83_FR_50805 83 FR 50610 - Endangered and Threatened Wildlife and Plants; 12-Month Petition Finding and Threatened Species Status for Eastern Black Rail With a Section 4(d) Rule

83 FR 50610 - Endangered and Threatened Wildlife and Plants; 12-Month Petition Finding and Threatened Species Status for Eastern Black Rail With a Section 4(d) Rule

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service

Federal Register Volume 83, Issue 195 (October 9, 2018)

Page Range50610-50630
FR Document2018-21799

We, the U.S. Fish and Wildlife Service (Service), announce a 12-month petition finding on a petition to list the eastern black rail (Laterallus jamaicensis jamaicensis) as an endangered or threatened species under the Endangered Species Act of 1973 (Act), as amended. After review of the best available scientific and commercial information, we find that listing the eastern black rail is warranted. Accordingly, we propose to list the eastern black rail, a bird subspecies that occurs in as many as 35 States, the District of Columbia, Puerto Rico, and several countries in the Caribbean and Central America, as a threatened species under the Act. If we finalize this rule as proposed, it would extend the Act's protections to this subspecies and, accordingly, add this subspecies to the List of Endangered and Threatened Wildlife. We also propose a rule under the authority of section 4(d) of the Act that provides measures that are necessary and advisable to provide for the conservation of the eastern black rail. We have determined that designation of critical habitat for the eastern black rail is not prudent at this time, but we are seeking public comment on that determination.

Federal Register, Volume 83 Issue 195 (Tuesday, October 9, 2018)
[Federal Register Volume 83, Number 195 (Tuesday, October 9, 2018)]
[Proposed Rules]
[Pages 50610-50630]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-21799]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2018-0057; 4500030113]
RIN 1018-BD21


Endangered and Threatened Wildlife and Plants; 12-Month Petition 
Finding and Threatened Species Status for Eastern Black Rail With a 
Section 4(d) Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
12-month petition finding on a petition to list the eastern black rail 
(Laterallus jamaicensis jamaicensis) as an endangered or threatened 
species under the Endangered Species Act of 1973 (Act), as amended. 
After review of the best available scientific and commercial 
information, we find that listing the eastern black rail is warranted. 
Accordingly, we propose to list the eastern black rail, a bird 
subspecies that occurs in as many as 35 States, the District of 
Columbia, Puerto Rico, and several countries in the Caribbean and 
Central America, as a threatened species under the Act. If we finalize 
this rule as proposed, it would extend the Act's protections to this 
subspecies and, accordingly, add this subspecies to the List of 
Endangered and Threatened Wildlife. We also propose a rule under the 
authority of section 4(d) of the Act that provides measures that are 
necessary and advisable to provide for the conservation of the eastern 
black rail. We have determined that designation of critical habitat for 
the eastern black rail is not prudent at this time, but we are seeking 
public comment on that determination.

DATES: We will accept comments received or postmarked on or before 
December 10, 2018. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. Eastern Time on the closing date. We must receive requests for 
public hearings, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by November 23, 2018.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R4-ES-2018-0057, 
which is the docket number for this rulemaking. Then, click the Search 
button. On the resulting page, in the Search panel on the left side of 
the screen, under the Document Type heading, click on the Proposed Rule 
box to locate this document. You may submit a comment by clicking on 
``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R4-ES-2018-0057, U.S. Fish and Wildlife 
Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Public Comments, below, for more information).

FOR FURTHER INFORMATION CONTACT: Tom McCoy, Field Supervisor, South 
Carolina Ecological Services Field Office, 176 Croghan Spur Road, Suite 
200, Charleston, SC 29407; telephone 843-727-4707; facsimile 843-300-
0204. Persons who use a telecommunications device for the deaf (TDD) 
may call the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, if we determine that 
a species is an endangered or threatened species throughout all or a 
significant portion of its range, we are required to promptly publish a 
proposal in the Federal Register and make a determination on our 
proposal within 1 year. Listing a species as an endangered or 
threatened species can only be completed by issuing a rule.
    This rule proposes to list the eastern black rail (Laterallus 
jamaicensis jamaicensis) as a threatened species and to provide 
measures under section 4(d) of the Act that are tailored to our current 
understanding of the conservation needs of the eastern black rail.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species based on any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that habitat loss and 
destruction, sea level rise and tidal flooding, incompatible land 
management, and increasing storm intensity and frequency are the 
primary threats to this subspecies.
    Peer review. We prepared a species status assessment report (SSA 
report) for the eastern black rail. The SSA report represents a 
compilation and assessment of the best scientific and commercial 
information available concerning the status of the eastern black rail, 
including the past, present, and future factors influencing the 
subspecies (Service 2018, entire). We solicited independent peer review 
of the SSA report by 10 individuals with expertise in rail biology and 
ecology and in species modeling; we received comments from 5 of the 10 
reviewers. The reviewers were generally supportive of our approach and 
made suggestions and comments that strengthened our analysis. The SSA 
report and other materials relating to this proposal can be found at 
http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0057.

Information Requested

Public Comments

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other concerned governmental agencies, 
Native American tribes, the scientific community, industry, or any 
other interested parties concerning this proposed rule. We particularly 
seek comments concerning:
    (1) The eastern black rail's biology, range, and population trends, 
including:
    (a) Biological or ecological requirements of the subspecies, 
including habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the subspecies, its 
habitat, or both.

[[Page 50611]]

    (2) Factors that may affect the continued existence of the 
subspecies, which may include habitat modification or destruction, 
overutilization, disease, predation, the inadequacy of existing 
regulatory mechanisms, or other natural or manmade factors.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to the eastern black rail and existing 
regulations that may be addressing those threats.
    (4) Additional information concerning the historical and current 
status, range, distribution, and population size of the eastern black 
rail, including the locations of any additional populations of this 
subspecies.
    (5) The reasons why areas should or should not be designated as 
critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 et 
seq.), including the possible risks or benefits of designating critical 
habitat, including risks associated with publication of maps 
designating any area on which this subspecies may be located, now or in 
the future, as critical habitat. We specifically request information on 
the threats of taking or other human activity, particularly by birders, 
on the eastern black rail and its habitat, and the extent to which 
designation might increase those threats, as well as the possible 
benefits of critical habitat designation to the eastern black rail.
    (6) Whether the measures outlined in the proposed section 4(d) rule 
are necessary and advisable for the conservation and management of the 
eastern black rail. We particularly seek comments concerning:
    (a) Whether the provision related to the prescribed burn activities 
should be revised to include additional spatial or temporal 
restrictions or deferments, or additional best management practices;
    (b) Whether the provision related to the haying, mowing, and 
mechanical treatment activities should be revised to include additional 
spatial or temporal restrictions or deferments;
    (c) Whether the provision related to the grazing activities should 
be revised to include spatial or temporal restrictions or deferments. 
We also seek comment on the level of grazing density that is compatible 
with eastern black rail occupancy; and
    (d) Whether there are additional provisions the Service may wish to 
consider for the section 4(d) rule in order to conserve, recover, and 
manage the eastern black rail, such as limitations on road construction 
and other infrastructure or construction activities, moist soil 
management, or structural marsh management activities.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is an endangered or threatened 
species must be made ``solely on the basis of the best scientific and 
commercial data available.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, South Carolina Ecological Services Field Office (see 
FOR FURTHER INFORMATION CONTACT).

Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. We must receive requests within 45 days after 
the date of publication of this proposed rule in the Federal Register 
(see DATES, above). Such requests must be sent to the address shown in 
FOR FURTHER INFORMATION CONTACT. We will schedule a public hearing on 
this proposal, if requested, and announce the date, time, and place of 
that hearing, as well as how to obtain reasonable accommodations, in 
the Federal Register and local newspapers at least 15 days before the 
hearing.

Peer Review

    The purpose of peer review is to ensure that our listing 
determination is based on scientifically sound data, assumptions, and 
analyses. In accordance with our joint policy on peer review published 
in the Federal Register on July 1, 1994 (59 FR 34270), we sought the 
expert opinions of 10 appropriate and independent specialists with 
expertise in eastern black rail ecology and modeling regarding the SSA 
report (Service 2018, entire) that supports this proposed rule. We 
received comments from 5 of the 10 peer reviewers.

Previous Federal Action

    In April 2010, the Center for Biological Diversity (CBD) petitioned 
the Service to list 404 aquatic, riparian, and wetland species from the 
southeastern United States under the Act. The eastern black rail was 
among these 404 species. On September 27, 2011, the Service published a 
90-day finding that the petition presented substantial scientific or 
commercial information indicating that listing may be warranted for 374 
species, including the eastern black rail (76 FR 59836). On September 
13, 2012, CBD filed a complaint against the Service for failure to 
complete a 12-month finding for the eastern black rail. On April 25, 
2013, the Service entered into a settlement agreement with CBD to 
resolve the complaint; the court approved the agreement on April 26, 
2013. The agreement specified that a 12-month finding for the eastern 
black rail would be delivered to the Federal Register by September 30, 
2018. This document serves as our 12-month finding on the April 2010 
petition.

Background

    A thorough review of the taxonomy, life history, and ecology of the 
eastern black rail is presented in the SSA report (Service 2018, 
entire).

Taxonomy and Species Description

    The eastern black rail is a subspecies of black rail, which is a 
member of the family Rallidae (rails, gallinules, and coots) in the 
order Gruiformes (rails, cranes, and allies; American Ornithologists' 
Union, 1998, p. 130). The eastern black rail is one of four recognized 
subspecies of black rail. The California black rail (Laterallus 
jamaicensis coturniculus) is the only other subspecies that occurs in 
North America; its range does not overlap with the eastern black rail 
Taylor and van Perlo 1998, p. 221; Clements et al. 2016, unpaginated). 
The Birds of North America and Avibase both currently recognize the 
eastern black rail as a valid subspecies (Eddleman et al. 1994, 
unpaginated; Avibase 2003, unpaginated). We have no information

[[Page 50612]]

to suggest there is scientific disagreement about the eastern black 
rail's taxonomy; therefore, we accept that the eastern black rail is a 
valid taxon.
    The black rail is the smallest rail in North America. Males and 
females are similar in size, and adults are generally pale to blackish 
gray, with a small blackish bill and bright red eyes. The eastern black 
rail is larger (mean mass=35 grams) but has less brightly colored 
plumage than the California black rail (mean mass = 29 grams) (Eddleman 
et al. 1994, unpaginated).
    The eastern black rail has four life stages: egg, chick, juvenile, 
and adult; we discuss specifics of each of these life stages in detail 
in our SSA report (Service 2018, pp. 8-12). Eastern black rail egg 
laying and incubation primarily occur from May to August, with some 
early nesting in March and April (Watts 2016, pp. 10-11; A. Moore and 
J. Wilson 2018, unpublished data). The chick stage occurs from May 
through September. The juvenile stage begins when a chick has fledged 
and is independent from the parents. Eastern black rails reach the 
sexually mature adult life stage the spring after hatch year. Adults 
undergo a complete postbreeding molt each year between July and 
September on the breeding grounds (Pyle 2008, p. 477; Hand 2017b, p. 
15). During that time, individuals simultaneously lose all of their 
wing flight feathers and tail flight feathers, and are unable to fly 
for approximately 3 weeks (Flores and Eddleman 1991, pp. iii, 62-63; 
Eddleman, Flores, and Legare 1994, unpaginated). We recognize that 
there is latitudinal variability of these life-history events across 
the range of the eastern black rail. The subspecies' lifespan is not 
known.
    The nature of migration for the eastern black rail is poorly 
understood. Preliminary results suggest there are two populations of 
eastern black rail in the south-central United States: A migratory 
population breeding in Colorado and Kansas, and wintering in Texas; and 
a non-migratory population living in Texas year-round (Butler 2017, 
pers. comm.). Additionally, it is suspected that the northern U.S. 
Atlantic coast population migrates and winters on the southern Atlantic 
coast (e.g., the Carolinas and Florida) and also in the Caribbean and 
Central America (Eddleman, Flores, and Legare 1994, unpaginated; Taylor 
and van Perlo, 1998, pp. 221-222).

Distribution

    The eastern black rail occupies portions of the eastern United 
States (east of the Rocky Mountains), Mexico, Central America, and the 
Caribbean. Individuals that are presumed to be the eastern black rail 
have also been reported on occasion in Brazil. In the United States, 
eastern black rails are found in both coastal and inland areas, but the 
majority of detections are from coastal sites. In a recent assessment 
of 23 States that comprise the primary area of the subspecies' range 
within the contiguous United States (i.e., along the Atlantic and Gulf 
Coasts), approximately 90 percent of documented breeding-season 
occurrence records occurred at coastal locations (Watts 2016, p. 117). 
Inland records accounted for less than 10 percent of total occurrences, 
and more than 60 percent of the inland records occurred before 1950 
(Watts 2016, p. 117). The eastern black rail has been reported to occur 
throughout the Caribbean and Central America, and it has been 
hypothesized that some birds may migrate from the coastal United States 
to the Caribbean in the winter; however, the subspecies' distribution 
is poorly understood (Taylor and van Perlo 1998, pp. 221-222). There 
have been very few reports of eastern black rails in recent years from 
the Caribbean and Central America. It is not certain whether this is 
due to lack of survey effort, loss of habitat, predation, or a 
combination of these.
    See the figure, below, for a distribution map for the eastern black 
rail. This figure shows the current areas where black rails are found 
year-round and in the spring and summer. Shaded countries and U.S. 
States are those that may have detections of eastern black rails; 
however, detections in these countries or U.S. States may be few in 
number and the bird may not be detected regularly, i.e., it may be 
considered a vagrant or accidental migrant in these areas. The 
individual detections in Central America, the Caribbean, and Brazil 
occurred from 2011 to present.
BILLING CODE 4333-15-P

[[Page 50613]]

[GRAPHIC] [TIFF OMITTED] TP09OC18.000

BILLING CODE 4333-15-C

Habitat

    Eastern black rails are found in a variety of salt, brackish, and 
freshwater marsh habitats that can be tidally or non-tidally 
influenced. Within these habitats, the birds occupy relatively high 
elevations along heavily vegetated wetland gradients, with soils that 
are moist or flooded to a shallow depth (Eddleman, Knopf, Meanley, 
Reid, and Zembal 1988, p. 463; Nadeau and Conway 2015, p. 292). Eastern 
black rails require dense vegetative cover that allows movement 
underneath the canopy. Plant structure is considered more important 
than plant species composition in predicting habitat suitability for 
the subspecies (Flores and Eddleman 1995, pp. 357, 362). Occupied 
habitat tends to be primarily composed of fine-stemmed emergent plants 
(rushes, grasses, and sedges) with high stem densities and dense canopy 
cover (Flores and Eddleman 1995, p. 362; Legare and Eddleman 2001, pp. 
173-174). However, when shrub densities become too high, the habitat 
becomes less suitable for eastern black rails. Soils are moist to 
saturated (occasionally dry) and interspersed with or adjacent to very 
shallow water (1 to 6 centimeters) (Legare and Eddleman 2001, pp. 173, 
175). Eastern black rails forage on a variety of small (<1 centimeter 
(cm) (0.39 inches (in))) aquatic and terrestrial invertebrates, 
especially insects, and seeds (e.g.,

[[Page 50614]]

Typha, Scirpus, Spartina spp.) by gleaning or pecking at individual 
items (Eddleman, Flores, and Legare 1994, unpaginated; Ehrlich, Dobkin, 
and Wheye 1988, p. 102).

Species Needs

    The eastern black rail is a wetland dependent subspecies. While it 
can be found in salt, brackish, and freshwater marshes that are tidally 
or non-tidally influenced, it has a very specific niche habitat. It 
requires dense herbaceous vegetation to provide shelter and cover and 
areas for protected nest sites; it is not found in areas with woody 
vegetation.
    The bird requires shallow water or moist soil for its nesting 
sites. Ideally, the water level is 1 to 6 cm (0.39 to 2.36 in), 
although less than 3 cm (1.18 in) is ideal for foraging and chick 
rearing. Water levels must be below the nests during egg laying and 
incubation for nests to be successful. Eastern black rails require 
elevated refugia with dense cover to survive high water events, because 
juvenile and adult black rails prefer to walk and run rather than fly 
and chicks are unable to fly. Eastern black rails fly little during the 
breeding and wintering seasons--they prefer to remain on the ground, 
running quickly through dense vegetation--and are considered secretive 
because of this behavior. Having higher elevation areas with dense 
vegetation allows the birds to escape flood events during the 
flightless molt period, and provides shelter from predators.

Summary of Biological Status and Threats

    We completed a comprehensive assessment of the biological status of 
the eastern black rail, and prepared a report of the assessment (SSA 
report; Service 2018, entire), which provides a thorough account of the 
subspecies' overall viability. Below, we summarize the key results and 
conclusions of the SSA report, which can be viewed under Docket No. 
FWS-R4-ES-2018-0057 at http://www.regulations.gov.
    To assess eastern black rail viability, we used the three 
conservation biology principles of resiliency, representation, and 
redundancy (together, ``the three Rs,'' (3Rs)) (Shaffer and Stein 2000, 
pp. 306-310). Briefly, resiliency refers to the ability of a species to 
withstand environmental and demographic stochasticity (for example, wet 
or dry years); representation refers to the ability of the species to 
adapt over time to long-term changes in the environment (for example, 
climate change); and redundancy refers to the ability of the species to 
withstand catastrophic events (for example, hurricanes). In general, 
the more redundant and resilient a species is and the more 
representation it has, the more likely it is to sustain populations 
over time, even under changing environmental conditions. Using these 
principles, we identified the eastern black rail's ecological 
requirements for survival and reproduction at the individual, 
population, and subspecies levels, and described the beneficial and 
risk factors influencing the subspecies' viability.
    We delineated analysis units for the eastern black rail based on 
environmental variables (aquifer permeability, slope, mean 
precipitation, mean potential evapotranspiration, and percent sand in 
soil). We used 8,281 point localities from combined datasets (i.e., 
eBird, Center for Conservation Biology, University of Oklahoma, and 
additional research partners) from 1980 through 2017, to delineate the 
analysis units for the eastern black rail. We named the analysis units 
using standard topographic and ecological landmarks: New England, Mid-
Atlantic Coastal Plain, Appalachians, Southeast Coastal Plain, 
Southwest Coastal Plain, Central Lowlands, and Great Plains. Based on 
available data, we have concluded that the New England, Appalachians, 
and Central Lowlands analysis units are effectively extirpated. While 
these three analysis units historically did not support abundances of 
the eastern black rail as high as the other four analysis units, an 
evaluation of the current status information, including the paucity of 
current records, negative survey results, and the demonstrated range 
contraction throughout these areas, supports our conclusion that the 
eastern black rail is effectively extirpated from these analysis units. 
The remaining four analysis units, the Mid-Atlantic Coastal Plain, 
Southeast Coastal Plain, Southwest Coastal Plain, and Great Plains, 
have records of current populations of eastern black rails.
    To assess resiliency, we analyzed occupancy within the analysis 
units through the creation of a dynamic occupancy model. We used data 
from repeated presence/absence surveys across the range of the eastern 
black rail to estimate the probability of presence at a site and 
related the occupancy probability to environmental covariates of 
interest (wettest month precipitation, temperature range, annual mean 
temperature, coldest month mean temperature, presence/absence of fire 
ants, and State identification). The lower the occupancy probability in 
an analysis unit, the less resiliency that analysis unit exhibits. We 
found the four extant analysis units (Southeast Coastal Plain, Mid-
Atlantic Coastal Plain, Great Plains, and Southwest Coastal Plain) to 
have very low occupancy probabilities ranging from 0.099 to 0.25. The 
results also indicated fairly high site extinction probabilities with 
accompanying low site persistence.
    To assess representation, we used two metrics to estimate and 
predict representative units that reflect the subspecies' adaptive 
capacity: Habitat variability and latitudinal variability. The eastern 
black rail exhibits adaptive potential by using similar habitat 
elements within different wetland types (habitat variability) within 
analysis units, i.e., higher elevation areas within wetlands with dense 
vegetation, moist soils, and shallow flood depths (Eddleman, Knopf, 
Meanley, Reid, and Zembal 1988, p. 463; Nadeau and Conway 2015, p. 
292). Therefore, the subspecies shows a level of adaptive capacity by 
using different wetland types that contain the required habitat 
elements. Additionally, we used the metric of latitudinal variability 
to reflect the eastern black rail's wide range across the contiguous 
United States. To maintain existing adaptive capacity, it is important 
to have resilient populations (analysis units) that exhibit habitat 
variability and latitudinal variability to maintain adaptive capacity.
    To assess redundancy, we evaluated the current distribution of 
eastern black rail analysis units through their present-day spatial 
locations. To have high redundancy, the eastern black rail would need 
to have multiple resilient analysis units spread throughout its range.

Current Condition of Eastern Black Rail

    Historically, the eastern black rail ranged across the eastern, 
central, and southern United States; historical records also exist from 
the Caribbean and Central America. It occupied multiple areas of 
wetlands (including salt marshes, coastal prairies, and hay fields) 
throughout the range; approximately 90 percent of documented breeding-
season occurrence records occurred at coastal locations and less than 
10 percent were inland records, with more than 60 percent of the inland 
records occurring before 1950 (Watts 2016, entire). The eastern black 
rail also occupied multiple areas of wetlands within each analysis 
unit. Within the northeastern United States, historical (1836-2010) 
records document the eastern black rail as present during breeding 
months from Virginia to Massachusetts, with 70 percent of historical 
observations (773 records) in Maryland, Delaware, and New Jersey (Watts 
2016, p. 22).

[[Page 50615]]

Maryland, Delaware, and New Jersey are considered historical 
strongholds for eastern black rail in this region of the United States 
(the Northeast) as well as across the subspecies' entire breeding range 
(Watts 2016, p. 22), due to the total number and frequency of 
observations reported over time. Virginia, New York, and Connecticut 
account for an additional 21 percent of the historical records (235 
records) from the Northeast (Watts 2016, p. 22). Recent (2011-2016) 
records from the Northeast are low in number (64 records), with almost 
all records restricted to outer coastal habitats (Watts 2016, pp. 22, 
24). The distribution of the recent records points toward a substantial 
southward contraction in the subspecies' range of approximately 450 
kilometers (280 miles), with vacated historical sites from 33 counties 
extending from the Newbury marshes in Massachusetts to Ocean County, 
New Jersey (Watts 2016, pp. 24, 119). Further, the distribution of the 
recent records has become patchy along the Atlantic coast, and an 
evaluation of the records within the 15 counties still currently 
occupied suggests an almost full collapse of the eastern black rail 
population in the Northeast (Watts 2016, p. 24).
    While the Appalachians and Central Lowlands analysis units 
supported less habitat for eastern black rails compared to the more 
coastal analysis units, interior occurrences were more common 
historically. Current population estimates for States with a large area 
occurring within the boundaries of the Appalachians analysis unit are 
effectively zero (Watts 2016, p. 19). Within that unit, an estimated 0 
to 5 breeding pairs currently occur in Pennsylvania, and no breeding 
pairs are thought to occur in New York or West Virginia (Watts 2016, p. 
19). Birds previously detected in the Appalachians analysis unit were 
found in small depressional wetlands within active pastures; other 
freshwater wetlands dominated by cattails, rushes, or sedges; and 
drainage ditches (Watts 2016, pp. 48, 74). While these wetland types 
still exist within the analysis unit and may support individuals or a 
very low-density, scattered population (Watts 2016, pp. 48, 74), a 
substantial amount of this kind of habitat has been lost primarily due 
to the draining of freshwater wetlands for agricultural purposes. These 
estimates likely hold true for the interior portions of the other 
States within the Appalachians analysis unit (based on few current 
detections). Similar losses of habitat have occurred in the Central 
Lowlands analysis unit, and there are currently few detections of 
eastern black rails across this unit. Moreover, the current detections 
are not consistent from year to year even when habitat remains 
suitable. For example, Indiana Department of Natural Resources surveys 
for eastern black rails at multiple sites from 2010-2016 yielded one 
detection at a single site previously known to support eastern black 
rails (Gillett 2017, unpublished data).
    In the Chesapeake Bay region, the distribution of eastern black 
rail has contracted, and the counts of birds have declined. A series of 
systematic surveys for eastern black rails has been conducted around 
the Chesapeake Bay since the early 1990s (Watts 2016, pp. 59, 67). 
Surveys estimated 140 individuals in the 1990-1992 survey period, 
decreasing to 24 individuals in 2007, and only 8 individuals in 2014, a 
decline of over 90 percent in less than 25 years (Watts 2016, p. 59; D. 
Brinker, unpublished data). Of 328 points surveyed in Virginia in 2007, 
15 birds were detected; a second round of surveys in 2014 yielded two 
detections at 135 survey points (including all survey points with 
positive occurrences in the 2007 survey effort), equating to an 85 
percent decline over 7 years (Watts 2016, pp. 67, 71; Wilson et al. 
2015, p. 3).
    Historically, the eastern black rail was also present during 
breeding months at inland and coastal locations throughout southeastern 
coastal States (the Southeast), a region that included North Carolina, 
South Carolina, Georgia, Florida, Tennessee, Mississippi, Alabama, 
Louisiana, and Texas (Watts 2016, pp. 75-76). Of these States, Texas, 
Florida, South Carolina, and North Carolina contained 89 percent of all 
historical observations (734 records) (Watts 2016, p. 77). The other 
States (Georgia, Tennessee, Mississippi, Alabama, and Louisiana) either 
do not have a history of supporting eastern black rails consistently or 
are considered to be on the peripheries of known breeding areas (Watts 
2016, p. 77). Recently, there have been 108 records of eastern black 
rails during the breeding season, and at a coarse view, the same four 
southeastern States that substantially supported the subspecies 
historically still support the subspecies (Watts 2016, pp. 77, 79). 
However, North Carolina shows a severe decline in the number of 
occupied sites, with only four properties occupied in 2014-2015, down 
from nine in 1992-1993 (Watts 2016, p. 80). Additional surveys in 2017 
yielded no new occupied sites in coastal North Carolina (B. Watts and 
F. Smith 2017, unpublished data). South Carolina shows a limited 
distribution, with two known occupied areas (Wiest 2018, pers. comm.) 
and an estimated 50 to 100 breeding pairs, leaving Texas and Florida as 
the current strongholds for the Southeast. At the time of the 2016 
coastal assessment, it was surmised that coastal Georgia may support a 
breeding population of unknown size (Watts 2016, pp. 93-95); however, a 
coastwide survey in 2017 at 409 survey points in Georgia yielded no 
detections of eastern black rails (B. Watts and F. Smith 2017, 
unpublished data). In short, across the Atlantic and Gulf Coasts, 
recent observations show poor presence inland and a widespread 
reduction in the number of sites used across coastal habitats (Watts 
2016, p. 79).
    The history of the subspecies' distribution in the interior 
continental United States is poorly known. Historical literature 
indicates that a wide range of interior States were occupied by the 
eastern black rail, either regularly or as vagrants (Smith-Patten and 
Patten 2012, entire). Eastern black rails are currently vagrants 
(casual or accidental) in Arkansas, Illinois, Indiana, Iowa, Michigan, 
Minnesota, Missouri, Nebraska, New Mexico, Ohio, South Dakota, and 
Wisconsin (Smith-Patten and Patten 2012, entire). Presently, eastern 
black rails are reliably located within the Arkansas River Valley of 
Colorado (presumed breeder in the State), and in southcentral Kansas in 
Stafford, Finney, Franklin, Barton, and Riley Counties (confirmed 
breeder in the State) (Butler, Tibbits, and Hucks 2014, p. 20; Smith-
Patten and Patten 2012, pp. 9, 17). In Colorado, the subspecies is 
encountered in spring and summer at Fort Lyon Wildlife Area, Bent's Old 
Fort, Oxbow State Wildlife Area, Bristol (Prowers County), and John 
Martin Reservoir State Park (Smith-Patten and Patten 2012, p. 10). In 
Kansas, eastern black rails are regularly present during the breeding 
months at Quivira National Wildlife Refuge (NWR) and Cheyenne Bottoms 
Wildlife Area (Smith-Patten and Patten 2012, p. 17), and at Cheyenne 
Bottoms Preserve during wet years when habitat conditions are suitable 
(Penner 2017, pers. comm.). In Oklahoma, occurrence mapping suggests 
that this subspecies had at a maximum a patchy historical distribution 
throughout the State.
    Eastern black rail analysis units currently have low to no 
resiliency in the contiguous United States (Service 2018, pp. 79-82). 
The Great Plains, Southwest Coastal Plain, and Southeast Coastal Plain 
analysis units have low resiliency based on the dynamic occupancy model 
results, which indicate very low occupancy

[[Page 50616]]

probabilities in each modeled analysis unit: 0.25 in the Southwest 
Coastal Plain, 0.13 in the Great Plains, and 0.099 in the Southeast 
Coastal Plain. The Mid-Atlantic Coastal Plain analysis unit currently 
exhibits very low resiliency for the eastern black rail. It supports 
fewer birds and has fewer occupied habitat patches than the Southeast 
Coastal Plain analysis unit. The remaining three analysis units, New 
England, Appalachians, and Central Lowlands, currently demonstrate no 
resiliency. These three units historically did not support abundances 
of the eastern black rail as high as the other four analysis units. 
There are currently insufficient detections to model these units; 
recent detections (2011 to present) are fewer than 20 birds for each 
analysis unit. An evaluation of current status information yields that 
eastern black rails are effectively extirpated from portions of the New 
England, Appalachians, and Central Lowlands analysis units that were 
once occupied. Lastly, resiliency is unknown for the Central America 
and Caribbean portion of the eastern black rail's range. However, the 
sparsity of historical and current records, including nest records, 
indicates that resiliency outside of the contiguous United States is 
likely low. All recent sightings in Central America and the Caribbean 
have been of adult eastern black rails; there are no reports of nests, 
chicks, or juveniles.
    To assess current representation, we evaluated both habitat 
variability and latitudinal variability. When considering habitat 
variability, we determined the eastern black rail has a level of 
adaptive potential by using similar habitats elements (i.e., higher 
elevation areas within wetlands with dense vegetation, moist soils, and 
shallow flood depth) within different wetland types within analysis 
units. However, there may be unknown factors that influence and affect 
the eastern black rail's use of wetland habitat, as not all apparently 
suitable wetland habitat is currently occupied. While the New England, 
Appalachians, and Central Lowlands analysis units have experienced 
wetland habitat loss and fragmentation, wetland habitats continue to be 
present on the landscape. However, the eastern black rail is not being 
found in these three analysis units. Historically, the eastern black 
rail had a wide distribution and exhibited latitudinal variability. 
However, as discussed above, three of the analysis units (New England, 
Appalachians, and Central Lowlands) are effectively extirpated, and, 
therefore, this latitudinal variability (higher latitudes) has 
effectively been lost to the subspecies. Therefore, even though the 
eastern black rail still occurs at varying latitudes, we conclude that 
the subspecies currently has reduced representation across its range.
    Despite having a wide distribution, the eastern black rail 
currently has low redundancy across its range. With the loss of three 
analysis units in upper latitudes of the range, the subspecies has 
reduced ability to withstand catastrophic events, such as hurricanes 
and tropical storms, which could impact the lower latitudinal analysis 
units. Given the lack of habitat connectivity, and patchy and localized 
distribution, it would be difficult for the subspecies to recover from 
a catastrophic event in one or more analysis units.

