wind-energy turbines, application of pesticides, and
prescribed fire (this is not an exhaustive list; it is merely
representative of activities that may result in take of northern long-
eared bats).
At the time of our listing determination and the interim 4(d) rule
(80 FR 17974; April 2, 2015), we stated that we had no compelling
evidence that these activities would have significant effects on the
northern long-eared bat when considered alone. However, we thought
these factors may have a cumulative effect on this species when
considered in concert with WNS. After additional consideration and our
review of public comments received on the proposed and interim 4(d)
rules, we did not find compelling evidence that regulating these
potential cumulative effects would result in significant impacts at the
species level. Effects to relatively small numbers of individuals are
not anticipated to impair conservation efforts or the recovery
potential of the species.
Wind-Energy Facilities
Wind-energy facilities are found scattered throughout the range of
the northern long-eared bat, and many new facilities are anticipated to
be constructed over the next 15 years (United States Department of
Energy 2008, unpaginated). We reviewed post-construction mortality
monitoring studies conducted at various times from 1998 through 2014 at
81 unique operating wind-energy facilities in the range of the northern
long-eared bat in the United States and Canada (Service 2015,
unpublished data). In these studies, 43 northern long-eared bat
mortalities were documented at 19 of the sites. The northern long-eared
bat fatalities comprised less than 1 percent of all documented bat
mortalities. In most cases, the level of effort for most post-
construction monitoring studies is not sufficient to confidently
exclude the possibility that infrequent fatalities are being missed,
but finding none or only small numbers over many sites and years can
suggest the order of what may be missed. Thus while sustained mortality
at particular facilities could potentially cause declines in local
populations of the northern long-eared bat, if that is in fact
occurring, it does not appear to be wide-spread at least when compared
to other bat species which are nearly always found in fatality
monitoring at wind facilities. At those sites with a northern long-
eared bat fatality where multiple years of monitoring data were also
available for review (n = 12), fatalities of northern long-eared bats
were only reported in multiple years at two of the sites and for the
other 10 sites only a single fatality was reported over multiple years
of monitoring. For example, one site reported one northern long-eared
bat fatality in 2008, but none in 2009, 2010, or 2011. Further, the
number of fatalities of northern long-eared bats found at any given
site has been relatively small (e.g., most often a single fatality was
found, but in all cases no more than six), and typically most sites (62
out of 81) found
[[Page 1906]]
no northern long-eared bat fatalities at all. There is a great deal of
uncertainty related to extrapolating these numbers to generate an
estimate of total northern long-eared bat mortality at wind-energy
facilities due to variability in post-construction survey effort and
methodology (Huso and Dalthorp 2014, pp. 546-547). Further, bat
mortality can vary between years and between sites, and detected
carcasses are only a small percentage of total bat mortalities.
However, even with those limitations, northern long-eared bats were
rarely detected as mortalities, even when they were known to be common
on the landscape around the wind-energy facility.
We recognize that several wind energy facilities have completed, or
are currently working to complete, habitat conservation plans (HCPs;
permit pursuant to section 10(a)(1)(B) of the Act) for other listed bat
species where the number of fatalities reported is also very low. When
the take of an endangered species is reasonably certain to occur, we
recommend that a project proponent secure incidental take coverage
pursuant to section 10 of the Act. Over the operational life of a wind
energy facility (typically anticipated to be at least 20 to 30 years),
the take of listed species may be reasonably certain to occur, even if
the level of mortalities annually is anticipated to be quite low.
However, this does not mean that prohibiting that incidental take in
the case of a threatened species is necessary and advisable for the
conservation of such a species. For the northern long-eared bat, we do
not anticipate that the fatalities that will be caused by wind energy
would meaningfully change the species' status in the foreseeable
future.
In addition, the wind industry has recently published best
management practices establishing voluntary operating protocols, which
they expect ``to reduce impacts to bats from operating wind turbines by
as much as 30 percent'' (AWEA 2015, unpaginated). Given the large
numbers of other bat species impacted by wind energy (Hein et al. 2013,
p. 12) and the economic importance of bats in controlling agricultural
or forest pest species (Boyles et al. 2011, pp. 41-42; Maine and
Boyles, 2015, p. 12442), we anticipate that these new standards will be
adopted by the wind-energy sector and ultimately required by wind-
energy-siting regulators at State and local levels. We recommend that
wind facilities adopt these operating protocols.
Our primary reason for not establishing regulatory criteria for
wind-energy facilities is that the best available information does not
indicate significant impacts to northern long-eared bats from such
operations. We conclude that there may be adverse effects posed by
wind-energy development to individual northern long-eared bats;
however, there is no evidence suggesting that effects from wind-energy
development has led to significant declines in this species, nor is
there evidence that regulating the incidental take that is occurring
would meaningfully change the conservation or recovery potential of the
species in the face of WNS. Furthermore, with the adoption by wind-
energy facilities of the new voluntary standards, risk to all bats,
including the northern long-eared bat, should be further reduced.
Environmental Contaminants
Environmental contaminants, in particular insecticides, pesticides,
and inorganic contaminants, such as mercury and lead, may also have
detrimental effects on individual northern long-eared bats. However,
across the wide-range of the species, it is unclear whether
environmental contaminants, regardless of the source (e.g., pesticide
applications, industrial waste-water), would be expected to cause
population-level impacts to the northern long-eared bat either
independently or in concert with WNS. Historically, the most
intensively-studied contaminants in bats have been the organochlorine
insecticides (OCs; O'Shea and Clark 2002, p. 238). During wide-spread
use of OCs in the 1960s and 1970s, lethal pesticide poisoning was
demonstrated in gray bats (Myotis grisescens), Mexican free-tailed bats
(Tadarida brasiliensis), and Indiana bats (Myotis sodalis) (O'Shea and
Clark 2002, p. 239, 242). Since the phasing out of OCs in the United
States, the effects of chemical contaminants on bats have been less
well studied (O'Shea and Johnston 2009, p. 501); however, a few recent
studies have demonstrated the accumulation of potentially toxic
elements and chemicals in North American bats. For instance, Yates et
al. (2014, pp. 48-49) quantified total mercury (Hg) levels in 1,481 fur
samples and 681 blood samples from 10 bat species captured across 8
northeastern U.S. States and detected the highest Hg levels in tri-
colored bats (Perimyotis subflavus), little brown bats (Myotis
lucifugus) and northern long-eared bats. More recently, Secord et al.
(2015) analyzed tissue samples from 48 northeastern bat carcasses of
four species, including northern long-eared bats, and detected
accumulations of several contaminants of emerging concern (CECs),
including most commonly polybrominated diphenyl ethers (PDBEs; 100
percent of samples), salicylic acid (81 percent), thiabendazole (50
percent), and caffeine (23 percent). Digoxigenin, ibuprofen, warfarin,
penicillin V, testosterone, and N,N-diethyl-meta-toluamide (DEET) were
also present in at least 15 percent of samples. Compounds with the
highest concentrations were bisphenol A (397 ng/g), PDBE congeners 28,
47, 99, 100, 153, and 154 (83.5 ng/g), triclosan (71.3 n/g), caffeine
(68.3 ng/g), salicylic acid (66.4 ng/g), warfarin (57.6 ng/g),
sulfathiazole (55.8 ng/g), tris(1-chloro-2-propyl) phosphate (53.8 ng/
g), and DEET (37.2 ng/g).
Although there is the potential for direct and indirect
contaminant-related effects, mortality or other population-level
impacts have not been reported for northern long-eared bats. Long-term
sublethal effects of environmental contaminants on bats are largely
unknown; however, environmentally relevant exposure levels of various
contaminants have been shown to impair nervous system, endocrine, and
reproductive functioning in other wildlife (Yates et al. 2014, p. 52;
K[ouml]hler and Triebskorn 2013, p. 761; Colborn et al. 1993, p. 378).
Moreover, bats' high metabolic rates, longevity, insectivorous diet,
migration-hibernation patterns of fat deposition and depletion, and
immune impairment during hibernation, along with potentially
exacerbating effects of WNS, likely increase their risk of exposure to
and accumulation of environmental toxins (Secord et al. 2015, p. 411,
Yates et al. 2014, p. 46, Geluso et al. 1976, p. 184; Quarles 2013, p.
4, O'Shea and Clark 2002, p. 238). Following WNS-caused population
declines in northeastern little brown bats, Kannan et al. (2010)
investigated whether exposure to toxic contaminants could be a
contributing factor in WNS-related mortality. Although high
concentrations of polychlorinated biphenyls (PCBs), PBDEs,
polybrominated biphenyls (PBBs), and chlordanes were found in the fat
tissues of WNS-infected bats in New York, relative concentrations in
bats from an uninfected population in Kentucky were also high (Kannan
et al. 2010, p. 615). The authors concluded that the study's sample
sizes were too small to accurately associate contaminant exposure with
the effects of WNS in bats (Kannan et al. 2010, p. 618), but argued
that additional research is needed. Despite the lack of knowledge on
the effects of various contaminants on northern long-eared bats, we
recognize the potential for direct and indirect consequences.
[[Page 1907]]
However, contaminant-related mortality has not been reported for
northern long-eared bats. Additionally, Ingersoll (2013, p. 9)
suggested it was unclear what other threats or combination of threats
other than WNS (e.g., changes to critical roosting or foraging habitat,
collisions, effects from chemicals) may be responsible for recent bat
declines.
Prescribed Fire
Prescribed fire is a useful forest-management tool. However, there
are potential negative effects from prescribed burning, including
direct mortality to the northern long-eared bat. Therefore, when using
prescribed burning as a management tool, fire frequency, timing,
location, and intensity all need to be considered to lower the risk of
incidental take of bats. Carter et al. (2002, pp. 140-141) suggested
that the risk of direct injury and mortality to southeastern forest-
dwelling bats resulting from summer prescribed fire is generally low.
During warm temperatures, bats are able to arouse from short-term
torpor quickly. Northern long-eared bats use multiple roosts, switch
roost trees often, and could likely use alternative roosts in unburned
areas, should fire destroy the current roost. Non-volant pups are
likely the most vulnerable to death and injury from fire. Although most
eastern bat species are able to carry their young for some time after
they are born (Davis 1970, pp. 187-189), the degree to which this
behavior would allow females to relocate their young if fire threatens
the nursery roost is unknown. The potential for death or injury
resulting from prescribed burning depends largely on site-specific
circumstances, e.g., fire intensity near the maternity roost tree and
the height above ground of pups in the maternity roost tree. Not all
fires through maternity roosting areas will kill or injure all pups
present.
Bats are known to take advantage of fire-killed snags and continue
roosting in burned areas. Boyles and Aubrey (2006, pp. 111-112) found
that, after years of fire suppression, initial burning created abundant
snags, which evening bats (Nycticeius humeralis) used extensively for
roosting. Johnson et al. (2010, pp. 115) found that after burning, male
Indiana bats roosted primarily in fire-killed maples. In the Daniel
Boone National Forest, Lacki et al. (2009, p. 5) radio-tracked adult
female northern long-eared bats before and after prescribed fire,
finding more roosts (74.3 percent) in burned habitats than in unburned
habitats. Burning may create more suitable snags for roosting through
exfoliation of bark (Johnson et al. 2009a, p. 240), mimicking trees in
the appropriate decay stage for roosting bats. In addition to creating
snags and live trees with roost features, prescribed fire may enhance
the suitability of trees as roosts by reducing adjacent forest clutter.
Perry et al. (2007, p. 162) found that five of six species, including
northern long-eared bat, roosted disproportionately in stands that were
thinned and burned 1 to 4 years prior but that still retained large
overstory trees.
