Endangered and Threatened Wildlife and Plants; Reclassification of Stephens' Kangaroo Rat From Endangered To Threatened With a Section 4(d) Rule

Published date19 August 2020
Citation85 FR 50991
Record Number2020-16719
SectionProposed rules
CourtFish And Wildlife Service
Federal Register, Volume 85 Issue 161 (Wednesday, August 19, 2020)
[Federal Register Volume 85, Number 161 (Wednesday, August 19, 2020)]
                [Proposed Rules]
                [Pages 50991-51006]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2020-16719]
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                DEPARTMENT OF THE INTERIOR
                Fish and Wildlife Service
                50 CFR Part 17
                [Docket No. FWS-R8-ES-2019-0113; FF09E22000 FXES11130900000 201]
                RIN 1018-BE64
                Endangered and Threatened Wildlife and Plants; Reclassification
                of Stephens' Kangaroo Rat From Endangered To Threatened 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), propose to
                reclassify the Stephens' kangaroo rat (Dipodomys stephensi) from
                endangered to threatened under the Endangered Species Act (Act). This
                proposed action is based on a thorough review of the best scientific
                and commercial data available, which indicates that the Stephens'
                kangaroo rat no longer meets the definition of endangered under the
                Act. If this proposal is finalized, the Stephens' kangaroo rat would
                remain protected as a threatened species under the Act. We also propose
                a rule under section 4(d) of the Act that provides for the conservation
                of the Stephens' kangaroo rat. This document constitutes our proposed
                rule.
                DATES: We will accept comments on this proposed rule that are received
                or postmarked on or before October 19, 2020. Comments submitted
                electronically using the Federal eRulemaking Portal (see ADDRESSES,
                below) are to be received by 11:59 p.m. Eastern Time on the closing
                date. Submit requests for public hearings, in writing, at the address
                shown in FOR FURTHER INFORMATION CONTACT by October 5, 2020.
                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-R2-ES-2019-0113,
                which is the docket number for this rulemaking. Then, in the Search
                panel on the left side of the screen, under the Document Type heading,
                click on the Proposed Rules link to locate this document. You may
                submit a comment by clicking on ``Comment Now!''
                 (2) By hard copy: Submit by U.S. mail: Public Comments Processing,
                Attn: FWS-R2-ES-2019-0113, U.S. Fish and Wildlife Service Headquarters,
                MS:
                [[Page 50992]]
                JAO/1N, 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: Scott Sobiech, Field Supervisor, U.S.
                Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 2177 Salk
                Avenue, Suite 250, Carlsbad, CA 92008; telephone 760-431-9440. Persons
                who use a telecommunications device for the deaf (TDD) may call the
                Federal Relay Service at 800-877-8339.
                SUPPLEMENTARY INFORMATION:
                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 the public, other concerned governmental
                agencies, Native American tribes, the scientific community, industry,
                or any other interested parties concerning this proposed rule. We
                specifically request comments on:
                 (1) New information on the historical and current status, range,
                distribution, population size, life history, ecology, and habitat use
                of the Stephens' kangaroo rat, including the locations of any
                additional populations.
                 (2) New information on the known, potential, and future threats to
                the Stephens' kangaroo rat, particularly any projected quantities and
                locations of potential threats to the Stephens' kangaroo rat or its
                habitat.
                 (3) Any available data on the effects that climate change may have
                on the ecosystem on which this species depends, particularly
                information related to temperature and precipitation changes; and
                 (4) Information on regulations that may be necessary and advisable
                to provide for the conservation of the Stephens' kangaroo rat and that
                the Service can consider in developing a 4(d) rule for the species. In
                particular, information concerning the extent to which we should
                include any of the section 9 prohibitions in the 4(d) rule or whether
                any other forms of take should be excepted from the prohibitions in the
                4(d) rule.
                 Please include sufficient information with your submission (such as
                scientific journal articles or other publications) to allow us to
                verify any scientific or commercial information you include.
                 Please note that submissions merely stating support for, or
                opposition to, the action under consideration without providing
                supporting information, although noted, will not be considered in
                making a determination, as section 4(b)(1)(A) of the Act directs that
                determinations as to whether any species is an endangered or a
                threatened species must be made ``solely on the basis of the best
                scientific and commercial data available.''
                 You may submit your comments and materials concerning this proposed
                rule by one of the methods listed in ADDRESSES. We request that you
                send comments only by the methods described in ADDRESSES.
                 If you submit information via 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.
                Public Hearing
                 Section 4(b)(5) of the Act provides for a public hearing on this
                proposed rule, if requested. Requests are to be received by the date
                specified in DATES. Send requests to the address shown in FOR FURTHER
                INFORMATION CONTACT. We will schedule a public hearing on this
                proposal, if any are requested, and announce the date, time, and place
                of those hearings, as well as how to obtain reasonable accommodation,
                in the Federal Register at least 15 days before the first hearing. For
                the immediate future, we will provide these public hearings using
                webinars that will be announced on the Service's website, in addition
                to the Federal Register. The use of these virtual public hearings is
                consistent with our regulation at 50 CFR 424.16(c)(3).
                 Because we will consider all comments and information received
                during the comment period, our final determinations may differ from
                this proposal. Based on the new information we receive (and any
                comments on that new information), we may conclude that the species
                should remain endangered, threatened as proposed, or we may conclude
                that the species does not warrant listing as either an endangered
                species or a threatened species. Such final decisions would be a
                logical outgrowth of this proposal, as long as we: (1) Base the
                decisions on the best scientific and commercial data available after
                considering all of the relevant factors; (2) do not rely on factors
                Congress has not intended us to consider; and (3) articulate a rational
                connection between the facts found and the conclusions made, including
                why we changed our conclusion.