Risk Factors for Eastern Black Rail

    The Act directs us to determine whether any species is an 
endangered species or a threatened species because of any factors 
affecting its continued existence. Under section 4(a)(1) of the Act, we 
may list a species based on (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence.
    We reviewed the potential risk factors (i.e., threats or stressors) 
that are affecting the eastern black rail now and into the future. In 
this proposed rule, we will discuss in detail only those threats that 
we conclude are driving the status and future viability of the species. 
The primary threats to eastern black rail are: (1) Habitat 
fragmentation and conversion, resulting in the loss of wetland habitats 
across the range (Factor A); (2) sea level rise and tidal flooding 
(Factors A and E); (3) incompatible land management practices (i.e., 
fire management, grazing, and haying/mowing) (Factors A and E); and (4) 
stochastic events (e.g., extreme flooding, hurricanes) (Factor E). 
Human disturbance, such as birders using playback calls of black rail 
vocalizations (Factor B), is also a concern for the species. Additional 
stressors to the species (including oil and chemical spills and 
environmental contaminants (Factor E); disease, specifically West Nile 
virus (Factor C); and altered food webs resulting from invasive species 
(fire ants, feral pigs, mongoose, and exotic reptiles) introductions 
(Factor C)) are discussed in the SSA report (Service 2018, entire). 
However, although these additional stressors may be having localized 
impacts, they are not the primary drivers of the status of the 
subspecies, and so we do not discuss them in detail in this document. 
We also reviewed the conservation efforts being undertaken for the 
subspecies. No existing regulatory mechanisms adequately address these 
threats to the eastern black rail such that it does not warrant listing 
under the Act (Factor D).

Habitat Fragmentation and Conversion

    The eastern black rail is a wetland-dependent bird requiring dense 
emergent cover and extremely shallow water depths (less than 6 cm) over 
a portion of the wetland-upland interface to support its resource 
needs. Grasslands and their associated palustrine (freshwater) and 
estuarine wetland habitats have experienced significant loss and 
conversion since European settlement (Bryer, Maybury, Adams, and 
Grossman 2000, p. 232; Noss, LaRoe, III, and Scott 1995, pp. 57-76, 80-
84; Hannah, Carr, and Lankerani 1995, pp. 137, 151). Approximately 50 
percent (greater than 100 million acres) of the wetlands in the 
conterminous United States have been lost over the past 200 years; the 
primary cause of this loss was conversion for agricultural purposes 
(Dahl T. E. 1990, p. 9). Wetland losses for the States within the 
eastern black rail's historical range have been from 9 percent to 90 
percent, with a mean of 52 percent (Dahl T. E. 1990, p. 6). Similarly, 
most of the native grassland/prairie habitats associated with eastern 
black rail habitat have been lost since European settlement (Sampson 
and Knopf 1994, pp. 418-421).
    The eastern black rail also uses the transition zone (ecotone) 
between emergent wetlands and upland grasslands. These transitional 
areas are critical to eastern black rails, as they provide refugia 
during high-water events caused by precipitation or tidal flooding. 
These habitat types have also experienced significant declines over 
time (Sampson and Knopf 1994, pp. 418-421), with many areas within the 
eastern black rail's historical range losing over 90 percent of their 
prairie habitat. Most of this loss can be attributed to agricultural 
conversion (Sampson and Knopf 1994, pp. 419-420). Many of the 
freshwater wetlands associated with these grasslands were emergent and 
ephemeral in nature, and would have supported eastern black rails. For 
example, in Texas, between the 1950s and 1990s, 235,000 acres, or 29 
percent, of freshwater wetlands within Gulf coastal prairie were 
converted primarily to agriculture. This value does not include the 
numbers of

[[Page 50617]]

upland prairie acres that were also converted (Moulton, Dahl, and Dahl 
1997, entire).
    Despite regulatory efforts to minimize the loss of wetland 
habitats, losses and alterations continue to occur to habitats occupied 
by the eastern black rail. Marshes continue to face substantial impacts 
from dikes, impoundments, canals, altered freshwater inflows, erosion, 
relative sea level rise, tidal barriers, tropical storm events, and 
other natural and human-induced factors (Adam 2002, entire; Turner 
1990, entire; Kennish 2001, entire; Gedan et al. 2009, entire; Tiner 
2003, p. 513). Estuarine emergent wetland losses are mostly 
attributable to conversion to open water through erosion (Dahl and 
Stedman 2013, p. 37), while freshwater emergent wetland losses appear 
to be the result of development (Dahl and Stedman 2013, p. 35). Because 
the rail is a wetland-dependent subspecies, the loss and alteration of 
palustrine and estuarine wetlands and associated grassland habitats 
have a negative impact.
    Within the range of the eastern black rail, land use in the United 
States has affected and continues to affect groundwater and surface 
water resources (Johnston 1997, entire; McGuire 2014, pp. 1-2, 7, 9; 
Juracek and Eng 2017, pp. 1, 11-16; Barfield 2016, pp. 2-4). The 
conversion of wetland habitat, largely for agricultural use, was 
mentioned above. However, habitat conversion and land use directly and 
indirectly affect water resources, largely tied to the interaction of 
groundwater and surface water resources (Glazer and Likens 2012, 
entire; Sophocleous 2002, entire; Tiner R. W. 2003, p. 495; U.S. 
Geological Survey (USGS) 2016a, unpaginated; Konikow L. F. 2015, 
entire).
    Where groundwater resources are hydraulically connected to surface 
water resources, these connections can either be unconfined (water 
table) or confined (springs) aquifers. In unconfined aquifers, 
locations can support surface features such as wetlands or riparian 
habitats where groundwater is located near the land surface (Haag and 
Lee 2010, pp. 16-19, 21-24). Lowering of groundwater through 
withdrawals via wells or ditches can cause wetlands to shrink or become 
dry. Withdrawals of confined aquifers can lead to the drying of springs 
and associated wetland habitats (Weber and Perry 2006, p. 1255; Metz 
2011, p. 2). In the central and southcentral United States, high 
groundwater use, largely attributed to cropland irrigation and other 
human activities, may affect the long-term sustainability of water 
resources, including causing wetland loss (McGuire 2014, entire; 
Juracek 2015, entire; Juracek and Eng 2017, entire; Juracek, Eng, 
Carlisle, and Wolock 2017, entire; Perkin et al. 2017, entire).
    Human modifications to the environment have led to significant 
changes in vegetation. Some of these modifications include water 
withdrawals and the construction of levees, drainage canals, and dams. 
Changes to native vegetation can result in changes to the structure of 
the habitat (e.g., conversion from emergent to scrub-shrub wetlands, 
wetland into upland habitat, or vice-versa), as well as the 
introduction of invasive plant species (e.g., Phragmites australis; 
Crain, Gedan, and Dionne 2009, p. 157). Given the narrow habitat 
preferences of the eastern black rail (i.e., very shallow water and 
dense emergent vegetation), small changes in the plant community can 
easily result in habitat that is not suitable for the subspecies.
    Subsidence (lowering of the earth's surface) is caused by the 
withdrawal of liquids from below the ground's surface, which relieves 
supporting hydraulic pressure of liquids by the long-term compression 
of unconsolidated, geologically deposited sediments, or by other 
geologic processes (Day et al. 2011, p. 645; Karegar, Dixon, and 
Engelhart 2016, p. 3129; White and Tremblay 1995, entire). Localized 
subsidence can occur with groundwater withdrawals where withdrawal 
rates are greater than the aquifer recharge rates (White and Tremblay 
1995, pp. 794-804; Morton, Bernier, and Barras 2006, p. 271) or where 
liquids associated with hydrocarbon extraction have caused the lowering 
of ground elevations (Morton, Bernier, and Barras 2006, p. 263). On the 
Atlantic coast, an area of rapid subsidence exists between Virginia and 
South Carolina, where the rate of subsidence has doubled due to 
increased groundwater withdrawals (Karegar, Dixon, and Engelhart 2016, 
pp. 3131-3132). An extreme example of subsidence in the United States 
is along the Gulf of Mexico coast, where both subsurface liquid 
withdrawal and sediment consolidation have significant influence on 
coastal wetland habitats (Turner 1990, pp. 93-94, 96, 98; Morton, 
Bernier, and Barras 2006, entire; White and Tremblay 1995, pp. 795-
804). Subsidence combined with sea level rise is referred to as 
relative sea level rise, and the Gulf of Mexico has the highest 
relative sea level rise rates in the conterminous United States, 
leading to significant losses in wetland habitats (NOAA 2018, 
unpaginated).
    Subsidence can affect the eastern black rail and its habitat in 
both fresh and tidal wetlands. Vegetated wetland habitats used by the 
eastern black rail can be converted to unvegetated open water or 
mudflats through drowning of vegetation or erosion from increased wave 
energy. Locations with higher subsidence rates can experience increased 
tidal flooding sooner than areas with lower subsidence rates. The 
effect of increased tidal flooding will change black rail habitat over 
time (i.e., marsh migration) but can have direct impacts on black rail 
reproduction when flooding occurs during the breeding season.
    Extensive drainage features have been created or modified in the 
United States, primarily to reduce flooding to protect agricultural 
land or infrastructure. These include excavation of drainage ditches, 
channelization of rivers and streams, construction of levees and berms, 
tidal restrictions, and diversions of waterways. Extensive areas of 
Florida were channelized in an effort to drain wetlands in the early 
1900s (Renken et al. 2005, pp. 37-56). Most, if not all, of the coastal 
plain in Texas contains existing drainage features that were either 
created or modified to reduce flooding of agricultural lands and 
associated communities. These features can reduce or eliminate the 
hydroperiod to sustain associated wetlands by removing water rapidly 
off the landscape (Blann, Anderson, Sands, and Vondracek 2009, pp. 919-
924). In glaciated geographies such as the Midwest, drain tiles and 
other methods have been used to drain wetlands to improve conditions 
for agricultural production (Blann, Anderson, Sands, and Vondracek 
2009, pp. 911-915). Approximately 90 percent of the salt marshes on the 
northeast United States coast have been ditched to control mosquitoes 
(Bourn and Cottam 1950, p. 15; Crain, Gedan, and Dionne 2009, pp. 159-
161). Ditching increases the area of the marsh that is inundated as 
well as drained (Crain, Gedan, and Dionne 2009, p. 160; Daiber 1986, in 
Crain et al. 2009, p. 160).
    Levees have been constructed in flood-prone areas to minimize 
damage to crops and local communities. Levees can modify the duration, 
intensity, and frequencies of hydroperiods associated with riparian and 
tidal wetlands and thus change the nature and quality of wetland 
habitat, including that used by marsh-dependent species (Kennish 2001, 
p. 734; Adam 2002, p. 46; Walker, Coleman, Roberts, and Tye 1987, pp. 
197-198; Bryant and Chabreck 1998, p. 421; Kuhn, Mendelssohn, and Reed 
1999, p. 624). They also facilitate the movement patterns of 
mesopredators and improve their access to wetland

[[Page 50618]]

habitats (Frey and Conover 2006, pp. 1115-1118). Navigation channels 
and their management have had extensive impacts to tidal wetlands 
(e.g., in Louisiana). These channels can modify the vegetation 
community of associated wetlands and can increase the frequency of 
extreme high tide or high flow events by providing a more direct 
connection to the influencing water body (Turner 1990, pp. 97-98; 
Kennish 2001, pp. 734-737; Bass and Turner 1997, pp. 901-902). Tidal 
restrictions, such as water control structures, bridges, and culverts 
built for the purposes of flood protection, restricting salt water 
intrusion, and modification of vegetation, have also affected coastal 
salt marshes.
    All of these alterations to drainage affect the hydrology, sediment 
and nutrient transport, and salinities of wetland habitats used by the 
eastern black rail, which in turn affect the habitat's composition and 
structure. These changes can lead to instability in the duration and 
intensity of hydroperiods, affect associated vegetation communities, 
and impact the ability of marsh habitats to adapt to changing 
conditions. This ultimately affects the ability of the habitat to 
support populations of the eastern black rail, by exposing eastern 
black rails to unsuitable water regimes or converted habitats.

Sea Level Rise and Tidal Flooding

    Representative concentration pathways (RCPs) are the current set of 
scenarios used for generating projections of climate change; for 
further discussion, please see the SSA report (Service 2018, entire). 
Recent studies project global mean sea level rise to occur within the 
range of 0.35 to 0.95 meters (m) (1.14 to 3.11 feet (ft)) for RCP 4.5, 
and within the range of 0.5 to 1.3 m (1.64 to 4.27 ft) for RCP 8.5, by 
2100 (Sweet et al. 2017, p. 13). The Northeast Atlantic and western 
Gulf of Mexico coasts are projected to have amplified relative sea 
level rise greater than the global average under almost all future sea 
level rise scenarios through 2100 (Sweet et al. 2017, p. 43).
    Sea level rise will amplify coastal flooding associated with both 
high tide floods and storm surge (Buchanan, Oppenheimer, and Kopp 2017, 
p. 6). High tide flooding currently has a negative impact on coastal 
ecosystems and annual occurrences of high tide flooding have increased 
five- to ten-fold since the 1960s (Reidmiller et al. 2018, p. 728). In 
addition, extreme coastal flood events are projected to increase in 
frequency and duration, and the annual number of days impacted by 
nuisance flooding is increasing, along the Atlantic and Gulf Coasts 
(Sweet et al. 2017, p. 23). Storm surges from tropical storms will 
travel farther inland.
    Along the Texas Gulf Coast, relative sea level rise is twice as 
large as the global average (Reidmiller et al. 2018, p. 969). Over the 
past 100 years, local sea level rise has been between 12.7 to 43.2 cm 
(5 to 17 in), resulting in an average loss of 73 hectares (180 acres) 
of coastline per year, and future sea level rise is projected to be 
higher than the global average (Reidmiller et al. 2018, p. 972; Runkle 
et al. 2017b, p. 4). In South Carolina, sea level has risen by 3.3 cm 
(1.3 in) per decade, nearly double the global average, and the number 
of tidal flood days has increased (Runkle et al. 2017c, p. 4). 
Projected sea level rise for South Carolina is higher than the global 
average, with some projections indicating sea level rise of 1.2 m (3.9 
ft) by 2100 (Runkle et al. 2017c, p. 4). The number of tidal flood days 
are projected to increase and are large under both high and low 
emissions scenarios (Runkle et al. 2017c, p. 4). Similarly, in Florida, 
sea level rise has resulted in an increased number of tidal flooding 
days, which are projected to increase into the future (Runkle et al. 
2017a, p. 4).
    Even with sea level rise, some tidal wetlands may persist at 
slightly higher elevations (i.e., ``in place'') for a few decades, 
depending on whether plant primary productivity and soil accretion 
(which involves multiple factors such as plant growth and decomposition 
rates, build-up of organic matter, and deposition of sediment) can keep 
pace with the rate of sea level rise, thus avoiding ``drowning'' 
(Kirwan, Temmerman, Skeehan, Guntenspergen, and Fagherazzi 2016, 
entire). Under all future projections, however, the rate of sea level 
rise increases over time (Sweet, Horton, Kopp, LeGrande, and Romanou 
2017, pp. 342-345). A global analysis found that in many locations salt 
marsh elevation change did not keep pace with sea level rise in the 
last century and even less so in the past two decades, and concluded 
that the rate of sea level rise in most areas will overwhelm the 
capacity of salt marshes to persist (Crosby et al. 2016, entire). Under 
this analysis, based on RCP 4.5 and RCP 8.5 scenarios and assuming 
continuation of the average rate of current accretion, projected marsh 
drowning along the Atlantic coast at late century (2081-2100) ranges 
from about 75 to 90 percent (Crosby et al. 2016, p. 96, figure 2). The 
accretion balance (reported accretion rate minus local sea level rise) 
is negative for all analyzed sites in the Louisiana Gulf Coast and for 
all but one site in the mid-Atlantic area (figures 3c and 3d in Crosby 
et al. 2016, p. 97); both of these areas are part of the range of the 
eastern black rail.
    Sea level rise will reduce the availability of suitable habitat for 
the eastern black rail and overwhelm habitat persistence. Sea level 
rise and its effects (e.g., increased flooding and inundation, salt 
water intrusion) may affect the persistence of coastal or wetland plant 
species that provide habitat for the eastern black rail (Morris, 
Sundareshwar, Nietch, Kjerfve, and Cahoon 2002, p. 2876; Warren and 
Niering 1993, p. 96). Increased high tide flooding from sea level rise, 
as well as the increase in the intensity and frequency of flooding 
events, will further impact habitat and directly impact eastern black 
rails through nest destruction and egg loss (Sweet et al. 2017, pp. 35-
44).

Land Management Practices (Fire Management, Haying and Mowing, and 
Grazing)

Fire Management
    Fire suppression has been detrimental to habitats used by the 
eastern black rail by allowing encroachment of woody plants. Without 
fire or alternate surrogate methods of disturbing woody vegetation such 
as mowing, the amount of preferred habitat for eastern black rails is 
expected to decrease in some regions, such as coastal Texas (Grace et 
al. 2005, p. 39). Therefore, prescribed (controlled) fire can maintain 
habitat for this subspecies at the desired seral stage (intermediate 
stages of ecological succession).
    While fire is needed for the maintenance of seral stages for 
multiple rail species, the timing and frequency of the burns, as well 
as the specific vegetation types targeted, can lead to undesirable 
effects on rail habitats in some cases (Eddleman et al. 1988, pp. 464-
465). Burning salt marshes during drought or while the marshes are not 
flooded can result in root damage to valuable cover plants (Nyman and 
Chabreck 1995, p. 138). Controlled burning of peat, or accumulated 
organic litter, when marshes are dry has resulted in marsh conversion 
to open water due to the loss of peat soils. Variations in soil type 
supporting the same plant species may lead to differing recovery times 
post-burn, and therefore potentially unanticipated delays in the 
recovery of black rail habitat (McAtee, Scifres, and Drawe 1979, p. 
375). Simply shifting the season of burn may alter plant species 
dominance and the associated structure available to the eastern black 
rail, as is seen with spring fire conversion of chairmaker's bulrush

[[Page 50619]]

(Schoenoplectus americanus) to salt meadow cordgrass (Spartina patens) 
(Nyman and Chabreck 1995, p. 135).
    Prescribed fire that occurs during critical time periods for the 
subspecies (i.e., mating, egg-laying and incubation, parental care, and 
flightless molt) leads to mortality of eggs, chicks, juveniles, and 
molting birds. Fall and winter burns are more likely to avoid 
reproductive season impacts (Nyman and Chabreck 1995, p. 138).
    Fire pattern can have profound effects on birds. Controlled burns 
can result in indirect rail mortality, as avian predators attracted to 
smoke are able to capture rails escaping these fires (Grace et al. 
2005, p. 6). Because eastern black rails typically prefer concealment 
rather than flight to escape threats, the birds may attempt to escape 
to areas not affected by fire, such as wetter areas or adjacent areas 
not under immediate threat. Ring, expansive, or rapidly moving fires 
are therefore not conducive to rail survival (Grace et al. 2005, p. 9; 
Legare, Hill, and Cole 1998, p. 114). On the other hand, controlled 
burns designed to include unburned patches of cover may positively 
influence eastern black rail survival. For example, burning 90 percent 
of a 2,400-ac marsh in Florida resulted in direct mortality of at least 
39 eastern black rails, whereas a mosaic of unburned vegetation patches 
0.1 to 2.0 ac in size facilitated eastern black rail survival during a 
1,600-ac controlled burn (Legare, Hill, and Cole 1998, p. 114). 
Prescribed fires that include patches of unburned habitat scattered 
throughout provide escape cover for wildlife, including, but not 
limited to, eastern black rails (Legare, Hill, and Cole 1998, p. 114). 
Unburned strips of vegetation bordering the inside perimeters of burn 
units also are believed helpful as escape cover from both fire and 
avian predators (Grace et al. 2005, p. 35). Coastal marshes that are 
burned in staggered rotations to create a mosaic of different seral 
stages or are burned less frequently will continue to provide cover for 
marsh species, such as the eastern black rail (Block et al. 2016, p. 
16).
Haying and Mowing
    Haying and mowing are used throughout the range of the eastern 
black rail. Haying and mowing maintain grasslands by reducing woody 
vegetation encroachment. These practices can have detrimental impacts 
to wildlife when used too frequently or at the wrong time of year. For 
example, at Quivira NWR in Kansas, haying at a frequency of once or 
twice per year resulted in no occupancy of hayed habitats by eastern 
black rails during the following year (Kane 2011, pp. 31-33). Further, 
haying or mowing timed to avoid sensitive stages of the life cycle 
(nesting and molt period) would be less detrimental to eastern black 
rails (Kane 2011, p. 33). Mowing during the spring or summer will 
disrupt reproductive efforts of migratory birds. Eastern black rails 
reproduce from approximately mid-March through August, and mowing 
during this time period disturbs eastern black rail adults and can 
potentially crush eggs and chicks. As with fire, when mowing is 
alternated to allow areas of unmown habitat at all times, the site can 
continue to support cover-dependent wildlife.
Grazing
    Cattle grazing occurs on public and private lands throughout the 
range of the eastern black rail. Because eastern black rails occupy 
drier areas in wetlands and require dense cover, these birds are 
believed to be more susceptible to grazing impacts than other rallids 
(Eddleman, Knopf, Meanley, Reid, and Zembal 1988, p. 463). Based on 
current knowledge of grazing and eastern black rail occupancy, the 
specific timing, duration, and intensity of grazing will result in 
varying impacts to the eastern black rail and its habitat. Light-to-
moderate grazing may be compatible with eastern black rail occupancy 
under certain conditions, while intensive or heavy grazing is likely to 
have negative effects on eastern black rails and the quality of their 
habitat. It may benefit black rail habitat (or at least not be 
detrimental) when herbaceous plant production is stimulated (Allen-
Diaz, Jackson, Bartolome, Tate, and Oates 2004, p. 147) and the 
necessary overhead cover is maintained. In Kansas, eastern black rails 
were documented in habitats receiving rotational grazing during the 
nesting season that preserved vegetation canopy cover (Kane 2011, pp. 
33-34). Black rails occur in habitats receiving light-to-moderate 
grazing (i.e., Kane 2011; Richmond, Tecklin, and Beissinger 2012; 
Tolliver 2017). These results suggest that such grazing is an option 
for providing disturbance, which may promote black rail occupancy. 
However, cattle grazing at high intensities may not favor black rail 
occupancy, as heavy grazing, or overgrazing, reduces the wetland 
vegetation canopy cover (Richmond, Chen, Risk, Tecklin, and Bessinger 
2010, p. 92).
    In addition to the loss of vegetation cover and height (Kirby, 
Fessin, and Clambey 1986, p. 496; Yeargan 2001, p. 87; Martin J. L. 
2003, p. 22; Whyte and Cain 1981, p. 66), intensive grazing may also 
have direct negative effects on eastern black rails by livestock 
disturbing nesting birds or even trampling birds and nests (Eddleman, 
Knopf, Meanley, Reid, and Zembal 1988, p. 463). Heavy disturbance from 
grazing can also lead to a decline in eastern black rail habitat 
quality.

Stochastic Events (Extreme Weather Events)

    Extreme weather effects, such as storms associated with frontal 
boundaries or tropical disturbances, can also directly affect eastern 
black rail survival and reproduction, and can result in direct 
mortality. Tropical storms and hurricanes are projected to increase in 
intensity and precipitation rates along the North Atlantic coast and 
Gulf Coast (Kossin et al. 2017, pp. 259-260; Bender et al. 2010, p. 
458). The frequency of Category 4 and 5 tropical storms is predicted to 
increase despite an overall decrease in the number of disturbances 
(Bender et al. 2010, pp. 457-458). Storms of increased intensity, which 
will have stronger winds, higher storm surge, and increased flooding, 
cause significant damage to coastal habitats by destroying vegetation 
and food sources, as well as resulting in direct mortality of birds. 
For example, Hurricane Harvey flooded San Bernard NWR in Texas with 
storm surge, which was followed by runoff flooding from extreme 
rainfall. This saltmarsh, occupied by eastern black rails, was 
inundated for several weeks (Woodrow 2017, pers. comm.). Increases in 
storm frequency, coupled with sea level rise, may result in increased 
predation exposure of adults and juveniles if they emerge from their 
preferred habitat of dense vegetation (Takekawa et al. 2006, p. 184). 
Observations show predation upon California black rails during high 
tides when the birds had minimal vegetation cover in the flooded marsh 
(Evens and Page 1986, p. 108).
    Weather extremes associated with climate change can have direct 
effects on the eastern black rail, leading to reduced survival of eggs, 
chicks, and adults. Indirect effects on the eastern black rail are 
likely to occur through a variety of means, including long-term 
degradation of both inland and coastal wetland habitats. Other indirect 
effects may include loss of forage base of wetland-dependent organisms. 
Warmer and drier conditions will most likely reduce overall habitat 
quality for the eastern black rail. Because eastern black rails 
tolerate a narrow range of water levels and variation within those 
water levels, drying as a result of extended droughts may result in 
habitat becoming unsuitable, either on a permanent or

[[Page 50620]]

temporary basis (Watts 2016, p. 120). Extreme drought or flooding 
conditions may also decrease bird fitness or reproductive success by 
reducing the availability of the invertebrate prey base (Davidson L. M. 
1992a, p. 129; Hands, Drobney, and Ryan 1989, p. 5). Lower rates of 
successful reproduction and recruitment lead to further overall 
declines in population abundance and resiliency to withstand stochastic 
events such as extreme weather events. The vulnerability of the eastern 
black rail to the effects of climate change depends on the degree to 
which the subspecies is susceptible to, and unable to cope with, 
adverse environmental changes due to long-term weather trends and more 
extreme weather events.

Human Disturbance

    Human disturbance can stress wildlife, resulting in changes in 
distribution, behavior, demography, and population size (Gill 2007, p. 
10). Activities such as birding, birdwatching, and hiking, have been 
shown to disturb breeding and nesting birds. Disturbance may result in 
nest abandonment, increased predation, and decreased reproductive 
success, and in behavioral changes in non-breeding birds. Singing 
activity of male birds declines in sites that experience human 
intrusion, although the response varies among species and level of 
intrusion (Gutzwiller et al. 1994, p. 35). At the Tishomingo NWR in 
Oklahoma, recreational disturbances of migratory waterbirds accounted 
for 87 percent of all disturbances (followed by natural disturbances 
(10 percent) and unknown disturbances (3 percent)) (Schummer and 
Eddleman 2003, p. 789).
    Many birders strive to add rare birds to their ``life list,'' a 
list of every bird species identified within a birder's lifetime. 
Locations of rare birds are often posted online on local birding forums 
or eBird, leading to an increased number of people visiting the 
location in an attempt to see or hear the bird. Due to its rarity, the 
eastern black rail is highly sought after by birders (Beans and Niles 
2003, p. 96). Devoted birders may go out of their way to add an eastern 
black rail to their life list (McClain 2016, unpaginated). The efforts 
of birders to locate and identify rare birds, such as the eastern black 
rail, can have both positive and negative impacts on the bird and its 
habitat. Birders play an especially important role in contributing to 
citizen science efforts, such as the eBird online database, and have 
helped further our understanding of species' distributions and avian 
migration ecology in crucial ways (Sullivan et al. 2014, entire). 
Birders have provided valuable location information for eastern black 
rails that might have otherwise gone undetected and have made these 
records publicly available (see eBird's black rail account; eBird 2017, 
unpaginated).
    While amateur and professional birding have made important 
contributions to our understanding of rare species like the eastern 
black rail, some birders may be more likely to pursue a sighting of a 
rare bird, as they may perceive the benefits of observing the bird to 
outweigh the impacts to the bird (Bireline 2005, pp. 55-57). As a 
result, methods may be employed to increase the likelihood of observing 
a rare bird, including the use of vocalized calls or audio recordings, 
as is the case for eastern black rails, or approaching birds in order 
to get a sighting (Beans and Niles 2003, p. 96; Bireline 2005, p. 55). 
These methods have the potential to disturb nesting birds or trample 
nests or eggs, and may lead to increased predation (Beans and Niles 
2003, p. 96).
    With the prevalence of smartphones, the use of playback calls has 
increased as recordings of birds are readily available on the internet, 
and birding websites and geographic site managers (State, Federal, or 
nongovernmental organizations) often provide guidance on the use of 
playback calls (Sibley 2001, unpaginated). The American Birding 
Association's Code of Birding Ethics encourages limited use of 
recordings and other methods of attracting birds, and recommends that 
birders never use such methods in heavily birded areas or for 
attracting any species that is endangered, threatened, of special 
concern, or rare in the local area (American Birding Association 2018, 
unpaginated). While most birders likely follow these ethical 
guidelines, using playback calls of eastern black rail vocalizations in 
attempts to elicit responses from the birds and potentially lure them 
into view is commonly done outside of formal eastern black rail surveys 
(see comments for eastern black rail detections on eBird; eBird 2017, 
unpaginated). Due to the rarity of the eastern black rail, a few cases 
of trespassing are known from people looking for the bird. Trespassing 
has been documented on private lands and in areas on public lands 
specifically closed to the public to protect nesting eastern black 
rails (Hand 2017, pers. comm.; Roth 2018, pers. comm.). Trespassing may 
not only disturb the bird, but can also result in trampling of the 
bird's habitat, as well as of eggs and nests. Some State resource 
managers and researchers have expressed concern that releasing 
locations of eastern black rail detections may increase human 
disturbance and harassment of the subspecies.

Synergistic Effects

    It is likely that several of these stressors are acting 
synergistically or additively on the subspecies. The combination of 
multiple stressors may be more harmful than a single stressor acting 
alone. For the eastern black rail, a combination of stressors result in 
habitat loss, reduced survival, reduced productivity, and other 
negative impacts on the subspecies. Sea level rise, coupled with 
increased tidal flooding, results in the loss of the high marsh habitat 
required by the subspecies. Land management activities, such as 
prescribed burning, that occur in these habitats will further 
exacerbate impacts, especially if conducted during sensitive life-
history periods (nesting, brood-rearing, or flightless molt). If these 
combined stressors occur too often within and across generations, they 
will limit the ability of the subspecies to maintain occupancy at 
habitat sites, which would become lost or unsuitable for the subspecies 
and limit its ability to colonize other previously occupied sites or 
new sites. For example, tidal marshes in Dorchester County, Maryland, 
in the Chesapeake Bay (specifically the areas of Blackwater NWR and 
Elliott Island) served as a former stronghold for the eastern black 
rail. These marshes have and continue to experience marsh erosion from 
sea level rise, prolonged flooding, a lack of a sufficient sediment 
supply, and land subsidence, as well as habitat destruction from nutria 
(now eradicated) and establishment of the invasive common reed 
(Phragmites australis). On Elliott Island, high decadal counts of 
eastern black rails have declined from the hundreds in the 1950s to the 
single digits in recent years (one eastern black rail detected from 
2012-2015, and zero in 2016) (Watts 2016, p. 61).