The use of prescribed fire, where warranted, will, in any given
year, impact only a small proportion of the northern long-eared bat's
range during the bats active period. In addition, there are substantial
benefits of prescribed fire for maintaining forest ecosystems. For
example, the U.S. Forest Service's Southern Region manages
approximately 10.9 million acres (4.4 million hectares (ha)) of land,
and the maximum estimate of acres where prescribed fire is employed
annually during the active period of northern-long eared bats (April
through October) was 320,577 acres (129,732 ha), which is less than 3
percent of the National Forest regional lands. Similarly, the Forest
Service's Eastern Region manages 15 Forests in 13 States that include
about 12.2 million acres (4.88 million ha), of which 11.3 million acres
(4.52 million ha) are forested habitat. The U.S. Forest Service
anticipates applying prescribed burning to 107,684 acres (43,073 ha) or
about 1percent of the forested habitat across the eastern region
annually. In addition, only 17,342 acres (6937 ha) (i.e., 0.15 percent
of the forested habitat) of prescribed burning annually is anticipated
to occur during the non-volant period on the eastern forests.
Further, there are substantial benefits of prescribed fire for
maintaining forest ecosystems, such as providing the successional and
disturbance processes that renew the supply of suitable roost trees
(Silvis et. al. 2012, pp.6-7), as well as helping to ensure a varied
and reliable prey base (Dodd et. al. 2012, p. 269). There is no
evidence that prescribed fire has led to population-level declines in
this species nor is there evidence that regulating the incidental take
that might occur would meaningfully change the conservation status or
recovery potential of the species in the face of WNS.
Hazardous Tree Removal Is Not Prohibited
Under this final 4(d) rule, incidental take that is caused by
removal and management of hazardous trees is not prohibited. The
removal of these hazardous trees may be widely dispersed, but limited,
and should result in very minimal incidental take of northern long-
eared bats. We recommend, however, that removal of hazardous trees be
done during the winter, wherever possible, when these trees will not be
occupied by northern long-eared bats. We conclude that the overall
impact of removing hazardous trees is not expected to adversely affect
conservation and recovery efforts for the species.
Activities Involving Tree Removal
We issued the interim species-specific rule under section 4(d) of
the Act in recognition that WNS is the primary threat to the species'
continued existence. We further recognized that all other (non-WNS)
threats cumulatively were not impacting the species at the population
level. Therefore, we apply the take prohibitions only to activities
that we have determined may impact the species in its most vulnerable
life stages, allowing for management flexibility and a limited
regulatory burden.
In this final 4(d) rule, we have determined that the conservation
of the northern long-eared bat is best served by limiting the
prohibitions to the most vulnerable life stages of the northern long-
eared bat (i.e., while in hibernacula or in maternity roost trees)
within the WNS zone and to activities, tree removal in particular, that
are most likely to affect the species. We have also revised some of the
conservation measures. To further simplify the regulation, we have
established separate prohibitions for activities involving tree removal
and those that do not involve tree removal. Within the WNS zone
incidental take outside of hibernacula that results from tree removal
is only prohibited when it (1) Occurs within 0.25 miles (0.4 km) of
known northern long-eared bat hibernacula; or (2) cuts or destroys
known occupied maternity roost trees, or any other trees within a 150-
foot (45-meter) radius from the known occupied maternity trees, during
the pup season (June 1 through July 31).
Forest Management
Forest management maintains forest habitat on the landscape, and
the impacts from management activities are, for the most part,
temporary in nature. Forest management is the practical application of
biological, physical, quantitative, managerial, economic, social, and
policy principles to the regeneration, management, utilization, and
conservation of forests to meet specified goals and objectives (Society
of American Foresters, http://dictionaryofforestry.org/dict/term/
forest_
[[Page 1908]]
management). It includes a broad range of silvicultural practices and
this discussion specifically addresses tree-removal practices (e.g.,
timber harvest) associated with forest management. Timber harvesting
includes a wide variety of practices from selected removal of
individual trees to clearcutting. Impacts to northern long-eared bats
from forest management would be expected to range from positive (e.g.,
maintaining or increasing suitable roosting and foraging habitat within
northern long-eared bat home ranges) to neutral (e.g., minor amounts of
forest removal, forest management in areas outside northern long-eared
bat summer home ranges, forest management away from hibernacula) to
negative (e.g., death of adult females or pups or both resulting from
the removal of maternity roost trees).
The best available data indicate that the northern long-eared bat
shows a varied degree of sensitivity to timber-harvesting practices.
For example, Menzel et al. (2002, p. 112) found northern long-eared
bats roosting in intensively managed stands in West Virginia,
indicating that there were sufficient suitable roosts (primarily snags)
remaining for their use. At the same study site, Owen et al. (2002, p.
4) concluded that northern long-eared bats roosted in areas with
abundant snags, and that in intensively managed forests in the central
Appalachians, roost availability was not a limiting factor. Northern
long-eared bats often chose black locust and black cherry as roost
trees, which were quite abundant and often regenerate quickly after
disturbance (e.g., timber harvest). Similarly, Perry and Thill (2007,
p. 222) tracked northern long-eared bats in central Arkansas and found
roosts were located in eight forest classes with 89 percent occurring
in three classes of mixed pine-hardwood forest. The three classes of
mixed pine-hardwood forest that supported the majority of the roosts
were partially harvested/thinned, unharvested (50 to 99 years old), and
group-selection harvested (Perry and Thill 2007, pp. 223-224).
Certain levels of timber harvest may result in canopy openings,
which could result in more rapid development of young bats. In central
Arkansas, Perry and Thill (2007, pp. 223-224) found female bat roosts
were more often located in areas with partial harvesting than males,
with more male roosts (42 percent) in unharvested stands than female
roosts (24 percent). They postulated that females roosted in relatively
more open forest conditions because they may receive greater solar
radiation, which may increase developmental rates of young or permit
young bats a greater opportunity to conduct successful initial flights
(Perry and Thill 2007, p. 224). Cryan et al. (2001, p. 49) found
several reproductive and non-reproductive female northern long-eared
bat roost areas in recently harvested (less than 5 years) stands in the
Black Hills of South Dakota in which snags and small stems (diameter at
breast height (dbh)) of 2 to 6 inches (5 to 15 centimeters) were the
only trees left standing; however, the largest colony (n = 41) was
found in a mature forest stand that had not been harvested in more than
50 years.
Forest size and continuity are also factors that define the quality
of habitat for roost sites for northern long-eared bats. Lacki and
Schwierjohann (2001, p. 487) stated that silvicultural practices could
meet both male and female roosting requirements by maintaining large-
diameter snags, while allowing for regeneration of forests. Henderson
et al. (2008, p. 1825) also found that forest fragmentation affects
northern long-eared bats at different scales based on sex; females
require a larger unfragmented area with a large number of suitable
roost trees to support a colony, whereas males are able to use smaller,
more fragmented areas. Henderson and Broders (2008, pp. 959-960)
examined how female northern long-eared bats use the forest-
agricultural landscape on Prince Edward Island, Canada, and found that
bats were limited in their mobility and activities are constrained when
suitable forest is limited. However, they also found that bats in a
relatively fragmented area used a building for colony roosting, which
suggests an alternative for a colony to persist in an area with fewer
available roost trees.
In addition to impacts on roost sites, we considered effects of
forest-management practices on foraging and traveling behaviors of
northern long-eared bats. In southeastern Missouri, the northern long-
eared bat showed a preference for contiguous tracts of forest cover
(rather than fragmented or wide open landscapes) for foraging or
traveling, and different forest types interspersed on the landscape
increased likelihood of occupancy (Yates and Muzika 2006, p. 1245).
Similarly, in West Virginia, female northern long-eared bats spent most
of their time foraging or travelling in intact forest, diameter-limit
harvests (70 to 90 year-old stands with 30 to 40 percent of basal area
removed in the past 10 years), and road corridors, with no use of
deferment harvests (similar to clearcutting) (Owen et al. 2003, p.
355). When comparing use and availability of habitats, northern long-
eared bats preferred diameter-limit harvests and forest roads. In
Alberta, Canada, northern long-eared bats avoided the center of
clearcuts and foraged more in intact forest than expected (Patriquin
and Barclay 2003, p. 654). On Prince Edward Island, Canada, female
northern long-eared bats preferred open areas less than forested areas,
with foraging areas centered along forest-covered creeks (Henderson and
Broders 2008, pp. 956-958). In mature forests in South Carolina, 10 of
the 11 stands in which northern long-eared bats were detected were
mature stands (Loeb and O'Keefe 2006, p. 1215). Within those mature
stands, northern long-eared bats were more likely to be recorded at
points with sparse or medium vegetation rather than points with dense
vegetation, suggesting that some natural gaps within mature forests can
provide good foraging habitat for northern long-eared bats (Loeb and
O'Keefe 2006, pp. 1215-1217). However, in southwestern North Carolina,
Loeb and O'Keefe (2011, p. 175) found that northern long-eared bats
rarely used forest openings, but often used roads. Forest trails and
roads may provide small gaps for foraging and cover from predators
(Loeb and O'Keefe 2011, p. 175). In general, northern long-eared bats
appear to prefer intact mixed-type forests with small gaps (i.e.,
forest trails, small roads, or forest-covered creeks) in forest with
sparse or medium vegetation for forage and travel rather than
fragmented habitat or areas that have been clearcut.
Impacts to northern long-eared bats from forest management would be
expected to vary depending on the timing of tree removal, location
(within or outside northern long-eared bat home range), and extent of
removal. While bats can flee during tree removal, removal of occupied
roosts (during spring through fall) may result in direct injury or
mortality to some percentage of northern long-eared bats. This
percentage would be expected to be greater if flightless pups or
inexperienced flying juveniles were also present. Forest management
outside of northern long-eared bat summer home ranges or away from
hibernacula would not be expected to affect the conservation of the
species.
Forest management is not usually expected to result in a permanent
loss of suitable roosting or foraging habitat for northern long-eared
bats. On the contrary, forest management is expected to maintain a
forest over the long term for the species. However, localized temporary
reductions in suitable roosting and/or foraging habitat can occur from
various forest practices (e.g.,
[[Page 1909]]
clearcuts). As stated above, northern long-eared bats have been found
in forests that have been managed to varying degrees, and as long as
there is sufficient suitable roosting and foraging habitat within their
home range and travel corridors between those areas, we would expect
northern long-eared bat colonies to continue to occur in managed
landscapes. However, in areas with WNS, northern long-eared bats may be
less resilient to stressors and maternity colonies are smaller. Given
the low inherent reproductive potential of northern long-eared bats
(one pup per female per year), death of adult females or pups or both
during tree felling could reduce the long-term viability of some of the
WNS-impacted colonies if they are also in the relatively small
percentage of forest habitat directly affected by forest management.
As we documented in the interim 4(d) rule, forestry management and
silviculture are vital to the long-term survival and recovery of the
species. Based on information obtained during comment periods,
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 would be impacted during
the active season when female bats and pups are most vulnerable.
Therefore, we have determined that when the prohibitions for the
northern long-eared bat included in this final 4(d) rule are applied to
forest management activities, the potential impacts will be
significantly reduced.
Forest Conversion
In our listing determination for the northern long-eared bat, we
noted that current and future forest conversion may have negative
additive impacts where the species has been impacted by WNS (80 FR
17991; April 2, 2015). Our assessment was based largely on the species'
summer-home-range fidelity and the potential for increased energetic
demands for individuals where the loss of summer habitat had been
removed or degraded (e.g., fragmentation). We noted that forest
conversion ``can result in a myriad of effects to the species,
including direct loss of habitat, fragmentation of remaining habitat,
and direct injury or mortality'' (80 FR 17993; April 2, 2015). In the
interim 4(d) rule we exempted most forest-management activities except
for the conversion of mature hardwood or mixed forest into intensively
managed monoculture-pine plantation stands, or non-forested landscape
(80 FR 18025; April 2, 2015).