                Previous Federal Actions
                 The Stephens' kangaroo rat was listed as an endangered species
                under the Act on September 30, 1988 (53 FR 38465). We issued a draft
                recovery plan in April of 1997 (Service 1997, entire). On August 19,
                2010, we published a 12-month finding (75 FR 51204) on two petitions
                (received May 1, 1995, and February 25, 2002) to delist the Stephens'
                kangaroo rat, where we concluded that the threats had not been
                sufficiently removed or their imminence, intensity, or magnitude had
                not been reduced to the extent that the species would no longer require
                the protections of the Act. On July 22, 2011, we completed a status
                review (``5-year review'') under section 4(c)(2)(A) of the Act for the
                species (Service 2011, entire). The 5-year review recommended that the
                Stephens' kangaroo rat be reclassified as threatened. On November 10,
                2014, we received a petition again requesting that Stephens' kangaroo
                rat be removed from the Federal List of Endangered and Threatened
                Wildlife, based on a new analysis of the species' dispersal ability. We
                published a 90-day finding on September 18, 2015 (80 FR 56423), where
                we found the petition did not contain substantial scientific or
                commercial information indicating that the petitioned action to delist
                may be warranted. This document serves as our proposed rule on the
                information outlined and recommendation found in our 2011 5-year review
                to reclassify the Stephens' kangaroo rat from endangered to threatened.
                Species Report for Stephens' Kangaroo Rat
                 We prepared a report for the Stephens' kangaroo rat (Species
                Report) (Service 2020, entire), which includes a thorough review of the
                species' taxonomy, natural history, habitats, ecology, populations,
                range, and threats facing the species or its habitat to assist us in
                determining the status of the species. We have solicited and
                incorporated peer review of the Species
                [[Page 50993]]
                Report from objective and independent scientific experts. The report
                concludes with a discussion of the species' viability in terms of
                resiliency, redundancy and representation. We define viability as the
                ability of a species to persist and to avoid extinction over the long
                term (Service 2016, p. 9). Resiliency refers to the population size and
                demographic characteristics necessary to endure stochastic (random)
                environmental variation (Shaffer and Stein 2000, pp. 308-310; Smith et
                al. 2018, pp. 5-7). Redundancy refers to a species' ability to
                withstand catastrophic events (Shaffer and Stein 2000, pp. 308-310;
                Smith et al. 2018, pp. 5-7). As defined here, catastrophic events are
                rare occurrences, usually of finite duration, that can cause severe
                impacts to one or more populations. Species that have multiple
                resilient populations distributed over a larger landscape or a species
                having a single population with a broad geographic distribution are
                more likely to survive catastrophic events, because not all individuals
                within the population(s) would be affected. Representation refers to
                the genetic diversity, both within and among populations, necessary to
                conserve long-term adaptive capability (Shaffer and Stein 2000, pp.
                307-308; Smith et al. 2018, pp. 5-7).
                 The Act directs us to determine whether any species is an
                endangered species or a threatened species because of factors affecting
                its continued existence, as set forth in section 4(a)(1) of the Act.
                The Species Report documents the biological information relating to the
                Stephens' kangaroo rat, including an assessment of the potential
                threats to the species. It does not represent a decision on whether the
                species should remain classified as an endangered species or
                reclassified as threatened under the Act. The Species Report (Service
                2020) along with the 5-year Review (Service 2011, entire), and draft
                Recovery Plan (Service 1997, entire) provide the scientific basis that
                informs our regulatory decision, which involves the further application
                of standards within the Act and its implementing regulations and
                Service policies.
                I. Proposed Downlisting Determination
                Background
                 As discussed, a thorough review of the biological information
                including taxonomy, life history, ecology, and conservation activities
                for the Stephens' kangaroo rat as well as threats facing the species or
                its habitat is presented in the Species Report (Service 2020) and is
                available at http://www.regulations.gov under Docket No. FWS-R8-ES-
                2019-0113. The following is a summary of the key results and
                conclusions from the Species Report. Please refer to the Species Report
                for additional discussion and background information.
                Species Description, Habitat, Range, and Distribution
                 The Stephens' kangaroo rat is a small, nocturnal mammal, with
                external cheek pouches, large hind legs, relatively small front legs, a
                long tail, and a large head (Service 1997, p. 1; Service 2020, Chapter
                2). The total adult body-plus-tail length ranges between 9-12 inches
                (in.) (23-30 centimeters (cm)) (Service 1997, p. 2). The Stephens'
                kangaroo rat has a dusky cinnamon buff overfur, pure white underfur,
                and a lateral white tail band. The tail is crested and bicolored
                (Service 1997, p. 2). Kangaroo rats possess a number of behavioral,
                morphological, and physiological adaptations that allow them to inhabit
                warm, arid environments (Service 2020, pp. 2, 25).
                 Stephens' kangaroo rat habitat generally consists of open
                grasslands and sparsely vegetated scrub (Moore-Craig 1984, p. 6;
                O'Farrell and Uptain 1987, p. 44). Populations of the Stephens'
                kangaroo rat reach their highest densities in grassland communities
                dominated by forbs and characterized by moderate to high amounts of
                bare ground, moderate slopes, and well-drained soils (Bontrager 1973,
                p. 100; O'Farrell and Uptain 1987, pp. 39, 45; Burke et al. 1991, p.
                22; Andersen and O'Farrell 2000, p. 12). In general, areas with high
                perennial shrub cover and dense grasses restrict the presence of
                Stephens' kangaroo rat (O'Farrell 1990, p. 80; Service 1997, p. 9;
                Shier 2009, p. 4). The Stephens' kangaroo rat lives in underground
                burrows that serve as resting and nesting sites (Service 1997, p. 13).
                For additional information on the Stephens' kangaroo rat, see the
                Species Report (Service 2020, Chapters 2-4).
                 Populations of the Stephens' kangaroo rat occur in three geographic
                regions of southern California. These regions are western Riverside
                County, western San Diego County, and central San Diego County. At the
                time of listing in 1988, the known geographic range of the species
                included 11 general areas in Riverside and San Diego Counties,
                California (Service 1988, entire; Service 2020, Chapter 3). As noted in
                our 2010 12-month finding (Service 2010, 75 FR 51206, August 19, 2010),
                the species was known from 13 geographical areas in two counties (two
                additional areas were considered nonviable) (75 FR 51205-51206; Table
                1). Since 1988, additional populations have been found due to increased
                survey efforts as a result of listing the species. Currently the
                species is extant or presumed extant in 18 areas (12 areas in Riverside
                County and 6 areas in San Diego County) (Service 2020, Table 1, p. 5).
                Based on our analysis of recent detections and observations, the
                Stephens' kangaroo rat continues to be found in a patchy distribution
                in suitable (e.g., grasslands, open areas with forbs) habitat in
                western-southwestern Riverside County and central-northwestern San
                Diego County.