Regulations and Conservation Efforts

Federal Protections
    The Migratory Bird Treaty Act of 1918 (MBTA; 16 U.S.C. 703 et seq.) 
provides specific protection for the eastern black rail, which is a 
migratory bird under the statute. The MBTA makes it illegal, unless 
permitted by Federal regulation, ``by any means or in any manner, to 
pursue, hunt, take, capture, kill, attempt to take, capture, or kill, 
possess, offer for sale, sell, offer to barter, barter, offer to 
purchase, purchase, deliver for shipment, ship, export, import, cause 
to be shipped, exported, or imported, deliver for transportation, 
transport or cause to be transported, carry or cause

[[Page 50621]]

to be carried, or receive for shipment, transportation, carriage, or 
export, any migratory bird, [or] any part, nest, or egg of any such 
bird . . . '' (16 U.S.C. 703(a)). Through issuance of permits for 
scientific collecting of migratory birds, the Service ensures that best 
practices are implemented for the careful capture and handling of 
eastern black rails during banding operations and other research 
activities. However, the December 22, 2017, Solicitor's Opinion, 
Opinion M-37050, concludes that consistent with the text, history, and 
purpose of the MBTA, the statute's prohibitions on pursuing, hunting, 
taking, capturing, killing, or attempting to do the same apply only to 
direct and affirmative actions that have as their purpose the taking or 
killing of migratory birds, their nests, or their eggs. Therefore, take 
of an eastern black rail, its chicks, or its eggs that is incidental to 
another lawful activity does not violate the MBTA. Furthermore, the 
MBTA does not address the major stressors affecting the eastern black 
rail, which include habitat alteration and sea level rise. Given that 
only intentional take is prohibited under the MBTA and the habitat-
based stressors to the black rail are not regulated, this law does not 
provide sufficient substantive protections to the eastern black rail.
    Section 404 of the Clean Water Act (CWA; 33 U.S.C. 1251 et seq.) 
and section 10 of the Rivers and Harbors Appropriation Act of 1899 (33 
U.S.C. 403) are intended to protect jurisdictional wetlands from 
excavation and filling activities. The U.S. Army Corps of Engineers, in 
conjunction with the U.S. Environmental Protection Agency, administers 
permits that require avoidance, minimization and compensation for 
projects affecting wetlands. Projects that cannot avoid impacts to 
wetlands must compensate for their impacts through a restoration 
enhancement or preservation action for the equivalent functional loss. 
Mitigation banks are often used, in which actions at a specific 
location compensate for impacts in a considerably wider service area. 
However, the wetland types affected are not always the same types that 
are restored or enhanced, and there is considerable uncertainty that 
current mitigation practices would support the presence of black rails.
State Protections
    The black rail is listed as endangered under State law by seven 
States within the subspecies' range: Delaware, Illinois, Indiana, 
Maryland, New Jersey, New York, and Virginia. The species was formerly 
listed as endangered in Connecticut, but was considered extirpated 
during the last listing review based on extant data and was 
subsequently delisted. Protections are afforded to wildlife listed as 
either endangered or threatened by a State, but those protections vary 
by State. Although we have no information as to the effectiveness of 
these State regulations as they pertain to the conservation of the 
eastern black rail, one benefit of being State-listed is to bring 
heightened public awareness of the bird's existence.
    In Delaware, the importation, transportation, possession, or sale 
of any endangered species or parts of endangered species is prohibited, 
except under license or permit (title 7 of the Delaware Code, sections 
601-605). Illinois also prohibits the possession, take, transport, 
selling, and purchasing, or giving, of a listed species, and allows 
incidental taking only upon approval of a conservation plan (Illinois 
Compiled Statutes, chapter 520, sections 10/1-10/11). Indiana prohibits 
any form of possession of listed species, including taking, 
transporting, purchasing, or selling, except by permit (title 14 of the 
Indiana Code, article 22, chapter 34, sections 1-16 (I.C. 14-22-34-1 
through 16)). Listed species may be removed, captured, or destroyed 
only if the species is causing property damage or is a danger to human 
health (I.C. 14-22-34-16). Similar prohibitions on the possession of a 
listed species in any form, except by permit or license, are in effect 
in Maryland (Code of Maryland, Natural Resources, section 10-2A-01-09), 
New Jersey (title 23 of the New Jersey Statutes, sections 2A-1 to 2A-
15), New York (New York's Environmental Conservation Law, article 11, 
title 5, section 11-0535; title 6 of the New York Codes, Rules and 
Regulations, chapter I, part 182, sections 182.1-182.16), and Virginia 
(Code of Virginia, title 29.1, section 29.1, sections 563-570 (29.1-
563-570)). Violations of these statutes typically are considered 
misdemeanor, generally resulting in fines or forfeiture of the species 
or parts of the species and the equipment used to take the species. 
Some States also have provisions for nongame wildlife and habitat 
preservation programs (e.g., title 7 of the Delaware Code, sections 
201-204; Code of Maryland, Natural Resources, section 1-705). For 
example, in Maryland, the State Chesapeake Bay and Endangered Species 
Fund (Code of Maryland, Natural Resources, section 1-705) provides 
funds to promote the conservation, propagation, and habitat protection 
of nongame, threatened, or endangered species.
    Black rail is listed as a ``species in need of conservation'' in 
Kansas, which requires conservation measures to attempt to keep the 
species from becoming a State-listed endangered or threatened species 
(Kansas Department of Wildlife, Parks and Tourism 2018, unpaginated). 
Black rail also is listed as a species of ``special concern'' in North 
Carolina and requires monitoring (North Carolina Wildlife Resources 
Commission 2014, p. 6). The species is identified as a ``species of 
greatest conservation need'' in 19 State wildlife action plans as of 
2015 (U.S. Geological Survey (USGS) 2017, unpaginated). However, no 
specific conservation measures for black rail are associated with these 
listings, and most are unlikely to address habitat alteration or sea 
level rise.
Other Conservation Efforts
    The Atlantic Coast Joint Venture (ACJV) recently decided to focus 
efforts on coastal marsh habitat and adopted three flagship species, 
one being the eastern black rail, to direct conservation attention in 
this habitat. As part of this initiative, the ACJV Black Rail Working 
Group has drafted population goals for the eastern black rail and is 
developing habitat delivery options within the Atlantic Flyway. In 
addition, the ACJV is coordinating the development of a ``saltmarsh 
conservation business plan.'' The business plan will identify stressors 
to Atlantic and Gulf Coast tidal marshes and the efforts needed to 
conserve these habitats to maintain wildlife populations. The business 
plan is expected to be completed in late 2018.
    The Gulf Coast Joint Venture (GCJV) has had the eastern black rail 
listed as a priority species since 2007 (Gulf Coast Joint Venture 
2005). As a priority species, the black rail is provided consideration 
during the review of North American Wetland Conservation grant 
applications (Vermillion 2018, pers. comm.). Although detailed planning 
for the eastern black rail is not yet complete, the subspecies is 
considered in coastal marsh habitat delivery efforts discussed by GCJV 
Initiative Teams. Eastern black rails are believed to benefit from a 
plethora of coastal marsh habitat delivery efforts of GCJV partners, 
including projects authorized under the North American Wetland 
Conservation Act (16 U.S.C. 4401 et seq.), the Coastal Wetlands 
Planning, Protection and Restoration Act (16 U.S.C. 3951 et seq.), and 
the Service's Coastal Program, as well as management actions on State 
and Federal refuges and wildlife

[[Page 50622]]

management areas. Eastern black rails will benefit when projects 
conserve, enhance, or restore suitable wetland habitat and when 
management practices, such as the timing of prescribed burns and brush-
clearing activities, are compatible with the life history of the 
subspecies.
    In November 2016, the Texas Parks and Wildlife Department, in 
partnership with the Texas Comptroller's Office, initiated the Texas 
Black Rail Working Group (Shackelford 2018, pers. comm.). The main 
purpose of the group is to provide a forum for collaboration between 
researchers and stakeholders to share information about what is known 
about the species, identify information needs, and support conservation 
actions (see discussion under Critical Habitat, below).

Future Scenarios

    As discussed above, we define viability as the ability of a species 
to sustain populations in the wild over time. To help address 
uncertainty associated with the degree and extent of potential future 
stressors and their impacts on the eastern black rail's needs, we 
applied the 3Rs using five plausible future scenarios. We devised these 
five scenarios by identifying information on the primary stressors 
anticipated to affect the subspecies into the future: habitat loss, sea 
level rise, groundwater loss, and incompatible land management 
practices. These scenarios represent a realistic range of plausible 
future scenarios for the eastern black rail.
    We used the results of our occupancy model to create a dynamic 
site-occupancy, projection model that allowed us to explore future 
conditions under these scenarios for the Mid-Atlantic, Great Plains, 
Southeast Coastal Plain, and Southwest Coastal Plain analysis units. We 
did not project future scenarios for the New England, Appalachian, or 
Central Lowlands analysis units because, as discussed earlier in this 
document, we consider these analysis units to be currently effectively 
extirpated and do not anticipate that this will change in the future. 
Our projection model incorporated functions to account for changes in 
habitat condition (positive and negative) and habitat loss over time. 
The habitat loss function was a simple reduction in the total number of 
possible eastern black rail sites at each time step in the simulation 
by a randomly drawn percentage that was specified under different 
scenarios to represent habitat loss due to development or sea level 
rise. We used the change in ``developed'' land cover from the National 
Land Cover Database (NLCD 2011) to derive an annual rate of change in 
each region, and we used National Oceanic and Atmospheric 
Administration (NOAA) climate change and sea level rise projections to 
estimate probable coastal marsh habitat loss rates; storm surge was not 
modeled directly (Sweet et al., 2017, p. entire; Parris, et al., 2012, 
p. entire). In the Great Plains analysis unit, we used ground water 
loss rates, instead of sea level rise data, to represent permanent 
habitat loss in the region. The overall groundwater depletion rate was 
based on the average over 108 years (1900-2008) (Konikow L.F., 2013, p. 
entire).
    Our five scenarios reflected differing levels of sea level rise and 
land management, and the combined effects of both. These future 
scenarios forecast site occupancy for the eastern black rail out to 
2100, with time steps at 2043 and 2068 (25 and 50 years from present, 
respectively). Each scenario evaluates the response of the eastern 
black rail to changes in three primary risks we identified for the 
subspecies: habitat loss, sea level rise, and land management (grazing, 
fire, and haying). The trends of urban development and agricultural 
development remain the same, i.e., follow the current trend, for all 
five scenarios. We ran 5,000 replicates of the model for each scenario. 
For a detailed discussion of the projection model methodology and the 
five scenarios, please refer to the SSA report (Service 2018, entire).
    The model predicted declines in all analysis units across all five 
plausible future scenarios. Specifically, they predicted a high 
probability of complete extinction for all four analysis units under 
all five scenarios by 2068. The model predicted that, depending on the 
scenario, the Southeast Coastal Plain and Mid-Atlantic Coastal Plain 
analysis units would reach complete extinction between 35 and 50 years 
from the present; the Great Plains analysis unit would reach complete 
extinction between 15 to 25 years from the present; and the Southwest 
Coastal Plain analysis unit would reach complete extinction between 45 
to 50 years from the present. Most predicted occupancy declines were 
driven by habitat loss rates that were input into each scenario. The 
model results exhibited little sensitivity to changes in the habitat 
quality components in the simulations for the range of values that we 
explored. For a detailed discussion of the model results for the five 
scenarios, please refer to the SSA report (Service 2018, entire).
    Under our future scenarios, the Mid-Atlantic Coastal Plain, Great 
Plains, Southwest Coastal Plain, and Southeast Coastal Plain analysis 
units generally exhibited a consistent downward trend in the proportion 
of sites remaining occupied after the first approximately 25 years for 
all scenarios. Given that most of the predicted declines in eastern 
black rail occupancy were driven by habitat loss rates, and future 
projections of habitat loss are expected to continue and be exacerbated 
by sea level rise or groundwater loss, resiliency of the four remaining 
analysis units is expected to decline further. We expect all eastern 
black rail analysis units to have no resiliency by 2068, as all are 
likely to be extirpated by that time. We have no reason to expect the 
resiliency of eastern black rail outside the contiguous United States 
to improve in such a manner that will substantially contribute to its 
viability within the contiguous U.S. portion of the subspecies' range. 
Limited historical and current data, including nest records, indicate 
that resiliency outside of the contiguous United States will continue 
to be low into the future, or decline if habitat loss or other threats 
continue to impact these areas.
    We evaluated representation by analyzing the latitudinal 
variability and habitat variability of the eastern black rail. Under 
our future scenarios, the Great Plains analysis unit is projected to be 
extinct within the next 15 to 25 years, which will result in the loss 
of that higher latitudinal representative unit for the subspecies. In 
addition, the three remaining analysis units (Mid-Atlantic Coastal 
Plain, Southwest Coastal Plain, and Southeast Coastal Plain) are 
predicted to decline and reach extinction within the next 50 years. 
Thus, the subspecies' representation will continue to decline.
    The eastern black rail will have very limited redundancy in the 
future. The Great Plains analysis unit will likely be extirpated in 15 
to 25 years, leading to further reduction in redundancy and resulting 
in only coastal populations of the eastern black rail remaining. Having 
only coastal analysis units remaining (and with even lower resiliency 
than at present) will further limit the ability of the eastern black 
rail to withstand catastrophic events, such flooding from hurricanes 
and tropical storms.
    Please refer to the SSA report (Service 2018, entire) for a more 
detailed discussion of our evaluation of the biological status of the 
eastern black rail, the influences that may affect its continued 
existence, and the modeling efforts undertaken to further inform our 
analysis.

[[Page 50623]]

Determination

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the eastern black rail. We propose to list the species as a 
threatened species throughout its range given the threats acting upon 
the subspecies currently and into the future.
    When viewing historical occurrences on the State level compared to 
what is known of present distribution, the range contraction (from 
Massachusetts to New Jersey) and site abandonment (patchy coastal 
distribution) noted by Watts (2016, entire) appear to be occurring 
throughout the eastern United States. Over the past 10 to 20 years, 
reports indicate that populations have declined by 75 percent or 
greater. North of South Carolina, occupancy has declined by 64 percent 
and the number of birds detected has declined by 89 percent, equating 
to a 9.2 percent annual rate of decline (Watts 2016, p. 1). In relative 
terms, regional strongholds still exist for this subspecies; however, 
the best available scientific data suggest that the remaining 
strongholds support a relatively small total population size: an 
estimated 1,299 individuals on the upper Texas coast within protected 
areas prior to Hurricane Harvey, and an estimated 355 to 815 breeding 
pairs on the Atlantic Coast from New Jersey to Florida (including the 
Gulf Coast of Florida). There are no current population estimates from 
the interior States (Colorado, Kansas, or Oklahoma), although there are 
consistent populations of eastern black rails at Quivira NWR in Kansas 
and at least four sites in Colorado where the subspecies is encountered 
in the spring and summer. We have no information to indicate that the 
eastern black rail is present in large numbers in the Caribbean or 
Central America.
    Based on our review of the available science, we identified the 
current threats to eastern black rail. Habitat loss and degradation 
(Factor A) as a result of sea level rise along the coast and ground and 
surface water withdrawals are having a negative impact on the eastern 
black rail now and will continue to impact this subspecies into the 
future. Incompatible land management techniques (Factor E), such as the 
application of prescribed fire, haying, mowing, and grazing, have 
negative impacts on the bird and its habitat, especially when conducted 
at sensitive times, such as the breeding season or the flightless molt 
period. Stochastic events (Factor E), such as flood events and 
hurricanes, can have significant impacts on populations and the 
subspecies' habitat. For example, the impacts of Hurricane Harvey on 
the Texas coastal populations of eastern black rail likely caused 
direct mortality as well as short-term habitat loss, as the hurricane 
occurred during the flightless molt period and resulted in the habitat 
being flooded for a long period of time. Human disturbance (Factor B) 
to the eastern black rail occurs throughout the bird's range and is 
driven by the bird's rarity and interest by the birding community to 
add this bird to individual life lists.
    As we consider the future risk factors to the eastern black rail, 
we recognize that a complex interaction of factors have synergistic 
effects on the subspecies as a whole. In coastal areas, sea level rise, 
as well as increasing storm frequency and intensity and increased flood 
events (which are both associated with high tides and storms), will 
have both direct and indirect effects on the subspecies. Extensive 
patches of high marsh required for breeding are projected to be lost or 
converted to low marsh as a result of sea level rise. Demand for 
groundwater is increasing, which will reduce soil moisture and surface 
water, and thus negatively impact wetland habitat. We expect to see 
localized subsidence, which can occur when groundwater withdrawal rates 
are greater than the aquifer recharge rates. Also, warmer and drier 
conditions (associated with projected drought increases) will reduce 
overall habitat quality for the eastern black rail. Further, 
incompatible land management (such as fire application and grazing) 
will continue to negatively impact the subspecies throughout its range, 
especially if done during the breeding season or flightless molt 
period.
    These stressors contribute to the subspecies' occupancy at sites 
and thus its population numbers. Some stressors have already resulted 
in permanent or long-term habitat loss, such the historical conversion 
of habitat to agriculture, while other factors may only affect sites 
temporarily, such as a fire or annually reduced precipitation. Even 
local but too frequent intermittent stressors, such as unusual high 
tides or prescribed fire, can cause reproductive failure or adult 
mortality, respectively, and thus reduce eastern black rail occupancy 
at a site and the ability of a site to allow for successful 
reproduction of individuals to recolonize available sites elsewhere. 
While these intermittent stressors allow for recolonization at sites, 
recolonization is based on productivity at other sites within a 
generational timescale for the subspecies. If these stressors, 
combined, occur too often within and across generations, they limit the 
ability of the subspecies to maintain occupancy at habitat sites and 
also limit its ability to colonize other previously occupied sites or 
new sites.
    It is likely that several of these stressors are acting 
synergistically on the subspecies. Sea level changes, together with 
increasing peak tide events and higher peak flood events, wetland 
subsidence, past wetland filling and wetland draining, and incompatible 
land management (e.g., prescribed fire and grazing), all limit the 
ability of the eastern black rail to persist in place or to shift to 
newly lightly flooded, ``just-right'' areas as existing habitats are 
impacted. These interacting threats all conspire to limit the ability 
of this subspecies to maintain and expand populations now and in the 
foreseeable future.
    Our estimates of future resiliency, redundancy, and representation 
for the eastern black rail are further reduced from the current 
condition, consistent with this analysis of future threats. Currently, 
three analysis units are effectively extirpated, and four analysis 
units that continue to support populations of the eastern black rail 
all have low levels of resiliency. Given the projected future decreases 
in resiliency for these four analysis units, the eastern black rail 
will become more vulnerable to extirpation from ongoing threats, 
consequently resulting in concurrent losses in representation and 
redundancy. The range of plausible future scenarios of the eastern 
black rail all predict extirpation for all four analysis units by mid-
century (2068) with the Great Plain analysis unit blinking out within 
15 to 25 years (depending on the scenario). In short, our analysis of 
the subspecies' current and future conditions show that the population 
and habitat factors used to determine the resiliency, representation, 
and redundancy for the subspecies will continue to decline so that it 
is likely to become in danger of extinction throughout its range within 
the foreseeable future.
    The term foreseeable future extends only so far as the Services can 
reasonably rely on predictions about the future in making 
determinations about the future conservation status of the species. 
Those predictions can be in the form of extrapolation of population or 
threat trends, analysis of how threats will affect the status of the 
species, or assessment of future events that will have a significant 
new impact on the species. The foreseeable future described here, uses 
the best available data and takes into account considerations such as 
the species' life

[[Page 50624]]

history characteristics, threat projection timeframes, and 
environmental variability, which may affect the reliability of 
projections. We also considered the time frames applicable to the 
relevant threats and to the species' likely responses to those threats 
in view of its life history characteristics. The foreseeable future for 
a particular status determination extends only so far as predictions 
about the future are reliable.
    In cases where the available data allow for quantitative modelling 
or projections, the time horizon for such analyses does not necessarily 
dictate what constitutes the ``foreseeable future'' or set the specific 
threshold for determining when a species may be in danger of 
extinction. Rather, the foreseeable future can only extend as far as 
the Service can reasonably explain reliance on the available data to 
formulate a reliable prediction and avoid reliance on assumption, 
speculation, or preconception. Regardless of the type of data available 
underlying the Service's analysis, the key to any analysis is a clear 
articulation of the facts, the rationale, and conclusions regarding 
foreseeability.
    We identify the foreseeable future for the eastern black rail to be 
25 to 50 years from the present. We consider 25 to 50 years 
``foreseeable'' in this case because this timeframe includes 
projections from our modeling efforts and takes into account the 
threats acting upon the eastern black rail and its habitat and how we 
consider the eastern black rail will respond to these threats in the 
future. For all five plausible scenarios, all analysis units exhibited 
a consistent downward trend in the proportion of sites remaining 
occupied after the first 25 years (by 2043), with extirpation for all 
analysis units by 2068. The Great Plains analysis unit is predicted to 
be extirpated by 2043. Given that future projections of habitat loss 
are expected to continue and be exacerbated by sea level rise and tidal 
flooding, resiliency of the four remaining analysis units is expected 
to decline further over the next 25 to 50 years.
    Under the Act, the term ``species'' includes any subspecies of fish 
or wildlife or plants, and any distinct population segment of any 
species of vertebrate fish or wildlife which interbreeds when mature. 
The Act defines an endangered species as any species that is ``in 
danger of extinction throughout all or a significant portion of its 
range'' and a threatened species as any species that ``is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range.'' We find that the eastern 
black rail is likely to become endangered throughout all of its range 
within the foreseeable future. The eastern black rail meets the 
definition of threatened because it is facing threats across its range 
that have led to reduced resiliency, redundancy, and representation. 
Although the eastern black rail is not in danger of extinction 
throughout its range at present, we expect the subspecies to continue 
to decline into the future. We did not find that it is currently in 
danger of extinction throughout its range. Although the eastern black 
rail has experienced reductions in its numbers and seen a range 
contraction, this subspecies is still relatively widespread. It 
continues to maintain a level of representation in four analysis units, 
which demonstrates continued latitudinal variability across its range. 
These four analysis units are spread throughout most of the subspecies' 
range, providing for some level of redundancy. Although the resiliency 
in the four currently occupied analysis units is low, Florida and Texas 
remain strongholds for the subspecies in the Southeast and Southwest. 
The current condition of the subspecies still provides for resiliency, 
redundancy, and representation such that it is not at risk of 
extinction now throughout its range.
    Under the Act and our implementing regulations, a species may 
warrant listing if it is endangered or threatened throughout all or a 
significant portion of its range. Because we have determined that the 
eastern black rail is likely to become an endangered species within the 
foreseeable future throughout its range, we find it unnecessary to 
proceed to an evaluation of potentially significant portions of the 
range. Where the best available information allows the Services to 
determine a status for the species rangewide, that determination should 
be given conclusive weight because a rangewide determination of status 
more accurately reflects the species' degree of imperilment and better 
promotes the purposes of the statute. Under this reading, we should 
first consider whether listing is appropriate based on a rangewide 
analysis and proceed to conduct a ``significant portion of its range'' 
analysis if, and only if, a species does not qualify for listing as 
either endangered or threatened according to the ``all'' language. We 
note that the court in Desert Survivors v. Department of the Interior, 
No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), did not 
address this issue, and our conclusion is therefore consistent with the 
opinion in that case.
    Therefore, on the basis of the best available scientific and 
commercial information, we propose to list the eastern black rail as a 
threatened species in accordance with sections 3(20) and 4(a)(1) of the 
Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies; private 
organizations; and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies and 
the prohibitions against certain activities are discussed, in part, 
below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act calls for the Service to develop 
and implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning includes the development of a recovery outline 
shortly after a species is listed and preparation of a draft and final 
recovery plan. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan also identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from the Lists of Endangered and Threatened Wildlife and Plants 
(``delisting''), and methods for monitoring recovery progress. Recovery 
plans also establish a framework for agencies to coordinate their 
recovery efforts and provide estimates of the cost of implementing 
recovery tasks. Recovery teams

[[Page 50625]]

(composed of species experts, Federal and State agencies, 
nongovernmental organizations, and stakeholders) are often established 
to develop recovery plans. When completed, the recovery outline, draft 
recovery plan, and the final recovery plan will be available on our 
website (http://www.fws.gov/endangered), or from our South Carolina 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    If this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the U.S. States and territories of 
Alabama, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia, 
Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, 
Massachusetts, Mississippi, Missouri, Nebraska, New Hampshire, New 
Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Puerto 
Rico, Rhode Island, South Carolina, Tennessee, Texas, Virginia, U.S. 
Virgin Islands, and West Virginia would be eligible for Federal funds 
to implement management actions that promote the protection or recovery 
of the eastern black rail. Information on our grant programs that are 
available to aid species recovery can be found at: http://www.fws.gov/grants.
    Although the eastern black rail is only proposed for listing under 
the Act at this time, please let us know if you are interested in 
participating in recovery efforts for this subspecies. Additionally, we 
invite you to submit any new information on this subspecies whenever it 
becomes available and any information you may have for recovery 
planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is listed subsequently, section 7(a)(2) of the Act requires 
Federal agencies to ensure that activities they authorize, fund, or 
carry out are not likely to jeopardize the continued existence of the 
species or destroy or adversely modify its critical habitat. If a 
Federal action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with the 
Service.
    Federal agency actions within the eastern black rail's habitat that 
may require conference or consultation or both as described in the 
preceding paragraph include management and any other landscape-altering 
activities on Federal lands administered by the U.S. Fish and Wildlife 
Service and National Park Service; issuance of section 404 Clean Water 
Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of 
Engineers; and construction and maintenance of roads or highways by the 
Federal Highway Administration.

Provisions of Section 4(d) of the Act

    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to threatened wildlife. 
Under section 4(d) of the Act, the Secretary of the Interior has the 
discretion to issue such regulations as he deems necessary and 
advisable to provide for the conservation of threatened species. The 
Secretary also has the discretion to prohibit, by regulation with 
respect to any threatened species of fish or wildlife, any act 
prohibited under section 9(a)(1) of the Act.
    The regulations at 50 CFR 17.31(a) provide that the prohibitions 
set forth for endangered wildlife at 50 CFR 17.21 also apply to 
threatened wildlife, except as discussed below. The regulations at 50 
CFR 17.21, which codify the prohibitions in section 9(a)(1) of the Act, 
make it illegal for any person subject to the jurisdiction of the 
United States to take (which includes harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect; or to attempt any of 
these) endangered wildlife within the United States or on the high 
seas. In addition, it is unlawful to import; export; deliver, receive, 
carry, transport, or ship in interstate or foreign commerce in the 
course of commercial activity; or sell or offer for sale in interstate 
or foreign commerce endangered wildlife. It is also illegal to possess, 
sell, deliver, carry, transport, or ship any such wildlife that has 
been taken illegally. To the extent the section 9(a)(1) prohibitions 
apply only to endangered species, this proposed rule would apply those 
same prohibitions to the eastern black rail.
    Instead of generally applying the same prohibitions to threatened 
wildlife that apply to endangered wildlife, in accordance with section 
4(d) of the Act, the Service may instead develop a protective 
regulation (``4(d) rule'') that is specific to the conservation needs 
of any threatened species. Such a regulation would contain all of the 
protections applicable to that species (50 CFR 17.31(c)); this may 
include some of the general prohibitions and exceptions set forth at 50 
CFR 17.31 and 17.32, but would also include species-specific 
protections that may be more or less restrictive than the general 
provisions at 50 CFR 17.31.
    For the eastern black rail, the Service has developed a proposed 
4(d) rule that is tailored to the specific threats and conservation 
needs of this subspecies. The proposed 4(d) rule contains specific 
prohibitions and exceptions to those prohibitions. It would not remove 
or alter in any way the consultation requirements under section 7 of 
the Act.