Many of the comments on the proposed and interim 4(d) rules noted
that habitat is not limiting for the northern long-eared bat. As we
documented in the final listing determination (80 FR 1802; April 2,
2015), the extent of conversion from forest to other land cover types
has been fairly consistent with conversion to forest (cropland
reversion/plantings). Further, the recent past and projected amounts of
forest loss to conversion was, and is anticipated to be, only a small
percentage of the total amount of forest habitat. For example by 2060,
4 to 8 percent of the forested area found in 2007 across the
conterminous United States is expected to be lost (U.S Forest Service
2012, p. 12). The northern long-eared bat has been documented to use a
wide variety of forest types across its wide range. Therefore, we agree
that the availability of forested habitat does not now, nor will it
likely in the future, limit the conservation of the northern long-eared
bat.
We have determined that when the prohibitions for the northern
long-eared bat included in this final 4(d) rule are applied to forest-
conversion activities, the potential for negative additive impacts to
individuals or colonies is significantly reduced. As WNS impacts bat
populations, unoccupied, suitable forage and roosting habitat will be
increasingly available for remaining bats.
Tree-Removal Conservation Measures
Under this final 4(d) rule, incidental take within the WNS zone
involving tree removal is not prohibited if two conservation measures
are followed. The first measure is the application of a 0.25 mile (0.4
km) buffer around known occupied northern long-eared bat hibernacula.
The second conservation measure is that the activity does not cut or
destroy known occupied maternity roost trees, or any other trees within
a 150-foot (45-m) radius around the maternity roost tree, during the
pup season (June 1 through July 31). The rationale for these measures
is discussed below.
Conservation Measure 1: Tree Removal Near Known Northern Long-eared Bat
Hibernacula
``Known hibernacula'' are defined as locations where one or more
northern long-eared bats have been detected during hibernation or at
the entrance during fall swarming or spring emergence. Given the
documented challenges of surveying for northern long-eared bats in the
winter (use of cracks, crevices that are inaccessible to surveyors),
any hibernacula with northern long-eared bats observed at least once,
will continue to be considered ``known hibernacula'' as long as the
hibernacula remains suitable for the northern long-eared bat. A
hibernaculum remains suitable for northern long-eared bats even when Pd
or WNS has been detected.
We have adopted the 0.25-mile (0.4-km) buffer around known northern
long-eared bat hibernacula for several reasons: (1) It will help to
protect micro-climate characteristics of the hibernacula; (2) for many
known hibernacula, bats use multiple entrances that may not be
reflected in the primary location information (e.g., bats may use other
smaller entrances that are often spread out from the main entrance
accessed for surveys or other purposes) and the hibernacula may have
extensive underground features that extend out from known entrances;
(3) in the late summer and fall when bat behavior begins to center on
hibernacula (swarming), it appears that northern long-eared bats may
roost in a widely dispersed area, which may reduce the potential that
any activity outside of this buffer would significantly affect the
species; (4) outside of the maternity period, northern long-eared bats
have demonstrated the ability to adapt to forest-management-related and
other types of disturbances; and (5) regardless of the buffer size,
bats will remain fully protected from take while in the hibernacula,
when they are most vulnerable.
The microclimate, temperature, humidity, and air and water flow
within a hibernaculum are all important variables that could
potentially be impacted by forest management or other activities when
conducted in proximity to a hibernaculum. A 0.25-mile (0.4-km) buffer
will protect the hibernaculum's microclimate. Studies that have
evaluated the depth of edge influence from forest edge or tree removal
on temperature, humidity, wind speed, and light penetration suggest
that although highly variable among forest types and other site-
specific factors (such as aspect and season), the depth of edge
influence can range from 164 feet (50 m) (Matlack 1993, p. 193) to over
1,312 feet (400 m) (Chen et al. 1995, p. 83). However, the hibernacula
often selected by northern long-eared bats are ``large, with large
passages'' (Raesly and Gates 1987, p. 20), and may be less affected by
relatively minor surficial micro-climatic changes that might result
from the limited exempted activities outside of the 0.25-mile (0.4-km)
buffer. Further, bats rarely hibernate near the entrances of structures
(Grieneisen 2011, p. 10), as these areas can be subject to greater
[[Page 1910]]
predation (Grieneisen 2011, p. 10; Kokurewicz 2004, p. 131) and daily
temperature fluctuations (Grieneisen 2011, p. 10). Davis et al. (1999,
p. 311) reported that partial clearcutting ``appears not to affect
winter temperatures deep in caves.'' Caviness (2003, p. 130) reported
that prescribed burns were found to have no notable influence on bats
hibernating in various caves in the Ozark National Forest. All bats
present in caves at the beginning of the burn were still present and in
``full hibernation'' when the burn was completed, and bat numbers
increased in the caves several days after the burn. There were minute
changes in relative humidity and temperature during the burn, and
elevated short-term levels of some contaminants from smoke were noted.
Northern long-eared bat hibernacula can be large and complex and,
spatially, may not be fully represented in locational information
contained in species records by State or Federal agencies or by natural
heritage programs. A 0.25-mile (0.4-km) buffer will help protect the
spatial extent of many known hibernacula. For example, one limestone
mine in Ohio used by northern long-eared bats had approximately 44
miles (71 km) of passages and multiple entrances (Brack 2007, p. 740).
In northern Michigan, bats (including northern long-eared bats)
occupied mines that were more structurally complex and longer (1,007 ft
2,837 ft (307m 865 m) than mines that were
unoccupied, and the occupied mines had a total length of passages that
ranged from 33 feet to 4 miles (10 meters to 6.4 kilometers) (Kurta and
Smith 2014, p. 592).
Only a relatively small proportion of the areas where swarming
northern long-eared bats may occur are likely to be affected by tree-
removal activity. There are over 1,500 known hibernacula for the
species in the United States (Service 2015, unpublished data), several
known in Canada, and potentially many others yet to be identified. Lowe
(2012, p. 58) reported that the roosts of northern long-eared bats were
evenly distributed over distances within 4.6 miles (7.3 km) from a
swarming site. If the northern long-eared bat's potential swarming
habitat (including foraging habitat during that period) can be
approximated as the forest habitat within 5 miles (8.1 km) of
hibernacula, that equates to a 50,265 acre (20,342 ha) area per
hibernaculum. In any given year, only a small proportion of the forest
habitat within the potential swarming habitat is likely to be impacted
by tree-removal activities (e.g., generally 2 percent of forests are
managed in any given year and over 1,500 hibernacula documented as used
by the species). Similarly, forest conversion is anticipated to be
relatively small compared to available habitat; therefore, based on our
current understanding of potential swarming-habitat, on the scale of
50,000 acres (20, 342ha) per hibernaculum, the relatively small foot-
print of activities not prohibited by this final rule are unlikely to
affect the conservation or recovery potential of the species. Raesly
and Gates (1987, p. 24) evaluated external habitat characteristics of
hibernacula and reported that for the northern long-eared bat the
percentage of cultivated fields within 0.6 miles (1 km) of the
hibernacula was greater (52.6 percent) for those caves used by the
species, than for those caves not used by the species (37.7 percent),
suggesting that the removal of some forest around a hibernacula can be
consistent with the species needs.
Outside of the maternity period, northern long-eared bats have
demonstrated the ability to respond successfully to forest-management-
related and other types of disturbances. Therefore, the limited
disturbance associated with incidental-take exceptions outside of the
0.25-mile (0.4-km) buffer on hibernacula is consistent with the
conservation of the species. For example, Silvis et al.'s (2015, p.1)
experimental removal of roosts suggested that the ``loss of a primary
roost or 20 percent of secondary roosts in the dormant season may not
cause northern long-eared bats to abandon roosting areas or
substantially alter some roosting behaviors in the following active
season when tree-roosts are used.''
Prior to WNS, the most significant risk identified for northern
long-eared bat conservation was direct human disturbance while bats are
hibernating (e.g., Olson et al. 2011, p. 228; Bilecki 2003, p. 55;
Service 2012, unpublished data). This final 4(d) rule (within the WNS
zone) addresses these impacts.
We have prohibited incidental take of northern long-eared bats
under specific tree-removal circumstances; however, that does not mean
that all activities involving tree-removal activities within the 0.25-
mile (0.4-k) buffer of hibernacula will result in take. For example, a
timber harvest might be conducted within 0.25 miles (0.4 km) of a
hibernaculum at a time when bats are unlikely to be roosting in trees
within the buffer (e.g., winter), which fully protects any bats in the
hibernaculum as well as the hibernaculum's suitability for bats (i.e.,
access, microclimate), and does not significantly change the
suitability of the habitat for foraging by northern long-eared bats or
perhaps even improves prey availability. In such a case, the timber
harvest, although closer than 0.25 miles (0.4 km) to the hibernaculum,
is not likely to result in incidental take so we would not recommend
that the harvester seek authorization for incidental take pursuant to
the Act. For activities planned within 0.25 miles (0.4 km) of
hibernaculum, we encourage you to contact the local Ecological Services
Field Office (http://www.fws.gov/offices) to help evaluate the
potential for take of northern long-eared bats.
Conservation Measure 2: Tree Removal Near Known Maternity Roost Trees
Female northern long-eared bats roost communally in trees in the
summer (Foster and Kurta 1999, p. 667) and exhibit fission-fusion
behavior (Garroway and Broders 2007, p. 961), where members frequently
roost together (fusion), but the composition and size of the groups is
not static, with individuals frequently departing to be solitary or to
form smaller or different groups (fission) (Barclay and Kurta 2007, p.
44). As part of this behavior, northern long-eared bats switch tree
roosts often (Sasse and Pekins 1996, p. 95), typically every 2 to 3
days (Foster and Kurta 1999, p. 665; Owen et al. 2002, p. 2; Carter and
Feldhamer 2005, p. 261; Timpone et al. 2010, p. 119). In Missouri, the
longest time spent roosting in one tree was 3 nights (Timpone et al.
2010, p. 118). Bats switch roosts for a variety of reasons, including
temperature, precipitation, predation, parasitism, sociality, and
ephemeral roost sites (Carter and Feldhamer 2005, p. 264).
Maternity colonies, consisting of females and young, are generally
small, numbering from about 30 (Whitaker and Mumford 2009, p. 212) to
60 individuals (Caceres and Barclay 2000, p. 3); however, one group of
100 adult females was observed in Vermilion County, Indiana (Whitaker
and Mumford 2009, p. 212) and Lereculeur (2013, p. 25) documented a
colony of at least 116 northern long-eared bats. In West Virginia,
maternity colonies in two studies had a range of 7 to 88 individuals
(Owen et al. 2002, p. 2) and 11 to 65 individuals, with a mean size of
31 (Menzel et al. 2002, p. 110). Lacki and Schwierjohann (2001, p. 485)
found that the number of bats within a given roost declined as the
summer progressed. Pregnant females formed the largest aggregations
(mean=26) and post-lactating females formed the smallest aggregation
(mean=4). Their largest overall reported colony size was 65 bats.
[[Page 1911]]
Northern long-eared bats change roost trees frequently, but use
roost areas repeatedly and to a lesser extent, reuse specific roosts
(e.g., Cryan et al. 2001, p. 50; Foster and Kurta 1999, p. 665). The
northern long-eared bat appears to be somewhat flexible in tree-roost
selection, selecting varying roost tree species and types of roosts
throughout its range. Females tend to roost in more open areas than
males, likely due to the increased solar radiation, which aids pup
development (Perry and Thill 2007, p. 224). Fewer trees surrounding
maternity roosts may also benefit juvenile bats that are starting to
learn to fly (Perry and Thill 2007, p. 224). Female roost-site
selection, in terms of canopy cover and tree height, changes depending
on reproductive stage; relative to pre- and post-lactation periods,
lactating northern long-eared bats have been shown to roost higher in
tall trees situated in areas of relatively less canopy cover and lower
tree density (Garroway and Broders 2008, p. 91).