                Population Trend and Demographic Information
                 Exact population trends and density estimates for the Stephens'
                kangaroo rat are not determinable at this time given the incomplete
                surveys of all potentially occupied areas and variable information
                collected during those surveys. Field investigation reports sometimes
                present incomparable results, with some reporting density estimates and
                others reporting potential occupancy, or both. In addition, studies
                have found that the abundance of the Stephens' kangaroo rat and its
                probability of capture are highly variable, making it difficult to
                detect demographic trends (Brehme et al. 2017, p. 8).
                 The Stephens' kangaroo rat occurs in dispersed patches within
                suitable habitat in western-southwestern Riverside and northern San
                Diego Counties, with a few locations containing high densities of
                animals (Service 2020, Figures 5 and 6, pp. 35-36). However, based on
                the survey information that is available, we conclude that the
                Stephens' kangaroo rat continues to occur in suitable habitat across
                its range with some areas having relatively abundant seemingly stable
                populations.
                 Since population trends have not been determinable for Stephens'
                kangaroo rat, suitable habitat was modeled to provide an estimate of
                currently available habitat (Service 2020, Table 4, p. 54). This
                potentially suitable modeled habitat is used in lieu of rangewide
                occupied habitat estimates or rangewide population estimates. This is
                used in conjunction with current and historical survey reports that
                provide population level occupancy throughout the range (Service 2020,
                Table 1, pp. 5-6).
                Current Conservation Efforts
                 Two large-scale habitat conservation planning efforts have been
                implemented in Riverside County (the Stephens' kangaroo rat Habitat
                Conservation Plan
                [[Page 50994]]
                (Riverside Habitat Conservation Agency [SKR HCP] 1996, entire) and the
                Western Riverside County Multi-Species Habitat Conservation Plan
                (Western Riverside MSHCP) (Dudek and Associates 2003, entire)) since
                listing. The implementation of these conservation plans has helped to
                offset potential losses of habitat from urban and agricultural
                development.
                 Three military installations also occur within the range of the
                species in western San Diego County. These DoD facilities (Marine Corps
                Base Camp Pendleton (Camp Pendleton); Naval Base Coronado Remote
                Training Site Warner Springs (Warner Springs); and Naval Weapons
                Station Seal Beach Detachment Fallbrook (Detachment Fallbrook) have
                developed Service-approved INRMPs and are committed to actively
                managing their activities and habitat for the conservation of the
                Stephens' kangaroo rat. These DoD facilities have implemented numerous
                actions to manage and conserve areas occupied by Stephens' kangaroo
                rat.
                 Implementation of these conservation efforts has greatly reduced
                the impact of loss and degradation of habitat for the species on the
                lands conserved under the two HCPs and managed at three installations.
                See Draft Recovery Plan Implementation and Status Criteria below, for
                how these efforts are assisting conservation and reducing threats for
                the species.
                Draft Recovery Plan Information
                 Section 4(f) of the Act directs us to develop and implement
                recovery plans for the conservation and survival of endangered and
                threatened species unless we determine such a plan will not promote the
                conservation of the species. Recovery plans identify site- specific
                management actions that will achieve recovery of the species,
                measurable criteria that set a trigger for review of the species'
                status, and methods for monitoring recovery progress. However, recovery
                plans are not regulatory documents; instead they are intended to
                establish goals for long-term conservation of listed species and define
                measurable criteria that are designed to indicate when the threats
                facing a species have been removed or reduced to such an extent that
                the species may no longer need the protections of the Act, as well as
                actions that may be employed to achieve reaching the criteria.
                 A draft Recovery Plan for the Stephens' Kangaroo Rat was developed
                in 1997 (Service 1997, entire). Although it was never finalized, the
                draft Recovery Plan is part of the public record on the Service's views
                on recovery for the species at that time. The objective of the draft
                Recovery Plan is to protect and maintain sufficient populations of
                Stephens' kangaroo rat and its habitat. The plan states this objective
                can be accomplished by: (a) Establishing ecosystem-based conservation
                units; (b) preventing destruction and degradation of habitat; (c)
                managing use of rodenticides and pesticides; (d) reducing nonnative
                predators such as domestic cats; (e) establishing research programs to
                examine the species' biological and ecological needs; and (f)
                developing and implementing a proactive outreach program for the public
                and landowners.
                 The draft plan also identifies several downlisting and delisting
                criteria (Service 1997, pp. 52-60) for the species. The downlisting
                criteria include: (1) Establishment of four reserves, which encompass
                at least 15,000 acres (ac) (6,070 hectares (ha)) of occupied habitat
                and are permanently protected, funded, and managed, in western
                Riverside County (inside or outside any habitat conservation planning
                area) (Service 1997, pp. 39-40); and (2) establishment of one
                ecosystem-based reserve in either western or central San Diego County
                that is permanently protected, funded, and managed.
                 The delisting criteria for the Stephens' kangaroo rat identified in
                the draft Recovery Plan (Service 1997, pp. 53-60) are: (1) Establish a
                minimum of five reserves in western Riverside County, of which one is
                ecosystem based, and that encompass at least 16,500 ac (6,675 ha) of
                occupied habitat that is permanently protected, funded, and managed;
                and (2) establish two ecosystem-based reserves in San Diego County. One
                of these San Diego County reserves needs to be established in the
                Western Conservation Planning Area, and one reserve needs to be
                established in the Central Conservation Planning Area. These reserves
                are to be permanently protected, funded, and managed.
                 While the criteria in the draft Recovery Plan appropriately
                indicate the need for habitat protection and management of reserves,
                the criteria do not reflect the species' current conservation status
                and no longer adequately identify the current threats to the species.
                At the time the draft Recovery Plan was developed, habitat loss was the
                major concern for the species. Due to the implementation of land
                conservation and management actions (see Current Conservation Efforts),
                other threats may now need greater attention and be a focus for
                recovery actions (see Summary of Factors Affecting the Species below).
                As a result, the downlisting and delisting criteria in the draft
                Recovery Plan may not reflect the only means to achieving recovery for
                the species. However, we still agree with the conservation objectives
                outlined in the draft Recovery Plan regarding ecosystem reserves and
                other protected areas (such as those on Department of Defense (DoD)
                facilities being managed by Service-approved integrated natural
                resources management plans (INRMPs)) being important for the long-term
                persistence of Stephens' kangaroo rat throughout its range.