Proposed 4(d) Rule for the Eastern Black Rail

    Under this proposed 4(d) rule, the following activities would be 
prohibited unless otherwise noted:
Fire Management Activities
    Prescribed fire can be used to re-initiate succession and seral 
sequencing on public and private lands, which is important to ensure 
suitable habitat for the eastern black rail. However, the application 
of prescribed fire should avoid burning during the nesting, brood 
rearing, and flightless molt periods (mid-March through September 30) 
where eastern black rails are present. Prescribed fire that takes place 
during critical time periods for the subspecies (i.e., mating, egg-
laying, and incubation; parental care; and flightless molt) will lead 
to mortality of eggs, chicks, juveniles, and molting birds. We 
recognize that there is latitudinal variability of these life-history 
events across the range of the eastern black rail. For example, in 
Texas, eastern black rails begin to nest in March, whereas in

[[Page 50626]]

Kansas and Colorado, nesting begins around May 1. Therefore, the timing 
of prohibitions would coincide with when the eastern black rail is 
using the habitat for breeding and nesting, and with the flightless 
molt period.
    We realize that prohibiting prescribed fire during the months these 
activities take place may conflict with land management goals, for 
example, the use of prescribed fire to control shrub or tree 
encroachment and improve habitat suitability for species such as the 
eastern black rail. However, prescribed fire during this period will 
reduce survival of eggs, chicks, juveniles, and adults and will reduce 
recruitment of individuals into the next generation. Opportunities to 
reach management goals still remain available during a significant 
period of the year.
    For prescribed fires outside of the nesting, brood rearing, and 
flightless molt period, best management practices (BMPs) can minimize 
the take of eastern black rails. Therefore, we propose to allow 
prescribed burns that follow identified BMPs; this would not adversely 
affect the likelihood of survival of the eastern black rail in occupied 
areas that are burned. BMPs include:
     The application of prescribed fire should avoid perimeter 
fires, ring fires, or fires that have long, unbroken boundaries that 
prevent species dependent on dense cover from escaping a fire.
     Prescribed fire should be employed to move slowly across a 
tract. Fast fires can cause significant mortality for eastern black 
rails.
     Prescribed fire should be applied in a patchy manner or 
with small patches to allow eastern black rails a place of refuge. 
Patches can be small but numerous enough to support multiple eastern 
black rails.
    This provision of the proposed 4(d) rule for fire management 
activities would promote conservation of the eastern black rail by 
encouraging continued management of the landscape in ways that meet 
management needs while simultaneously ensuring the continued survival 
of the eastern black rail and providing suitable habitat.
Haying, Mowing, and Other Mechanical Treatment Activities
    Haying and mowing can maintain grasslands by reducing woody 
vegetation encroachment and also for the production of forage for 
livestock. Mechanical treatment activities include disking (using a 
disk harrow or other tool) and brush clearing (using a variety of tools 
that may be attached to a tractor or a stand-alone device). While these 
practices are used to enhance eastern black rail habitat, when done at 
the wrong time, they can impact recruitment and survival.
    Haying, mowing, and mechanical treatment activities in emergent 
wetlands should be avoided during the nesting, brood rearing, and 
flightless molt periods (mid-March through September 30) where eastern 
black rail are present. We define emergent wetlands as areas where 
``emergent plants--i.e., erect, rooted, herbaceous hydrophytes, 
excluding mosses and lichens--are the tallest life form with at least 
30 percent areal coverage. This vegetation is present for most of the 
growing season in most years. These wetlands are usually dominated by 
perennial plants'' (Federal Geographic Data Committee 2013, p. 33). For 
more information on emergent wetlands, please visit the Service's 
National Wetlands Inventory website: https://www.fws.gov/wetlands/.
    Haying, mowing, and mechanical treatment activities in emergent 
wetlands that take place during critical time periods for the 
subspecies (i.e., mating, egg-laying, and incubation; parental care; 
and flightless molt) will lead to disturbance of nesting birds; 
destruction of nests; and mortality of eggs, chicks, juveniles, and 
adults. As discussed above, we recognize that there is latitudinal 
variability of these life-history events across the range of the 
eastern black rail. Therefore, the timing of prohibitions would 
coincide with when the eastern black rail is using the habitat for 
breeding and nesting, and with the flightless molt period.
    We recognize mowing or mechanical treatment activities may need to 
be used for maintenance requirements to ensure safety and operational 
needs for existing infrastructure, and understand that these 
maintenance activities may need to take place during the nesting, 
brooding, or post-breeding molt period. These include maintenance of 
existing fire breaks, roads, transmission corridors rights-of-way, and 
fence lines. These activities are an exception to this prohibition.
    We do not propose to prohibit mowing, haying, or mechanical treat 
activities outside of the nesting, brood rearing, and flightless molt 
time periods. However, we encourage land managers to employ voluntary 
BMPs outside of these time periods. BMPs for haying, mowing, and 
mechanical treatment activities include avoidance of emergent wetlands; 
providing untreated (i.e., unmown or avoided) areas that provide 
refugia for species dependent on dense cover, such as the eastern black 
rail; and using temporary markers to identify where birds occur, for 
example wetland areas, so that these areas may be avoided.
    This provision of the proposed 4(d) rule for haying, mowing, and 
mechanical treatment activities in emergent wetlands would promote 
conservation of the eastern black rail by prohibiting activities that 
would reduce survival and limit recruitment during the period when 
breeding and flightless molt takes place.
Grazing Activities
    Based on current knowledge of grazing and eastern black rail 
occupancy, the specific timing, duration, and intensity of grazing will 
result in varying impacts to the eastern black rail and its habitat. 
Light-to-moderate grazing may be compatible with eastern black rail 
occupancy under certain conditions, while intensive or heavy grazing is 
likely to have negative effects on eastern black rails and the quality 
of their habitat. Grazing densities should allow for the maintenance of 
the dense vegetative cover required by the eastern black rail.
    Intensive or heavy grazing should be avoided during the nesting, 
brood rearing, and flightless molt periods (mid-March through September 
30) in emergent wetlands where eastern black rail are present. 
Intensive or heavy grazing that takes place during critical time 
periods for the subspecies (i.e., mating, egg-laying and incubation; 
parental care; and flightless molt) will lead to disturbance of nesting 
birds, as well as possible destruction of nests and mortality of eggs 
and chicks due to trampling. As discussed above, we recognize that 
there is latitudinal variability of these life-history events across 
the range of the eastern black rail. Therefore, the timing of 
prohibitions would coincide with when the eastern black rail is using 
the habitat for breeding or nesting, and with the flightless molt 
period. We propose to limit this prohibition to public lands, given our 
knowledge of where grazing activities and the presence of eastern black 
rails overlap.
    Although we are not proposing to prohibit year-round light to 
moderate grazing, or intensive grazing outside of the nesting season, 
we do recommend that land managers follow voluntary BMPs to provide for 
additional conservation of the eastern black rail and its habitat. BMPs 
to avoid negative impacts to the eastern black rail from grazing 
activities include the use of fences to exclude grazing from emergent 
wetland areas during the breeding and flightless molt periods, and 
rotational grazing practices so that a mosaic

[[Page 50627]]

pattern of cover density is present across fenced tracts of land.
    This provision of the proposed 4(d) rule for grazing activities 
would promote conservation of the eastern black rail by encouraging 
land managers to continue managing the landscape in ways that meet 
their needs while simultaneously providing suitable habitat for the 
eastern black rail.
Other Forms of Take
    Protecting the eastern black rail from direct forms of take, such 
as physical injury or killing, whether incidental or intentional, will 
help preserve and recover the remaining populations of the subspecies. 
Protecting the eastern black rail from indirect forms of take, such as 
harm that results from habitat degradation, will likewise help preserve 
the subspecies' populations and also decrease synergistic, negative 
effects from other stressors impeding recovery of the subspecies. We 
propose to extend the Act's section 9(a)(1)(A), 9(a)(1)(D), 9(a)(1)(E), 
and 9(a)(1)(F) prohibitions to the eastern black rail throughout its 
range.
    We may issue permits to carry out otherwise prohibited activities 
involving threatened wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.32. With regard to 
threatened wildlife, a permit may be issued for the following purposes: 
for scientific purposes, to enhance propagation or survival, for 
economic hardship, for zoological exhibition, for educational purposes, 
for incidental taking, or for special purposes consistent with the 
purposes of the Act. There are also certain statutory exemptions from 
the prohibitions, which are found in sections 9 and 10 of the Act.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features:
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined at section 3 of the Act, means to use and 
the use of all methods and procedures that are necessary to bring an 
endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines, provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary designate critical habitat at 
the time the species is determined to be endangered or threatened. Our 
regulations (50 CFR 424.12(a)(1)) state that the designation of 
critical habitat is not prudent when one or both of the following 
situations exist: (1) The species is threatened by taking or other 
human activity, and identification of critical habitat can be expected 
to increase the degree of threat to the species, or (2) such 
designation of critical habitat would not be beneficial to the species.
Increased Degree of Threat to the Eastern Black Rail
    Designation of critical habitat requires the publication of maps 
and a narrative description of specific critical habitat areas in the 
Federal Register. We are concerned that designation of critical habitat 
would more widely announce the exact location of eastern black rails 
(and highly suitable habitat) to overzealous birders and further 
facilitate disturbance. As discussed above, the eastern black rail is 
highly sought after by the birding community due to its rarity. We 
anticipate that listing the eastern black rail under the Act will 
further interest in this bird and increase the likelihood that eastern 
black rails will be sought out for birders' ``life lists'' and general 
birding trips.
    Eastern black rails are unique in they are extremely secretive; 
they walk or run under dense vegetation and are rarely seen in flight. 
They are generally detected by employing playback calls. As the eastern 
black rail is difficult to see, birders generally record an eastern 
black rail on their life list by documenting the bird's call. Because 
the eastern black rail is highly sought after, birders will play calls 
repeatedly to garner a response and sometimes to lure a bird in an 
attempt to see the individual. The constant playing of a call to the 
bird for days, if not weeks, at a time is a form of harassment to the 
bird. The use of playback calls has been documented to alter the 
behavior of eastern black rails, resulting in a threats display that 
includes spreading the wings and charging the tape recorder (Taylor and 
Van Perlo 1998, p. 223; Eddleman, Flores, and Legare 1994, 
unpaginated). The American Birding Association Code of Birding Ethics

[[Page 50628]]

states that birders should limit the use of recordings and other 
methods of attracting birds, and never use such methods for attracting 
listed or rare species; however, the singular method used to detect 
eastern black rails is by playback calls (as opposed to passive 
listening) and a listing designation is unlikely to abate this 
disturbance.
    The eastern black rail is highly vulnerable to disturbance, 
especially during the brooding and nesting season. Birders attempting 
to see or hear the bird by using vocalized calls or recordings has the 
potential to disturb nesting birds and to trample nests or eggs, and 
may lead to increased predation (Beans and Niles 2003, p. 96). We 
believe that the threat of disturbance will be exacerbated by the 
publication of maps and descriptions outlining the specific locations 
of this secretive bird in the Federal Register and local newspapers.
    Identification and publication of critical habitat may also 
increase the likelihood of inadvertent or purposeful habitat 
destruction. As discussed above, trespassing has been documented on 
private lands and in areas on public lands specifically closed to the 
public to protect nesting eastern black rails (Roth 2018, pers. comm.; 
Hand 2017, pers. comm.). Trespassing may not only disturb the bird, but 
can also result in trampling of the bird's habitat, as well as eggs and 
nests. State resource managers and researchers are concerned that 
releasing locations of eastern black rail detections may increase human 
disturbance and harassment to the subspecies. Trespassing on private 
land is also a concern, as it likely results in increased harassment to 
the rails and to the private landowners who are providing habitat to 
the rails (Hand 2017, pers. comm.). We recognize with the advent of 
eBird that locations of rare birds, including the eastern black rail, 
are widely distributed and readily available if those location data are 
posted to this website. Given the eastern black rail's rarity and near 
grail-like status in the birding community, when a location has been 
published on eBird, birders often flock to the site in large numbers in 
an attempt to see or hear the bird. For example, in June 2010, an 
eastern black rail was detected at the Parker River NWR in 
Massachusetts, and the detection was posted on eBird (eBird 2018, 
unpaginated). On June 2, a birder posted on eBird that he assembled 
with a group of 34 birders to hear the one or two eastern black rails 
at the site (eBird 2018, unpaginated). On June 4, another birder posted 
that he waited more than 2 hours with about 50 other individuals to 
hear the eastern black rail call (eBird 2018, unpaginated). On June 8, 
a birder noted that about 30 people heard the eastern black rail (eBird 
2018, unpaginated). The 2010 record is the only eastern black rail 
occurrence recorded in eBird for this specific coordinate location and 
demonstrates the great interest an eastern black rail generates among 
the birding community.
    To minimize harmful disturbances, eBird identifies a list of birds 
it considers ``sensitive species.'' This list is developed in 
collaboration with partners to identify birds for which demonstrable 
harm, such as targeted capture, targeted hunting, or targeted 
disturbance of nests or individual birds from birders or photographers, 
may occur from publicly posting location records. In most cases, these 
birds identified as ``sensitive species'' are species that have been 
listed by a local entity or that appear on the International Union for 
Conservation of Nature (IUCN) Red List. These birds have a customized 
display in eBird that omits checklist details, such as date and 
location, among other restrictions. While researchers have access to 
this information, the general public is not able to view more specific 
information on the record. Although the eastern black rail is not 
currently on eBird's ``sensitive species'' list, given the increased 
risk of harassment to the eastern black rail from posting location 
data, we will request that it be added if we list the subspecies.
    We acknowledge that general location information is provided within 
this proposed rule, and more-specific location information can be found 
through other sources. However, we maintain that designation of 
critical habitat would more widely publicize the potential locations of 
the eastern black rail and its habitat, and lead to an increased threat 
of disturbance to the bird from birders. We believe that identification 
and advertisement of critical habitat may exacerbate the threat of 
disturbance, thus making sensitive areas more vulnerable to purposeful 
harmful impacts from humans. Certain life stages, including eggs, 
chicks, nesting/brooding adults, and adults experiencing the flightless 
molt period, are particularly vulnerable. Identification and 
publication of detailed critical habitat information and maps would 
likely increase exposure of sensitive habitats and increase the 
likelihood and severity of threats to both the subspecies and its 
habitat. Identification and publication of critical habitat may lead to 
increased attention to the subspecies, or increased attempts to observe 
or hear it.
Benefits to the Subspecies From Critical Habitat Designation
    Under our regulations at 50 CFR 424.12(a)(1)(i), this finding that 
designating critical habitat is likely to increase the threat of 
disturbance to the subspecies provides a sufficient basis for making a 
not-prudent finding. As demonstrated by the use of the word ``or'' in 
50 CFR 424(a) between subsections (1)(i) and (1)(ii), the regulations 
do not require that we also determine that designating critical habitat 
would not be beneficial to the subspecies.
Summary
    Based on the above discussion, we preliminarily conclude that the 
designation of critical habitat is not prudent, in accordance with 50 
CFR 424.12(a)(1), because the eastern black rail and its habitat face a 
threat by overzealous birders, and designation can reasonably be 
expected to increase the degree of these threats to the subspecies and 
its habitat by making location information more readily available. 
However, we seek public comment on threats of taking or other human 
activity, including the impacts of birders to the eastern black rail 
and its habitat, and the extent to which designation might increase 
those threats.

Required Determinations

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

[[Page 50629]]

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

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act, need not be prepared in connection with 
listing a species as an endangered or threatened species under the 
Endangered Species Act. We published a notice outlining our reasons for 
this determination in the Federal Register on October 25, 1983 (48 FR 
49244).

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. Although we have no records of the 
eastern black rail occurring on tribal lands, the range of the eastern 
black rail overlaps with tribal lands.

References Cited

    A complete list of references cited in this proposed rule is 
available on the internet at http://www.regulations.gov and upon 
request from the South Carolina Ecological Services Field Office (see 
FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Species Assessment Team, 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.

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

0
2. Amend Sec.  17.11(h) by adding an entry for ``Rail, eastern black'' 
to the List of Endangered and Threatened Wildlife in alphabetical order 
under BIRDS to read as set forth below:


Sec.  17.11   Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
BIRDS
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
Rail, eastern black.............  Laterallus          Wherever found....  T............  [Federal Register
                                   jamaicensis                                            citation when
                                   jamaicensis.                                           published as a final
                                                                                          rule]; 50 CFR
                                                                                          17.41(f).\4d\
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

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


Sec.  17.41  Special rules--birds.

* * * * *
    (f) Eastern black rail (Laterallus jamaicensis jamaicensis). (1) 
Prohibitions. The following activities are prohibited:
    (i) Purposeful take of an eastern black rail, including capture, 
handling, or other activities.
    (ii) Prescribed burn activities that result in the incidental take 
of eastern black rails when the activity occurs:
    (A) During the nesting, brooding, or post-breeding flightless molt 
period; or
    (B) Outside of the nesting, brooding, or post-breeding flightless 
molt period, unless best management practices that minimize effects of 
the prescribed burn on the eastern black rail are employed. Examples of 
best management practices include employing slow burn fires, limiting 
the block of land burned to ensure suitable dense cover habitat remains 
for the eastern black rail, employing patch or refugia techniques to 
allow for eastern black rails to survive or escape fire, and avoiding 
the use of ring fires or perimeter fires.
    (iii) Mowing, haying, and mechanical treatment activities in 
emergent wetlands that result in the incidental take of eastern black 
rails when the activity occurs during the nesting, brooding, or post-
breeding flightless molt period, except in accordance with paragraph 
(f)(2)(iii) of this section.
    (iv) Grazing activities on public lands that result in the 
incidental take of eastern black rails when the activity:
    (A) Occurs during the nesting, brooding, or post-breeding 
flightless molt period;
    (B) Involves intensive or high-density grazing that occurs on 
suitable occupied eastern black rail habitat; and
    (C) Does not support the maintenance of appropriate dense 
vegetation cover for the eastern black rail.
    (v) Possession and other acts with unlawfully taken eastern black 
rails. It is unlawful to possess, sell, deliver, carry, transport, or 
ship, by any means whatsoever, any eastern black rail that was taken in 
violation of section 9(a)(1)(B) and 9(a)(1)(C) of the Act or State 
laws.
    (vi) Import and export of the eastern black rail.
    (vii) Delivery, receipt, carry for transport, or shipment in 
interstate or

[[Page 50630]]

foreign commerce, by any means whatsoever, and in the course of a 
commercial activity, of any eastern black rail.
    (viii) Sale or offer for sale in interstate or foreign commerce of 
any eastern black rail.
    (2) Exceptions from prohibitions. (i) All of the provisions of 
Sec.  17.32 apply to the eastern black rail.
    (ii) 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 for the eastern black rail 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 eastern 
black rails.
    (iii) Mowing or mechanical treatment activities in emergent 
wetlands that:
    (A) Occur during the nesting, brooding, or post-breeding flightless 
molt period; and
    (B) Are maintenance requirements to ensure safety and operational 
needs for existing infrastructure. Existing infrastructure may include 
existing fire breaks, roads, transmission corridor rights-of-way, and 
fence lines.
* * * * *

    Dated: September 20, 2018.
James W. Kurth,
Deputy Director, U.S. Fish and Wildlife Service, Exercising the 
Authority of the Director, U.S. Fish and Wildlife Service.
[FR Doc. 2018-21799 Filed 10-5-18; 8:45 am]
 BILLING CODE 4333-15-P



                                                50610                    Federal Register / Vol. 83, No. 195 / Tuesday, October 9, 2018 / Proposed Rules

                                                *      *     *       *      *                           date. We must receive requests for                    modification, or curtailment of its
                                                  Dated: September 20, 2018.                            public hearings, in writing, at the                   habitat or range; (B) overutilization for
                                                James W. Kurth,
                                                                                                        address shown in FOR FURTHER                          commercial, recreational, scientific, or
                                                                                                        INFORMATION CONTACT by November 23,                   educational purposes; (C) disease or
                                                Deputy Director, U.S. Fish and Wildlife
                                                Service, Exercising the Authority of the
                                                                                                        2018.                                                 predation; (D) the inadequacy of
                                                Director, U.S. Fish and Wildlife Service.               ADDRESSES: You may submit comments                    existing regulatory mechanisms; or (E)
                                                [FR Doc. 2018–21797 Filed 10–5–18; 8:45 am]             by one of the following methods:                      other natural or manmade factors
                                                                                                          (1) Electronically: Go to the Federal               affecting its continued existence. We
                                                BILLING CODE 4333–15–P
                                                                                                        eRulemaking Portal: http://                           have determined that habitat loss and
                                                                                                        www.regulations.gov. In the Search box,               destruction, sea level rise and tidal
                                                DEPARTMENT OF THE INTERIOR                              enter FWS–R4–ES–2018–0057, which is                   flooding, incompatible land
                                                                                                        the docket number for this rulemaking.                management, and increasing storm
                                                Fish and Wildlife Service                               Then, click the Search button. On the                 intensity and frequency are the primary
                                                                                                        resulting page, in the Search panel on                threats to this subspecies.
                                                50 CFR Part 17                                          the left side of the screen, under the                   Peer review. We prepared a species
                                                                                                        Document Type heading, click on the                   status assessment report (SSA report) for
                                                [Docket No. FWS–R4–ES–2018–0057;                                                                              the eastern black rail. The SSA report
                                                4500030113]                                             Proposed Rule box to locate this
                                                                                                        document. You may submit a comment                    represents a compilation and
                                                RIN 1018–BD21                                           by clicking on ‘‘Comment Now!’’                       assessment of the best scientific and
                                                                                                          (2) By hard copy: Submit by U.S. mail               commercial information available
                                                Endangered and Threatened Wildlife                      or hand-delivery to: Public Comments                  concerning the status of the eastern
                                                and Plants; 12-Month Petition Finding                   Processing, Attn: FWS–R4–ES–2018–                     black rail, including the past, present,
                                                and Threatened Species Status for                       0057, U.S. Fish and Wildlife Service,                 and future factors influencing the
                                                Eastern Black Rail With a Section 4(d)                  MS: BPHC, 5275 Leesburg Pike, Falls                   subspecies (Service 2018, entire). We
                                                Rule                                                    Church, VA 22041–3803.                                solicited independent peer review of the
                                                AGENCY:   Fish and Wildlife Service,                      We request that you send comments                   SSA report by 10 individuals with
                                                Interior.                                               only by the methods described above.                  expertise in rail biology and ecology and
                                                ACTION: Proposed rule.
                                                                                                        We will post all comments on http://                  in species modeling; we received
                                                                                                        www.regulations.gov. This generally                   comments from 5 of the 10 reviewers.
                                                SUMMARY:    We, the U.S. Fish and                       means that we will post any personal                  The reviewers were generally
                                                Wildlife Service (Service), announce a                  information you provide us (see Public                supportive of our approach and made
                                                12-month petition finding on a petition                 Comments, below, for more                             suggestions and comments that
                                                to list the eastern black rail (Laterallus              information).                                         strengthened our analysis. The SSA
                                                jamaicensis jamaicensis) as an                          FOR FURTHER INFORMATION CONTACT: Tom                  report and other materials relating to
                                                endangered or threatened species under                  McCoy, Field Supervisor, South                        this proposal can be found at http://
                                                the Endangered Species Act of 1973                      Carolina Ecological Services Field                    www.regulations.gov under Docket No.
                                                (Act), as amended. After review of the                  Office, 176 Croghan Spur Road, Suite                  FWS–R4–ES–2018–0057.
                                                best available scientific and commercial                200, Charleston, SC 29407; telephone                  Information Requested
                                                information, we find that listing the                   843–727–4707; facsimile 843–300–0204.
                                                eastern black rail is warranted.                        Persons who use a telecommunications                  Public Comments
                                                Accordingly, we propose to list the                     device for the deaf (TDD) may call the                  We intend that any final action
                                                eastern black rail, a bird subspecies that              Federal Relay Service at 800–877–8339.                resulting from this proposed rule will be
                                                occurs in as many as 35 States, the                     SUPPLEMENTARY INFORMATION:                            based on the best scientific and
                                                District of Columbia, Puerto Rico, and                                                                        commercial data available and be as
                                                several countries in the Caribbean and                  Executive Summary                                     accurate and as effective as possible.
                                                Central America, as a threatened species                   Why we need to publish a rule. Under               Therefore, we request comments or
                                                under the Act. If we finalize this rule as              the Act, if we determine that a species               information from other concerned
                                                proposed, it would extend the Act’s                     is an endangered or threatened species                governmental agencies, Native
                                                protections to this subspecies and,                     throughout all or a significant portion of            American tribes, the scientific
                                                accordingly, add this subspecies to the                 its range, we are required to promptly                community, industry, or any other
                                                List of Endangered and Threatened                       publish a proposal in the Federal                     interested parties concerning this
                                                Wildlife. We also propose a rule under                  Register and make a determination on                  proposed rule. We particularly seek
                                                the authority of section 4(d) of the Act                our proposal within 1 year. Listing a                 comments concerning:
                                                that provides measures that are                         species as an endangered or threatened                  (1) The eastern black rail’s biology,
                                                necessary and advisable to provide for                  species can only be completed by                      range, and population trends, including:
                                                the conservation of the eastern black                   issuing a rule.                                         (a) Biological or ecological
                                                rail. We have determined that                              This rule proposes to list the eastern             requirements of the subspecies,
                                                designation of critical habitat for the                 black rail (Laterallus jamaicensis                    including habitat requirements for
                                                eastern black rail is not prudent at this               jamaicensis) as a threatened species and              feeding, breeding, and sheltering;
                                                time, but we are seeking public                         to provide measures under section 4(d)                  (b) Genetics and taxonomy;
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                                                comment on that determination.                          of the Act that are tailored to our current             (c) Historical and current range,
                                                DATES: We will accept comments                          understanding of the conservation needs               including distribution patterns;
                                                received or postmarked on or before                     of the eastern black rail.                              (d) Historical and current population
                                                December 10, 2018. Comments                                The basis for our action. Under the                levels, and current and projected trends;
                                                submitted electronically using the                      Act, we may determine that a species is               and
                                                Federal eRulemaking Portal (see                         an endangered or threatened species                     (e) Past and ongoing conservation
                                                ADDRESSES, below) must be received by                   based on any of five factors: (A) The                 measures for the subspecies, its habitat,
                                                11:59 p.m. Eastern Time on the closing                  present or threatened destruction,                    or both.


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                                                                       Federal Register / Vol. 83, No. 195 / Tuesday, October 9, 2018 / Proposed Rules                                          50611

                                                   (2) Factors that may affect the                         Please include sufficient information              assumptions, and analyses. In
                                                continued existence of the subspecies,                  with your submission (such as scientific              accordance with our joint policy on peer
                                                which may include habitat modification                  journal articles or other publications) to            review published in the Federal
                                                or destruction, overutilization, disease,               allow us to verify any scientific or                  Register on July 1, 1994 (59 FR 34270),
                                                predation, the inadequacy of existing                   commercial information you include.                   we sought the expert opinions of 10
                                                regulatory mechanisms, or other natural                    Please note that submissions merely                appropriate and independent specialists
                                                or manmade factors.                                     stating support for or opposition to the              with expertise in eastern black rail
                                                   (3) Biological, commercial trade, or                 action under consideration without                    ecology and modeling regarding the
                                                other relevant data concerning any                      providing supporting information,                     SSA report (Service 2018, entire) that
                                                threats (or lack thereof) to the eastern                although noted, will not be considered                supports this proposed rule. We
                                                black rail and existing regulations that                in making a determination, as section                 received comments from 5 of the 10
                                                may be addressing those threats.                        4(b)(1)(A) of the Act directs that                    peer reviewers.
                                                   (4) Additional information concerning                determinations as to whether any
                                                                                                                                                              Previous Federal Action
                                                the historical and current status, range,               species is an endangered or threatened
                                                distribution, and population size of the                species must be made ‘‘solely on the                     In April 2010, the Center for
                                                eastern black rail, including the                       basis of the best scientific and                      Biological Diversity (CBD) petitioned
                                                locations of any additional populations                 commercial data available.’’                          the Service to list 404 aquatic, riparian,
                                                of this subspecies.                                        You may submit your comments and                   and wetland species from the
                                                   (5) The reasons why areas should or                  materials concerning this proposed rule               southeastern United States under the
                                                should not be designated as critical                    by one of the methods listed in                       Act. The eastern black rail was among
                                                                                                        ADDRESSES. We request that you send                   these 404 species. On September 27,
                                                habitat as provided by section 4 of the
                                                                                                        comments only by the methods                          2011, the Service published a 90-day
                                                Act (16 U.S.C. 1531 et seq.), including
                                                                                                        described in ADDRESSES.                               finding that the petition presented
                                                the possible risks or benefits of
                                                                                                          If you submit information via http://               substantial scientific or commercial
                                                designating critical habitat, including
                                                                                                        www.regulations.gov, your entire                      information indicating that listing may
                                                risks associated with publication of
                                                                                                        submission—including any personal                     be warranted for 374 species, including
                                                maps designating any area on which
                                                                                                        identifying information—will be posted                the eastern black rail (76 FR 59836). On
                                                this subspecies may be located, now or
                                                                                                        on the website. If your submission is                 September 13, 2012, CBD filed a
                                                in the future, as critical habitat. We
                                                                                                        made via a hardcopy that includes                     complaint against the Service for failure
                                                specifically request information on the
                                                                                                        personal identifying information, you                 to complete a 12-month finding for the
                                                threats of taking or other human
                                                                                                        may request at the top of your document               eastern black rail. On April 25, 2013, the
                                                activity, particularly by birders, on the
                                                                                                        that we withhold this information from                Service entered into a settlement
                                                eastern black rail and its habitat, and the
                                                                                                        public review. However, we cannot                     agreement with CBD to resolve the
                                                extent to which designation might
                                                                                                        guarantee that we will be able to do so.              complaint; the court approved the
                                                increase those threats, as well as the
                                                                                                        We will post all hardcopy submissions                 agreement on April 26, 2013. The
                                                possible benefits of critical habitat
                                                                                                        on http://www.regulations.gov.                        agreement specified that a 12-month
                                                designation to the eastern black rail.
                                                                                                          Comments and materials we receive,                  finding for the eastern black rail would
                                                   (6) Whether the measures outlined in
                                                                                                        as well as supporting documentation we                be delivered to the Federal Register by
                                                the proposed section 4(d) rule are
                                                                                                        used in preparing this proposed rule,                 September 30, 2018. This document
                                                necessary and advisable for the
                                                                                                        will be available for public inspection               serves as our 12-month finding on the
                                                conservation and management of the
                                                                                                        on http://www.regulations.gov, or by                  April 2010 petition.
                                                eastern black rail. We particularly seek
                                                                                                        appointment, during normal business
                                                comments concerning:                                                                                          Background
                                                                                                        hours, at the U.S. Fish and Wildlife
                                                   (a) Whether the provision related to                                                                          A thorough review of the taxonomy,
                                                                                                        Service, South Carolina Ecological
                                                the prescribed burn activities should be                                                                      life history, and ecology of the eastern
                                                                                                        Services Field Office (see FOR FURTHER
                                                revised to include additional spatial or                                                                      black rail is presented in the SSA report
                                                                                                        INFORMATION CONTACT).
                                                temporal restrictions or deferments, or                                                                       (Service 2018, entire).
                                                additional best management practices;                   Public Hearing
                                                   (b) Whether the provision related to                                                                       Taxonomy and Species Description
                                                                                                          Section 4(b)(5) of the Act provides for
                                                the haying, mowing, and mechanical                      a public hearing on this proposal, if                   The eastern black rail is a subspecies
                                                treatment activities should be revised to               requested. We must receive requests                   of black rail, which is a member of the
                                                include additional spatial or temporal                  within 45 days after the date of                      family Rallidae (rails, gallinules, and
                                                restrictions or deferments;                             publication of this proposed rule in the              coots) in the order Gruiformes (rails,
                                                   (c) Whether the provision related to                 Federal Register (see DATES, above).                  cranes, and allies; American
                                                the grazing activities should be revised                Such requests must be sent to the                     Ornithologists’ Union, 1998, p. 130).
                                                to include spatial or temporal                          address shown in FOR FURTHER                          The eastern black rail is one of four
                                                restrictions or deferments. We also seek                INFORMATION CONTACT. We will schedule                 recognized subspecies of black rail. The
                                                comment on the level of grazing density                 a public hearing on this proposal, if                 California black rail (Laterallus
                                                that is compatible with eastern black                   requested, and announce the date, time,               jamaicensis coturniculus) is the only
                                                rail occupancy; and                                     and place of that hearing, as well as how             other subspecies that occurs in North
                                                   (d) Whether there are additional                     to obtain reasonable accommodations,                  America; its range does not overlap with
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                                                provisions the Service may wish to                      in the Federal Register and local                     the eastern black rail Taylor and van
                                                consider for the section 4(d) rule in                   newspapers at least 15 days before the                Perlo 1998, p. 221; Clements et al. 2016,
                                                order to conserve, recover, and manage                  hearing.                                              unpaginated). The Birds of North
                                                the eastern black rail, such as                                                                               America and Avibase both currently
                                                limitations on road construction and                    Peer Review                                           recognize the eastern black rail as a
                                                other infrastructure or construction                      The purpose of peer review is to                    valid subspecies (Eddleman et al. 1994,
                                                activities, moist soil management, or                   ensure that our listing determination is              unpaginated; Avibase 2003,
                                                structural marsh management activities.                 based on scientifically sound data,                   unpaginated). We have no information


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                                                50612                  Federal Register / Vol. 83, No. 195 / Tuesday, October 9, 2018 / Proposed Rules