The northern long-eared bat's tendency for frequent roost switching
may help them avoid or respond effectively to disturbance by people
outside of the maternity season. The frequent-roost-switching behavior
of northern long-eared bat suggests that they are adapted to responding
quickly to changes in roost availably (ephemeral roosts), changing
environmental conditions (temperature), prey availability, or
physiological needs (torpor, reproduction). In a study of radio-tracked
northern long-eared bats responding to the disturbance from prescribed
fire (Dickinson et al. 2009, pp. 55-57), the bats appeared ``to limit
their exposure to conditions created by fire. At no point did they fly
outside of their typical home range area, nor did they travel far from
the burn itself.'' While some of the bats soon returned to areas
recently burned, by day 6 and 7 post burn, they ``appeared to return to
pre-burn norms in terms of emergence time, length of foraging bouts,
and use of the burn unit and adjacent habitats.'' Carter et al. (2000,
pp 139-140), noted that ``During the summer months, bats are able to
arouse quickly as the difference between the ambient temperature and
active body temperature of bats is less. Most bat species utilizing
trees and snags have multiple roosts throughout the forest (Sasse and
Pekins 1996; Callahan et al. 1997; Menzel et al. 1998; Foster and Kurta
1999, Menzel et al. 2001), providing alternate roosts should the
current roost be destroyed by fire.'' Sparks et al. (2008, pp. 207-208)
documented that northern long-eared bats released in the open during
the day demonstrated a successful rapid ``flight-to-cover'' response.
Adult females give birth to a single pup (Barbour and Davis 1969,
p. 104). Birthing within the colony tends to be synchronous, with the
majority of births occurring around the same time (Krochmal and Sparks
2007, p. 654). Parturition (birth) likely occurs in late May or early
June (Caire et al. 1979, p. 406; Easterla 1968, p. 770; Whitaker and
Mumford 2009, p. 213), but may occur as late as July (Whitaker and
Mumford 2009, p. 213). Upon birth, the pups are unable to fly, and
females return to nurse the pups between foraging bouts at night. In
other Myotis species, mother bats have been documented carrying
flightless young to a new roosting location (Humphrey et al. 1977, p.
341). The ability of a mother to move young may be limited by the size
of the growing pup. Juvenile volancy (flight) often occurs by 21 days
after birth (Krochmal and Sparks 2007, p. 651; Kunz 1971, p. 480) and
has been documented as early as 18 days after birth (Krochmal and
Sparks 2007, p. 651). Prior to gaining the ability to fly, juvenile
bats are particularly vulnerable to tree-removal activities. Based on
this information, we have determined that the most sensitive period to
protect pups at maternity roost trees is from June 1 through July 31
(the ``pup season'').
Known occupied maternity roost trees are defined as trees that have
had female northern long-eared bats or juvenile bats tracked to them or
the presence of female or juvenile bats is known as a result of other
methods. Once documented, northern-long eared bats are known to
continue to use the same roosting areas. Therefore, a tree will be
considered to be a ``known, occupied maternity roost'' as long as the
tree and surrounding habitat remain suitable for northern long-eared
bats. The incidental take prohibition for known, occupied maternity
roosts trees applies only during the during the pup season (June 1
through July 31).
In addition to protecting the known roosts, we have also included
in this conservation measure avoiding the cutting or destroying of any
other trees within a 150-foot (45-meter) radius from the known,
occupied maternity roost tree during the pup season (June 1 through
July 31). Leaving a buffer of other trees around the maternity roost
tree will help to protect the roost tree from damage or destruction
that may be caused by other nearby trees being removed as well as
helping protect the roost tree from wind throw and micro-climate
changes. O'Keefe (2009 p. 42) documented that a 39-foot (12-meter)
buffer around a maternity roost tree during a harvest in May allowed
the roost to be successfully used through late July and that one
buffered tree was used 2 years in a row. We have adopted a standard for
exception of take that is almost four times that which proved effective
in this example, in order to better account for the variation in forest
types used by the northern long-eared bat and a variety of slopes that
might influence how large a buffer may need to be in order to prove
effective. Roost trees used by northern long-eared bats are often in
fairly close proximity to each other within the species' summer home
range. For female northern long-eared bats, the mean distance between
roosts was reported as 63m to 600m from a variety of studies published
1996 through 2014 (Foster and Kurta 1999 p. 665; Cryan et al. 2001, p.
46; Swier 2003, pp. 58-59; Jackson 2004, p. 89; Henderson and Broders
2008, p. 958; Johnson et al. 2009, p. 240; Badin 2014, p. 76; Bohrman
and Fecske, unpublished data). Further, within that data, the distance
between roosts was reported as small as 5 meters in one study (Badin
2014, p. 76) and 36 meters in another (Jackson 2004, p. 89). As Sasse
1995, p. 23, noted ``some roost sites appeared to be 'clustered'
together.'' Therefore, even this modest additional buffer may also
protect other roosts trees used by female northern long-eared bats
during the maternity period that have not yet been documented. In
addition, because colonies occupy more than one maternity roost in a
forest stand and individual bats frequently change roosts, in some
cases a portion of a colony or social network is likely to be protected
by multiple 150-foot buffers during the maternity season.
Currently, since most States and natural heritage programs do not
track roosts and many have not tracked any northern long-eared bat
occurrences, we recognize that not all northern long-eared bat
maternity roost sites are known. Therefore, this measure will not
protect an unknown maternity roosts unless it falls under one of the
buffers related to protecting a known roost or hibernaculum.
Although not fully protective of every individual, the conservation
measures identified in this final rule help protect maternity colonies.
This final species-specific rule under section 4(d) of the Act provides
the regulatory flexibility for certain activities to occur that have
not been the cause of the species' imperilment, while allowing us to
focus conservation efforts on WNS, promoting
[[Page 1912]]
conservation of the species across its range.
Additional Prohibitions and Exceptions
In this final 4(d) rule we carry forward other standard
prohibitions and exceptions that are typically applied to threatened
species and are currently applicable under the interim rule for the
northern long-eared bat. These prohibitions included the possession of
and other acts with unlawfully taken northern long-eared bats, as well
as import and export. We also included standard exemptions, including
all the permitting provisions of 50 CFR 17.32 and the exemption for
employees or agents of the Service, of the National Marine Fisheries
Service, or of a State conservation agency when acting in the course of
their official duties to take northern long-eared bats covered by an
approved cooperative agreement to carry out conservation programs.
Summary of Comments and Recommendations on the Proposed and Interim
4(d) Rules
The northern long-eared bat was listed as a threatened species
under the Act, with an interim rule under section 4(d) of the Act, on
April 2, 2015 (80 FR 17974). At that time, the Service invited public
comments on the interim 4(d) rule for 90 days, ending July 1, 2015. The
Service had already received comments for 60 days on its proposed 4(d)
rule (80 FR 2371, January 16, 2015). In total, the Service received
approximately 40,500 comments on the proposed and interim 4(d) rules.
We discuss them below.
Peer Reviewer Comments
1. Comment: Peer reviewer(s) commented that the 0.25-mile (radius)
around hibernacula is an inadequate buffer. There were additional
suggestions for alternative buffer distances as well as more detail on
how activities might be limited within those buffers. A specific
suggestion of a 1.6-mile buffer was made, with a statement that most
forest practices could occur within the buffer provided that the trees
were not completely removed (conversion). In addition, a suggestion of
0.5-mile buffer was made.
Our Response: We have revised the approach used in this final 4(d)
rule to ensure that hibernating northern long-eared bats in the WNS
zone are protected from incidental take independent of the buffer size
used in the conservation measure. In addition, all northern long-eared
bats both in and outside of the WNS zone are protected from purposeful
take (e.g., killing or intentionally harassing northern long-eared
bats), including while in the hibernacula where they are most
vulnerable. We have retained the 0.25-mile buffer (0.25-mile radius
around known hibernacula entrance/access points used by bats) to
further protect the hibernaculum and associated forested habitat for
several reasons (see discussion above under Conservation Measure 1:
Tree Removal Near Known Northern Long-eared Bat Hibernacula). Some of
the peer-reviewers recommended that within the hibernacula buffer that
certain limited activities should be allowed (e.g., timber harvest that
only removes a small percentate of the forest habitat when bats are not
active). As discussed above under Conservation Measure 1: Tree Removal
Near Known Northern Long-eared Bat Hibernacula, not all tree-removal
activities within the buffer of hibernacula will result in take. For
example, a timber harvest might be conducted within the buffer when
bats are unlikely to be roosting in trees (e.g., winter) that fully
protects any bats in the hibernaculum as well as the hibernaculum's
suitability for bats (i.e., access, microclimate), and does not
significantly change the suitability of the habitat for foraging by
northern long-eared bats or perhaps even improves prey availability. In
such a case, the timber harvest, although within the buffer, is not
likely to result in incidental take so we would not recommend that the
harvester seek authorization for incidental take pursuant to the Act.
Because the buffer only applies to actions that result in incidental
take of the northern long-eared bat, we determined that there was no
need to attempt to exempt activities (e.g., a limited timber harvest)
where incidental take is unlikely.
2. Comment: Peer reviewer(s) commented that the WNS buffer zone
should be removed and protections should occur throughout the range of
the species.
Our Response: We have established prohibitions on the purposeful
take of northern long eared bats throughout the species range. However,
because WNS is the most significant threat known to be imperiling the
species, we have determined that in areas where WNS has not been
detected, additional prohibitions are not warranted. We recognize that
the WNS zone will change over time. We remain committed to regularly
updating the WNS zone map as new information about the spread of the Pd
fungus becomes known.
3. Comment: Peer reviewer(s) commented that the WNS buffer zone
should be expanded and/or changed to accommodate a more site-specific
approach, based on proximity to hibernacula, for example.
Our Response: We reevaluated the approach to the WNS zone in this
final rule and determined that the 150-mile buffer used for the interim
4(d) rule appears to be very effective in capturing counties where new
Pd detections are reported, in particular when looking at the new
occurrences over the last 5 years. For more details of this analysis,
please see our discussion in the WNS Zone section of this rule.
4. Comment: Peer reviewer(s) commented that the Service's
definitions relative to forestry practices should be more precise and
should use silviculture terminology.
Our Response: We have revised the prohibitions to no longer use
specific forestry practices or silviculture terminology. Take of the
northern long-eared bat within the context of forest management is not
prohibited provided that conservation measures to protect hibernacula
and known maternity roost trees are implemented as described in this
rule.
5. Comment: Peer reviewer(s) recommended that the seasonal
restrictions for the northern long-eared bat ``pup season'' be expanded
and/or based on climate and geography within the species' range.
Our Response: We recognize that in some areas or in some years the
period when young northern long-eared bats are non-volant may be
earlier or later than the June and July timeframe. The timing of when
northern long-eared bats give birth is likely a complex interplay of a
variety of factors affecting fetal development (e.g., condition of the
mother, temperature, prey availability), and similar factors may also
influence the time required for young to develop the ability to fly. In
addition, a study in West Virginia documented that the peak pregnancy
and lactation dates shifted post WNS (Francl et al. 2012, p. 36).
However, looking across a variety of studies, the June and July
timeframe appears to generally capture what is typically reported as
the non-volant period for northern long-eared bats across much of their
range within the United States. We have determined that a single
timeframe for implementing the prohibition on maternity roost tree
removal provides clarity for the regulated public. In addition, while
it does not modify the incidental take prohibition established in these
regulations, our local field offices may be able to provide more
refined local estimates of the non-volant period for specific areas.
Project planners may choose to use these local estimates for
[[Page 1913]]
planning purposes where they are available.