                Draft Recovery Plan Implementation and Status Criteria
                 As stated above, the draft Recovery Plan identifies several
                criteria for determining when and if downlisting and delisting are
                appropriate for the Stephens' kangaroo rat (Service 1997, pp. 52-60).
                 Currently, under the SKR HCP and Western Riverside MSHCP, eight
                reserves have been established for Stephens' kangaroo rat in Riverside
                County. This number exceeds the four reserves identified by criterion 1
                of the draft Recovery Plan (Service 1997, p. 52). Criterion 1 of the
                draft Recovery Plan also identifies that the reserve lands should total
                approximately 15,000 ac (6,070 ha). We estimate that, of the 69,104 ac
                (27,966 ha) of modeled potentially suitable habitat for Stephens'
                kangaroo rat in Riverside County, approximately 16,438 ac (6,652 ha) of
                the modeled habitat is considered within conserved lands (including
                reserves) in Riverside County. This total includes Federal, State,
                local, tribal, and private lands (Service 2020, Appendix D). Although
                the draft recovery plan identifies the 15,000 ac ((6,070 ha) of
                conserved lands be in just four reserves, the majority of the eight
                reserves currently conserved occur in four main reserves, with the
                additional four reserves being smaller but still providing conservation
                for the Stephens' kangaroo rat. In addition, three of the four smaller
                reserves have the opportunity for expansion due to the surrounding
                lands not being developed or in agricultural use (Service 2020,
                Appendix F).
                 We estimate that approximately 22,434 ac (9,079 ha) of modeled
                Stephens' kangaroo rat suitable habitat occurs in San Diego County
                (Service 2020, Appendix D). Over 50 percent (12,129 ac (4,908 ha)) of
                this area is located on lands that have been either conserved, are in
                conservation easement, or are located on public or DoD lands. Criterion
                2 for downlisting states that one ecosystem-based reserve
                [[Page 50995]]
                be established in San Diego County. Current efforts are under way to
                develop an HCP for San Diego County that would benefit Stephens'
                kangaroo rat and other listed species. Though surveys are being
                conducted in a reserve near Ramona Grassland, the HCP for San Diego
                County is not yet finalized, and no ecosystem-based reserve has been
                established on private lands in San Diego County. However, active
                Service-approved INRMPs for the species have been developed and
                implemented at three military installations (Camp Pendleton, Detachment
                Fallbrook, and Warner Springs). These provide ongoing management and
                include actions to provide for the long-term conservation of Stephens'
                kangaroo rat on DoD lands. The amount of modeled habitat at each
                installation is approximately 2,275 (921 ha) for Camp Pendleton, 2,994
                ac (1,212 ha) for Detachment Fallbrook and 1,012 ac (409 ha) for Warner
                Springs. INRMPs are based, to the maximum extent practicable, on
                ecosystem management principles and provide for the management of
                Stephens' kangaroo rat and its habitat while sustaining necessary
                military land uses. As described in the Species Report (Service 2020,
                pp. 40-44). Therefore, the INRMPs effectively meet the intent of the
                draft recovery plan's Criterion 2 for downlisting by providing long-
                term management for the conservation of Stephens' kangaroo rat with one
                ecosystem-based reserve in western San Diego County.
                 We conclude that the number and amount of reserved lands being
                protected, funded, and managed in Riverside and San Diego Counties
                provide conservation benefits equivalent to the requirements of
                downlisting from endangered to threatened according to the criteria in
                the draft Recovery Plan.
                 The delisting criteria for the Stephens' kangaroo rat includes: (1)
                Establishment of a minimum of five reserves in western Riverside
                County, of which one is ecosystem based, and that encompass at least
                16,500 ac (6,675 ha) of occupied habitat that is permanently protected,
                funded, and managed; and (2) establish two ecosystem-based reserves in
                San Diego County.
                 The amount of land conserved in Riverside County (16,438 ac (6,652
                ha) for delisting has mostly been met and we expect additional lands
                will be conserved through further implementation of the two HCPs.
                However, the number of ecosystem-based reserves in San Diego County
                (currently one) does not meet the criteria identified in the draft
                recovery plan for delisting for having two ecosystem reserves, with one
                being in central San Diego County. Therefore, we will not meet all of
                the delisting criteria in the draft recovery plan until: (1) Additional
                lands are conserved in Riverside County to meet the 16,500-ac (6,675-
                ha) threshold; and (2) at least one additional ecosystem-based reserve
                that is occupied, permanently protected, funded, and managed is
                established in central San Diego County.
                5-Year Review
                 In our 2011 5-year review, we recommended Stephens' kangaroo rat be
                reclassified from endangered to threatened (Service 2011, p. 4). We
                based our recommendation on the reduction of threats associated with
                habitat loss and destruction, and on the establishment of reserves for
                the species in portions of its range. As a result, we changed the
                recovery priority number of the species from 2C (a full species facing
                a high degree of threat but with a high potential for recovery, if
                appropriately managed, and with recovery that may be in conflict with
                construction or other forms of economic activity) to a recovery
                priority number 11 (a full species facing a moderate degree of threat
                and low potential of recovery, because of poorly understood limiting
                factors and poorly understood or pervasive and difficult-to-alleviate
                threats, with intensive management needed) (Service 2011, p. 7).
                Summary of Factors Affecting the Species
                 Section 4 of the Act (16 U.S.C. 1533) and its implementing
                regulations (50 CFR part 424) set forth the procedures for listing
                species, reclassifying species, or removing species from listed status.
                The Act defines an endangered species as a species that is ``in danger
                of extinction throughout all or a significant portion of its range,''
                and a threatened species as a species that is ``likely to become an
                endangered species within the foreseeable future throughout all or a
                significant portion of its range.'' The Act requires we determine
                whether any species is an ``endangered species'' or a ``threatened
                species'' because of any of the following factors: (A) The present or
                threatened destruction, modification, or curtailment of its habitat or
                range; (B) overutilization for commercial, recreational, scientific, or
                educational purposes; (C) disease or predation; (D) the inadequacy of
                existing regulatory mechanisms; or (E) other natural or manmade factors
                affecting its continued existence. A species may be reclassified or
                delisted on the same basis.