                                                to suggest there is scientific                          iii, 62–63; Eddleman, Flores, and Legare              approximately 90 percent of
                                                disagreement about the eastern black                    1994, unpaginated). We recognize that                 documented breeding-season
                                                rail’s taxonomy; therefore, we accept                   there is latitudinal variability of these             occurrence records occurred at coastal
                                                that the eastern black rail is a valid                  life-history events across the range of               locations (Watts 2016, p. 117). Inland
                                                taxon.                                                  the eastern black rail. The subspecies’               records accounted for less than 10
                                                   The black rail is the smallest rail in               lifespan is not known.                                percent of total occurrences, and more
                                                North America. Males and females are                       The nature of migration for the                    than 60 percent of the inland records
                                                similar in size, and adults are generally               eastern black rail is poorly understood.              occurred before 1950 (Watts 2016, p.
                                                pale to blackish gray, with a small                     Preliminary results suggest there are two             117). The eastern black rail has been
                                                blackish bill and bright red eyes. The                  populations of eastern black rail in the              reported to occur throughout the
                                                eastern black rail is larger (mean                      south-central United States: A migratory              Caribbean and Central America, and it
                                                mass=35 grams) but has less brightly                    population breeding in Colorado and                   has been hypothesized that some birds
                                                colored plumage than the California                     Kansas, and wintering in Texas; and a                 may migrate from the coastal United
                                                black rail (mean mass = 29 grams)                       non-migratory population living in                    States to the Caribbean in the winter;
                                                (Eddleman et al. 1994, unpaginated).                    Texas year-round (Butler 2017, pers.                  however, the subspecies’ distribution is
                                                                                                        comm.). Additionally, it is suspected                 poorly understood (Taylor and van
                                                   The eastern black rail has four life                 that the northern U.S. Atlantic coast
                                                stages: egg, chick, juvenile, and adult;                                                                      Perlo 1998, pp. 221–222). There have
                                                                                                        population migrates and winters on the                been very few reports of eastern black
                                                we discuss specifics of each of these life              southern Atlantic coast (e.g., the
                                                stages in detail in our SSA report                                                                            rails in recent years from the Caribbean
                                                                                                        Carolinas and Florida) and also in the                and Central America. It is not certain
                                                (Service 2018, pp. 8–12). Eastern black                 Caribbean and Central America
                                                rail egg laying and incubation primarily                                                                      whether this is due to lack of survey
                                                                                                        (Eddleman, Flores, and Legare 1994,                   effort, loss of habitat, predation, or a
                                                occur from May to August, with some                     unpaginated; Taylor and van Perlo,
                                                early nesting in March and April (Watts                                                                       combination of these.
                                                                                                        1998, pp. 221–222).
                                                2016, pp. 10–11; A. Moore and J. Wilson                                                                          See the figure, below, for a
                                                2018, unpublished data). The chick                      Distribution                                          distribution map for the eastern black
                                                stage occurs from May through                             The eastern black rail occupies                     rail. This figure shows the current areas
                                                September. The juvenile stage begins                    portions of the eastern United States                 where black rails are found year-round
                                                when a chick has fledged and is                         (east of the Rocky Mountains), Mexico,                and in the spring and summer. Shaded
                                                independent from the parents. Eastern                   Central America, and the Caribbean.                   countries and U.S. States are those that
                                                black rails reach the sexually mature                   Individuals that are presumed to be the               may have detections of eastern black
                                                adult life stage the spring after hatch                 eastern black rail have also been                     rails; however, detections in these
                                                year. Adults undergo a complete                         reported on occasion in Brazil. In the                countries or U.S. States may be few in
                                                postbreeding molt each year between                     United States, eastern black rails are                number and the bird may not be
                                                July and September on the breeding                      found in both coastal and inland areas,               detected regularly, i.e., it may be
                                                grounds (Pyle 2008, p. 477; Hand 2017b,                 but the majority of detections are from               considered a vagrant or accidental
                                                p. 15). During that time, individuals                   coastal sites. In a recent assessment of              migrant in these areas. The individual
                                                simultaneously lose all of their wing                   23 States that comprise the primary area              detections in Central America, the
                                                flight feathers and tail flight feathers,               of the subspecies’ range within the                   Caribbean, and Brazil occurred from
                                                and are unable to fly for approximately                 contiguous United States (i.e., along the             2011 to present.
                                                3 weeks (Flores and Eddleman 1991, pp.                  Atlantic and Gulf Coasts),                            BILLING CODE 4333–15–P
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                                                                       Federal Register / Vol. 83, No. 195 / Tuesday, October 9, 2018 / Proposed Rules                                        50613




                                                BILLING CODE 4333–15–C                                  Conway 2015, p. 292). Eastern black                   362; Legare and Eddleman 2001, pp.
                                                Habitat                                                 rails require dense vegetative cover that             173–174). However, when shrub
                                                                                                        allows movement underneath the                        densities become too high, the habitat
                                                  Eastern black rails are found in a                    canopy. Plant structure is considered                 becomes less suitable for eastern black
                                                variety of salt, brackish, and freshwater               more important than plant species                     rails. Soils are moist to saturated
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                                                marsh habitats that can be tidally or                   composition in predicting habitat                     (occasionally dry) and interspersed with
                                                non-tidally influenced. Within these                    suitability for the subspecies (Flores and            or adjacent to very shallow water (1 to
                                                habitats, the birds occupy relatively                   Eddleman 1995, pp. 357, 362).                         6 centimeters) (Legare and Eddleman
                                                high elevations along heavily vegetated                 Occupied habitat tends to be primarily                2001, pp. 173, 175). Eastern black rails
                                                wetland gradients, with soils that are                  composed of fine-stemmed emergent                     forage on a variety of small (<1
                                                moist or flooded to a shallow depth                     plants (rushes, grasses, and sedges) with             centimeter (cm) (0.39 inches (in)))
                                                (Eddleman, Knopf, Meanley, Reid, and                    high stem densities and dense canopy                  aquatic and terrestrial invertebrates,
                                                                                                                                                                                                         EP09OC18.000</GPH>




                                                Zembal 1988, p. 463; Nadeau and                         cover (Flores and Eddleman 1995, p.                   especially insects, and seeds (e.g.,


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                                                50614                  Federal Register / Vol. 83, No. 195 / Tuesday, October 9, 2018 / Proposed Rules

                                                Typha, Scirpus, Spartina spp.) by                       (for example, hurricanes). In general, the            Coastal Plain, Mid-Atlantic Coastal
                                                gleaning or pecking at individual items                 more redundant and resilient a species                Plain, Great Plains, and Southwest
                                                (Eddleman, Flores, and Legare 1994,                     is and the more representation it has,                Coastal Plain) to have very low
                                                unpaginated; Ehrlich, Dobkin, and                       the more likely it is to sustain                      occupancy probabilities ranging from
                                                Wheye 1988, p. 102).                                    populations over time, even under                     0.099 to 0.25. The results also indicated
                                                                                                        changing environmental conditions.                    fairly high site extinction probabilities
                                                Species Needs
                                                                                                        Using these principles, we identified the             with accompanying low site persistence.
                                                   The eastern black rail is a wetland                  eastern black rail’s ecological                          To assess representation, we used two
                                                dependent subspecies. While it can be                   requirements for survival and                         metrics to estimate and predict
                                                found in salt, brackish, and freshwater                 reproduction at the individual,                       representative units that reflect the
                                                marshes that are tidally or non-tidally                 population, and subspecies levels, and                subspecies’ adaptive capacity: Habitat
                                                influenced, it has a very specific niche                described the beneficial and risk factors             variability and latitudinal variability.
                                                habitat. It requires dense herbaceous                   influencing the subspecies’ viability.                The eastern black rail exhibits adaptive
                                                vegetation to provide shelter and cover                    We delineated analysis units for the               potential by using similar habitat
                                                and areas for protected nest sites; it is               eastern black rail based on                           elements within different wetland types
                                                not found in areas with woody                           environmental variables (aquifer                      (habitat variability) within analysis
                                                vegetation.                                             permeability, slope, mean precipitation,              units, i.e., higher elevation areas within
                                                   The bird requires shallow water or                   mean potential evapotranspiration, and                wetlands with dense vegetation, moist
                                                moist soil for its nesting sites. Ideally,              percent sand in soil). We used 8,281                  soils, and shallow flood depths
                                                the water level is 1 to 6 cm (0.39 to 2.36              point localities from combined datasets               (Eddleman, Knopf, Meanley, Reid, and
                                                in), although less than 3 cm (1.18 in) is               (i.e., eBird, Center for Conservation                 Zembal 1988, p. 463; Nadeau and
                                                ideal for foraging and chick rearing.                   Biology, University of Oklahoma, and                  Conway 2015, p. 292). Therefore, the
                                                Water levels must be below the nests                    additional research partners) from 1980               subspecies shows a level of adaptive
                                                during egg laying and incubation for                    through 2017, to delineate the analysis               capacity by using different wetland
                                                nests to be successful. Eastern black                   units for the eastern black rail. We                  types that contain the required habitat
                                                rails require elevated refugia with dense               named the analysis units using standard               elements. Additionally, we used the
                                                cover to survive high water events,                     topographic and ecological landmarks:                 metric of latitudinal variability to reflect
                                                because juvenile and adult black rails                  New England, Mid-Atlantic Coastal                     the eastern black rail’s wide range
                                                prefer to walk and run rather than fly                  Plain, Appalachians, Southeast Coastal                across the contiguous United States. To
                                                and chicks are unable to fly. Eastern                   Plain, Southwest Coastal Plain, Central               maintain existing adaptive capacity, it is
                                                black rails fly little during the breeding              Lowlands, and Great Plains. Based on                  important to have resilient populations
                                                and wintering seasons—they prefer to                    available data, we have concluded that                (analysis units) that exhibit habitat
                                                remain on the ground, running quickly                   the New England, Appalachians, and                    variability and latitudinal variability to
                                                through dense vegetation—and are                        Central Lowlands analysis units are                   maintain adaptive capacity.
                                                considered secretive because of this                    effectively extirpated. While these three                To assess redundancy, we evaluated
                                                behavior. Having higher elevation areas                 analysis units historically did not                   the current distribution of eastern black
                                                with dense vegetation allows the birds                  support abundances of the eastern black               rail analysis units through their present-
                                                to escape flood events during the                       rail as high as the other four analysis               day spatial locations. To have high
                                                flightless molt period, and provides                    units, an evaluation of the current status            redundancy, the eastern black rail
                                                shelter from predators.                                 information, including the paucity of                 would need to have multiple resilient
                                                                                                        current records, negative survey results,             analysis units spread throughout its
                                                Summary of Biological Status and
                                                                                                        and the demonstrated range contraction                range.
                                                Threats
                                                                                                        throughout these areas, supports our                  Current Condition of Eastern Black Rail
                                                   We completed a comprehensive                         conclusion that the eastern black rail is
                                                assessment of the biological status of the              effectively extirpated from these                        Historically, the eastern black rail
                                                eastern black rail, and prepared a report               analysis units. The remaining four                    ranged across the eastern, central, and
                                                of the assessment (SSA report; Service                  analysis units, the Mid-Atlantic Coastal              southern United States; historical
                                                2018, entire), which provides a                         Plain, Southeast Coastal Plain,                       records also exist from the Caribbean
                                                thorough account of the subspecies’                     Southwest Coastal Plain, and Great                    and Central America. It occupied
                                                overall viability. Below, we summarize                  Plains, have records of current                       multiple areas of wetlands (including
                                                the key results and conclusions of the                  populations of eastern black rails.                   salt marshes, coastal prairies, and hay
                                                SSA report, which can be viewed under                      To assess resiliency, we analyzed                  fields) throughout the range;
                                                Docket No. FWS–R4–ES–2018–0057 at                       occupancy within the analysis units                   approximately 90 percent of
                                                http://www.regulations.gov.                             through the creation of a dynamic                     documented breeding-season
                                                   To assess eastern black rail viability,              occupancy model. We used data from                    occurrence records occurred at coastal
                                                we used the three conservation biology                  repeated presence/absence surveys                     locations and less than 10 percent were
                                                principles of resiliency, representation,               across the range of the eastern black rail            inland records, with more than 60
                                                and redundancy (together, ‘‘the three                   to estimate the probability of presence at            percent of the inland records occurring
                                                Rs,’’ (3Rs)) (Shaffer and Stein 2000, pp.               a site and related the occupancy                      before 1950 (Watts 2016, entire). The
                                                306–310). Briefly, resiliency refers to the             probability to environmental covariates               eastern black rail also occupied multiple
                                                ability of a species to withstand                       of interest (wettest month precipitation,             areas of wetlands within each analysis
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                                                environmental and demographic                           temperature range, annual mean                        unit. Within the northeastern United
                                                stochasticity (for example, wet or dry                  temperature, coldest month mean                       States, historical (1836–2010) records
                                                years); representation refers to the                    temperature, presence/absence of fire                 document the eastern black rail as
                                                ability of the species to adapt over time               ants, and State identification). The                  present during breeding months from
                                                to long-term changes in the environment                 lower the occupancy probability in an                 Virginia to Massachusetts, with 70
                                                (for example, climate change); and                      analysis unit, the less resiliency that               percent of historical observations (773
                                                redundancy refers to the ability of the                 analysis unit exhibits. We found the                  records) in Maryland, Delaware, and
                                                species to withstand catastrophic events                four extant analysis units (Southeast                 New Jersey (Watts 2016, p. 22).


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                                                                       Federal Register / Vol. 83, No. 195 / Tuesday, October 9, 2018 / Proposed Rules                                           50615

                                                Maryland, Delaware, and New Jersey are                  and there are currently few detections of             Carolina shows a limited distribution,
                                                considered historical strongholds for                   eastern black rails across this unit.                 with two known occupied areas (Wiest
                                                eastern black rail in this region of the                Moreover, the current detections are not              2018, pers. comm.) and an estimated 50
                                                United States (the Northeast) as well as                consistent from year to year even when                to 100 breeding pairs, leaving Texas and
                                                across the subspecies’ entire breeding                  habitat remains suitable. For example,                Florida as the current strongholds for
                                                range (Watts 2016, p. 22), due to the                   Indiana Department of Natural                         the Southeast. At the time of the 2016
                                                total number and frequency of                           Resources surveys for eastern black rails             coastal assessment, it was surmised that
                                                observations reported over time.                        at multiple sites from 2010–2016                      coastal Georgia may support a breeding
                                                Virginia, New York, and Connecticut                     yielded one detection at a single site                population of unknown size (Watts
                                                account for an additional 21 percent of                 previously known to support eastern                   2016, pp. 93–95); however, a coastwide
                                                the historical records (235 records) from               black rails (Gillett 2017, unpublished                survey in 2017 at 409 survey points in
                                                the Northeast (Watts 2016, p. 22).                      data).                                                Georgia yielded no detections of eastern
                                                Recent (2011–2016) records from the                        In the Chesapeake Bay region, the                  black rails (B. Watts and F. Smith 2017,
                                                Northeast are low in number (64                         distribution of eastern black rail has                unpublished data). In short, across the
                                                records), with almost all records                       contracted, and the counts of birds have              Atlantic and Gulf Coasts, recent
                                                restricted to outer coastal habitats                    declined. A series of systematic surveys              observations show poor presence inland
                                                (Watts 2016, pp. 22, 24). The                           for eastern black rails has been                      and a widespread reduction in the
                                                distribution of the recent records points               conducted around the Chesapeake Bay                   number of sites used across coastal
                                                toward a substantial southward                          since the early 1990s (Watts 2016, pp.                habitats (Watts 2016, p. 79).
                                                contraction in the subspecies’ range of                 59, 67). Surveys estimated 140                          The history of the subspecies’
                                                approximately 450 kilometers (280                       individuals in the 1990–1992 survey                   distribution in the interior continental
                                                miles), with vacated historical sites from              period, decreasing to 24 individuals in               United States is poorly known.
                                                33 counties extending from the                          2007, and only 8 individuals in 2014, a               Historical literature indicates that a
                                                Newbury marshes in Massachusetts to                     decline of over 90 percent in less than               wide range of interior States were
                                                Ocean County, New Jersey (Watts 2016,                   25 years (Watts 2016, p. 59; D. Brinker,              occupied by the eastern black rail, either
                                                pp. 24, 119). Further, the distribution of              unpublished data). Of 328 points                      regularly or as vagrants (Smith-Patten
                                                the recent records has become patchy                    surveyed in Virginia in 2007, 15 birds                and Patten 2012, entire). Eastern black
                                                along the Atlantic coast, and an                        were detected; a second round of                      rails are currently vagrants (casual or
                                                evaluation of the records within the 15                 surveys in 2014 yielded two detections                accidental) in Arkansas, Illinois,
                                                counties still currently occupied                       at 135 survey points (including all                   Indiana, Iowa, Michigan, Minnesota,
                                                suggests an almost full collapse of the                 survey points with positive occurrences               Missouri, Nebraska, New Mexico, Ohio,
                                                eastern black rail population in the                    in the 2007 survey effort), equating to an            South Dakota, and Wisconsin (Smith-
                                                Northeast (Watts 2016, p. 24).                          85 percent decline over 7 years (Watts                Patten and Patten 2012, entire).
                                                                                                        2016, pp. 67, 71; Wilson et al. 2015, p.              Presently, eastern black rails are reliably
                                                   While the Appalachians and Central                   3).                                                   located within the Arkansas River
                                                Lowlands analysis units supported less                     Historically, the eastern black rail was           Valley of Colorado (presumed breeder in
                                                habitat for eastern black rails compared                also present during breeding months at                the State), and in southcentral Kansas in
                                                to the more coastal analysis units,                     inland and coastal locations throughout               Stafford, Finney, Franklin, Barton, and
                                                interior occurrences were more common                   southeastern coastal States (the                      Riley Counties (confirmed breeder in
                                                historically. Current population                        Southeast), a region that included North              the State) (Butler, Tibbits, and Hucks
                                                estimates for States with a large area                  Carolina, South Carolina, Georgia,                    2014, p. 20; Smith-Patten and Patten
                                                occurring within the boundaries of the                  Florida, Tennessee, Mississippi,                      2012, pp. 9, 17). In Colorado, the
                                                Appalachians analysis unit are                          Alabama, Louisiana, and Texas (Watts                  subspecies is encountered in spring and
                                                effectively zero (Watts 2016, p. 19).                   2016, pp. 75–76). Of these States, Texas,             summer at Fort Lyon Wildlife Area,
                                                Within that unit, an estimated 0 to 5                   Florida, South Carolina, and North                    Bent’s Old Fort, Oxbow State Wildlife
                                                breeding pairs currently occur in                       Carolina contained 89 percent of all                  Area, Bristol (Prowers County), and
                                                Pennsylvania, and no breeding pairs are                 historical observations (734 records)                 John Martin Reservoir State Park
                                                thought to occur in New York or West                    (Watts 2016, p. 77). The other States                 (Smith-Patten and Patten 2012, p. 10). In
                                                Virginia (Watts 2016, p. 19). Birds                     (Georgia, Tennessee, Mississippi,                     Kansas, eastern black rails are regularly
                                                previously detected in the Appalachians                 Alabama, and Louisiana) either do not                 present during the breeding months at
                                                analysis unit were found in small                       have a history of supporting eastern                  Quivira National Wildlife Refuge (NWR)
                                                depressional wetlands within active                     black rails consistently or are                       and Cheyenne Bottoms Wildlife Area
                                                pastures; other freshwater wetlands                     considered to be on the peripheries of                (Smith-Patten and Patten 2012, p. 17),
                                                dominated by cattails, rushes, or sedges;               known breeding areas (Watts 2016, p.                  and at Cheyenne Bottoms Preserve
                                                and drainage ditches (Watts 2016, pp.                   77). Recently, there have been 108                    during wet years when habitat
                                                48, 74). While these wetland types still                records of eastern black rails during the             conditions are suitable (Penner 2017,
                                                exist within the analysis unit and may                  breeding season, and at a coarse view,                pers. comm.). In Oklahoma, occurrence
                                                support individuals or a very low-                      the same four southeastern States that                mapping suggests that this subspecies
                                                density, scattered population (Watts                    substantially supported the subspecies                had at a maximum a patchy historical
                                                2016, pp. 48, 74), a substantial amount                 historically still support the subspecies             distribution throughout the State.
                                                of this kind of habitat has been lost                   (Watts 2016, pp. 77, 79). However,                      Eastern black rail analysis units
amozie on DSK3GDR082PROD with PROPOSALS1




                                                primarily due to the draining of                        North Carolina shows a severe decline                 currently have low to no resiliency in
                                                freshwater wetlands for agricultural                    in the number of occupied sites, with                 the contiguous United States (Service
                                                purposes. These estimates likely hold                   only four properties occupied in 2014–                2018, pp. 79–82). The Great Plains,
                                                true for the interior portions of the other             2015, down from nine in 1992–1993                     Southwest Coastal Plain, and Southeast
                                                States within the Appalachians analysis                 (Watts 2016, p. 80). Additional surveys               Coastal Plain analysis units have low
                                                unit (based on few current detections).                 in 2017 yielded no new occupied sites                 resiliency based on the dynamic
                                                Similar losses of habitat have occurred                 in coastal North Carolina (B. Watts and               occupancy model results, which
                                                in the Central Lowlands analysis unit,                  F. Smith 2017, unpublished data). South               indicate very low occupancy


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                                                50616                  Federal Register / Vol. 83, No. 195 / Tuesday, October 9, 2018 / Proposed Rules

                                                probabilities in each modeled analysis                  has effectively been lost to the                      localized impacts, they are not the
                                                unit: 0.25 in the Southwest Coastal                     subspecies. Therefore, even though the                primary drivers of the status of the
                                                Plain, 0.13 in the Great Plains, and                    eastern black rail still occurs at varying            subspecies, and so we do not discuss
                                                0.099 in the Southeast Coastal Plain.                   latitudes, we conclude that the                       them in detail in this document. We
                                                The Mid-Atlantic Coastal Plain analysis                 subspecies currently has reduced                      also reviewed the conservation efforts
                                                unit currently exhibits very low                        representation across its range.                      being undertaken for the subspecies. No
                                                resiliency for the eastern black rail. It                  Despite having a wide distribution,                existing regulatory mechanisms
                                                supports fewer birds and has fewer                      the eastern black rail currently has low              adequately address these threats to the
                                                occupied habitat patches than the                       redundancy across its range. With the                 eastern black rail such that it does not
                                                Southeast Coastal Plain analysis unit.                  loss of three analysis units in upper                 warrant listing under the Act (Factor D).
                                                The remaining three analysis units, New                 latitudes of the range, the subspecies
                                                                                                        has reduced ability to withstand                      Habitat Fragmentation and Conversion
                                                England, Appalachians, and Central
                                                Lowlands, currently demonstrate no                      catastrophic events, such as hurricanes                  The eastern black rail is a wetland-
                                                resiliency. These three units historically              and tropical storms, which could impact               dependent bird requiring dense
                                                did not support abundances of the                       the lower latitudinal analysis units.                 emergent cover and extremely shallow
                                                eastern black rail as high as the other                 Given the lack of habitat connectivity,               water depths (less than 6 cm) over a
                                                four analysis units. There are currently                and patchy and localized distribution, it             portion of the wetland-upland interface
                                                insufficient detections to model these                  would be difficult for the subspecies to              to support its resource needs.
                                                units; recent detections (2011 to                       recover from a catastrophic event in one              Grasslands and their associated
                                                present) are fewer than 20 birds for each               or more analysis units.                               palustrine (freshwater) and estuarine
                                                analysis unit. An evaluation of current                                                                       wetland habitats have experienced
                                                                                                        Risk Factors for Eastern Black Rail                   significant loss and conversion since
                                                status information yields that eastern
                                                                                                           The Act directs us to determine                    European settlement (Bryer, Maybury,
                                                black rails are effectively extirpated
                                                                                                        whether any species is an endangered                  Adams, and Grossman 2000, p. 232;
                                                from portions of the New England,
                                                                                                        species or a threatened species because               Noss, LaRoe, III, and Scott 1995, pp. 57–
                                                Appalachians, and Central Lowlands
                                                                                                        of any factors affecting its continued                76, 80–84; Hannah, Carr, and Lankerani
                                                analysis units that were once occupied.
                                                                                                        existence. Under section 4(a)(1) of the               1995, pp. 137, 151). Approximately 50
                                                Lastly, resiliency is unknown for the
                                                                                                        Act, we may list a species based on (A)               percent (greater than 100 million acres)
                                                Central America and Caribbean portion
                                                                                                        The present or threatened destruction,                of the wetlands in the conterminous
                                                of the eastern black rail’s range.
                                                                                                        modification, or curtailment of its                   United States have been lost over the
                                                However, the sparsity of historical and
                                                                                                        habitat or range; (B) overutilization for             past 200 years; the primary cause of this
                                                current records, including nest records,                commercial, recreational, scientific, or              loss was conversion for agricultural
                                                indicates that resiliency outside of the                educational purposes; (C) disease or                  purposes (Dahl T. E. 1990, p. 9).
                                                contiguous United States is likely low.                 predation; (D) the inadequacy of                      Wetland losses for the States within the
                                                All recent sightings in Central America                 existing regulatory mechanisms; or (E)                eastern black rail’s historical range have
                                                and the Caribbean have been of adult                    other natural or manmade factors                      been from 9 percent to 90 percent, with
                                                eastern black rails; there are no reports               affecting its continued existence.                    a mean of 52 percent (Dahl T. E. 1990,
                                                of nests, chicks, or juveniles.                            We reviewed the potential risk factors             p. 6). Similarly, most of the native
                                                   To assess current representation, we                 (i.e., threats or stressors) that are                 grassland/prairie habitats associated
                                                evaluated both habitat variability and                  affecting the eastern black rail now and              with eastern black rail habitat have been
                                                latitudinal variability. When                           into the future. In this proposed rule, we            lost since European settlement
                                                considering habitat variability, we                     will discuss in detail only those threats             (Sampson and Knopf 1994, pp. 418–
                                                determined the eastern black rail has a                 that we conclude are driving the status               421).
                                                level of adaptive potential by using                    and future viability of the species. The                 The eastern black rail also uses the
                                                similar habitats elements (i.e., higher                 primary threats to eastern black rail are:            transition zone (ecotone) between
                                                elevation areas within wetlands with                    (1) Habitat fragmentation and                         emergent wetlands and upland
                                                dense vegetation, moist soils, and                      conversion, resulting in the loss of                  grasslands. These transitional areas are
                                                shallow flood depth) within different                   wetland habitats across the range                     critical to eastern black rails, as they
                                                wetland types within analysis units.                    (Factor A); (2) sea level rise and tidal              provide refugia during high-water
                                                However, there may be unknown factors                   flooding (Factors A and E); (3)                       events caused by precipitation or tidal
                                                that influence and affect the eastern                   incompatible land management                          flooding. These habitat types have also
                                                black rail’s use of wetland habitat, as                 practices (i.e., fire management, grazing,            experienced significant declines over
                                                not all apparently suitable wetland                     and haying/mowing) (Factors A and E);                 time (Sampson and Knopf 1994, pp.
                                                habitat is currently occupied. While the                and (4) stochastic events (e.g., extreme              418–421), with many areas within the
                                                New England, Appalachians, and                          flooding, hurricanes) (Factor E). Human               eastern black rail’s historical range
                                                Central Lowlands analysis units have                    disturbance, such as birders using                    losing over 90 percent of their prairie
                                                experienced wetland habitat loss and                    playback calls of black rail vocalizations            habitat. Most of this loss can be
                                                fragmentation, wetland habitats                         (Factor B), is also a concern for the                 attributed to agricultural conversion
                                                continue to be present on the landscape.                species. Additional stressors to the                  (Sampson and Knopf 1994, pp. 419–
                                                However, the eastern black rail is not                  species (including oil and chemical                   420). Many of the freshwater wetlands
                                                being found in these three analysis                     spills and environmental contaminants                 associated with these grasslands were
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                                                units. Historically, the eastern black rail             (Factor E); disease, specifically West                emergent and ephemeral in nature, and
                                                had a wide distribution and exhibited                   Nile virus (Factor C); and altered food               would have supported eastern black
                                                latitudinal variability. However, as                    webs resulting from invasive species                  rails. For example, in Texas, between
                                                discussed above, three of the analysis                  (fire ants, feral pigs, mongoose, and                 the 1950s and 1990s, 235,000 acres, or
                                                units (New England, Appalachians, and                   exotic reptiles) introductions (Factor C))            29 percent, of freshwater wetlands
                                                Central Lowlands) are effectively                       are discussed in the SSA report (Service              within Gulf coastal prairie were
                                                extirpated, and, therefore, this                        2018, entire). However, although these                converted primarily to agriculture. This
                                                latitudinal variability (higher latitudes)              additional stressors may be having                    value does not include the numbers of


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                                                                       Federal Register / Vol. 83, No. 195 / Tuesday, October 9, 2018 / Proposed Rules                                          50617