6. Comment: Peer reviewer(s) recommended year-round protections for
maternity roost trees or conversely that we remove entirely the
protections for maternity trees because it is ineffective and serves as
a disincentive for conducting surveys.
Our Response: Although northern long-eared bats have been
documented to use some roost trees over multiple years, in many cases
it is because the tree is dead or dying or has structural defects that
provides the roosting features attractive to the species. Further,
maternity roost trees are used only briefly (e.g., northern long-eared
bats typically change roosts every few days, and only a relatively
small percentage of those are used more than once in any one season).
Given that maternity roosts trees are ephemeral on the landscape and
used for very short periods of time in the active season, we determined
that year-round protections for known, occupied maternity roost trees
are not warranted. We considered removing the protections for known,
occupied maternity roosts as recommended by another peer reviewer, but
instead modify the protection so as to minimize the disincentive for
conducting surveys. In developing this final rule, we kept protections
for known, occupied maternity roosts for two reasons: (1) While it may
be unlikely, in cases where a tree was about to be removed, but was
known to be occupied by northern long-eared bats, they would have some
protections while the young could not fly; and (2) we wanted known,
occupied maternity roosts to be given consideration because they help
to signal to project planners an area that is likely to be used by
northern long-eared bats in the future (as this species has a high
degree of site fidelity). We refined the protection for known, occupied
maternity roosts to make it as practical to implement as possible in
order to minimize the disincentive created for conducting surveys. Many
forest managers implement similar types of relatively small seasonal
buffers to protect other species of sensitive wildlife (e.g., around
nesting raptors) and therefore we do not view this provision as a real
disincentive to conducting surveys. Please see the Conservation Measure
2: Tree Removal Near Known Maternity Roost Trees section of this rule
for additional details. We believe that the seasonal restriction helps
to protect the most vulnerable life stages, in this case the non-volant
pups, and is adequate for the purposes of this rule.
7. Comment: Peer reviewer(s) recommended that pregnant females
should be protected as part of the seasonal restriction criteria.
Our Response: We recognize that pregnant females may be in torpor
or less able to flee in early spring. However, we did not have
information on how pregnancy in northern long-eared bats influenced the
degree of torpor or their ability to flee from disturbance. As
discussed in this rule, we expect only a small percentage of the
species' forested habitat to be affected by activities (e.g., tree
removal, prescribed fire) that might impact a pregnant northern long-
eared bats in torpor and, therefore, we expect only small proportion of
the species' population to be potentially exposed to these activities.
Because of the relatively small exposure and uncertainty about how
pregnancy affects degree of torpor or ability to flee, we have not
expanded the seasonal protections for this purpose. We believe that
seasonal restrictions help protect the vulnerable pup stage, when young
pups cannot fly, and are adequate for the purposes of this rule.
8. Comment: Peer reviewer(s) stated that the conservation efforts
will not be effective because the natural heritage data are limited
with respect to known maternity roost trees and hibernacula.
Our Response: We agree that the data are limited and this can be
challenging from the implementation and/or project planning
perspective. However, we have purposefully limited protections where
possible, to minimize the potential disincentive to continue to survey
for the species. However, we anticipate that information in State
natural heritage data bases will continue to improve post-listing.
9. Comment: Peer reviewer expressed concern with allowing lethal
take of northern long-eared bats from human dwellings.
Our Response: We encourage the non-lethal removal of northern long-
eared bats from human structures, preferably by excluding them outside
of the maternity period, whenever possible. However, because of the
potential for human health considerations, we have not required this as
part of the exception to the purposeful take prohibition. We have
limited this take to houses, garages, barns, sheds, and other buildings
designed for human entry.
Public Comments
General
10. Comment: Commenters from many development sectors requested
that their activities be included in the suite of exempted activities
under the 4(d) rule (specific sectors addressed below).
Our Response: In general, this final rule has been restructured to
clarify prohibitions to take rather than to rely on a list of excepted
activities. Prohibitions are applied in this final rule where necessary
and advisable for the conservation of the species. Therefore, the
various ``sectors'' do not need to be identified or ``excepted'' to
apply rule provisions.
Forest Management
11. Comment: Several commenters recommended that forest conversion
be included as an excepted activity. Comments were specific to
conversion of hardwood forests to pine plantations, managed pine
forest, pine ecosystem, and the Service's characterization of pine
stands as monoculture stands representing poor bat habitat.
Our Response: Incidental take resulting from forest management,
including forest conversion, is not a prohibited action pursuant to
this final 4(d) rule provided conservation measures to protect known
hibernacula and known, occupied maternity roost trees are employed.
Please see sections above titled Forest Management and Forest
Conversion.
12. Comment: Commenters stated that forest management must occur to
avoid habitat deterioration to poor quality bat habitat. They further
stated that forest health depends upon active management including tree
removal and clearcutting.
Our Response: We agree that forest management can be very important
in creating or maintaining forest successional patterns that help to
ensure suitable trees are available for roosting northern long-eared
bats. Further, forest management can help to increase prey availability
or suitability of foraging habitat. Please see our discussion above
under Forest Management for additional details. Incidental take
resulting from forest management is not prohibited pursuant to this
final 4(d) rule provided conservation measures to protect known
hibernacula and known maternity roost trees are employed.
13. Comment: Commenters suggested that the Service consider
exemptions for sustainable forest practices implemented under a
sustainable forest management plan or sustainable forestry certificate
program.
Our Response: We considered incorporating other possible
conservation measures related to forest management and conversion.
However, given the overall small percentage of the species' range
potentially affected by
[[Page 1914]]
these activities in any given year, it was not clear that additional
conditions related to incidental take from forest management or
conversion would meaningfully change the conservation outlook for the
species. Further, adding protections with uncertain benefits, but with
large potential public impacts can hinder support for species
conservation. Incidental take resulting from forest management is not
prohibited pursuant to this final 4(d) rule provided conservation
measures to protect known hibernacula and known, occupied maternity
roost trees are employed.
14. Comment: Commenters stated that the Service should focus on the
elimination of WNS rather than regulating timber harvest in summer
habitat.
Our Response: Efforts to address the threat posed by WNS are on-
going by the Service and many partners across the species range.
Incidental take resulting from forest management or forest conversion
is not prohibited pursuant to this final 4(d) rule provided
conservation measures to protect known hibernacula and known, occupied
maternity roost trees are employed.
15. Comment: A commenter stated that the Service should halt
commercial timber harvest and another commenter suggested restricting
the removal of snags and coarse woody debris in areas populated by the
species.
Our Response: The northern long-eared bat is not limited in terms
of habitat availability for feeding, breeding, and sheltering in the
summer (non-hibernating) months. Please see the discussions under
Forest Management and Forest Conversion above in this rule. We have
carefully considered the value of habitat protection for the species.
We have determined that protection of summer habitat is not required
for species conservation except where trees may be occupied by young,
non-volant (flightless) pups and for areas immediately surrounding
hibernacula where they swarm and feed just prior to hibernation and
when they emerge from hibernation in the spring. Due to this swarming
behavior and the vulnerability of bats when hibernating, we have
determined that take prohibitions are necessary and advisable in winter
habitat (hibernacula), where bats are subject to the effects of WNS. In
addition, we have determined that protection of known, occupied
maternity roost trees is necessary and advisable in order to protect
young pups.
16. Comment: The Service should increase protections to avoid
impacts to bats from the point that they emerge from hibernation to the
end of the maternity/pup season. Forest management should only be done
in a manner that retains sufficient vegetative cover and protects
northern long-eared bats at the maternity colony level.
Our Response: We considered incorporating other possible
conservation measures related to forest management and conversion.
However, given the overall small percentage of the species' range
potentially affected by these activities in any given year, it was not
clear that additional conditions related to the incidental take from
forest management or conversion would meaningfully change the
conservation outlook for the species. Further, adding protections with
uncertain benefits, but with large potential public impacts can hinder
support for the species conservation. We have determined that
protection of known, occupied maternity roost trees during the months
of June and July is an adequate conservation measure for the protection
of non-volant pups.
17. Comment: Commenter(s) suggested an exemption for invasive
species management in forested landscapes.
Our Response: Outside of hibernacula, this final rule does not
prohibit take from activities other than tree removal. Therefore,
incidental take associated with management of invasive species using
pesticides or other interventions is not prohibited. Where intervention
involves tree removal, conservation measures must be followed to comply
with this rule. However, entities that cannot apply the required
conservation measures have other means to have take excepted, such as
section 10 permits or section 7 incidental take authorization.
Human Structures
18. Comment: Commenters suggested expansion of the definition of
human structures/dwellings to include bridges, culverts, cattle passes,
and other human-made structures.
Our Response: This final rule does not prohibit direct take of
northern long-eared bats occupying human structures defined as houses,
garages, barns, sheds, and other buildings designed for human entry.
While we encourage landowners and project proponents to find other
mechanisms to avoid killing or injuring bats that occupy bridges,
culverts, and other structures, incidental take is not prohibited by
this rule. While bridge and culvert use for the species has been
documented, it is relatively uncommon compared to tree or other types
of roost sites (e.g., barns) and, therefore, did not warrant specific
provisions in this final rule. Within the WNS zone, however, project
proponents must apply conservation measures to avoid habitat removal
around hibernacula and to avoid cutting or destroying known, occupied
maternity roost trees or any other trees within a 150-foot radius from
the maternity roost tree during June and July.
19. Comment: Commenters stated that take of northern long-eared bat
in human dwellings should not be exempted and requested that the
Service provide rationale for determining that this exemption is
necessary.
Our Response: We encourage the non-lethal removal of northern long-
eared bats from human structures whenever possible, preferably by
excluding them from the structure outside of the maternity period.
However, because of the potential for human health considerations, we
have not required this as part of the exception to the purposeful take
prohibition. Please see the discussion under Exceptions to the
Purposeful Take Prohibition in this rule for additional details. Take
of northern long-eared bats to remove them from human structures is not
prohibited.
Hazardous Tree Removal
20. Comment: Several comments requested clarification and/or
expansion of the exception to take for removal of hazardous trees.
Our Response: Our intent is to provide for the removal of hazardous
trees for the protection of human life and property. This is not the
same as hazard tree removal within the context of forest management or
rights-of-way management where hazard trees are identified as trees
that are in danger of falling. Incidental take of northern long-eared
bats from hazardous tree removal in the context of rights-of-way
management is not prohibited by the final 4(d) rule provided
conservation measures to protect known hibernacula and known, occupied
maternity roost trees are applied.
Minimal Tree Removal
21. Comment: Several commenters requested that minimal tree removal
be expanded to a larger acreage.
Our Response: Conversion of forested cover to alternate uses is not
prohibited under this final rule, provided that conservation measures
are followed when those activities occur within the WNS zone. For a
discussion of this issue, please see Forest Conversion section in this
rule.
22. Comment: Several commenters stated that the exemption for
minimal tree removal should be expanded to other (non-forest) industry
entities and should include all activities that have a
[[Page 1915]]
minimal effect on the northern long-eared bat.
Our Response: Conversion of forested acreages to alternate uses is
not prohibited under this final rule, provided that conservation
measures are followed. This is applicable to all entities that may
engage in activities that remove trees or convert forested acres. See
the Forest Conversion section in this rule.
Oil and Gas Industry
23. Comment: A number of commenters from the oil and gas industry
stated that the industry should be included within exemptions from take
prohibitions because: (1) Their impact on northern long-eared bat
habitat is small compared to forest management impacts; (2) habitat is
re-vegetated following pipeline installation; (3) oil and gas
exploration and transport are not the stated primary threat to the
species (WNS is the primary threat); and (4) adequate regulatory
mechanisms exist for mitigating industry environmental impacts.
Our Response: Take of northern long-eared bats attributable to
habitat conversion and habitat loss is not prohibited under this final
4(d) rule, provided that developers and project proponents follow
conservation measures described herein when activities occur within the
WNS zone. See the Forest Conversion section in this rule.