                 These factors represent broad categories of natural or human-caused
                actions or conditions that could have an effect on a species' continued
                existence. In evaluating these actions and conditions, we look for
                those that may have a negative effect on individuals of the species, as
                well as other actions or conditions that may ameliorate any negative
                effects or that may have positive effects.
                 We use the term ``threat'' to refer in general to actions or
                conditions that are known to or are reasonably likely to negatively
                affect individuals of a species. The term ``threat'' includes actions
                or conditions that have a direct impact on individuals (direct
                impacts), as well as those that affect individuals through alteration
                of their habitat or required resources (stressors). The term ``threat''
                may encompass--either together or separately--the source of the action
                or condition, or the action or condition itself.
                 However, the mere identification of any threat(s) does not
                necessarily mean that the species meets the statutory definition of an
                ``endangered species'' or a ``threatened species.'' In determining
                whether a species meets either definition, we evaluate all identified
                threats by considering the expected response by the species, and the
                effects of the threats--in light of those actions and conditions that
                will ameliorate the threats--on an individual, population, and species
                level. We evaluate each threat and its expected effects on the species,
                then analyze the cumulative effect of all of the threats on the species
                as a whole. We also consider the cumulative effect of the threats in
                light of those actions and conditions that will have positive effects
                on the species--such as any existing regulatory mechanisms or
                conservation efforts. The Secretary determines whether the species
                meets the definition of an ``endangered species'' or a ``threatened
                species'' only after conducting this cumulative analysis and describing
                the expected effect on the species now and in the foreseeable future.
                 The Act does not define the term ``foreseeable future,'' which
                appears in the statutory definition of ``threatened species.'' Our
                implementing regulations at 50 CFR 424.11(d) set forth a framework for
                evaluating the foreseeable future on a case-by-case basis. The term
                foreseeable future extends only so far into the future as the Service
                can reasonably determine that both the future threats and the species'
                responses to those threats are likely. In other words, the foreseeable
                future is the period of time in which we can make reliable predictions.
                ``Reliable'' does not mean ``certain''; it means sufficient to provide
                a reasonable degree of
                [[Page 50996]]
                confidence in the prediction. Thus, a prediction is reliable if it is
                reasonable to depend on it when making decisions.
                 It is not always possible or necessary to define foreseeable future
                as a particular number of years. Analysis of the foreseeable future
                uses the best scientific and commercial data available and should
                consider the timeframes applicable to the relevant threats and to the
                species' likely responses to those threats in view of its life-history
                characteristics. Data that are typically relevant to assessing the
                species' biological response include species-specific factors such as
                lifespan, reproductive rates or productivity, certain behaviors, and
                other demographic factors.
                 The Species Report (Service 2020) represents a compilation of the
                best scientific and commercial data available concerning the current
                status of the species, including the past, present, and future threats.
                We used this information to evaluate the current and future viability
                of the Stephens' kangaroo rat. The effects of conservation actions were
                also assessed as part of the current condition of the Stephens'
                kangaroo rat. The Species Report identified the following factors as
                threats to Stephens' kangaroo rats: Habitat loss, fragmentation, and
                modification (Factor A), predation (Factor C), rodenticides, and the
                effects of climate change (Factor E). Below we discuss these threats
                and their relationship to Stephens' kangaroo rat current and future
                persistence.
                Habitat Loss
                 In our 1988 listing determination, we determined one of the primary
                threats and main factors leading to our endangered status determination
                for Stephens' kangaroo rat was the permanent loss of habitat resulting
                from urbanization and other land uses (53 FR 38468, September 30,
                1988). In our 2010 12-month finding, we estimated the amount of
                occupied habitat (54,909 ac (22,221 ha)) for the Stephens' kangaroo
                rat, and compared that estimate to developed and conserved lands in
                Riverside and San Diego Counties (75 FR 51210-51211). We estimated a
                total of 3,494 ac (1,414 ha) of occupied habitat was lost to
                development from 1984 to 2006, while 19,237 (7,785 ha) of baseline
                occupied habitat was conserved over this same period (75 FR 51211,
                Table 2; Service 2020, pp. 48-49). The majority of the lands conserved
                occurred after the implementation of the two habitat conservation plans
                (HCPs) for the species in 1996 and 2003 (see Current Conservation
                Efforts above).
                 In order to determine the current extent and impact of loss of
                habitat for the Stephens' kangaroo rat, we developed a model to
                estimate areas that could be considered as potentially suitable habitat
                for the species; we spatially modeled habitat using suitable
                vegetation, detections/observations, elevation, and slope, and removed
                areas that were considered urbanized or otherwise unsuitable (Service
                2018, entire; Service 2020, pp. 52-56). We then evaluated those areas
                with regard to their current status of conservation and protection.
                Based on this information, we have determined that the threat from
                habitat loss due to development and land conversion has been mostly
                ameliorated.
                 Our modeling efforts identified approximately 69,104 ac (27,966 ha)
                of potentially suitable, modeled habitat for the Stephens' kangaroo rat
                in Riverside County and 22,434 ac (9,079 ha) in San Diego County. Of
                the modeled suitable habitat approximately 16,438 ac (6,652 ha) in
                Riverside County and 12,129 ac (4,908 ha) in San Diego County is
                considered to be conserved. Therefore, a total of 28,567 ac (11,560 ha)
                of 91,538 ac (37,044 ha) of modeled habitat is conserved (31.2
                percent). In Riverside County, approximately 3 percent of the modeled
                habitat occurs on Federal lands, 7 percent occurs on State lands,
                nearly 16 percent on local lands, 1 percent on tribal lands, and 72
                percent occurs on private lands. In San Diego County, approximately 28
                percent occurs on Federal lands, more than 2 percent on State lands, 21
                percent on local lands, 1 percent on tribal lands, and nearly 48
                percent occurs on private lands (Service 2020, Section 3.3.3).