                                                upland prairie acres that were also                     including causing wetland loss                        and tidal wetlands. Vegetated wetland
                                                converted (Moulton, Dahl, and Dahl                      (McGuire 2014, entire; Juracek 2015,                  habitats used by the eastern black rail
                                                1997, entire).                                          entire; Juracek and Eng 2017, entire;                 can be converted to unvegetated open
                                                   Despite regulatory efforts to minimize               Juracek, Eng, Carlisle, and Wolock 2017,              water or mudflats through drowning of
                                                the loss of wetland habitats, losses and                entire; Perkin et al. 2017, entire).                  vegetation or erosion from increased
                                                alterations continue to occur to habitats                  Human modifications to the                         wave energy. Locations with higher
                                                occupied by the eastern black rail.                     environment have led to significant                   subsidence rates can experience
                                                Marshes continue to face substantial                    changes in vegetation. Some of these                  increased tidal flooding sooner than
                                                impacts from dikes, impoundments,                       modifications include water                           areas with lower subsidence rates. The
                                                canals, altered freshwater inflows,                     withdrawals and the construction of                   effect of increased tidal flooding will
                                                erosion, relative sea level rise, tidal                 levees, drainage canals, and dams.                    change black rail habitat over time (i.e.,
                                                barriers, tropical storm events, and other              Changes to native vegetation can result               marsh migration) but can have direct
                                                natural and human-induced factors                       in changes to the structure of the habitat            impacts on black rail reproduction
                                                (Adam 2002, entire; Turner 1990, entire;                (e.g., conversion from emergent to                    when flooding occurs during the
                                                Kennish 2001, entire; Gedan et al. 2009,                scrub-shrub wetlands, wetland into                    breeding season.
                                                entire; Tiner 2003, p. 513). Estuarine                  upland habitat, or vice-versa), as well as               Extensive drainage features have been
                                                emergent wetland losses are mostly                      the introduction of invasive plant                    created or modified in the United States,
                                                attributable to conversion to open water                species (e.g., Phragmites australis;                  primarily to reduce flooding to protect
                                                through erosion (Dahl and Stedman                       Crain, Gedan, and Dionne 2009, p. 157).               agricultural land or infrastructure.
                                                2013, p. 37), while freshwater emergent                 Given the narrow habitat preferences of               These include excavation of drainage
                                                wetland losses appear to be the result of               the eastern black rail (i.e., very shallow            ditches, channelization of rivers and
                                                development (Dahl and Stedman 2013,                     water and dense emergent vegetation),                 streams, construction of levees and
                                                p. 35). Because the rail is a wetland-                  small changes in the plant community                  berms, tidal restrictions, and diversions
                                                dependent subspecies, the loss and                      can easily result in habitat that is not              of waterways. Extensive areas of Florida
                                                alteration of palustrine and estuarine                  suitable for the subspecies.                          were channelized in an effort to drain
                                                wetlands and associated grassland                          Subsidence (lowering of the earth’s                wetlands in the early 1900s (Renken et
                                                habitats have a negative impact.                        surface) is caused by the withdrawal of               al. 2005, pp. 37–56). Most, if not all, of
                                                   Within the range of the eastern black                liquids from below the ground’s surface,              the coastal plain in Texas contains
                                                rail, land use in the United States has                 which relieves supporting hydraulic                   existing drainage features that were
                                                affected and continues to affect                        pressure of liquids by the long-term                  either created or modified to reduce
                                                groundwater and surface water                           compression of unconsolidated,                        flooding of agricultural lands and
                                                resources (Johnston 1997, entire;                       geologically deposited sediments, or by               associated communities. These features
                                                McGuire 2014, pp. 1–2, 7, 9; Juracek and                other geologic processes (Day et al.                  can reduce or eliminate the hydroperiod
                                                Eng 2017, pp. 1, 11–16; Barfield 2016,                  2011, p. 645; Karegar, Dixon, and                     to sustain associated wetlands by
                                                pp. 2–4). The conversion of wetland                     Engelhart 2016, p. 3129; White and                    removing water rapidly off the
                                                habitat, largely for agricultural use, was              Tremblay 1995, entire). Localized                     landscape (Blann, Anderson, Sands, and
                                                mentioned above. However, habitat                       subsidence can occur with groundwater                 Vondracek 2009, pp. 919–924). In
                                                conversion and land use directly and                    withdrawals where withdrawal rates are                glaciated geographies such as the
                                                indirectly affect water resources, largely              greater than the aquifer recharge rates               Midwest, drain tiles and other methods
                                                tied to the interaction of groundwater                  (White and Tremblay 1995, pp. 794–                    have been used to drain wetlands to
                                                and surface water resources (Glazer and                 804; Morton, Bernier, and Barras 2006,                improve conditions for agricultural
                                                Likens 2012, entire; Sophocleous 2002,                  p. 271) or where liquids associated with              production (Blann, Anderson, Sands,
                                                entire; Tiner R. W. 2003, p. 495; U.S.                  hydrocarbon extraction have caused the                and Vondracek 2009, pp. 911–915).
                                                Geological Survey (USGS) 2016a,                         lowering of ground elevations (Morton,                Approximately 90 percent of the salt
                                                unpaginated; Konikow L. F. 2015,                        Bernier, and Barras 2006, p. 263). On                 marshes on the northeast United States
                                                entire).                                                the Atlantic coast, an area of rapid                  coast have been ditched to control
                                                   Where groundwater resources are                      subsidence exists between Virginia and                mosquitoes (Bourn and Cottam 1950, p.
                                                hydraulically connected to surface                      South Carolina, where the rate of                     15; Crain, Gedan, and Dionne 2009, pp.
                                                water resources, these connections can                  subsidence has doubled due to                         159–161). Ditching increases the area of
                                                either be unconfined (water table) or                   increased groundwater withdrawals                     the marsh that is inundated as well as
                                                confined (springs) aquifers. In                         (Karegar, Dixon, and Engelhart 2016, pp.              drained (Crain, Gedan, and Dionne
                                                unconfined aquifers, locations can                      3131–3132). An extreme example of                     2009, p. 160; Daiber 1986, in Crain et al.
                                                support surface features such as                        subsidence in the United States is along              2009, p. 160).
                                                wetlands or riparian habitats where                     the Gulf of Mexico coast, where both                     Levees have been constructed in
                                                groundwater is located near the land                    subsurface liquid withdrawal and                      flood-prone areas to minimize damage
                                                surface (Haag and Lee 2010, pp. 16–19,                  sediment consolidation have significant               to crops and local communities. Levees
                                                21–24). Lowering of groundwater                         influence on coastal wetland habitats                 can modify the duration, intensity, and
                                                through withdrawals via wells or                        (Turner 1990, pp. 93–94, 96, 98; Morton,              frequencies of hydroperiods associated
                                                ditches can cause wetlands to shrink or                 Bernier, and Barras 2006, entire; White               with riparian and tidal wetlands and
                                                become dry. Withdrawals of confined                     and Tremblay 1995, pp. 795–804).                      thus change the nature and quality of
                                                aquifers can lead to the drying of                      Subsidence combined with sea level rise               wetland habitat, including that used by
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                                                springs and associated wetland habitats                 is referred to as relative sea level rise,            marsh-dependent species (Kennish
                                                (Weber and Perry 2006, p. 1255; Metz                    and the Gulf of Mexico has the highest                2001, p. 734; Adam 2002, p. 46; Walker,
                                                2011, p. 2). In the central and                         relative sea level rise rates in the                  Coleman, Roberts, and Tye 1987, pp.
                                                southcentral United States, high                        conterminous United States, leading to                197–198; Bryant and Chabreck 1998, p.
                                                groundwater use, largely attributed to                  significant losses in wetland habitats                421; Kuhn, Mendelssohn, and Reed
                                                cropland irrigation and other human                     (NOAA 2018, unpaginated).                             1999, p. 624). They also facilitate the
                                                activities, may affect the long-term                       Subsidence can affect the eastern                  movement patterns of mesopredators
                                                sustainability of water resources,                      black rail and its habitat in both fresh              and improve their access to wetland


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                                                50618                  Federal Register / Vol. 83, No. 195 / Tuesday, October 9, 2018 / Proposed Rules

                                                habitats (Frey and Conover 2006, pp.                    flooding is increasing, along the Atlantic            and 3d in Crosby et al. 2016, p. 97); both
                                                1115–1118). Navigation channels and                     and Gulf Coasts (Sweet et al. 2017, p.                of these areas are part of the range of the
                                                their management have had extensive                     23). Storm surges from tropical storms                eastern black rail.
                                                impacts to tidal wetlands (e.g., in                     will travel farther inland.                              Sea level rise will reduce the
                                                Louisiana). These channels can modify                      Along the Texas Gulf Coast, relative               availability of suitable habitat for the
                                                the vegetation community of associated                  sea level rise is twice as large as the               eastern black rail and overwhelm
                                                wetlands and can increase the frequency                 global average (Reidmiller et al. 2018, p.            habitat persistence. Sea level rise and its
                                                of extreme high tide or high flow events                969). Over the past 100 years, local sea              effects (e.g., increased flooding and
                                                by providing a more direct connection                   level rise has been between 12.7 to 43.2              inundation, salt water intrusion) may
                                                to the influencing water body (Turner                   cm (5 to 17 in), resulting in an average              affect the persistence of coastal or
                                                1990, pp. 97–98; Kennish 2001, pp.                      loss of 73 hectares (180 acres) of                    wetland plant species that provide
                                                734–737; Bass and Turner 1997, pp.                      coastline per year, and future sea level              habitat for the eastern black rail (Morris,
                                                901–902). Tidal restrictions, such as                   rise is projected to be higher than the               Sundareshwar, Nietch, Kjerfve, and
                                                water control structures, bridges, and                  global average (Reidmiller et al. 2018, p.            Cahoon 2002, p. 2876; Warren and
                                                culverts built for the purposes of flood                972; Runkle et al. 2017b, p. 4). In South             Niering 1993, p. 96). Increased high tide
                                                protection, restricting salt water                      Carolina, sea level has risen by 3.3 cm               flooding from sea level rise, as well as
                                                intrusion, and modification of                          (1.3 in) per decade, nearly double the                the increase in the intensity and
                                                vegetation, have also affected coastal                  global average, and the number of tidal               frequency of flooding events, will
                                                salt marshes.                                           flood days has increased (Runkle et al.               further impact habitat and directly
                                                   All of these alterations to drainage                 2017c, p. 4). Projected sea level rise for            impact eastern black rails through nest
                                                affect the hydrology, sediment and                      South Carolina is higher than the global              destruction and egg loss (Sweet et al.
                                                nutrient transport, and salinities of                   average, with some projections                        2017, pp. 35–44).
                                                wetland habitats used by the eastern                    indicating sea level rise of 1.2 m (3.9 ft)
                                                black rail, which in turn affect the                    by 2100 (Runkle et al. 2017c, p. 4). The              Land Management Practices (Fire
                                                habitat’s composition and structure.                    number of tidal flood days are projected              Management, Haying and Mowing, and
                                                These changes can lead to instability in                to increase and are large under both                  Grazing)
                                                the duration and intensity of                           high and low emissions scenarios                      Fire Management
                                                hydroperiods, affect associated                         (Runkle et al. 2017c, p. 4). Similarly, in
                                                vegetation communities, and impact the                  Florida, sea level rise has resulted in an               Fire suppression has been detrimental
                                                ability of marsh habitats to adapt to                   increased number of tidal flooding days,              to habitats used by the eastern black rail
                                                changing conditions. This ultimately                    which are projected to increase into the              by allowing encroachment of woody
                                                affects the ability of the habitat to                   future (Runkle et al. 2017a, p. 4).                   plants. Without fire or alternate
                                                support populations of the eastern black                   Even with sea level rise, some tidal               surrogate methods of disturbing woody
                                                rail, by exposing eastern black rails to                wetlands may persist at slightly higher               vegetation such as mowing, the amount
                                                unsuitable water regimes or converted                   elevations (i.e., ‘‘in place’’) for a few             of preferred habitat for eastern black
                                                habitats.                                               decades, depending on whether plant                   rails is expected to decrease in some
                                                                                                        primary productivity and soil accretion               regions, such as coastal Texas (Grace et
                                                Sea Level Rise and Tidal Flooding                       (which involves multiple factors such as              al. 2005, p. 39). Therefore, prescribed
                                                   Representative concentration                         plant growth and decomposition rates,                 (controlled) fire can maintain habitat for
                                                pathways (RCPs) are the current set of                  build-up of organic matter, and                       this subspecies at the desired seral stage
                                                scenarios used for generating                           deposition of sediment) can keep pace                 (intermediate stages of ecological
                                                projections of climate change; for                      with the rate of sea level rise, thus                 succession).
                                                further discussion, please see the SSA                  avoiding ‘‘drowning’’ (Kirwan,                           While fire is needed for the
                                                report (Service 2018, entire). Recent                   Temmerman, Skeehan, Guntenspergen,                    maintenance of seral stages for multiple
                                                studies project global mean sea level                   and Fagherazzi 2016, entire). Under all               rail species, the timing and frequency of
                                                rise to occur within the range of 0.35 to               future projections, however, the rate of              the burns, as well as the specific
                                                0.95 meters (m) (1.14 to 3.11 feet (ft)) for            sea level rise increases over time (Sweet,            vegetation types targeted, can lead to
                                                RCP 4.5, and within the range of 0.5 to                 Horton, Kopp, LeGrande, and Romanou                   undesirable effects on rail habitats in
                                                1.3 m (1.64 to 4.27 ft) for RCP 8.5, by                 2017, pp. 342–345). A global analysis                 some cases (Eddleman et al. 1988, pp.
                                                2100 (Sweet et al. 2017, p. 13). The                    found that in many locations salt marsh               464–465). Burning salt marshes during
                                                Northeast Atlantic and western Gulf of                  elevation change did not keep pace with               drought or while the marshes are not
                                                Mexico coasts are projected to have                     sea level rise in the last century and                flooded can result in root damage to
                                                amplified relative sea level rise greater               even less so in the past two decades,                 valuable cover plants (Nyman and
                                                than the global average under almost all                and concluded that the rate of sea level              Chabreck 1995, p. 138). Controlled
                                                future sea level rise scenarios through                 rise in most areas will overwhelm the                 burning of peat, or accumulated organic
                                                2100 (Sweet et al. 2017, p. 43).                        capacity of salt marshes to persist                   litter, when marshes are dry has
                                                   Sea level rise will amplify coastal                  (Crosby et al. 2016, entire). Under this              resulted in marsh conversion to open
                                                flooding associated with both high tide                 analysis, based on RCP 4.5 and RCP 8.5                water due to the loss of peat soils.
                                                floods and storm surge (Buchanan,                       scenarios and assuming continuation of                Variations in soil type supporting the
                                                Oppenheimer, and Kopp 2017, p. 6).                      the average rate of current accretion,                same plant species may lead to differing
                                                High tide flooding currently has a                      projected marsh drowning along the                    recovery times post-burn, and therefore
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                                                negative impact on coastal ecosystems                   Atlantic coast at late century (2081–                 potentially unanticipated delays in the
                                                and annual occurrences of high tide                     2100) ranges from about 75 to 90                      recovery of black rail habitat (McAtee,
                                                flooding have increased five- to ten-fold               percent (Crosby et al. 2016, p. 96, figure            Scifres, and Drawe 1979, p. 375).
                                                since the 1960s (Reidmiller et al. 2018,                2). The accretion balance (reported                   Simply shifting the season of burn may
                                                p. 728). In addition, extreme coastal                   accretion rate minus local sea level rise)            alter plant species dominance and the
                                                flood events are projected to increase in               is negative for all analyzed sites in the             associated structure available to the
                                                frequency and duration, and the annual                  Louisiana Gulf Coast and for all but one              eastern black rail, as is seen with spring
                                                number of days impacted by nuisance                     site in the mid-Atlantic area (figures 3c             fire conversion of chairmaker’s bulrush


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                                                                       Federal Register / Vol. 83, No. 195 / Tuesday, October 9, 2018 / Proposed Rules                                         50619

                                                (Schoenoplectus americanus) to salt                     following year (Kane 2011, pp. 31–33).                also have direct negative effects on
                                                meadow cordgrass (Spartina patens)                      Further, haying or mowing timed to                    eastern black rails by livestock
                                                (Nyman and Chabreck 1995, p. 135).                      avoid sensitive stages of the life cycle              disturbing nesting birds or even
                                                   Prescribed fire that occurs during                   (nesting and molt period) would be less               trampling birds and nests (Eddleman,
                                                critical time periods for the subspecies                detrimental to eastern black rails (Kane              Knopf, Meanley, Reid, and Zembal
                                                (i.e., mating, egg-laying and incubation,               2011, p. 33). Mowing during the spring                1988, p. 463). Heavy disturbance from
                                                parental care, and flightless molt) leads               or summer will disrupt reproductive                   grazing can also lead to a decline in
                                                to mortality of eggs, chicks, juveniles,                efforts of migratory birds. Eastern black             eastern black rail habitat quality.
                                                and molting birds. Fall and winter burns                rails reproduce from approximately
                                                are more likely to avoid reproductive                                                                         Stochastic Events (Extreme Weather
                                                                                                        mid-March through August, and
                                                season impacts (Nyman and Chabreck                                                                            Events)
                                                                                                        mowing during this time period disturbs
                                                1995, p. 138).                                          eastern black rail adults and can                        Extreme weather effects, such as
                                                   Fire pattern can have profound effects               potentially crush eggs and chicks. As                 storms associated with frontal
                                                on birds. Controlled burns can result in                with fire, when mowing is alternated to               boundaries or tropical disturbances, can
                                                indirect rail mortality, as avian                       allow areas of unmown habitat at all                  also directly affect eastern black rail
                                                predators attracted to smoke are able to                times, the site can continue to support               survival and reproduction, and can
                                                capture rails escaping these fires (Grace               cover-dependent wildlife.                             result in direct mortality. Tropical
                                                et al. 2005, p. 6). Because eastern black                                                                     storms and hurricanes are projected to
                                                rails typically prefer concealment rather               Grazing                                               increase in intensity and precipitation
                                                than flight to escape threats, the birds                   Cattle grazing occurs on public and                rates along the North Atlantic coast and
                                                may attempt to escape to areas not                      private lands throughout the range of                 Gulf Coast (Kossin et al. 2017, pp. 259–
                                                affected by fire, such as wetter areas or               the eastern black rail. Because eastern               260; Bender et al. 2010, p. 458). The
                                                adjacent areas not under immediate                      black rails occupy drier areas in                     frequency of Category 4 and 5 tropical
                                                threat. Ring, expansive, or rapidly                     wetlands and require dense cover, these               storms is predicted to increase despite
                                                moving fires are therefore not conducive                birds are believed to be more                         an overall decrease in the number of
                                                to rail survival (Grace et al. 2005, p. 9;              susceptible to grazing impacts than                   disturbances (Bender et al. 2010, pp.
                                                Legare, Hill, and Cole 1998, p. 114). On                other rallids (Eddleman, Knopf,                       457–458). Storms of increased intensity,
                                                the other hand, controlled burns                        Meanley, Reid, and Zembal 1988, p.                    which will have stronger winds, higher
                                                designed to include unburned patches                    463). Based on current knowledge of                   storm surge, and increased flooding,
                                                of cover may positively influence                       grazing and eastern black rail                        cause significant damage to coastal
                                                eastern black rail survival. For example,               occupancy, the specific timing,                       habitats by destroying vegetation and
                                                burning 90 percent of a 2,400-ac marsh                  duration, and intensity of grazing will               food sources, as well as resulting in
                                                in Florida resulted in direct mortality of              result in varying impacts to the eastern              direct mortality of birds. For example,
                                                at least 39 eastern black rails, whereas                black rail and its habitat. Light-to-                 Hurricane Harvey flooded San Bernard
                                                a mosaic of unburned vegetation                         moderate grazing may be compatible                    NWR in Texas with storm surge, which
                                                patches 0.1 to 2.0 ac in size facilitated               with eastern black rail occupancy under               was followed by runoff flooding from
                                                eastern black rail survival during a                    certain conditions, while intensive or                extreme rainfall. This saltmarsh,
                                                1,600-ac controlled burn (Legare, Hill,                 heavy grazing is likely to have negative              occupied by eastern black rails, was
                                                and Cole 1998, p. 114). Prescribed fires                effects on eastern black rails and the                inundated for several weeks (Woodrow
                                                that include patches of unburned                        quality of their habitat. It may benefit              2017, pers. comm.). Increases in storm
                                                habitat scattered throughout provide                    black rail habitat (or at least not be                frequency, coupled with sea level rise,
                                                escape cover for wildlife, including, but               detrimental) when herbaceous plant                    may result in increased predation
                                                not limited to, eastern black rails                     production is stimulated (Allen-Diaz,                 exposure of adults and juveniles if they
                                                (Legare, Hill, and Cole 1998, p. 114).                  Jackson, Bartolome, Tate, and Oates                   emerge from their preferred habitat of
                                                Unburned strips of vegetation bordering                 2004, p. 147) and the necessary                       dense vegetation (Takekawa et al. 2006,
                                                the inside perimeters of burn units also                overhead cover is maintained. In                      p. 184). Observations show predation
                                                are believed helpful as escape cover                    Kansas, eastern black rails were                      upon California black rails during high
                                                from both fire and avian predators                      documented in habitats receiving                      tides when the birds had minimal
                                                (Grace et al. 2005, p. 35). Coastal                     rotational grazing during the nesting                 vegetation cover in the flooded marsh
                                                marshes that are burned in staggered                    season that preserved vegetation canopy               (Evens and Page 1986, p. 108).
                                                rotations to create a mosaic of different               cover (Kane 2011, pp. 33–34). Black                      Weather extremes associated with
                                                seral stages or are burned less frequently              rails occur in habitats receiving light-to-           climate change can have direct effects
                                                will continue to provide cover for marsh                moderate grazing (i.e., Kane 2011;                    on the eastern black rail, leading to
                                                species, such as the eastern black rail                 Richmond, Tecklin, and Beissinger                     reduced survival of eggs, chicks, and
                                                (Block et al. 2016, p. 16).                             2012; Tolliver 2017). These results                   adults. Indirect effects on the eastern
                                                                                                        suggest that such grazing is an option                black rail are likely to occur through a
                                                Haying and Mowing                                       for providing disturbance, which may                  variety of means, including long-term
                                                   Haying and mowing are used                           promote black rail occupancy. However,                degradation of both inland and coastal
                                                throughout the range of the eastern                     cattle grazing at high intensities may not            wetland habitats. Other indirect effects
                                                black rail. Haying and mowing maintain                  favor black rail occupancy, as heavy                  may include loss of forage base of
                                                grasslands by reducing woody                            grazing, or overgrazing, reduces the                  wetland-dependent organisms. Warmer
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                                                vegetation encroachment. These                          wetland vegetation canopy cover                       and drier conditions will most likely
                                                practices can have detrimental impacts                  (Richmond, Chen, Risk, Tecklin, and                   reduce overall habitat quality for the
                                                to wildlife when used too frequently or                 Bessinger 2010, p. 92).                               eastern black rail. Because eastern black
                                                at the wrong time of year. For example,                    In addition to the loss of vegetation              rails tolerate a narrow range of water
                                                at Quivira NWR in Kansas, haying at a                   cover and height (Kirby, Fessin, and                  levels and variation within those water
                                                frequency of once or twice per year                     Clambey 1986, p. 496; Yeargan 2001, p.                levels, drying as a result of extended
                                                resulted in no occupancy of hayed                       87; Martin J. L. 2003, p. 22; Whyte and               droughts may result in habitat becoming
                                                habitats by eastern black rails during the              Cain 1981, p. 66), intensive grazing may              unsuitable, either on a permanent or


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                                                50620                  Federal Register / Vol. 83, No. 195 / Tuesday, October 9, 2018 / Proposed Rules

                                                temporary basis (Watts 2016, p. 120).                   valuable location information for                     disturbance and harassment of the
                                                Extreme drought or flooding conditions                  eastern black rails that might have                   subspecies.
                                                may also decrease bird fitness or                       otherwise gone undetected and have
                                                                                                                                                              Synergistic Effects
                                                reproductive success by reducing the                    made these records publicly available
                                                availability of the invertebrate prey base              (see eBird’s black rail account; eBird                   It is likely that several of these
                                                (Davidson L. M. 1992a, p. 129; Hands,                   2017, unpaginated).                                   stressors are acting synergistically or
                                                Drobney, and Ryan 1989, p. 5). Lower                       While amateur and professional                     additively on the subspecies. The
                                                rates of successful reproduction and                    birding have made important                           combination of multiple stressors may
                                                recruitment lead to further overall                     contributions to our understanding of                 be more harmful than a single stressor
                                                declines in population abundance and                    rare species like the eastern black rail,             acting alone. For the eastern black rail,
                                                resiliency to withstand stochastic events               some birders may be more likely to                    a combination of stressors result in
                                                such as extreme weather events. The                     pursue a sighting of a rare bird, as they             habitat loss, reduced survival, reduced
                                                vulnerability of the eastern black rail to              may perceive the benefits of observing                productivity, and other negative impacts
                                                the effects of climate change depends on                the bird to outweigh the impacts to the               on the subspecies. Sea level rise,
                                                the degree to which the subspecies is                   bird (Bireline 2005, pp. 55–57). As a                 coupled with increased tidal flooding,
                                                susceptible to, and unable to cope with,                result, methods may be employed to                    results in the loss of the high marsh
                                                adverse environmental changes due to                    increase the likelihood of observing a                habitat required by the subspecies. Land
                                                long-term weather trends and more                       rare bird, including the use of vocalized             management activities, such as
                                                extreme weather events.                                 calls or audio recordings, as is the case             prescribed burning, that occur in these
                                                                                                        for eastern black rails, or approaching               habitats will further exacerbate impacts,
                                                Human Disturbance                                       birds in order to get a sighting (Beans               especially if conducted during sensitive
                                                   Human disturbance can stress                         and Niles 2003, p. 96; Bireline 2005, p.              life-history periods (nesting, brood-
                                                wildlife, resulting in changes in                       55). These methods have the potential to              rearing, or flightless molt). If these
                                                distribution, behavior, demography, and                 disturb nesting birds or trample nests or             combined stressors occur too often
                                                population size (Gill 2007, p. 10).                     eggs, and may lead to increased                       within and across generations, they will
                                                Activities such as birding, birdwatching,               predation (Beans and Niles 2003, p. 96).              limit the ability of the subspecies to
                                                and hiking, have been shown to disturb                     With the prevalence of smartphones,                maintain occupancy at habitat sites,
                                                breeding and nesting birds. Disturbance                 the use of playback calls has increased               which would become lost or unsuitable
                                                may result in nest abandonment,                         as recordings of birds are readily                    for the subspecies and limit its ability to
                                                increased predation, and decreased                      available on the internet, and birding                colonize other previously occupied sites
                                                reproductive success, and in behavioral                 websites and geographic site managers                 or new sites. For example, tidal marshes
                                                changes in non-breeding birds. Singing                  (State, Federal, or nongovernmental                   in Dorchester County, Maryland, in the
                                                activity of male birds declines in sites                organizations) often provide guidance                 Chesapeake Bay (specifically the areas
                                                that experience human intrusion,                        on the use of playback calls (Sibley                  of Blackwater NWR and Elliott Island)
                                                although the response varies among                      2001, unpaginated). The American                      served as a former stronghold for the
                                                species and level of intrusion                          Birding Association’s Code of Birding                 eastern black rail. These marshes have
                                                (Gutzwiller et al. 1994, p. 35). At the                 Ethics encourages limited use of                      and continue to experience marsh
                                                Tishomingo NWR in Oklahoma,                             recordings and other methods of                       erosion from sea level rise, prolonged
                                                recreational disturbances of migratory                  attracting birds, and recommends that                 flooding, a lack of a sufficient sediment
                                                waterbirds accounted for 87 percent of                  birders never use such methods in                     supply, and land subsidence, as well as
                                                all disturbances (followed by natural                   heavily birded areas or for attracting any            habitat destruction from nutria (now
                                                disturbances (10 percent) and unknown                   species that is endangered, threatened,               eradicated) and establishment of the
                                                disturbances (3 percent)) (Schummer                     of special concern, or rare in the local              invasive common reed (Phragmites
                                                and Eddleman 2003, p. 789).                             area (American Birding Association                    australis). On Elliott Island, high
                                                   Many birders strive to add rare birds                2018, unpaginated). While most birders                decadal counts of eastern black rails
                                                to their ‘‘life list,’’ a list of every bird            likely follow these ethical guidelines,               have declined from the hundreds in the
                                                species identified within a birder’s                    using playback calls of eastern black rail
                                                lifetime. Locations of rare birds are often                                                                   1950s to the single digits in recent years
                                                                                                        vocalizations in attempts to elicit
                                                posted online on local birding forums or                                                                      (one eastern black rail detected from
                                                                                                        responses from the birds and potentially
                                                eBird, leading to an increased number of                                                                      2012–2015, and zero in 2016) (Watts
                                                                                                        lure them into view is commonly done
                                                people visiting the location in an                                                                            2016, p. 61).
                                                                                                        outside of formal eastern black rail
                                                attempt to see or hear the bird. Due to                 surveys (see comments for eastern black               Regulations and Conservation Efforts
                                                its rarity, the eastern black rail is highly            rail detections on eBird; eBird 2017,
                                                sought after by birders (Beans and Niles                                                                      Federal Protections
                                                                                                        unpaginated). Due to the rarity of the
                                                2003, p. 96). Devoted birders may go out                eastern black rail, a few cases of                       The Migratory Bird Treaty Act of 1918
                                                of their way to add an eastern black rail               trespassing are known from people                     (MBTA; 16 U.S.C. 703 et seq.) provides
                                                to their life list (McClain 2016,                       looking for the bird. Trespassing has                 specific protection for the eastern black
                                                unpaginated). The efforts of birders to                 been documented on private lands and                  rail, which is a migratory bird under the
                                                locate and identify rare birds, such as                 in areas on public lands specifically                 statute. The MBTA makes it illegal,
                                                the eastern black rail, can have both                   closed to the public to protect nesting               unless permitted by Federal regulation,
                                                positive and negative impacts on the                    eastern black rails (Hand 2017, pers.                 ‘‘by any means or in any manner, to
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                                                bird and its habitat. Birders play an                   comm.; Roth 2018, pers. comm.).                       pursue, hunt, take, capture, kill, attempt
                                                especially important role in contributing               Trespassing may not only disturb the                  to take, capture, or kill, possess, offer for
                                                to citizen science efforts, such as the                 bird, but can also result in trampling of             sale, sell, offer to barter, barter, offer to
                                                eBird online database, and have helped                  the bird’s habitat, as well as of eggs and            purchase, purchase, deliver for
                                                further our understanding of species’                   nests. Some State resource managers                   shipment, ship, export, import, cause to
                                                distributions and avian migration                       and researchers have expressed concern                be shipped, exported, or imported,
                                                ecology in crucial ways (Sullivan et al.                that releasing locations of eastern black             deliver for transportation, transport or
                                                2014, entire). Birders have provided                    rail detections may increase human                    cause to be transported, carry or cause


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                                                                       Federal Register / Vol. 83, No. 195 / Tuesday, October 9, 2018 / Proposed Rules                                          50621