Rights-of-Way
24. Comment: Commenter(s) stated that loss of habitat attributable
to clearing for linear projects is miniscule compared to habitat
conversion due to forest management.
Our Response: Incidental take attributable to maintenance,
development, and rights-of-way expansion is not prohibited by this
final 4(d) rule, provided conservation measures contained herein are
followed when activities occur within the WNS zone.
25. Comment: Commenter(s) stated that the exception, as proposed
and implemented via the interim rule, should be expanded to greater
than 100-feet and should be clarified.
Our Response: Incidental take attributable to maintenance,
development, and rights-of-way expansion is not prohibited by this
final 4(d) rule, provided conservation measures contained herein are
followed when activities occur within the WNS zone.
26. Comment: Commenter(s) stated that the exception for rights-of-
way should be expanded to include new rights-of-way and transmission
corridors.
Our Response: Incidental take attributable to maintenance,
development, and rights-of-way expansion is not prohibited by this
final 4(d) rule, provided conservation measures contained herein are
followed when activities occur within the WNS zone.
27. Comment: Commenter(s) disagree with the Service's assertion
that vegetation removal within or adjacent to rights-of-way is a small-
scale alteration of habitat.
Our Response: It is within the context of the species range and
potential for available habitat that right-of-way development,
maintenance or expansion are small scale alterations of forest habitat.
The extent of conversion from forest to other land cover types has been
fairly consistent with conversion to forest (cropland reversion/
plantings). Further, the recent past and projected amounts of forest
loss to conversion from all sources was and is anticipated to be only a
small percentage of the total amount of forest habitat. For example by
2060, 4 to 8 percent of forest area found in 2007 across the
conterminous United States is expected to be lost (U.S Forest Service
2012, p. 12). We have not broadened the incidental prohibition related
to habitat loss because WNS is the predominant threat to the species.
Summer habitat does not now or in the future appear likely to be a
limiting factor for the species; therefore, we have focused the
protections on vulnerable individuals in summer habitat and protecting
the winter habitat, where sensitivity to the effects of WNS is
heightened.
28. Comment: Commenter(s) requested that the Service expand the
rights-of-way exemption to include access roads and infrastructure
required to deliver services.
Our Response: Incidental take attributable to maintenance,
development, and rights-of-way expansion is not prohibited by this
final 4(d) rule, provided conservation measures contained herein are
followed when activities occur within the WNS zone. This includes
related activities such as access road clearing and facilities related
to delivery of services. In the case where tree removal is the activity
in question, incidental take is not prohibited provided that the
conservation measures herein are followed when those activities occur
within the WNS zone.
29. Comment: Commenter suggested that the final 4(d) rule should
prohibit all tree clearing activities related to the maintenance,
repair, and creation of rights-of-way.
Our Response: The northern long-eared bat is not limited in terms
of habitat availability for feeding, breeding, and sheltering in the
summer (non-hibernating) months. We have carefully considered the value
of habitat protection for the species. We have determined that
protection of summer habitat is not required for species conservation
except where trees are known to be occupied by northern long-eared bats
when the young are non-volant (flightless) and for areas immediately
surrounding hibernacula where they swarm and feed just prior to
hibernation and when they emerge from hibernation in the spring.
Solar Energy
30. Comment: Commenter(s) requested that solar energy development
be provided an exemption under the 4(d) rule.
Our Response: Solar energy developers will need to consider the
impacts of their development and operations in light of the
prohibitions of this rule. Incidental take outside of the WNS zone is
not prohibited. Incidental take from tree-removal activities within the
WNS zone is prohibited under specific conditions related to known
hibernacula and known, occupied maternity roost trees (see Activities
Involving Tree Removal section above for details).
Agriculture
31. Comment: Commenter(s) requested that agricultural activities be
included in the suite of exempted activities under the 4(d) rule.
Our Response: We have substantially revised the prohibitions and
exceptions in this final rule that may apply to agricultural
activities. Agricultural producers/operators will need to consider the
impacts of their activities in light of the prohibitions of this rule.
Incidental take outside of the WNS zone is not prohibited. Incidental
take from tree removal activities within the WNS zone is prohibited
under specific conditions related to known hibernacula and known,
occupied maternity roost trees (see Activities Involving Tree Removal,
above, for details). This final rule has been restructured in a manner
that it applies prohibitions where necessary and advisable for
conservation of the species. Therefore, agricultural development and
operations do not need to be specifically ``excepted'' in order to
apply the rule's provisions.
[[Page 1916]]
Caves and Mines
32. Comment: Commenter(s) requested an exemption for show caves and
cave tours.
Our Response: Hibernating bats are very sensitive to disturbance as
discussed in greater detail under the Hibernacula section of this
document. This final rule prohibits the incidental take of northern
long-eared bats in hibernacula inside the WNS zone as well as the
purposeful take (e.g., purposefully harassing or killing) of northern
long-eared bats in hibernacula both inside and outside of the WNS zone.
When this species occupies caves or mines used by people regardless of
the purpose, the provisions of this 4(d) rule apply. Show cave or mine
activities inside the WNS zone that do not result in the incidental
take of northern long-eared bats are not prohibited. In other words, if
northern long-eared bats are not being disrupted from their normal
hibernation behaviors (e.g., by avoiding areas with hibernating bats,
limiting noise and lighting in areas used by bats), we do not consider
human use of the cave or mine to be a ``take'' of the bats.
33. Comment: Commenter(s) stated that an exemption should be made
available for mining, mineral exploration, and coal extraction
activities.
Our Response: Incidental take of northern long-eared bats that
results from tree-removal activity, including mining operations, is
prohibited in some circumstances (see Activities Involving Tree
Removal, above). However, hibernating bats are very sensitive to
disturbance, as discussed in greater detail under the Hibernacula
section of this rule. This final rule prohibits the incidental take of
northern long-eared bats in hibernacula inside the WNS zone as well as
the purposeful take (e.g., purposefully harassing or killing) of
northern long-eared bats in hibernacula both inside and outside of the
WNS zone. Inside the WNS zone, the take of northern long-eared bats in
mines and man-made tunnels for mineral or coal extraction includes any
activity that kills, injures, harms, or harasses the species. Mining,
mineral exploration, and coal extraction activities will need to work
with the Service to find alternative means to authorize take, such as
through a section 10 permitting process or section 7 process where
applicable. Mining activities inside the WNS zone that do not result in
the incidental take of northern long-eared bats are not prohibited. In
other words, if northern long-eared bats are not being killed, injured,
or otherwise disrupted from their normal hibernation behaviors by the
mining operations, we do not consider those activities to be a ``take''
of the bats.
34. Comment: Commenter(s) suggested that activities designed to re-
claim abandoned mines or maintain cave environments for the benefit of
wildlife species should be exempt under the 4(d) rule.
Our Response: We agree that beneficial reclamation and maintenance
should be encouraged. However, exception from take prohibitions through
a species-specific 4(d) rule is not the appropriate mechanism for
authorizing this activity. Where abandoned mines and cave environments
are in use by northern long-eared bats, take associated with
maintenance is prohibited; however, we encourage project proponents to
work with the Service to implement best management practices to avoid
or minimize the effects of their actions in the interest of habitat
improvement. We will work with project proponents to determine
alternate ways to authorize activities, such as section 10 permits or
section 7 incidental take authorization.
Mosquito Control
35. Comment: Commenter challenges the Service's assertion that
chemicals used in mosquito control (malathion and others of comparable
risk to mammals) pose a risk to northern long-eared bats; commenter
further requests an exemption for mosquito control activities,
especially where there is a public health risk.
Our Response: Please see the Environmental Contaminants section of
this rule for details concerning our evaluation of the risks from
pesticide applications. After careful consideration of the available
information, we do not include in this rule a prohibition on the
incidental take of northern long-eared bats as result of pesticide
application provided the application is a ``lawful activity,'' that is,
it must comply all applicable State laws. Any northern long-eared bat
unlawfully taken pursuant to a State pesticide law would be a violation
of this final 4(d) rule.
Adequacy and Clarity of 0.25 Mile Hibernacula Buffer
36. Comment: Commenter(s) suggested that this buffer is too
restrictive for landowners.
Our Response: The Service has determined that a protective buffer
around known hibernacula is necessary and advisable for the
conservation of the species. Please see the discussion under
Conservation Measure 1: Tree Removal Near Known Northern Long-eared Bat
Hibernacula of this rule for our explanation of the need for this
buffer. As described in that section, we have prohibited incidental
take of northern long-eared bats under specific tree-removal
circumstances; however, that does not mean that all activities
involving tree-removal activities within the 0.25-mile (0.4-km) buffer
of hibernacula will result in take. For example, a timber harvest might
be conducted within 0.25 miles (0.4 km) of a hibernaculum at a time
when bats are unlikely to be roosting in trees within the buffer (e.g.,
winter) that fully protects any bats in the hibernaculum as well as the
hibernaculum's suitability for bats (i.e., bat's access, microclimate),
and does not significantly change the suitability of the habitat for
foraging by northern long-eared bats or perhaps even improves prey
availability. In such a case, the timber harvest, although closer than
0.25 miles (0.4 km) to the hibernaculum, is not likely to result in
incidental take, so we would not recommend that the timber harvester
seek authorization for incidental take pursuant to the Act. Further,
while incidental take of northern long-eared bats within that buffer is
prohibited (in the WNS zone), it may be authorized on a case-by-case
basis with further coordination with the Service at a local level. Take
may be authorized through section 10 or section 7 of the Act. In
addition, it is our expectation that project modifications may be made
that would protect the hibernaculum and allow for the project
proponent's objectives to be met.
37. Comment: Commenter(s) seek clarification on whether the buffer
and prohibition to clearcutting (within the buffer) is a year-round
restriction.
Our Response: Yes, the protection of the hibernaculum and a buffer
around it is a year round protective measure and applies to all types
of tree-removal activities in the WNS zone.
38. Comment: Commenter(s) suggested that the buffer around
hibernacula be limited to fall swarming and spring emergence when
northern long-eared bats are present.
Our Response: We have determined that protective measures must be
considered year-round for several reasons, including that habitat lost
outside of the spring emergence and fall swarming period could affect
the suitability of those habitats later during spring emergence or fall
swarming. Further, we have included the buffer on hibernacula for
several reasons beyond protecting foraging habitat during fall swarming
and spring emergence. In particular, the buffer will help to protect
the micro-climate characteristics of
[[Page 1917]]
hibernacula and other entrances used by bats that may not be reflected
in the primary location information for hibernacula. For example, many
caves or abandoned mines used may have entrances used by bats that are
not reflected in the general location information for those sites that
are used by people; a buffer helps to protect less prominent features
that may be important to bats. Projects may be able to be planned or
modified within those buffer areas to retain sufficient habitat and
avoid harm; however, the Service considers coordination on a case-by-
case basis to be important to assure necessary conservation.
39. Comment: Several commenter(s) suggested an increased buffer
area around hibernacula would be more appropriate.
Our Response: We have revised the approach used in this final 4(d)
rule to ensure that hibernating northern long-eared bats in the WNS
zone are protected from incidental take independent of the buffer size
used in the conservation measure. In addition, all northern long-eared
bats both inside and outside of the WNS zone are protected from
purposeful take (e.g., killing or intentionally harassing northern
long-eared bats), including while in hibernacula where they are most
vulnerable. We have retained the 0.25-mile buffer (0.25-mile radius
from known hibernacula entrance/access points used by bats) to further
protect the hibernacula and associated forested habitat for several
reasons (see discussion above under Conservation Measure 1: Tree
Removal Near Known Northern Long-eared Bat Hibernacula).
40. Comment: Commenter(s) expressed concern with implementing
measures when they do not have data/information on known hibernacula.