                 To determine land conservation status and protection, we combined
                several data sets to estimate the ``Current Conserved Lands'' for the
                species. For western Riverside County, this includes those areas
                identified with conservation easements, conserved lands, public lands,
                and Public/Quasi-Public lands as identified in data from the Western
                Riverside MSHCP (as of July 2018). For San Diego County, we combined
                information from several data sources such as the Conserved Lands
                database (Sandag/SanGIS, February 2017) as well as all Federal, State,
                and DoD lands that are not likely to be impacted by urban development
                or agricultural conversion. A total of 16,438 ac (6,652 ha) of modeled
                habitat in Riverside County is considered within the Current Conserved
                Lands (23.8 percent). The majority of this modeled habitat is conserved
                through the two HCPs in Riverside County (15,563 ac (6,298 ha))
                (Service 2020, p. 93). In San Diego County, roughly 54 percent (12,129
                ac, (4,908 ha)) of the potentially suitable habitat for the Stephens'
                kangaroo rat is conserved (Service 2020. Appendix D). Approximately
                half of this modeled habitat (6,281 ac, (2,542 ha)) is considered
                conserved through management of INRMPs at the three military
                installations (Service 2020, Appendix D). See Appendices D and E of the
                Species Report for more information on modeled habitat and land
                ownership.
                 As stated above, and in our 2010 12-month finding (75 FR 51204,
                August 19, 2010) and 2011 5-year Review (Service 2011, entire), habitat
                loss to Stephens' kangaroo rat has been mostly ameliorated in Riverside
                County through the protections afforded by the conservation measures
                contained in the two HCPs developed by the County of Riverside since
                listing the species. These measures implement long-term conservation
                and adaptive management principles applicable to large habitat blocks.
                The implementation of the two HCPs for the Stephens' kangaroo rat has
                resulted in a more controlled development pattern and the creation/
                conservation of eight reserves in western Riverside County. The
                established eight reserves exceed the four reserves (in number)
                identified as one of the criteria for downlisting by the draft Recovery
                Plan for the Stephens' Kangaroo Rat (Service 1997, p. 52). Without
                these two geographically comprehensive plans, unregulated habitat loss
                would likely have continued, and more individual or localized
                conservation measures or plans may have been developed but they would
                be less effective and comprehensive for accomplishing an organized
                conservation strategy for the Stephens' kangaroo rat in Riverside
                County. Because of these two HCPs, we conclude that direct habitat loss
                of Stephens' kangaroo habitat in western Riverside County from large-
                scale development is no longer the predominant threat to the species.
                Habitat loss from development is still occurring, but it is on a
                smaller scale and at a slower rate when compared to the timeframe prior
                to the implementation of the two HCPs. However, the effects of past
                habitat loss and future habitat loss is still a concern. Previous and
                current development has led to extensive habitat fragmentation, which
                has reduced connectivity and isolated Stephens' kangaroo rat
                populations (see Habitat Fragmentation section below).
                 As stated above, for downlisting the draft Recovery Plan for the
                Stephens' Kangaroo Rat recommended four reserve areas (encompassing at
                least 15,000 ac (6,070 ha)) be established in western
                [[Page 50997]]
                Riverside County and one ecosystem-based reserve be established in San
                Diego County (either western or central). Under the SKR HCP and Western
                Riverside MSHCP, a total of 15,563 ac (6,298 ha) including eight
                reserves (encompassing 9,029 ac (3,654 ha)) have been established for
                Stephens' kangaroo rat in western Riverside County. This number exceeds
                the four reserves and amount of area identified by criterion 1 of the
                draft Recovery Plan for the Stephens' Kangaroo Rat (Service 1997, p.
                52).
                 In addition, active Service-approved INRMPs for the species have
                been developed and implemented at Camp Pendleton, Detachment Fallbrook,
                and Warner Springs, and include actions to provide for the long-term
                conservation of Stephens' kangaroo rat and its habitat on Federal
                military lands (U.S. Navy 2013, entire; U.S. Navy 2016, entire; U.S.
                Marine Corps 2018, entire). The INRMPs are based, to the maximum extent
                practicable, on ecosystem management principles and provide for the
                management of Stephens' kangaroo rat and its habitat while sustaining
                necessary military land uses. In our 2010 12-month finding (75 FR
                51210, 51215, August 19, 2010), we stated that these INRMPs may meet
                the intent of the draft Recovery Plan to establish one ecosystem-based
                reserve in western San Diego County. We further stated that, in
                consideration of some occupied habitat within Camp Pendleton and
                Detachment Fallbrook that may be in decline, in combination with a lack
                of a second ecosystem-based reserve in central San Diego County (75 FR
                51210, 51223), that delisting criteria had not been met. Since that
                time, we have been working closely with the military installations on
                conservation of Stephens' kangaroo rat and its habitat through
                additional consultations and continued refinement and development of
                the conservation measures identified in the INRMPs, and now confirm
                these plans effectively meet the intent of the draft recovery plan's
                Criterion 2 for downlisting by establishing one ecosystem-based reserve
                in western San Diego County.
                 Although great strides have been made in implementing the two HCPs
                in western Riverside County and working to curtail large-scale
                development and conserve lands, the two conservation plans are not
                fully implemented and some threats facing Stephens' kangaroo rat still
                remain. We have determined that approximately 13 percent (9,029 ac
                (3,654 ha)) of all the suitable habitat (modeled large and small patch
                habitat) available to Stephens' kangaroo rat occurs in the SKR HCP core
                reserves in Riverside County (Service 2020, Appendix C). Some impacts
                from development or land conversion continue to occur throughout the
                range in occupied and suitable habitat that is not conserved.
                 The indirect effect of past habitat loss--fragmentation and
                isolation of populations--continues to threaten the species by
                curtailing opportunities for dispersal, reducing connectivity between
                populations, and may place limits on the ability to develop larger
                scale species' and habitat conservation strategies. We expect these
                indirect effects will continue into the future. This is especially true
                in San Diego County outside of Department of Defense lands, where
                conservation efforts have not kept pace with development or other land
                use conversion, leaving large areas of Stephens' kangaroo rat habitat
                subject to future loss. We expect this rate and level of loss to
                continue rangewide for the species into the future, especially in areas
                in the southern portion of the species' range in San Diego County.
                Habitat Fragmentation
                 Historically, Stephens' kangaroo rat was considered a single
                population. Stephens' kangaroo rat habitat has been largely fragmented
                as a result of urban and agricultural development. The current
                distribution of the species as a result of this habitat loss and
                fragmentation has resulted in the species functioning more as a
                metapopulation (a regional group of connected populations of a
                species), in which numerous populations have some interchange between
                populations where connectivity and habitat remain. Habitat
                fragmentation reduces connectivity, which in turn can result in a loss
                of local populations, increases the isolation of populations, and
                decreases the potential for persistence over time. Analysis of the
                genetic makeup of individuals across the range of the species has
                identified recently occurring genetic differences between populations,
                potentially as a result of the species' populations being fragmented
                and isolated from each other (Service 2020, pp. 28-30).