                                                to be carried, or receive for shipment,                 formerly listed as endangered in                      protection of nongame, threatened, or
                                                transportation, carriage, or export, any                Connecticut, but was considered                       endangered species.
                                                migratory bird, [or] any part, nest, or egg             extirpated during the last listing review                Black rail is listed as a ‘‘species in
                                                of any such bird . . . ’’ (16 U.S.C.                    based on extant data and was                          need of conservation’’ in Kansas, which
                                                703(a)). Through issuance of permits for                subsequently delisted. Protections are                requires conservation measures to
                                                scientific collecting of migratory birds,               afforded to wildlife listed as either                 attempt to keep the species from
                                                the Service ensures that best practices                 endangered or threatened by a State, but              becoming a State-listed endangered or
                                                are implemented for the careful capture                 those protections vary by State.                      threatened species (Kansas Department
                                                and handling of eastern black rails                     Although we have no information as to                 of Wildlife, Parks and Tourism 2018,
                                                during banding operations and other                     the effectiveness of these State                      unpaginated). Black rail also is listed as
                                                research activities. However, the                       regulations as they pertain to the                    a species of ‘‘special concern’’ in North
                                                December 22, 2017, Solicitor’s Opinion,                 conservation of the eastern black rail,               Carolina and requires monitoring (North
                                                Opinion M–37050, concludes that                         one benefit of being State-listed is to               Carolina Wildlife Resources
                                                consistent with the text, history, and                                                                        Commission 2014, p. 6). The species is
                                                                                                        bring heightened public awareness of
                                                purpose of the MBTA, the statute’s                                                                            identified as a ‘‘species of greatest
                                                                                                        the bird’s existence.
                                                prohibitions on pursuing, hunting,                                                                            conservation need’’ in 19 State wildlife
                                                taking, capturing, killing, or attempting                  In Delaware, the importation,                      action plans as of 2015 (U.S. Geological
                                                to do the same apply only to direct and                 transportation, possession, or sale of any            Survey (USGS) 2017, unpaginated).
                                                affirmative actions that have as their                  endangered species or parts of                        However, no specific conservation
                                                purpose the taking or killing of                        endangered species is prohibited, except              measures for black rail are associated
                                                migratory birds, their nests, or their                  under license or permit (title 7 of the               with these listings, and most are
                                                eggs. Therefore, take of an eastern black               Delaware Code, sections 601–605).                     unlikely to address habitat alteration or
                                                rail, its chicks, or its eggs that is                   Illinois also prohibits the possession,               sea level rise.
                                                incidental to another lawful activity                   take, transport, selling, and purchasing,             Other Conservation Efforts
                                                does not violate the MBTA.                              or giving, of a listed species, and allows
                                                Furthermore, the MBTA does not                          incidental taking only upon approval of                  The Atlantic Coast Joint Venture
                                                address the major stressors affecting the               a conservation plan (Illinois Compiled                (ACJV) recently decided to focus efforts
                                                eastern black rail, which include habitat               Statutes, chapter 520, sections 10/1–10/              on coastal marsh habitat and adopted
                                                alteration and sea level rise. Given that               11). Indiana prohibits any form of                    three flagship species, one being the
                                                only intentional take is prohibited                     possession of listed species, including               eastern black rail, to direct conservation
                                                under the MBTA and the habitat-based                    taking, transporting, purchasing, or                  attention in this habitat. As part of this
                                                stressors to the black rail are not                     selling, except by permit (title 14 of the            initiative, the ACJV Black Rail Working
                                                regulated, this law does not provide                    Indiana Code, article 22, chapter 34,                 Group has drafted population goals for
                                                sufficient substantive protections to the               sections 1–16 (I.C. 14–22–34–1 through                the eastern black rail and is developing
                                                eastern black rail.                                                                                           habitat delivery options within the
                                                                                                        16)). Listed species may be removed,
                                                   Section 404 of the Clean Water Act                                                                         Atlantic Flyway. In addition, the ACJV
                                                                                                        captured, or destroyed only if the
                                                (CWA; 33 U.S.C. 1251 et seq.) and                                                                             is coordinating the development of a
                                                                                                        species is causing property damage or is
                                                section 10 of the Rivers and Harbors                                                                          ‘‘saltmarsh conservation business plan.’’
                                                                                                        a danger to human health (I.C. 14–22–
                                                Appropriation Act of 1899 (33 U.S.C.                                                                          The business plan will identify stressors
                                                                                                        34–16). Similar prohibitions on the
                                                403) are intended to protect                                                                                  to Atlantic and Gulf Coast tidal marshes
                                                                                                        possession of a listed species in any                 and the efforts needed to conserve these
                                                jurisdictional wetlands from excavation                 form, except by permit or license, are in
                                                and filling activities. The U.S. Army                                                                         habitats to maintain wildlife
                                                                                                        effect in Maryland (Code of Maryland,                 populations. The business plan is
                                                Corps of Engineers, in conjunction with                 Natural Resources, section 10–2A–01–
                                                the U.S. Environmental Protection                                                                             expected to be completed in late 2018.
                                                                                                        09), New Jersey (title 23 of the New                     The Gulf Coast Joint Venture (GCJV)
                                                Agency, administers permits that
                                                                                                        Jersey Statutes, sections 2A–1 to 2A–                 has had the eastern black rail listed as
                                                require avoidance, minimization and
                                                                                                        15), New York (New York’s                             a priority species since 2007 (Gulf Coast
                                                compensation for projects affecting
                                                                                                        Environmental Conservation Law,                       Joint Venture 2005). As a priority
                                                wetlands. Projects that cannot avoid
                                                                                                        article 11, title 5, section 11–0535; title           species, the black rail is provided
                                                impacts to wetlands must compensate
                                                for their impacts through a restoration                 6 of the New York Codes, Rules and                    consideration during the review of
                                                enhancement or preservation action for                  Regulations, chapter I, part 182, sections            North American Wetland Conservation
                                                the equivalent functional loss.                         182.1–182.16), and Virginia (Code of                  grant applications (Vermillion 2018,
                                                Mitigation banks are often used, in                     Virginia, title 29.1, section 29.1, sections          pers. comm.). Although detailed
                                                which actions at a specific location                    563–570 (29.1–563–570)). Violations of                planning for the eastern black rail is not
                                                compensate for impacts in a                             these statutes typically are considered               yet complete, the subspecies is
                                                considerably wider service area.                        misdemeanor, generally resulting in                   considered in coastal marsh habitat
                                                However, the wetland types affected are                 fines or forfeiture of the species or parts           delivery efforts discussed by GCJV
                                                not always the same types that are                      of the species and the equipment used                 Initiative Teams. Eastern black rails are
                                                restored or enhanced, and there is                      to take the species. Some States also                 believed to benefit from a plethora of
                                                considerable uncertainty that current                   have provisions for nongame wildlife                  coastal marsh habitat delivery efforts of
                                                mitigation practices would support the                  and habitat preservation programs (e.g.,              GCJV partners, including projects
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                                                presence of black rails.                                title 7 of the Delaware Code, sections                authorized under the North American
                                                                                                        201–204; Code of Maryland, Natural                    Wetland Conservation Act (16 U.S.C.
                                                State Protections                                       Resources, section 1–705). For example,               4401 et seq.), the Coastal Wetlands
                                                  The black rail is listed as endangered                in Maryland, the State Chesapeake Bay                 Planning, Protection and Restoration
                                                under State law by seven States within                  and Endangered Species Fund (Code of                  Act (16 U.S.C. 3951 et seq.), and the
                                                the subspecies’ range: Delaware, Illinois,              Maryland, Natural Resources, section 1–               Service’s Coastal Program, as well as
                                                Indiana, Maryland, New Jersey, New                      705) provides funds to promote the                    management actions on State and
                                                York, and Virginia. The species was                     conservation, propagation, and habitat                Federal refuges and wildlife


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                                                50622                  Federal Register / Vol. 83, No. 195 / Tuesday, October 9, 2018 / Proposed Rules

                                                management areas. Eastern black rails                   from the National Land Cover Database                 Southwest Coastal Plain, and Southeast
                                                will benefit when projects conserve,                    (NLCD 2011) to derive an annual rate of               Coastal Plain analysis units generally
                                                enhance, or restore suitable wetland                    change in each region, and we used                    exhibited a consistent downward trend
                                                habitat and when management                             National Oceanic and Atmospheric                      in the proportion of sites remaining
                                                practices, such as the timing of                        Administration (NOAA) climate change                  occupied after the first approximately
                                                prescribed burns and brush-clearing                     and sea level rise projections to estimate            25 years for all scenarios. Given that
                                                activities, are compatible with the life                probable coastal marsh habitat loss                   most of the predicted declines in eastern
                                                history of the subspecies.                              rates; storm surge was not modeled                    black rail occupancy were driven by
                                                  In November 2016, the Texas Parks                     directly (Sweet et al., 2017, p. entire;              habitat loss rates, and future projections
                                                and Wildlife Department, in partnership                 Parris, et al., 2012, p. entire). In the              of habitat loss are expected to continue
                                                with the Texas Comptroller’s Office,                    Great Plains analysis unit, we used                   and be exacerbated by sea level rise or
                                                initiated the Texas Black Rail Working                  ground water loss rates, instead of sea               groundwater loss, resiliency of the four
                                                Group (Shackelford 2018, pers. comm.).                  level rise data, to represent permanent               remaining analysis units is expected to
                                                The main purpose of the group is to                     habitat loss in the region. The overall               decline further. We expect all eastern
                                                provide a forum for collaboration                       groundwater depletion rate was based                  black rail analysis units to have no
                                                between researchers and stakeholders to                 on the average over 108 years (1900–                  resiliency by 2068, as all are likely to be
                                                share information about what is known                   2008) (Konikow L.F., 2013, p. entire).                extirpated by that time. We have no
                                                about the species, identify information                    Our five scenarios reflected differing             reason to expect the resiliency of eastern
                                                needs, and support conservation actions                 levels of sea level rise and land                     black rail outside the contiguous United
                                                (see discussion under Critical Habitat,                 management, and the combined effects                  States to improve in such a manner that
                                                below).                                                 of both. These future scenarios forecast
                                                                                                                                                              will substantially contribute to its
                                                                                                        site occupancy for the eastern black rail
                                                Future Scenarios                                                                                              viability within the contiguous U.S.
                                                                                                        out to 2100, with time steps at 2043 and
                                                   As discussed above, we define                                                                              portion of the subspecies’ range.
                                                                                                        2068 (25 and 50 years from present,
                                                viability as the ability of a species to                                                                      Limited historical and current data,
                                                                                                        respectively). Each scenario evaluates
                                                sustain populations in the wild over                    the response of the eastern black rail to             including nest records, indicate that
                                                time. To help address uncertainty                       changes in three primary risks we                     resiliency outside of the contiguous
                                                associated with the degree and extent of                identified for the subspecies: habitat                United States will continue to be low
                                                potential future stressors and their                    loss, sea level rise, and land                        into the future, or decline if habitat loss
                                                impacts on the eastern black rail’s                     management (grazing, fire, and haying).               or other threats continue to impact these
                                                needs, we applied the 3Rs using five                    The trends of urban development and                   areas.
                                                plausible future scenarios. We devised                  agricultural development remain the                      We evaluated representation by
                                                these five scenarios by identifying                     same, i.e., follow the current trend, for             analyzing the latitudinal variability and
                                                information on the primary stressors                    all five scenarios. We ran 5,000                      habitat variability of the eastern black
                                                anticipated to affect the subspecies into               replicates of the model for each                      rail. Under our future scenarios, the
                                                the future: habitat loss, sea level rise,               scenario. For a detailed discussion of                Great Plains analysis unit is projected to
                                                groundwater loss, and incompatible                      the projection model methodology and                  be extinct within the next 15 to 25
                                                land management practices. These                        the five scenarios, please refer to the               years, which will result in the loss of
                                                scenarios represent a realistic range of                SSA report (Service 2018, entire).                    that higher latitudinal representative
                                                plausible future scenarios for the eastern                 The model predicted declines in all                unit for the subspecies. In addition, the
                                                black rail.                                             analysis units across all five plausible              three remaining analysis units (Mid-
                                                   We used the results of our occupancy                 future scenarios. Specifically, they                  Atlantic Coastal Plain, Southwest
                                                model to create a dynamic site-                         predicted a high probability of complete              Coastal Plain, and Southeast Coastal
                                                occupancy, projection model that                        extinction for all four analysis units                Plain) are predicted to decline and reach
                                                allowed us to explore future conditions                 under all five scenarios by 2068. The                 extinction within the next 50 years.
                                                under these scenarios for the Mid-                      model predicted that, depending on the                Thus, the subspecies’ representation
                                                Atlantic, Great Plains, Southeast Coastal               scenario, the Southeast Coastal Plain                 will continue to decline.
                                                Plain, and Southwest Coastal Plain                      and Mid-Atlantic Coastal Plain analysis
                                                analysis units. We did not project future                                                                        The eastern black rail will have very
                                                                                                        units would reach complete extinction
                                                scenarios for the New England,                                                                                limited redundancy in the future. The
                                                                                                        between 35 and 50 years from the
                                                Appalachian, or Central Lowlands                                                                              Great Plains analysis unit will likely be
                                                                                                        present; the Great Plains analysis unit
                                                analysis units because, as discussed                                                                          extirpated in 15 to 25 years, leading to
                                                                                                        would reach complete extinction
                                                earlier in this document, we consider                                                                         further reduction in redundancy and
                                                                                                        between 15 to 25 years from the present;
                                                these analysis units to be currently                                                                          resulting in only coastal populations of
                                                                                                        and the Southwest Coastal Plain
                                                effectively extirpated and do not                       analysis unit would reach complete                    the eastern black rail remaining. Having
                                                anticipate that this will change in the                 extinction between 45 to 50 years from                only coastal analysis units remaining
                                                future. Our projection model                            the present. Most predicted occupancy                 (and with even lower resiliency than at
                                                incorporated functions to account for                   declines were driven by habitat loss                  present) will further limit the ability of
                                                changes in habitat condition (positive                  rates that were input into each scenario.             the eastern black rail to withstand
                                                and negative) and habitat loss over time.               The model results exhibited little                    catastrophic events, such flooding from
                                                The habitat loss function was a simple                  sensitivity to changes in the habitat                 hurricanes and tropical storms.
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                                                reduction in the total number of                        quality components in the simulations                    Please refer to the SSA report (Service
                                                possible eastern black rail sites at each               for the range of values that we explored.             2018, entire) for a more detailed
                                                time step in the simulation by a                        For a detailed discussion of the model                discussion of our evaluation of the
                                                randomly drawn percentage that was                      results for the five scenarios, please                biological status of the eastern black
                                                specified under different scenarios to                  refer to the SSA report (Service 2018,                rail, the influences that may affect its
                                                represent habitat loss due to                           entire).                                              continued existence, and the modeling
                                                development or sea level rise. We used                     Under our future scenarios, the Mid-               efforts undertaken to further inform our
                                                the change in ‘‘developed’’ land cover                  Atlantic Coastal Plain, Great Plains,                 analysis.


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                                                                       Federal Register / Vol. 83, No. 195 / Tuesday, October 9, 2018 / Proposed Rules                                           50623

                                                Determination                                           subspecies’ habitat. For example, the                 generations, they limit the ability of the
                                                   We have carefully assessed the best                  impacts of Hurricane Harvey on the                    subspecies to maintain occupancy at
                                                scientific and commercial information                   Texas coastal populations of eastern                  habitat sites and also limit its ability to
                                                available regarding the past, present,                  black rail likely caused direct mortality             colonize other previously occupied sites
                                                and future threats to the eastern black                 as well as short-term habitat loss, as the            or new sites.
                                                                                                        hurricane occurred during the flightless                 It is likely that several of these
                                                rail. We propose to list the species as a
                                                                                                        molt period and resulted in the habitat               stressors are acting synergistically on
                                                threatened species throughout its range
                                                                                                        being flooded for a long period of time.              the subspecies. Sea level changes,
                                                given the threats acting upon the
                                                                                                        Human disturbance (Factor B) to the                   together with increasing peak tide
                                                subspecies currently and into the future.
                                                   When viewing historical occurrences                  eastern black rail occurs throughout the              events and higher peak flood events,
                                                on the State level compared to what is                  bird’s range and is driven by the bird’s              wetland subsidence, past wetland filling
                                                known of present distribution, the range                rarity and interest by the birding                    and wetland draining, and incompatible
                                                                                                        community to add this bird to                         land management (e.g., prescribed fire
                                                contraction (from Massachusetts to New
                                                                                                        individual life lists.                                and grazing), all limit the ability of the
                                                Jersey) and site abandonment (patchy
                                                                                                           As we consider the future risk factors             eastern black rail to persist in place or
                                                coastal distribution) noted by Watts
                                                                                                        to the eastern black rail, we recognize               to shift to newly lightly flooded, ‘‘just-
                                                (2016, entire) appear to be occurring
                                                                                                        that a complex interaction of factors                 right’’ areas as existing habitats are
                                                throughout the eastern United States.
                                                                                                        have synergistic effects on the                       impacted. These interacting threats all
                                                Over the past 10 to 20 years, reports
                                                                                                        subspecies as a whole. In coastal areas,              conspire to limit the ability of this
                                                indicate that populations have declined
                                                                                                        sea level rise, as well as increasing                 subspecies to maintain and expand
                                                by 75 percent or greater. North of South
                                                                                                        storm frequency and intensity and                     populations now and in the foreseeable
                                                Carolina, occupancy has declined by 64
                                                                                                        increased flood events (which are both                future.
                                                percent and the number of birds                         associated with high tides and storms),                  Our estimates of future resiliency,
                                                detected has declined by 89 percent,                    will have both direct and indirect effects            redundancy, and representation for the
                                                equating to a 9.2 percent annual rate of                on the subspecies. Extensive patches of               eastern black rail are further reduced
                                                decline (Watts 2016, p. 1). In relative                 high marsh required for breeding are                  from the current condition, consistent
                                                terms, regional strongholds still exist for             projected to be lost or converted to low              with this analysis of future threats.
                                                this subspecies; however, the best                      marsh as a result of sea level rise.                  Currently, three analysis units are
                                                available scientific data suggest that the              Demand for groundwater is increasing,                 effectively extirpated, and four analysis
                                                remaining strongholds support a                         which will reduce soil moisture and                   units that continue to support
                                                relatively small total population size: an              surface water, and thus negatively                    populations of the eastern black rail all
                                                estimated 1,299 individuals on the                      impact wetland habitat. We expect to                  have low levels of resiliency. Given the
                                                upper Texas coast within protected                      see localized subsidence, which can                   projected future decreases in resiliency
                                                areas prior to Hurricane Harvey, and an                 occur when groundwater withdrawal                     for these four analysis units, the eastern
                                                estimated 355 to 815 breeding pairs on                  rates are greater than the aquifer                    black rail will become more vulnerable
                                                the Atlantic Coast from New Jersey to                   recharge rates. Also, warmer and drier                to extirpation from ongoing threats,
                                                Florida (including the Gulf Coast of                    conditions (associated with projected                 consequently resulting in concurrent
                                                Florida). There are no current                          drought increases) will reduce overall                losses in representation and
                                                population estimates from the interior                  habitat quality for the eastern black rail.           redundancy. The range of plausible
                                                States (Colorado, Kansas, or Oklahoma),                 Further, incompatible land management                 future scenarios of the eastern black rail
                                                although there are consistent                           (such as fire application and grazing)                all predict extirpation for all four
                                                populations of eastern black rails at                   will continue to negatively impact the                analysis units by mid-century (2068)
                                                Quivira NWR in Kansas and at least four                 subspecies throughout its range,                      with the Great Plain analysis unit
                                                sites in Colorado where the subspecies                  especially if done during the breeding                blinking out within 15 to 25 years
                                                is encountered in the spring and                        season or flightless molt period.                     (depending on the scenario). In short,
                                                summer. We have no information to                          These stressors contribute to the                  our analysis of the subspecies’ current
                                                indicate that the eastern black rail is                 subspecies’ occupancy at sites and thus               and future conditions show that the
                                                present in large numbers in the                         its population numbers. Some stressors                population and habitat factors used to
                                                Caribbean or Central America.                           have already resulted in permanent or                 determine the resiliency, representation,
                                                   Based on our review of the available                 long-term habitat loss, such the                      and redundancy for the subspecies will
                                                science, we identified the current                      historical conversion of habitat to                   continue to decline so that it is likely to
                                                threats to eastern black rail. Habitat loss             agriculture, while other factors may                  become in danger of extinction
                                                and degradation (Factor A) as a result of               only affect sites temporarily, such as a              throughout its range within the
                                                sea level rise along the coast and ground               fire or annually reduced precipitation.               foreseeable future.
                                                and surface water withdrawals are                       Even local but too frequent intermittent                 The term foreseeable future extends
                                                having a negative impact on the eastern                 stressors, such as unusual high tides or              only so far as the Services can
                                                black rail now and will continue to                     prescribed fire, can cause reproductive               reasonably rely on predictions about the
                                                impact this subspecies into the future.                 failure or adult mortality, respectively,             future in making determinations about
                                                Incompatible land management                            and thus reduce eastern black rail                    the future conservation status of the
                                                techniques (Factor E), such as the                      occupancy at a site and the ability of a              species. Those predictions can be in the
                                                application of prescribed fire, haying,                 site to allow for successful reproduction             form of extrapolation of population or
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                                                mowing, and grazing, have negative                      of individuals to recolonize available                threat trends, analysis of how threats
                                                impacts on the bird and its habitat,                    sites elsewhere. While these                          will affect the status of the species, or
                                                especially when conducted at sensitive                  intermittent stressors allow for                      assessment of future events that will
                                                times, such as the breeding season or                   recolonization at sites, recolonization is            have a significant new impact on the
                                                the flightless molt period. Stochastic                  based on productivity at other sites                  species. The foreseeable future
                                                events (Factor E), such as flood events                 within a generational timescale for the               described here, uses the best available
                                                and hurricanes, can have significant                    subspecies. If these stressors, combined,             data and takes into account
                                                impacts on populations and the                          occur too often within and across                     considerations such as the species’ life


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                                                50624                  Federal Register / Vol. 83, No. 195 / Tuesday, October 9, 2018 / Proposed Rules

                                                history characteristics, threat projection              become endangered throughout all of its               information, we propose to list the
                                                timeframes, and environmental                           range within the foreseeable future. The              eastern black rail as a threatened species
                                                variability, which may affect the                       eastern black rail meets the definition of            in accordance with sections 3(20) and
                                                reliability of projections. We also                     threatened because it is facing threats               4(a)(1) of the Act.
                                                considered the time frames applicable to                across its range that have led to reduced
                                                                                                                                                              Available Conservation Measures
                                                the relevant threats and to the species’                resiliency, redundancy, and
                                                likely responses to those threats in view               representation. Although the eastern                     Conservation measures provided to
                                                of its life history characteristics. The                black rail is not in danger of extinction             species listed as endangered or
                                                foreseeable future for a particular status              throughout its range at present, we                   threatened species under the Act
                                                determination extends only so far as                    expect the subspecies to continue to                  include recognition, recovery actions,
                                                predictions about the future are reliable.              decline into the future. We did not find              requirements for Federal protection, and
                                                   In cases where the available data                    that it is currently in danger of                     prohibitions against certain practices.
                                                allow for quantitative modelling or                     extinction throughout its range.                      Recognition through listing results in
                                                projections, the time horizon for such                  Although the eastern black rail has                   public awareness, and conservation by
                                                analyses does not necessarily dictate                   experienced reductions in its numbers                 Federal, State, Tribal, and local
                                                what constitutes the ‘‘foreseeable                      and seen a range contraction, this                    agencies; private organizations; and
                                                future’’ or set the specific threshold for              subspecies is still relatively widespread.            individuals. The Act encourages
                                                determining when a species may be in                    It continues to maintain a level of                   cooperation with the States and other
                                                danger of extinction. Rather, the                       representation in four analysis units,                countries and calls for recovery actions
                                                foreseeable future can only extend as far               which demonstrates continued                          to be carried out for listed species. The
                                                as the Service can reasonably explain                   latitudinal variability across its range.             protection required by Federal agencies
                                                reliance on the available data to                       These four analysis units are spread                  and the prohibitions against certain
                                                formulate a reliable prediction and                     throughout most of the subspecies’                    activities are discussed, in part, below.
                                                avoid reliance on assumption,                           range, providing for some level of                       The primary purpose of the Act is the
                                                speculation, or preconception.                          redundancy. Although the resiliency in                conservation of endangered and
                                                Regardless of the type of data available                the four currently occupied analysis                  threatened species and the ecosystems
                                                underlying the Service’s analysis, the                  units is low, Florida and Texas remain                upon which they depend. The ultimate
                                                key to any analysis is a clear articulation             strongholds for the subspecies in the                 goal of such conservation efforts is the
                                                of the facts, the rationale, and                        Southeast and Southwest. The current                  recovery of these listed species, so that
                                                conclusions regarding foreseeability.                   condition of the subspecies still                     they no longer need the protective
                                                   We identify the foreseeable future for               provides for resiliency, redundancy, and              measures of the Act. Subsection 4(f) of
                                                the eastern black rail to be 25 to 50 years             representation such that it is not at risk            the Act calls for the Service to develop
                                                from the present. We consider 25 to 50                  of extinction now throughout its range.               and implement recovery plans for the
                                                years ‘‘foreseeable’’ in this case because                 Under the Act and our implementing                 conservation of endangered and
                                                this timeframe includes projections                     regulations, a species may warrant                    threatened species. The recovery
                                                from our modeling efforts and takes into                listing if it is endangered or threatened             planning process involves the
                                                account the threats acting upon the                     throughout all or a significant portion of            identification of actions that are
                                                eastern black rail and its habitat and                  its range. Because we have determined                 necessary to halt or reverse the species’
                                                how we consider the eastern black rail                  that the eastern black rail is likely to              decline by addressing the threats to its
                                                will respond to these threats in the                    become an endangered species within                   survival and recovery. The goal of this
                                                future. For all five plausible scenarios,               the foreseeable future throughout its                 process is to restore listed species to a
                                                all analysis units exhibited a consistent               range, we find it unnecessary to proceed              point where they are secure, self-
                                                downward trend in the proportion of                     to an evaluation of potentially                       sustaining, and functioning components
                                                sites remaining occupied after the first                significant portions of the range. Where              of their ecosystems.
                                                25 years (by 2043), with extirpation for                the best available information allows the                Recovery planning includes the
                                                all analysis units by 2068. The Great                   Services to determine a status for the                development of a recovery outline
                                                Plains analysis unit is predicted to be                 species rangewide, that determination                 shortly after a species is listed and
                                                extirpated by 2043. Given that future                   should be given conclusive weight                     preparation of a draft and final recovery
                                                projections of habitat loss are expected                because a rangewide determination of                  plan. The recovery outline guides the
                                                to continue and be exacerbated by sea                   status more accurately reflects the                   immediate implementation of urgent
                                                level rise and tidal flooding, resiliency               species’ degree of imperilment and                    recovery actions and describes the
                                                of the four remaining analysis units is                 better promotes the purposes of the                   process to be used to develop a recovery
                                                expected to decline further over the next               statute. Under this reading, we should                plan. Revisions of the plan may be done
                                                25 to 50 years.                                         first consider whether listing is                     to address continuing or new threats to
                                                   Under the Act, the term ‘‘species’’                  appropriate based on a rangewide                      the species, as new substantive
                                                includes any subspecies of fish or                      analysis and proceed to conduct a                     information becomes available. The
                                                wildlife or plants, and any distinct                    ‘‘significant portion of its range’’                  recovery plan also identifies recovery
                                                population segment of any species of                    analysis if, and only if, a species does              criteria for review of when a species
                                                vertebrate fish or wildlife which                       not qualify for listing as either                     may be ready for reclassification from
                                                interbreeds when mature. The Act                        endangered or threatened according to                 endangered to threatened
                                                defines an endangered species as any                    the ‘‘all’’ language. We note that the                (‘‘downlisting’’) or removal from the
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                                                species that is ‘‘in danger of extinction               court in Desert Survivors v. Department               Lists of Endangered and Threatened
                                                throughout all or a significant portion of              of the Interior, No. 16–cv–01165–JCS,                 Wildlife and Plants (‘‘delisting’’), and
                                                its range’’ and a threatened species as                 2018 WL 4053447 (N.D. Cal. Aug. 24,                   methods for monitoring recovery
                                                any species that ‘‘is likely to become an               2018), did not address this issue, and                progress. Recovery plans also establish
                                                endangered species within the                           our conclusion is therefore consistent                a framework for agencies to coordinate
                                                foreseeable future throughout all or a                  with the opinion in that case.                        their recovery efforts and provide
                                                significant portion of its range.’’ We find                Therefore, on the basis of the best                estimates of the cost of implementing
                                                that the eastern black rail is likely to                available scientific and commercial                   recovery tasks. Recovery teams


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                                                                       Federal Register / Vol. 83, No. 195 / Tuesday, October 9, 2018 / Proposed Rules                                            50625

                                                (composed of species experts, Federal                   actions with respect to any species that              addition, it is unlawful to import;
                                                and State agencies, nongovernmental                     is proposed or listed as an endangered                export; deliver, receive, carry, transport,
                                                organizations, and stakeholders) are                    or threatened species and with respect                or ship in interstate or foreign
                                                often established to develop recovery                   to its critical habitat, if any is                    commerce in the course of commercial
                                                plans. When completed, the recovery                     designated. Regulations implementing                  activity; or sell or offer for sale in
                                                outline, draft recovery plan, and the                   this interagency cooperation provision                interstate or foreign commerce
                                                final recovery plan will be available on                of the Act are codified at 50 CFR part                endangered wildlife. It is also illegal to
                                                our website (http://www.fws.gov/                        402. Section 7(a)(4) of the Act requires              possess, sell, deliver, carry, transport, or
                                                endangered), or from our South Carolina                 Federal agencies to confer with the                   ship any such wildlife that has been
                                                Ecological Services Field Office (see FOR               Service on any action that is likely to               taken illegally. To the extent the section
                                                FURTHER INFORMATION CONTACT).                           jeopardize the continued existence of a               9(a)(1) prohibitions apply only to
                                                   Implementation of recovery actions                   species proposed for listing or result in             endangered species, this proposed rule
                                                generally requires the participation of a               destruction or adverse modification of                would apply those same prohibitions to
                                                broad range of partners, including other                proposed critical habitat. If a species is            the eastern black rail.
                                                Federal agencies, States, Tribes,                       listed subsequently, section 7(a)(2) of                  Instead of generally applying the same
                                                nongovernmental organizations,                          the Act requires Federal agencies to                  prohibitions to threatened wildlife that
                                                businesses, and private landowners.                     ensure that activities they authorize,                apply to endangered wildlife, in
                                                Examples of recovery actions include                    fund, or carry out are not likely to                  accordance with section 4(d) of the Act,
                                                habitat restoration (e.g., restoration of               jeopardize the continued existence of                 the Service may instead develop a
                                                native vegetation), research, captive                   the species or destroy or adversely                   protective regulation (‘‘4(d) rule’’) that is
                                                propagation and reintroduction, and                     modify its critical habitat. If a Federal             specific to the conservation needs of any
                                                outreach and education. The recovery of                 action may affect a listed species or its             threatened species. Such a regulation
                                                many listed species cannot be                           critical habitat, the responsible Federal             would contain all of the protections
                                                accomplished solely on Federal lands                    agency must enter into consultation                   applicable to that species (50 CFR
                                                because their range may occur primarily                 with the Service.                                     17.31(c)); this may include some of the
                                                or solely on non-Federal lands. To                         Federal agency actions within the                  general prohibitions and exceptions set
                                                achieve recovery of these species                       eastern black rail’s habitat that may                 forth at 50 CFR 17.31 and 17.32, but
                                                requires cooperative conservation efforts               require conference or consultation or                 would also include species-specific
                                                on private, State, and Tribal lands.                    both as described in the preceding                    protections that may be more or less
                                                   If this species is listed, funding for               paragraph include management and any                  restrictive than the general provisions at
                                                recovery actions will be available from                 other landscape-altering activities on                50 CFR 17.31.
                                                a variety of sources, including Federal                 Federal lands administered by the U.S.                   For the eastern black rail, the Service
                                                budgets, State programs, and cost share                 Fish and Wildlife Service and National                has developed a proposed 4(d) rule that
                                                grants for non-Federal landowners, the                  Park Service; issuance of section 404                 is tailored to the specific threats and
                                                academic community, and                                 Clean Water Act (33 U.S.C. 1251 et seq.)              conservation needs of this subspecies.
                                                nongovernmental organizations. In                       permits by the U.S. Army Corps of                     The proposed 4(d) rule contains specific
                                                addition, pursuant to section 6 of the                  Engineers; and construction and                       prohibitions and exceptions to those
                                                Act, the U.S. States and territories of                 maintenance of roads or highways by                   prohibitions. It would not remove or
                                                Alabama, Arkansas, Colorado,                            the Federal Highway Administration.                   alter in any way the consultation
                                                Connecticut, Delaware, Florida, Georgia,                                                                      requirements under section 7 of the Act.
                                                Illinois, Indiana, Iowa, Kansas,                        Provisions of Section 4(d) of the Act
                                                Kentucky, Louisiana, Maryland,                             The Act and its implementing                       Proposed 4(d) Rule for the Eastern Black
                                                Massachusetts, Mississippi, Missouri,                   regulations set forth a series of general             Rail
                                                Nebraska, New Hampshire, New Jersey,                    prohibitions and exceptions that apply                  Under this proposed 4(d) rule, the
                                                New York, North Carolina, Ohio,                         to threatened wildlife. Under section                 following activities would be prohibited
                                                Oklahoma, Pennsylvania, Puerto Rico,                    4(d) of the Act, the Secretary of the                 unless otherwise noted:
                                                Rhode Island, South Carolina,                           Interior has the discretion to issue such
                                                                                                        regulations as he deems necessary and                 Fire Management Activities
                                                Tennessee, Texas, Virginia, U.S. Virgin
                                                Islands, and West Virginia would be                     advisable to provide for the                             Prescribed fire can be used to re-
                                                eligible for Federal funds to implement                 conservation of threatened species. The               initiate succession and seral sequencing
                                                management actions that promote the                     Secretary also has the discretion to                  on public and private lands, which is
                                                protection or recovery of the eastern                   prohibit, by regulation with respect to               important to ensure suitable habitat for
                                                black rail. Information on our grant                    any threatened species of fish or                     the eastern black rail. However, the
                                                programs that are available to aid                      wildlife, any act prohibited under                    application of prescribed fire should
                                                species recovery can be found at: http://               section 9(a)(1) of the Act.                           avoid burning during the nesting, brood
                                                www.fws.gov/grants.                                        The regulations at 50 CFR 17.31(a)                 rearing, and flightless molt periods
                                                   Although the eastern black rail is only              provide that the prohibitions set forth               (mid-March through September 30)
                                                proposed for listing under the Act at                   for endangered wildlife at 50 CFR 17.21               where eastern black rails are present.
                                                this time, please let us know if you are                also apply to threatened wildlife, except             Prescribed fire that takes place during
                                                interested in participating in recovery                 as discussed below. The regulations at                critical time periods for the subspecies
                                                efforts for this subspecies. Additionally,              50 CFR 17.21, which codify the                        (i.e., mating, egg-laying, and incubation;
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                                                we invite you to submit any new                         prohibitions in section 9(a)(1) of the                parental care; and flightless molt) will
                                                information on this subspecies                          Act, make it illegal for any person                   lead to mortality of eggs, chicks,
                                                whenever it becomes available and any                   subject to the jurisdiction of the United             juveniles, and molting birds. We
                                                information you may have for recovery                   States to take (which includes harass,                recognize that there is latitudinal
                                                planning purposes (see FOR FURTHER                      harm, pursue, hunt, shoot, wound, kill,               variability of these life-history events
                                                INFORMATION CONTACT).                                   trap, capture, or collect; or to attempt              across the range of the eastern black rail.
                                                   Section 7(a) of the Act requires                     any of these) endangered wildlife within              For example, in Texas, eastern black
                                                Federal agencies to evaluate their                      the United States or on the high seas. In             rails begin to nest in March, whereas in