Our Response: The Service recognizes the challenges associated with
data sharing and data management. Many states share data management
concerns and guard data carefully. We encourage landowners to continue
to work with your State natural resources and natural heritage staff to
evaluate your ownership for the presence of these important resources.
When seeking information on the presence of hibernacula within your
project boundary, our expectation is that a project proponent will
complete due diligence to determine available data. However, if
information is not available, we recognize that the project proponent
that has made reasonable efforts to determine whether there are known
hibernacula on the property is in the position of not knowing if no
data have been provided.
Maternity Roost Tree Restrictions
41. Comment: Commenter(s) expressed concerns about having adequate
information to identify maternity roost trees.
Our Response: We recognize the challenges associated with data
sharing. Please see response to Comment 40. While not required by this
rule, the Service recommends summer surveys to definitively locate
maternity roost trees.
42. Comment: Commenter(s) requested that we clarify that roost
trees means maternity roost trees.
Our Response: We have made this final 4(d) rule specific to
maternity roost trees.
43. Comment: Commenter(s) expressed disagreement with the 0.25 mile
buffer around known, occupied roost trees. Some commented that this
buffer was too small, while some commented that it was too large.
Our Response: In the interim 4(d) rule (80 FR 17974; April 2,
2015), the buffer around known, occupied roost trees applied only to
some types of tree-removal activities (e.g., forest management, rights-
of-ways, prairie management) and excluded only clearcuts (and similar
harvest methods). Given the relatively small percent of forest habitat
anticipated to be impacted by forest management or conversion (see
Forest Management and Forest Conversion, above of this rule for more
details), we revised the buffer around the known maternity roost trees.
As explained in more detail under Conservation Measure 2: Tree Removal
Near Known Maternity Roost Trees, we have made the buffer more broadly
applicable to all tree-removal activities, but have narrowed it in size
to provide protection for the maternity roost tree, while minimizing
the potential that the protective measure would serve as impediment to
conducting new surveys. We have reduced the buffer around known,
occupied maternity roost trees to a radius of 150 feet around the
known, occupied maternity roost tree.
44. Comment: Commenter(s) stated that the Service should require
surveys to determine where roost trees are located.
Our Response: The Act does not require a private landowner to
survey his or her property to determine whether endangered or
threatened wildlife and plants occupy their land. We encourage
landowners to voluntarily seek additional information to conserve
natural resources in their land use/land management actions; however,
we will not require surveys to locate northern long-eared bats and
maternity roost trees on private property.
Residential Housing Development
45. Comment: Commenter(s) requested that northern long-eared bat
take be excepted for the purposes of residential housing development.
Our Response: Take resulting from removal of summer habitat (tree
removal) is not prohibited provided the conservation measures set forth
in this rule are followed when the habitat removal occurs within the
WNS zone. The provisions of this final rule have been restructured to
clarify prohibitions rather than rely on a list of excepted activities.
Wind Energy Development
46. Comment: Commenter(s) requested that northern long-eared bat
take be excepted for the purposes of renewable energy development and
operation (wind energy).
Our Response: Incidental take resulting from wind energy
development and operation is not prohibited, provided that the
conservation measures set forth in this rule are followed to protect
hibernacula and known, occupied maternity roost trees. We strongly
encourage voluntary conservation measures and best management practices
such as feathering or elevated cut-in speeds to reduce impacts to
northern long-eared bats and other bats; however, we have not
prohibited incidental take attributable to wind energy in this final
rule. Please see the Wind Energy Facilities section of this rule for
additional details.
Natural Resource Management
47. Comment: Commenter(s) requested that northern long-eared bat
take be excepted when activities are included in Department of Defense
integrated natural resource management plans, providing for activities
such as recreational activities, burns, and other temporary but
insignificant effects on the northern long-eared bat.
Our Response: Incidental take resulting from activities described
as recreational activities and beneficial wildlife habitat management/
maintenance is not prohibited, provided that the conservation measures
set forth in this rule are followed when the activity occurs inside the
WNS zone. We have completed a section 7 analysis on the provisions of
this final 4(d) rule to ensure that actions completed in accordance
with the final rule are not likely to jeopardize the continued
existence of the species. Where these resource management activities do
not fit within the final rule, section 7 consultation would need to be
[[Page 1918]]
completed to authorize incidental take of the northern long-eared bat.
Compliance and Monitoring
48. Comment: Commenter(s) recommended that surveys be required and
that landowners be required to report on their activities in order to
receive the benefits of the 4(d) rule.
Our Response: While we welcome landowners' efforts to determine
where bats may be located on their property, the Act does not require
that a landowner survey his or her property to find species. We are not
mandating that surveys be completed as part of this rule.
Alternate Section 4(d) Provisional Language
49. Comment: One organization commented on behalf of its members
and 14 other environmental organizations (collectively referenced as
``the Center'') in support of the adoption of a different 4(d) rule and
in opposition of the Service's proposed and the interim 4(d) rules.
Our Response: The remaining paragraphs (under the heading Summary
of Comments and Recommendations on the Proposed and Interim4(d) Rules)
pertain to the comments we received from the Center. With respect to
the overarching comment that our 4(d) rule does not conserve the
species, we believe that our final 4(d) rule provides for the
``necessary and advisable'' conservation of the species, as described
herein. For further information, please see our Determination section,
below.
With respect to the Center's proposed 4(d) language, we note that
the proposed language defines specific prohibitions and would make a
regulatory determination of ``take'' to include a number of actions.
These include cave and mine entry without implementing decontamination
protocols; transporting equipment into caves and mines or between caves
and mines between the WNS zone and non-WNS zone; cave and mine entry
during hibernation periods; activities associated with hydraulic
fracturing within 5 miles of a hibernaculum, within 1.5 miles of an
occupied roost tree, or within 3 miles of an acoustic detection or bat
capture record; noise disturbance activities within a 0.5-mile radius
of a hibernaculum during the hibernation period; and disruption of
water sources within hibernacula. With respect to protection of
hibernacula, take of northern long-eared bats is prohibited.
Establishing the causal connection between a variety of activities such
as those the Center proposed to be defined as prohibitions is beyond
the scope of this rule. We have addressed hibernacula protection
provisions in this rule under the section entitled Conservation Measure
1: Tree Removal Near Known Northern Long-eared Bat Hibernacula.
Protections in this final rule are adequate to protect the species.
In addition to the Center's suggested language for hibernacula
prohibitions, they recommended language regarding prohibitions for
prescribed burning and aerial spraying. Based on our analysis, we
conclude that prescribed burning and aerial spraying do not have a
measurable population-level impact on the species and regulation of
those activities will not meaningfully impact the species' ability to
recover. For further information on prescribed fire impacts, see
Prescribed Fire above. For further information on aerial spraying of
pesticides, please see the Environmental Contaminants section above.
The final prohibition suggested by the Center was the operation of
utility-scale wind projects, specifically during the hours from dusk to
sunrise during the fall swarming season, at low wind speeds, and within
5 miles of a hibernaculum. Incidental take resulting from the operation
of wind energy facilities is not prohibited by this final 4(d) rule and
a complete discussion of known impacts to the species may be found in
the Wind Energy Facilities section above.
Finally, the Center provided suggested regulatory text for
exemptions from prohibitions that included language for seasonal
restrictions, clearing restrictions, mandatory measures for hibernacula
protection (gate installation), water quality protection measures, and
data collection and reporting requirements. We recognize the effort
that has gone into the development of this alternative language.
However, we have carefully considered the measures that are necessary
for the protection of the species. Our final rule has been developed
based on the Service's desire to implement protective measures that
will make a meaningful impact on species conservation and recovery. As
stated elsewhere in this document (see Determination section, below),
we have provided regulatory flexibility while implementing protective
measures where we have determined those measures to be necessary and
advisable for conservation of the species.
Determination
Section 4(d) of the Act states that ``the Secretary shall issue
such regulations as she deems `necessary and advisable to provide for
the conservation' '' of species listed as threatened species.
Conservation is defined in the Act to mean ``to use and the use of all
methods and procedures which are necessary to bring any endangered
species or threatened species to the point at which the measures
provided pursuant to [the Act] are no longer necessary.''
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, the Secretary may find that it
is necessary and advisable not to include a taking prohibition, or to
include a limited taking prohibition. See Alsea Valley Alliance v
Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington
Environmental Council v. National Marine Fisheries Service, 2002 U.S.
Dist. Lexis 5432 (W.D. Wash. 2002). In addition, as affirmed in State
of Louisiana v. Verity, 853 F. 2d 322 (5th Cir. 1988), the rule need
not address all the threats to the species. As noted by Congress 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 [her] with regard to the permitted activities for those species.
[She] may, for example, permit taking, but not importation of such
species,'' or she may choose to forbid both taking and importation but
allow the transportation of such species, as long as the prohibitions,
and exceptions to those prohibitions, will ``serve to conserve,
protect, or restore the species concerned in accordance with the
purposes of the Act'' (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).
Section 9 prohibitions make it illegal for any person subject to
the jurisdiction of the United States to violate any regulation
pertaining to any threatened species of fish or wildlife listed
pursuant to section 4 of the Act and promulgated by the Secretary
pursuant to authority provided by the Act. Under this final 4(d) rule,
incidental take of the northern long-eared bat will not be prohibited
outside the WNS zone. Incidental take also will not it be prohibited
within the WNS zone, outside of hibernacula, provided that it occurs
more than 0.25 miles (0.4 km) from a known hibernacula and does not
result from an activity that cuts or destroys known occupied maternity
roost trees, or any other trees within a 150-foot (45-m) radius from
the maternity tree, during the pup season (June 1 through July 31).
Accordingly, we have determined that this provision is necessary
and advisable for the conservation of the northern long-eared bat as
explained below.
[[Page 1919]]
Although not fully protective of every individual, the conservation
measures identified in this final rule help protect maternity colonies.
This final species-specific rule under section 4(d) of the Act provides
the flexibility for certain activities to occur that have not been the
cause of the species' imperilment, while still promoting conservation
of the species across its range.
The northern long-eared bat was listed as a threatened species
under the Act, with an interim rule under section 4(d), on April 2,
2015 (80 FR 17974). At that time, the Service invited public comment on
the interim 4(d) rule for 90 days, ending July 1, 2015. The Service had
already received comments for 60 days on its proposed 4(d) rule (80 FR
2371; January 16, 2015). In total, the Service received approximately
40,500 comments on the proposed and interim 4(d) rules. For a complete
discussion of the comments, as well as the Service's response to
comments, see Summary of Comments and Recommendations on the Proposed
and Interim 4(d) Rules, above.
Because the primary threat to the northern long-eared bat is a
fungal disease known as WNS, the Service has tailored the final 4(d)
rule to prohibit the take of northern long-eared bats from certain
activities within areas where they are in decline, as a result of WNS,
and within these areas we apply incidental take protection only to
known, occupied maternity roost trees and known hibernacula. These
protections will help to conserve the northern long-eared bat during
its most vulnerable life stages (from birth to flight, or volancy) and
during spring and fall swarming (near hibernacula).
In summary, this 4(d) rule is necessary and advisable to provide
for the conservation of the northern long-eared bat because it provides
for protection of known maternity roost trees and known hibernacula
within the WNS zone. In addition, promulgation of this rule allows the
conservation community to provide for species conservation where it can
affect change, namely during the northern long-eared bat's most
vulnerable life stages and where hibernation occurs. This final 4(d)
rule allows the regulated public to manage lands in a manner that is
lawful and compatible with species' survival, and it allows for
protection of the species in a manner that the Secretary deems to be
necessary and advisable for the conservation of the northern long-eared
bat. By this rule, the Secretary deems that the prohibition of certain
take, which is incidental to otherwise lawful activities that take bat
habitat, is not necessary for the long-term survival of the species.