                 Based on habitat modeling, we determined that there are
                approximately 69,104 ac (27,966 ha) in Riverside County and 22,434 ac
                (9,078 ha) in San Diego County of potentially suitable habitat for the
                Stephens' kangaroo rat (see Species Report section 6.2 Habitat
                Fragmentation (Service 2020, pp. 51-56)). We determined that 76 percent
                of this habitat in Riverside County exists in larger continuous patches
                greater than 247 ac (100 ha), and nearly 24 percent occurs as small
                patches less than 247 ac (100 ha). A patch size of 247 ac (100 ha) has
                been determined to be the minimum patch size required to reasonably
                expect long-term survival of an isolated population of the species
                (Price and Endo 1989, p. 299). In San Diego County, nearly 70 percent
                of the modeled habitat occurs in larger continuous patches greater than
                247 ac (100 ha), and 30 percent of habitat occurs as small patches less
                than 247 ac (100 ha). Current data suggest that management actions to
                restore connectivity and/or continuing ongoing translocation efforts
                may be needed in the future to reduce the effects of habitat
                fragmentation, to ensure gene flow between reserves and other occupied
                areas, and to assist in the recolonization of unoccupied areas.
                 Translocation efforts are underway and have been successful in
                maintaining populations and at providing for interchange between
                populations. However, these efforts have been local and are not
                occurring throughout the range of the species. As a result, impacts
                from habitat fragmentation (i.e., isolation, limited genetic exchange)
                are still occurring and will continue to impact the species. Based on
                the best available data, we have determined that habitat fragmentation
                remains a moderate- to high-level threat to the Stephens' kangaroo rat
                and its habitat, and we can reliably predict that these habitat
                conditions are likely to remain into the future based on the level of
                small, isolated, unmanaged areas currently occupied by the species.
                Habitat Modification
                 In our 2010 12-month finding, we identified habitat modification
                from wildfire (direct effects from uncontrolled wildfire) and wildfire
                suppression (effects resulting from activities to suppress uncontrolled
                wildfire (e.g., dozing, vehicle access, staging area construction)),
                nonnative and invasive plants, grazing activities, and unauthorized
                off-highway vehicle use as threats to Stephens' kangaroo rat.
                 Wildfire: Uncontrolled wildfire and prescribed fire can modify
                habitat for Stephens' kangaroo rat. Large uncontrolled wildfires,
                depending on severity and intensity, can remove habitat and promote the
                spread and introduction of invasive nonnative plant species resulting
                in modification or loss of habitat for the Stephens' kangaroo rat.
                However, prescribed fire can provide important benefits in maintaining
                suitable habitat for the Stephens' kangaroo rat and is regularly used
                on both reserve lands in Riverside County and on military installations
                in San
                [[Page 50998]]
                Diego County to reduce fuel loads and to manage invasive nonnative
                plants (see section 6.4.3 of the Species Report (Service 2020, pp. 61-
                62)). Both wildfire and prescribed fire have been shown to cause
                mortality in small mammal species, and lead to a loss of important
                resources such as nest sites (Price et al. 1995, p. 52). However,
                studies of fire impacts on areas occupied by Stephens' kangaroo rat
                showed little direct impacts to individuals due to their ability to
                survive intense fires by moving to underground burrows where
                temperatures remain cool and the ambient air remains clean (Bond 2015,
                p. 95).
                 Based on the best available information, the effects of wildfire or
                prescribed fire, despite causing either direct loss or indirect effects
                to Stephens' kangaroo rat, can also provide important benefits in
                maintaining suitable habitat for the species. Though impacts to some
                individuals may occur, effects of wildfire or prescribed fire are not
                currently a significant threat at the population- or species-level.
                Wildland fire management plans and wildfire suppression/prevention
                activities are being implemented (on DOD, HCP, and other conserved
                lands) as part of a habitat management tool (see section 6.4.3 of the
                Species Report (Service 2020, pp. 61-62)) within large portions of the
                current range of the species. These actions (such as vegetation
                management and firebreak development) reduce the potential for and the
                impact of wildfire and help protect and enhance natural resources by
                removing excess vegetation and invasive plants. We expect wildfires to
                continue to occur in areas occupied by the species, but the effects of
                wildfire have been greatly ameliorated through land management
                activities.
                 Nonnative and invasive plant species: Nonnative and invasive plant
                species occur throughout the range of Stephens' kangaroo rat. Nonnative
                and invasive plant species (e.g., foxtail fescue (Vulpea megalura)
                great brome (Bromus diandrus), red brome (B. madritensis ssp. rubens),
                and wild oat (Avena fatua)) outcompete native vegetation and cause
                excessive vegetation buildup, which reduces or removes the open spaces
                preferred by the Stephens' kangaroo rat (Service 1997, p. 9). However,
                on reserve lands or lands being managed for Stephens' kangaroo rat,
                nonnative and invasive plants are being managed through a variety of
                techniques to reduce their impact on the species and its habitat.
                Management actions to control these species are ongoing and include
                studies to identify better control measures and techniques. As a
                result, the impacts from this threat are localized and not acting on
                Stephens' kangaroo rat at the population- or species-level. Given the
                ongoing management actions to control these species, the threat from
                nonnative and invasive plants is considered a low-level threat. We
                expect this situation to remain the same into the future.
                 Grazing: At the time of listing (1988), commercial grazing occurred
                in areas occupied by Stephens' kangaroo rat year-round at high
                densities, using both sheep and cattle, and was not managed in a manner
                compatible with conservation of the species. Commercial grazing has
                since been reduced, and where grazing still exists, impacts have been
                lessened compared to when the species was listed. In our 2010 12-month
                finding, we determined that grazing practices no longer represented a
                rangewide threat to the Stephens' kangaroo rat (75 FR 51216, August 19,
                2010). Grazing continues to be used to assist in habitat restoration
                and management for some populations of the Stephens' kangaroo rat.