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                                                50626                  Federal Register / Vol. 83, No. 195 / Tuesday, October 9, 2018 / Proposed Rules

                                                Kansas and Colorado, nesting begins                     practices are used to enhance eastern                 where birds occur, for example wetland
                                                around May 1. Therefore, the timing of                  black rail habitat, when done at the                  areas, so that these areas may be
                                                prohibitions would coincide with when                   wrong time, they can impact                           avoided.
                                                the eastern black rail is using the habitat             recruitment and survival.                               This provision of the proposed 4(d)
                                                for breeding and nesting, and with the                     Haying, mowing, and mechanical                     rule for haying, mowing, and
                                                flightless molt period.                                 treatment activities in emergent                      mechanical treatment activities in
                                                   We realize that prohibiting prescribed               wetlands should be avoided during the                 emergent wetlands would promote
                                                fire during the months these activities                 nesting, brood rearing, and flightless                conservation of the eastern black rail by
                                                take place may conflict with land                       molt periods (mid-March through                       prohibiting activities that would reduce
                                                management goals, for example, the use                  September 30) where eastern black rail                survival and limit recruitment during
                                                of prescribed fire to control shrub or tree             are present. We define emergent                       the period when breeding and flightless
                                                encroachment and improve habitat                        wetlands as areas where ‘‘emergent                    molt takes place.
                                                suitability for species such as the                     plants—i.e., erect, rooted, herbaceous
                                                                                                                                                              Grazing Activities
                                                eastern black rail. However, prescribed                 hydrophytes, excluding mosses and
                                                fire during this period will reduce                     lichens—are the tallest life form with at                Based on current knowledge of
                                                survival of eggs, chicks, juveniles, and                least 30 percent areal coverage. This                 grazing and eastern black rail
                                                adults and will reduce recruitment of                   vegetation is present for most of the                 occupancy, the specific timing,
                                                individuals into the next generation.                   growing season in most years. These                   duration, and intensity of grazing will
                                                Opportunities to reach management                       wetlands are usually dominated by                     result in varying impacts to the eastern
                                                goals still remain available during a                   perennial plants’’ (Federal Geographic                black rail and its habitat. Light-to-
                                                significant period of the year.                         Data Committee 2013, p. 33). For more                 moderate grazing may be compatible
                                                   For prescribed fires outside of the                  information on emergent wetlands,                     with eastern black rail occupancy under
                                                nesting, brood rearing, and flightless                  please visit the Service’s National                   certain conditions, while intensive or
                                                molt period, best management practices                  Wetlands Inventory website: https://                  heavy grazing is likely to have negative
                                                (BMPs) can minimize the take of eastern                 www.fws.gov/wetlands/.                                effects on eastern black rails and the
                                                black rails. Therefore, we propose to                      Haying, mowing, and mechanical                     quality of their habitat. Grazing
                                                allow prescribed burns that follow                      treatment activities in emergent                      densities should allow for the
                                                identified BMPs; this would not                         wetlands that take place during critical              maintenance of the dense vegetative
                                                adversely affect the likelihood of                      time periods for the subspecies (i.e.,                cover required by the eastern black rail.
                                                survival of the eastern black rail in                   mating, egg-laying, and incubation;                      Intensive or heavy grazing should be
                                                occupied areas that are burned. BMPs                    parental care; and flightless molt) will              avoided during the nesting, brood
                                                include:                                                lead to disturbance of nesting birds;                 rearing, and flightless molt periods
                                                   • The application of prescribed fire                 destruction of nests; and mortality of                (mid-March through September 30) in
                                                should avoid perimeter fires, ring fires,               eggs, chicks, juveniles, and adults. As               emergent wetlands where eastern black
                                                or fires that have long, unbroken                       discussed above, we recognize that there              rail are present. Intensive or heavy
                                                boundaries that prevent species                         is latitudinal variability of these life-             grazing that takes place during critical
                                                dependent on dense cover from                           history events across the range of the                time periods for the subspecies (i.e.,
                                                escaping a fire.                                        eastern black rail. Therefore, the timing             mating, egg-laying and incubation;
                                                   • Prescribed fire should be employed                 of prohibitions would coincide with                   parental care; and flightless molt) will
                                                to move slowly across a tract. Fast fires               when the eastern black rail is using the              lead to disturbance of nesting birds, as
                                                can cause significant mortality for                     habitat for breeding and nesting, and                 well as possible destruction of nests and
                                                eastern black rails.                                    with the flightless molt period.                      mortality of eggs and chicks due to
                                                   • Prescribed fire should be applied in                  We recognize mowing or mechanical                  trampling. As discussed above, we
                                                a patchy manner or with small patches                   treatment activities may need to be used              recognize that there is latitudinal
                                                to allow eastern black rails a place of                 for maintenance requirements to ensure                variability of these life-history events
                                                refuge. Patches can be small but                        safety and operational needs for existing             across the range of the eastern black rail.
                                                numerous enough to support multiple                     infrastructure, and understand that                   Therefore, the timing of prohibitions
                                                eastern black rails.                                    these maintenance activities may need                 would coincide with when the eastern
                                                   This provision of the proposed 4(d)                  to take place during the nesting,                     black rail is using the habitat for
                                                rule for fire management activities                     brooding, or post-breeding molt period.               breeding or nesting, and with the
                                                would promote conservation of the                       These include maintenance of existing                 flightless molt period. We propose to
                                                eastern black rail by encouraging                       fire breaks, roads, transmission                      limit this prohibition to public lands,
                                                continued management of the landscape                   corridors rights-of-way, and fence lines.             given our knowledge of where grazing
                                                in ways that meet management needs                      These activities are an exception to this             activities and the presence of eastern
                                                while simultaneously ensuring the                       prohibition.                                          black rails overlap.
                                                continued survival of the eastern black                    We do not propose to prohibit                         Although we are not proposing to
                                                rail and providing suitable habitat.                    mowing, haying, or mechanical treat                   prohibit year-round light to moderate
                                                                                                        activities outside of the nesting, brood              grazing, or intensive grazing outside of
                                                Haying, Mowing, and Other Mechanical                    rearing, and flightless molt time periods.            the nesting season, we do recommend
                                                Treatment Activities                                    However, we encourage land managers                   that land managers follow voluntary
                                                  Haying and mowing can maintain                        to employ voluntary BMPs outside of                   BMPs to provide for additional
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                                                grasslands by reducing woody                            these time periods. BMPs for haying,                  conservation of the eastern black rail
                                                vegetation encroachment and also for                    mowing, and mechanical treatment                      and its habitat. BMPs to avoid negative
                                                the production of forage for livestock.                 activities include avoidance of emergent              impacts to the eastern black rail from
                                                Mechanical treatment activities include                 wetlands; providing untreated (i.e.,                  grazing activities include the use of
                                                disking (using a disk harrow or other                   unmown or avoided) areas that provide                 fences to exclude grazing from emergent
                                                tool) and brush clearing (using a variety               refugia for species dependent on dense                wetland areas during the breeding and
                                                of tools that may be attached to a tractor              cover, such as the eastern black rail; and            flightless molt periods, and rotational
                                                or a stand-alone device). While these                   using temporary markers to identify                   grazing practices so that a mosaic


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                                                                       Federal Register / Vol. 83, No. 195 / Tuesday, October 9, 2018 / Proposed Rules                                             50627

                                                pattern of cover density is present                        Conservation, as defined at section 3              sources of information as the basis for
                                                across fenced tracts of land.                           of the Act, means to use and the use of               recommendations to designate critical
                                                  This provision of the proposed 4(d)                   all methods and procedures that are                   habitat.
                                                rule for grazing activities would                       necessary to bring an endangered or
                                                                                                                                                              Prudency Determination
                                                promote conservation of the eastern                     threatened species to the point at which
                                                black rail by encouraging land managers                 the measures provided pursuant to the                   Section 4(a)(3) of the Act, as
                                                to continue managing the landscape in                   Act are no longer necessary. Such                     amended, and implementing regulations
                                                ways that meet their needs while                        methods and procedures include, but                   (50 CFR 424.12), require that, to the
                                                simultaneously providing suitable                       are not limited to, all activities                    maximum extent prudent and
                                                habitat for the eastern black rail.                     associated with scientific resources                  determinable, the Secretary designate
                                                                                                        management such as research, census,                  critical habitat at the time the species is
                                                Other Forms of Take                                     law enforcement, habitat acquisition                  determined to be endangered or
                                                   Protecting the eastern black rail from               and maintenance, propagation, live                    threatened. Our regulations (50 CFR
                                                direct forms of take, such as physical                  trapping, and transplantation, and, in                424.12(a)(1)) state that the designation
                                                injury or killing, whether incidental or                the extraordinary case where population               of critical habitat is not prudent when
                                                intentional, will help preserve and                     pressures within a given ecosystem                    one or both of the following situations
                                                recover the remaining populations of                    cannot be otherwise relieved, may                     exist: (1) The species is threatened by
                                                the subspecies. Protecting the eastern                  include regulated taking.                             taking or other human activity, and
                                                black rail from indirect forms of take,                    Critical habitat receives protection               identification of critical habitat can be
                                                such as harm that results from habitat                  under section 7 of the Act through the                expected to increase the degree of threat
                                                degradation, will likewise help preserve                requirement that Federal agencies                     to the species, or (2) such designation of
                                                the subspecies’ populations and also                    ensure, in consultation with the Service,             critical habitat would not be beneficial
                                                decrease synergistic, negative effects                  that any action they authorize, fund, or              to the species.
                                                from other stressors impeding recovery                  carry out is not likely to result in the              Increased Degree of Threat to the
                                                of the subspecies. We propose to extend                 destruction or adverse modification of                Eastern Black Rail
                                                the Act’s section 9(a)(1)(A), 9(a)(1)(D),               critical habitat. The designation of
                                                                                                        critical habitat does not affect land                    Designation of critical habitat requires
                                                9(a)(1)(E), and 9(a)(1)(F) prohibitions to
                                                                                                        ownership or establish a refuge,                      the publication of maps and a narrative
                                                the eastern black rail throughout its
                                                                                                        wilderness, reserve, preserve, or other               description of specific critical habitat
                                                range.
                                                                                                        conservation area. Such designation                   areas in the Federal Register. We are
                                                   We may issue permits to carry out
                                                                                                        does not allow the government or public               concerned that designation of critical
                                                otherwise prohibited activities
                                                                                                        to access private lands. Such                         habitat would more widely announce
                                                involving threatened wildlife under
                                                                                                        designation does not require                          the exact location of eastern black rails
                                                certain circumstances. Regulations
                                                                                                        implementation of restoration, recovery,              (and highly suitable habitat) to
                                                governing permits are codified at 50
                                                                                                        or enhancement measures by non-                       overzealous birders and further facilitate
                                                CFR 17.32. With regard to threatened
                                                                                                        Federal landowners. Where a landowner                 disturbance. As discussed above, the
                                                wildlife, a permit may be issued for the                                                                      eastern black rail is highly sought after
                                                following purposes: for scientific                      requests Federal agency funding or
                                                                                                        authorization for an action that may                  by the birding community due to its
                                                purposes, to enhance propagation or                                                                           rarity. We anticipate that listing the
                                                survival, for economic hardship, for                    affect a listed species or critical habitat,
                                                                                                        the consultation requirements of section              eastern black rail under the Act will
                                                zoological exhibition, for educational                                                                        further interest in this bird and increase
                                                purposes, for incidental taking, or for                 7(a)(2) of the Act would apply, but even
                                                                                                        in the event of a destruction or adverse              the likelihood that eastern black rails
                                                special purposes consistent with the                                                                          will be sought out for birders’ ‘‘life lists’’
                                                purposes of the Act. There are also                     modification finding, the obligation of
                                                                                                        the Federal action agency and the                     and general birding trips.
                                                certain statutory exemptions from the                                                                            Eastern black rails are unique in they
                                                prohibitions, which are found in                        landowner is not to restore or recover
                                                                                                        the species, but to implement                         are extremely secretive; they walk or
                                                sections 9 and 10 of the Act.                                                                                 run under dense vegetation and are
                                                                                                        reasonable and prudent alternatives to
                                                Critical Habitat                                        avoid destruction or adverse                          rarely seen in flight. They are generally
                                                                                                        modification of critical habitat.                     detected by employing playback calls.
                                                Background                                                                                                    As the eastern black rail is difficult to
                                                                                                           Section 4 of the Act requires that we
                                                  Critical habitat is defined in section 3              designate critical habitat on the basis of            see, birders generally record an eastern
                                                of the Act as:                                          the best scientific data available.                   black rail on their life list by
                                                  (1) The specific areas within the                     Further, our Policy on Information                    documenting the bird’s call. Because the
                                                geographical area occupied by the                       Standards Under the Endangered                        eastern black rail is highly sought after,
                                                species, at the time it is listed in                    Species Act (published in the Federal                 birders will play calls repeatedly to
                                                accordance with the Act, on which are                   Register on July 1, 1994 (59 FR 34271)),              garner a response and sometimes to lure
                                                found those physical or biological                      the Information Quality Act (section 515              a bird in an attempt to see the
                                                features:                                               of the Treasury and General                           individual. The constant playing of a
                                                  (a) Essential to the conservation of the              Government Appropriations Act for                     call to the bird for days, if not weeks,
                                                species, and                                            Fiscal Year 2001 (Pub. L. 106–554; H.R.               at a time is a form of harassment to the
                                                  (b) Which may require special                         5658)), and our associated Information                bird. The use of playback calls has been
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                                                management considerations or                            Quality Guidelines, provide criteria,                 documented to alter the behavior of
                                                protection; and                                         establish procedures, and provide                     eastern black rails, resulting in a threats
                                                  (2) Specific areas outside the                        guidance to ensure that our decisions                 display that includes spreading the
                                                geographical area occupied by the                       are based on the best scientific data                 wings and charging the tape recorder
                                                species at the time it is listed, upon a                available. They require our biologists, to            (Taylor and Van Perlo 1998, p. 223;
                                                determination that such areas are                       the extent consistent with the Act and                Eddleman, Flores, and Legare 1994,
                                                essential for the conservation of the                   with the use of the best scientific data              unpaginated). The American Birding
                                                species.                                                available, to use primary and original                Association Code of Birding Ethics


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                                                50628                  Federal Register / Vol. 83, No. 195 / Tuesday, October 9, 2018 / Proposed Rules

                                                states that birders should limit the use                black rail call (eBird 2018,                          Benefits to the Subspecies From Critical
                                                of recordings and other methods of                      unpaginated). On June 8, a birder noted               Habitat Designation
                                                attracting birds, and never use such                    that about 30 people heard the eastern
                                                methods for attracting listed or rare                   black rail (eBird 2018, unpaginated).                    Under our regulations at 50 CFR
                                                species; however, the singular method                   The 2010 record is the only eastern                   424.12(a)(1)(i), this finding that
                                                used to detect eastern black rails is by                black rail occurrence recorded in eBird               designating critical habitat is likely to
                                                playback calls (as opposed to passive                   for this specific coordinate location and             increase the threat of disturbance to the
                                                listening) and a listing designation is                 demonstrates the great interest an                    subspecies provides a sufficient basis
                                                unlikely to abate this disturbance.                     eastern black rail generates among the                for making a not-prudent finding. As
                                                   The eastern black rail is highly                     birding community.                                    demonstrated by the use of the word
                                                vulnerable to disturbance, especially                      To minimize harmful disturbances,                  ‘‘or’’ in 50 CFR 424(a) between
                                                during the brooding and nesting season.                 eBird identifies a list of birds it                   subsections (1)(i) and (1)(ii), the
                                                Birders attempting to see or hear the                   considers ‘‘sensitive species.’’ This list            regulations do not require that we also
                                                bird by using vocalized calls or                        is developed in collaboration with                    determine that designating critical
                                                recordings has the potential to disturb                 partners to identify birds for which                  habitat would not be beneficial to the
                                                nesting birds and to trample nests or                   demonstrable harm, such as targeted                   subspecies.
                                                eggs, and may lead to increased                         capture, targeted hunting, or targeted
                                                predation (Beans and Niles 2003, p. 96).                disturbance of nests or individual birds              Summary
                                                We believe that the threat of disturbance               from birders or photographers, may                       Based on the above discussion, we
                                                will be exacerbated by the publication                  occur from publicly posting location                  preliminarily conclude that the
                                                of maps and descriptions outlining the                  records. In most cases, these birds                   designation of critical habitat is not
                                                specific locations of this secretive bird               identified as ‘‘sensitive species’’ are
                                                                                                                                                              prudent, in accordance with 50 CFR
                                                in the Federal Register and local                       species that have been listed by a local
                                                                                                                                                              424.12(a)(1), because the eastern black
                                                newspapers.                                             entity or that appear on the
                                                   Identification and publication of                                                                          rail and its habitat face a threat by
                                                                                                        International Union for Conservation of
                                                critical habitat may also increase the                                                                        overzealous birders, and designation
                                                                                                        Nature (IUCN) Red List. These birds
                                                likelihood of inadvertent or purposeful                                                                       can reasonably be expected to increase
                                                                                                        have a customized display in eBird that
                                                habitat destruction. As discussed above,                omits checklist details, such as date and             the degree of these threats to the
                                                trespassing has been documented on                      location, among other restrictions.                   subspecies and its habitat by making
                                                private lands and in areas on public                    While researchers have access to this                 location information more readily
                                                lands specifically closed to the public to              information, the general public is not                available. However, we seek public
                                                protect nesting eastern black rails (Roth               able to view more specific information                comment on threats of taking or other
                                                2018, pers. comm.; Hand 2017, pers.                     on the record. Although the eastern                   human activity, including the impacts
                                                comm.). Trespassing may not only                        black rail is not currently on eBird’s                of birders to the eastern black rail and
                                                disturb the bird, but can also result in                ‘‘sensitive species’’ list, given the                 its habitat, and the extent to which
                                                trampling of the bird’s habitat, as well                increased risk of harassment to the                   designation might increase those
                                                as eggs and nests. State resource                       eastern black rail from posting location              threats.
                                                managers and researchers are concerned                  data, we will request that it be added if             Required Determinations
                                                that releasing locations of eastern black               we list the subspecies.
                                                rail detections may increase human                         We acknowledge that general location               Clarity of the Rule
                                                disturbance and harassment to the                       information is provided within this
                                                subspecies. Trespassing on private land                 proposed rule, and more-specific                         We are required by Executive Orders
                                                is also a concern, as it likely results in              location information can be found                     12866 and 12988 and by the
                                                increased harassment to the rails and to                through other sources. However, we                    Presidential Memorandum of June 1,
                                                the private landowners who are                          maintain that designation of critical                 1998, to write all rules in plain
                                                providing habitat to the rails (Hand                    habitat would more widely publicize                   language. This means that each rule we
                                                2017, pers. comm.). We recognize with                   the potential locations of the eastern                publish must:
                                                the advent of eBird that locations of rare              black rail and its habitat, and lead to an               (1) Be logically organized;
                                                birds, including the eastern black rail,                increased threat of disturbance to the
                                                                                                                                                                 (2) Use the active voice to address
                                                are widely distributed and readily                      bird from birders. We believe that
                                                                                                                                                              readers directly;
                                                available if those location data are                    identification and advertisement of
                                                posted to this website. Given the eastern               critical habitat may exacerbate the threat               (3) Use clear language rather than
                                                black rail’s rarity and near grail-like                 of disturbance, thus making sensitive                 jargon;
                                                status in the birding community, when                   areas more vulnerable to purposeful                      (4) Be divided into short sections and
                                                a location has been published on eBird,                 harmful impacts from humans. Certain                  sentences; and
                                                birders often flock to the site in large                life stages, including eggs, chicks,
                                                numbers in an attempt to see or hear the                nesting/brooding adults, and adults                      (5) Use lists and tables wherever
                                                bird. For example, in June 2010, an                     experiencing the flightless molt period,              possible.
                                                eastern black rail was detected at the                  are particularly vulnerable.                             If you feel that we have not met these
                                                Parker River NWR in Massachusetts,                      Identification and publication of                     requirements, send us comments by one
                                                and the detection was posted on eBird                   detailed critical habitat information and             of the methods listed in ADDRESSES. To
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                                                (eBird 2018, unpaginated). On June 2, a                 maps would likely increase exposure of                better help us revise the rule, your
                                                birder posted on eBird that he                          sensitive habitats and increase the                   comments should be as specific as
                                                assembled with a group of 34 birders to                 likelihood and severity of threats to both            possible. For example, you should tell
                                                hear the one or two eastern black rails                 the subspecies and its habitat.                       us the numbers of the sections or
                                                at the site (eBird 2018, unpaginated). On               Identification and publication of critical            paragraphs that are unclearly written,
                                                June 4, another birder posted that he                   habitat may lead to increased attention               which sections or sentences are too
                                                waited more than 2 hours with about 50                  to the subspecies, or increased attempts              long, the sections where you feel lists or
                                                other individuals to hear the eastern                   to observe or hear it.                                tables would be useful, etc.


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                                                                        Federal Register / Vol. 83, No. 195 / Tuesday, October 9, 2018 / Proposed Rules                                                               50629

                                                National Environmental Policy Act (42                   accordance with Secretarial Order 3206                              List of Subjects in 50 CFR Part 17
                                                U.S.C. 4321 et seq.)                                    of June 5, 1997 (American Indian Tribal
                                                                                                                                                                              Endangered and threatened species,
                                                                                                        Rights, Federal-Tribal Trust
                                                  We have determined that                                                                                                   Exports, Imports, Reporting and
                                                                                                        Responsibilities, and the Endangered
                                                environmental assessments and                                                                                               recordkeeping requirements,
                                                                                                        Species Act), we readily acknowledge
                                                environmental impact statements, as                                                                                         Transportation.
                                                                                                        our responsibilities to work directly
                                                defined under the authority of the
                                                                                                        with tribes in developing programs for                              Proposed Regulation Promulgation
                                                National Environmental Policy Act,
                                                                                                        healthy ecosystems, to acknowledge that
                                                need not be prepared in connection                                                                                            Accordingly, we propose to amend
                                                                                                        tribal lands are not subject to the same
                                                with listing a species as an endangered                                                                                     part 17, subchapter B of chapter I, title
                                                                                                        controls as Federal public lands, to
                                                or threatened species under the                                                                                             50 of the Code of Federal Regulations,
                                                                                                        remain sensitive to Indian culture, and
                                                Endangered Species Act. We published                    to make information available to tribes.                            as set forth below:
                                                a notice outlining our reasons for this                 Although we have no records of the
                                                determination in the Federal Register                                                                                       PART 17—ENDANGERED AND
                                                                                                        eastern black rail occurring on tribal                              THREATENED WILDLIFE AND PLANTS
                                                on October 25, 1983 (48 FR 49244).                      lands, the range of the eastern black rail
                                                Government-to-Government                                overlaps with tribal lands.                                         ■ 1. The authority citation for part 17
                                                Relationship With Tribes                                References Cited                                                    continues to read as follows:
                                                  In accordance with the President’s                      A complete list of references cited in                              Authority: 16 U.S.C. 1361–1407; 1531–
                                                memorandum of April 29, 1994                            this proposed rule is available on the                              1544; and 4201–4245, unless otherwise
                                                (Government-to-Government Relations                                                                                         noted.
                                                                                                        internet at http://www.regulations.gov
                                                with Native American Tribal                             and upon request from the South                                     ■ 2. Amend § 17.11(h) by adding an
                                                Governments; 59 FR 22951), Executive                    Carolina Ecological Services Field                                  entry for ‘‘Rail, eastern black’’ to the List
                                                Order 13175 (Consultation and                           Office (see FOR FURTHER INFORMATION                                 of Endangered and Threatened Wildlife
                                                Coordination With Indian Tribal                         CONTACT).                                                           in alphabetical order under BIRDS to
                                                Governments), and the Department of                                                                                         read as set forth below:
                                                the Interior’s manual at 512 DM 2, we                   Authors
                                                readily acknowledge our responsibility                    The primary authors of this proposed                              § 17.11 Endangered and threatened
                                                to communicate meaningfully with                        rule are the staff members of the Species                           wildlife.
                                                recognized Federal Tribes on a                          Assessment Team, U.S. Fish and                                      *       *    *       *     *
                                                government-to-government basis. In                      Wildlife Service.                                                       (h) * * *

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


                                                          *                       *                       *                           *                              *                       *                    *

                                                BIRDS


                                                          *                       *                       *                       *                                  *                       *                    *

                                                Rail, eastern black ..........   Laterallus jamaicensis         Wherever found ..............         T ..........       [Federal Register citation when published as a
                                                                                   jamaicensis.                                                                            final rule]; 50 CFR 17.41(f).4d


                                                          *                       *                       *                           *                              *                       *                    *



                                                ■ 3. Amend § 17.41 by adding a                          Examples of best management practices                                  (A) Occurs during the nesting,
                                                paragraph (f) to read as follows:                       include employing slow burn fires,                                  brooding, or post-breeding flightless
                                                                                                        limiting the block of land burned to                                molt period;
                                                § 17.41   Special rules—birds.
                                                                                                        ensure suitable dense cover habitat                                    (B) Involves intensive or high-density
                                                *      *    *     *     *                               remains for the eastern black rail,                                 grazing that occurs on suitable occupied
                                                  (f) Eastern black rail (Laterallus                                                                                        eastern black rail habitat; and
                                                                                                        employing patch or refugia techniques
                                                jamaicensis jamaicensis). (1)
                                                                                                        to allow for eastern black rails to survive                            (C) Does not support the maintenance
                                                Prohibitions. The following activities
                                                                                                        or escape fire, and avoiding the use of                             of appropriate dense vegetation cover
                                                are prohibited:
                                                  (i) Purposeful take of an eastern black               ring fires or perimeter fires.                                      for the eastern black rail.
                                                rail, including capture, handling, or                                                                                          (v) Possession and other acts with
                                                                                                           (iii) Mowing, haying, and mechanical
                                                other activities.                                                                                                           unlawfully taken eastern black rails. It
                                                                                                        treatment activities in emergent
                                                  (ii) Prescribed burn activities that                                                                                      is unlawful to possess, sell, deliver,
                                                                                                        wetlands that result in the incidental
                                                result in the incidental take of eastern                                                                                    carry, transport, or ship, by any means
                                                                                                        take of eastern black rails when the
amozie on DSK3GDR082PROD with PROPOSALS1




                                                black rails when the activity occurs:                                                                                       whatsoever, any eastern black rail that
                                                                                                        activity occurs during the nesting,                                 was taken in violation of section
                                                  (A) During the nesting, brooding, or
                                                                                                        brooding, or post-breeding flightless                               9(a)(1)(B) and 9(a)(1)(C) of the Act or
                                                post-breeding flightless molt period; or
                                                  (B) Outside of the nesting, brooding,                 molt period, except in accordance with                              State laws.
                                                or post-breeding flightless molt period,                paragraph (f)(2)(iii) of this section.                                 (vi) Import and export of the eastern
                                                unless best management practices that                      (iv) Grazing activities on public lands                          black rail.
                                                minimize effects of the prescribed burn                 that result in the incidental take of                                  (vii) Delivery, receipt, carry for
                                                on the eastern black rail are employed.                 eastern black rails when the activity:                              transport, or shipment in interstate or


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                                                50630                  Federal Register / Vol. 83, No. 195 / Tuesday, October 9, 2018 / Proposed Rules

                                                foreign commerce, by any means                          black rail pursuant to the terms of a                 infrastructure may include existing fire
                                                whatsoever, and in the course of a                      cooperative agreement with the Service                breaks, roads, transmission corridor
                                                commercial activity, of any eastern                     in accordance with section 6(c) of the                rights-of-way, and fence lines.
                                                black rail.                                             Act, who is designated by his agency for              *     *    *      *   *
                                                  (viii) Sale or offer for sale in interstate           such purposes, may, when acting in the
                                                or foreign commerce of any eastern                      course of his official duties, take eastern             Dated: September 20, 2018.
                                                black rail.                                             black rails.                                          James W. Kurth,
                                                  (2) Exceptions from prohibitions. (i)                   (iii) Mowing or mechanical treatment                Deputy Director, U.S. Fish and Wildlife
                                                All of the provisions of § 17.32 apply to               activities in emergent wetlands that:                 Service, Exercising the Authority of the
                                                the eastern black rail.                                   (A) Occur during the nesting,                       Director, U.S. Fish and Wildlife Service.
                                                  (ii) Any employee or agent of the                     brooding, or post-breeding flightless                 [FR Doc. 2018–21799 Filed 10–5–18; 8:45 am]
                                                Service, of the National Marine                         molt period; and
                                                                                                                                                              BILLING CODE 4333–15–P
                                                Fisheries Service, or of a State                          (B) Are maintenance requirements to
                                                conservation agency that is operating a                 ensure safety and operational needs for
                                                conservation program for the eastern                    existing infrastructure. Existing
amozie on DSK3GDR082PROD with PROPOSALS1




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Document Created: 2018-10-06 00:59:22
Document Modified: 2018-10-06 00:59:22
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule.
DatesWe will accept comments received or postmarked on or before December 10, 2018. Comments submitted electronically using the Federal
ContactTom McCoy, Field Supervisor, South Carolina Ecological Services Field Office, 176 Croghan Spur Road, Suite 200, Charleston, SC 29407; telephone 843-727-4707; facsimile 843-300- 0204. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.
FR Citation83 FR 50610 
RIN Number1018-BD21
CFR AssociatedEndangered and Threatened Species; Exports; Imports; Reporting and Recordkeeping Requirements and Transportation

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