Furthermore, she acknowledges the importance of addressing the threat
of WNS as the primary measure to arrest and reverse the decline of the
species. Nothing in this 4(d) rule affects other provisions of the Act,
such as designation of critical habitat under section 4, recovery
planning under section 4(f), and consultation requirements under
section 7.
Required Determinations
Regulatory Planning and Review
(Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant. Executive Order 13563 reaffirms the principles of E.O.
12866 while calling for improvements in the nation's regulatory system
to promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. The executive order directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives. E.O. 13563 emphasizes
further that regulations must be based on the best available science
and that the rulemaking process must allow for public participation and
an open exchange of ideas. We have developed this final 4(d) rule in a
manner consistent with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Listing and status determinations under the Endangered Species Act
of 1973, as amended (Act; 16 U.S.C. 1531 et seq.), and any prohibitions
or protective measures afforded the species under the Act are exempt
from the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996). However, as this final 4(d) rule is being
promulgated following the final listing of the northern long-eared bat,
we evaluate whether the Regulatory Flexibility Act applies to this
rulemaking.
Under the Regulatory Flexibility Act, whenever an agency must
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
SBREFA amended the RFA to require Federal agencies to provide a
statement of the factual basis for certifying that the rule will not
have a significant economic impact on a substantial number of small
entities. Thus, for a regulatory flexibility analysis to be required,
impacts must exceed a threshold for ``significant impact'' and a
threshold for a ``substantial number of small entities.'' See 5 U.S.C.
605(b). Based on the information that is available to us at this time,
we certify that this rule will not have a significant economic impact
on a substantial number of small entities. The following discussion
explains our rationale.
On April 2, 2015 (80 FR 17974), we published the final
determination to list the northern long-eared bat as a threatened
species and an interim 4(d) rule. That rule became effective on May 4,
2015, and the interim 4(d) rule will remain in effect until this final
rule becomes effective (see DATES, above). The interim 4(d) rule
generally applies the prohibitions of 50 CFR 17.31 and 17.32 to the
northern long-eared bat, which means that the interim rule, among other
things, prohibits the purposeful take of northern long-eared bats
throughout the species' range, but the interim rule includes exceptions
to the purposeful take prohibition. The exceptions for purposeful take
are: (1) In instances of removal of northern long-eared bats from human
structures (if actions comply with all applicable State regulations);
and (2) for authorized capture, handling, and related activities of
northern long-eared bats by individuals permitted to conduct these same
activities for other bat species until May 3, 2016. Under the interim
rule, incidental take is not prohibited outside the WNS zone if the
incidental take results from otherwise lawful activities. Inside the
WNS zone, there are exceptions for incidental take for the following
activities, subject to certain conditions: Implementation of forest
management; maintenance and expansion of existing rights-of-way and
transmission corridors; prairie management; minimal tree removal; and
removal of hazardous trees for the protection of human life and
property.
This final 4(d) rule does not generally apply the prohibitions of
50 CFR 17.31 to the northern long-eared bat. This rule continues to
prohibit purposeful take of
[[Page 1920]]
northern long-eared bats throughout the species' range, except in
certain cases, including in instances of removal of northern long-eared
bats from human structures and for authorized capture, handling, and
related activities of northern long-eared bats by individuals permitted
to conduct these same activities for other bat species until May 3,
2016. After May 3, 2016, a permit pursuant to section 10(a)(1)(A) of
the Act is required for the capture and handling of northern long-eared
bats. Under this rule, incidental take is still not prohibited outside
the WNS zone. Within the WNS zone, incidental take is prohibited only
if: (1) Actions result in the incidental take of northern long-eared
bats in hibernacula; (2) actions result in the incidental take of
northern long-eared bats by altering a known hibernaculum's entrance or
interior environment if the alteration impairs an essential behavioral
pattern, including sheltering northern long-eared bats; or (3) tree-
removal activities result in the incidental take of northern long-eared
bats when the activity either occurs within 0.25 mile (0.4 kilometer)
of a known hibernaculum, or cuts or destroys known, occupied maternity
roost trees or any other trees within a 150-foot (45-meter) radius from
the maternity roost tree during the pup season (June 1 through July
31). This approach allows more flexibility to affected entities and
individuals in conducting activities within the WNS zone. Under this
rule, we individually set forth prohibitions on possession and other
acts with unlawfully taken northern long-eared bats, and on import and
export of northern long-eared bats. These prohibitions were included in
the interim 4(d) through the general application of the prohibitions of
50 CFR 17.31 to the northern long-eared bat. Under this rule, take of
the northern long-eared bat is also not prohibited for the following:
Removal of hazardous trees for protection of human life and property;
take in defense of life; and take by an employee or agent of the
Service, of the National Marine Fisheries Service, or of a State
conservation agency that is operating a conservation program pursuant
to the terms of a cooperative agreement with the Service. Regarding
these three exceptions, take in defense of life was not included in the
interim 4(d) rule, but the other two exceptions were, either through
the general application of 50 CFR 17.31 or through a specific exception
included in the interim 4(d) rule. Therefore, this final 4(d) rule will
result in less restrictive regulations under the Act than those set
forth in the interim 4(d) rule.
We completed an analysis of the forested land area that may be
impacted by this rulemaking. There are approximately 400,000,000 acres
(161,874,256 ha) of forested habitat across the range of the northern
long-eared bat, which includes 37 States and the District of Columbia.
This rule may restrict land use activities on approximately 200,000
acres (80,937 ha). This area constitutes less than 0.05 percent of all
forested habitat across the extensive range of the northern long-eared
bat. Any impact in this very small portion of forested habitat is not
expected to affect a substantial number of entities in any given
sector, nor result in a significant economic impact on any given
entity. For the above reasons, we certify that the final rule will not
have a significant economic impact on a substantial number of small
entities. Therefore, a final regulatory flexibility analysis is not
required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. For reasons discussed within this final rule, we
believe that the rule will not have any effect on energy supplies,
distribution, or use. Therefore, this action is not a significant
energy action, and no Statement of Energy Effects is required.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This final rule will not produce a Federal mandate. In general,
a Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or [T]ribal governments'' with
two exceptions. It excludes ``a condition of Federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and [T]ribal governments under entitlement
authority,'' if the provision would ``increase the stringency of
conditions of assistance'' or ``place caps upon, or otherwise decrease,
the Federal Government's responsibility to provide funding,'' and the
State, local, or Tribal governments ``lack authority'' to adjust
accordingly. At the time of enactment, these entitlement programs were:
Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social
Services Block Grants; Vocational Rehabilitation State Grants; Foster
Care, Adoption Assistance, and Independent Living; Family Support
Welfare Services; and Child Support Enforcement. ``Federal private
sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
(2) This final 4(d) rule will result in less restrictive
regulations under the Act, as it pertains to the northern long-eared
bat, than would otherwise exist without a 4(d) rule or under the
interim 4(d) rule. As a result, we do not believe that this rule will
significantly or uniquely affect small government entities. Therefore,
a Small Government Agency Plan is not required.
Takings
In accordance with Executive Order 12630, this final rule will not
have significant takings implications. We have determined that the rule
has no potential takings of private property implications as defined by
this Executive Order because this 4(d) rule will result in less-
restrictive regulations under the Act than would otherwise exist. A
takings implication assessment is not required.
Federalism
In accordance with Executive Order 13132, this final 4(d) rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. This rule will not have substantial direct
effects on the State, on the relationship between the Federal
Government and the State, or on the distribution of power and
responsibilities among the various levels of government.
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this final rule does not unduly burden
the judicial system and meets the requirements of sections 3(a) and
3(b)(2) of the Order.
[[Page 1921]]
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain 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 prepared a final environmental assessment, as defined under
the authority of the National Environmental Policy Act of 1969. For
information on how to obtain a copy of the final environmental
assessment, see ADDRESSES, above. The final environmental assessment
will also be available on the Internet at http://www.regulations.gov
and at http://www.fws.gov/midwest/Endangered.
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.
In October 2013, Tribes and multi-tribal organizations were sent
letters inviting them to begin consultation and coordination with the
service on the proposal to list the northern long-eared bat. In August
2014, several Tribes and multi-tribal organizations were sent an
additional letter regarding the Service's intent to extend the deadline
for making a final listing determination by 6 months. A conference call
was also held with Tribes to explain the listing process and discuss
any concerns. Following publication of the proposed rule, the Service
established three interagency teams (biology of the northern long-eared
bat, non-WNS threats, and conservation measures) to ensure that States,
Tribes, and other Federal agencies were able to provide input into
various aspects of the listing rule and potential conservation measures
for the species. Invitations for inclusion in these teams were sent to
Tribes within the range of the northern long-eared bat and a few tribal
representatives participated on those teams. Two additional conference
calls (in January and March 2015) were held with Tribes to outline the
proposed species-specific 4(d) rule and to answer questions. Through
this coordination, some Tribal representatives expressed concern about
how listing the northern long-eared bat may impact forestry practices,
housing development programs, and other activities on Tribal lands.
References Cited
A complete list of references cited in this document is available
on the Internet at http://www.regulations.gov and upon request from the
Twin Cities Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this document are the staff members of the
Midwest Region of the U.S. Fish and Wildlife Service.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as follows:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. Amend Sec. 17.40 by revising paragraph (o) to read as follows:
Sec. 17.40 Special rules--mammals.
* * * * *
(o) 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 zone'' identifies the set of counties within 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 (Pd) or WNS has been detected. For current information
regarding the WNS zone, contact your local Service ecological services
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) Prohibitions. The following prohibitions apply to the northern
long-eared bat:
(i) Purposeful take of northern long-eared bat, including capture,
handling, or other activities.
(ii) Within the WNS zone:
(A) Actions that result in the incidental take of northern long-
eared bats in known hibernacula.
(B) Actions that result in the incidental take of northern long-
eared bats by altering a known hibernaculum's entrance or interior
environment if it impairs an essential behavioral pattern, including
sheltering northern long-eared bats.
(C) Tree-removal activities that result in the incidental take of
northern long-eared bats when the activity:
(1) Occurs within 0.25 mile (0.4 kilometer) of a known
hibernaculum; or
(2) Cuts or destroys known occupied maternity roost trees, or any
other trees within a 150-foot (45-meter) radius from the maternity
roost tree, during the pup season (June 1 through July 31).
(iii) Possession and other acts with unlawfully taken northern
long-eared bats. It is unlawful to possess, sell, deliver, carry,
transport, or ship, by any means whatsoever, any northern long-eared
bat that was taken in violation of this section or State laws.
(iv) Import and export.
(2) Exceptions from prohibitions. (i) Any person may take a
northern long-eared bat in defense of his own life or the lives of
others, including for public health monitoring purposes.
(ii) Any person may take a northern long-eared bat that results
from the removal of hazardous trees for the protection of human life
and property.
(iii) Any person may take a northern long-eared bat by removing it
from human structures, but only if the actions comply with all
applicable State regulations.
(iv) Purposeful take that results from actions relating to capture,
handling, and related activities for northern long-eared bats by
individuals permitted to
[[Page 1922]]
conduct these same activities for other species of bat until May 3,
2016.
(v) All of the provisions of Sec. 17.32 apply to the northern
long-eared bat.
(vi) Any employee or agent of the Service, of the National Marine
Fisheries Service, or of a State conservation agency that is operating
a conservation program pursuant to the terms of a cooperative agreement
with the Service in accordance with section 6(c) of the Act, who is
designated by his agency for such purposes, may, when acting in the
course of his official duties, take northern long-eared bats covered by
an approved cooperative agreement to carry out conservation programs.
* * * * *
Dated: January 7, 2016.
Karen Hyun,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 2016-00617 Filed 1-13-16; 8:45 am]
BILLING CODE 4333-15-P