                Based on the best available information, we affirm our previous
                determination that grazing practices do not represent a rangewide
                threat to the Stephens' kangaroo rat. Impacts from grazing are
                localized and not impacting Stephens' kangaroo rat at the population-
                or species-level.
                 Unauthorized Off-Highway Vehicles (OHVs): OHV activity can result
                in both direct (mortality or injury) and indirect (damage to burrow
                systems, rutting of habitat) effects to the Stephens' kangaroo rat and
                its habitat. To manage unauthorized OHV use on reserve lands in
                Riverside County, the Reserve Management Coordinating Committee, since
                2007, has successfully implemented coordinated security efforts for the
                Reserve system, and this has resulted in a noticeable decline in
                unauthorized OHV activity within Stephens' kangaroo rat reserves. For
                example, one core area (Potrero) is completely fenced, limiting the
                possibility of OHV activity. Therefore, we have determined that habitat
                modification or destruction due to OHV activity is limited in scope and
                scale, and this activity is currently being managed within the reserves
                established under conditions set out in the 1996 SKR HCP.
                Predation
                 As noted in the Species Report (Service 2020, pp. 64-65), the
                Stephens' kangaroo rat is prey to a number of native species as well as
                nonnative species. In our 1988 final listing rule (53 FR 38467,
                September 30, 1988) and 2010 12-month finding (75 FR 51218, August 19,
                2010), we stated that predation from feral and domesticated cats (Felis
                catus) was expected within areas of occurrence located adjacent to
                urban areas. However, no supporting information was presented regarding
                the incidence or levels of predation from cats. Our review of the
                information available and discussion with managers of preserve areas
                adjacent to residential areas has identified predation by cats as only
                occasional and so is not a significant threat to the Stephens' kangaroo
                rat (Shomo 2018, entire). Predation from native species has not been
                discussed in the literature and is not likely to cause or lead to
                significant declines for the species. Therefore, based on the best
                available information, predation, whether by native or nonnative
                animals, represents a low-level impact to individuals of the species
                and is not likely to be a population- or species-level impact at the
                present time or in the future.
                Rodenticides
                 In our 2010 12-month finding, we determined that, while we did not
                know the magnitude of the threat of rodenticide exposure, rodenticide
                use was a rangewide threat to the Stephens' kangaroo rat, especially
                because second-generation anticoagulants were commonly used by the
                public as rodenticides targeting rats, mice, ground squirrels, and
                other rodents. Anticoagulant rodenticides target an animal's ability to
                clot blood. Although first generation (which required multiple
                feedings) and second generation (required only one feeding)
                anticoagulant rodenticides are both toxic to nontarget species, the
                second-generation anticoagulant rodenticides are more so because of
                their higher toxicity (Khan and Schell 2020, unpaginated). However,
                since that time new Federal and State regulations (Environmental
                Protection Agency (EPA), California State Department of Pesticide
                Regulation (CDPR)), restrictions, and management practices have been
                put into place. These include changes to the formulation of the
                pesticides available to the public to first-generation rodenticides in
                paste or block type form (as opposed to pelleted form, which could be
                more widely broadcast) (EPA 2018, p. 1), Now the more toxic
                rodenticides are only available and can only be used by licensed
                pesticide applicators (see Species Report sections 6.8 Use of
                Rodenticides and 7.2.3 California Environmental Protection Agency-
                Department of Pesticide Regulation (Service 2020, pp. 65-67, 85-86)).
                In addition, a majority of the lands
                [[Page 50999]]
                formerly used as orchards surrounding areas occupied by Stephens'
                kangaroo rat have been converted to other nonagricultural land uses,
                mainly urbanized areas, which do not require use of rodenticides
                (Service 2020, pp. 49, 65-66), and use of rodenticides on State Park
                lands at Lake Perris State Recreation area has been eliminated (Service
                2020, pp. 65-66). These changes in the use restrictions and land use
                changes have most likely reduced the incidence of exposure of Stephens'
                kangaroo rats to rodenticides and as a result reduced the magnitude of
                this threat now and into the future. As a result, we have determined
                that rodenticides may still impact individuals, but the level of impact
                does not rise to a rangewide-level threat.
                Effects of Climate Change
                 The effects of climate change due to global warming is influencing
                regional climate patterns that may result in changes to the habitat and
                habitat conditions for the Stephens' kangaroo rat in the future (Hall
                et al. 2018, p. 9; Kalansky et al. 2018, p. 23). Downscaled climate
                model projections (mid- and late-century) (Representative Concentration
                Pathways (RCP) 4.5 or RCP 8.5) for the South Coast and Southern
                Interior regions of California occupied by the Stephens' kangaroo rat
                indicate low to moderate increases in temperature and a slight increase
                (RCP 4.5) or decrease (RCP 8.5) in precipitation (He et al. 2018, pp.
                8-9) with these increases being more frequent than the current
                conditions (Service 2020, pp. 69-75; U.S. Global Change Research
                Program (USGCRP) 2017, p. 139). Increases in temperature may hamper
                vegetation growth and exacerbate drought conditions (Hall et al. 2018,
                p. 13; Kalansky et al. 2018, pp. 24, 25) thereby potentially increasing
                bare ground patches preferred by the species. However, higher
                temperatures and greater precipitation events may also increase
                vegetation and wildfire frequency and severity causing potential
                habitat loss and, depending on fire severity, loss of individuals (see
                section 6.10 in the Species Report).
                 Based on the best available regional downscaled data on the current
                effects related to climate change (precipitation and temperature
                changes) within locations occupied by the Stephens' kangaroo rat, we
                have determined that the effects of climate change on the species'
                habitat are a low to moderate threat to Stephens' kangaroo rat at the
                present time. Based on model projections, we have concluded that
                potential effects to the habitat occupied by the Stephens' kangaroo rat
                from climate change from temperature and precipitation changes appear
                to be minimal due to the species' capability of inhabiting dry
                environmental conditions and represent a low-moderate threat to the
                Stephens' kangaroo rat and its habitat, and the level is likely to
                remain there to the 2060s.
                Existing Regulatory Mechanisms
                 Section 4(b)(1)(A) of the Act requires that the Service take into
                account ``those efforts, if any, being made by any State or foreign
                nation, or any political subdivision of a State or foreign nation, to
                protect such species. . . .'' In relation to Factor D under the Act, we
                interpret this language to require the Service to consider relevant
                Federal, State, and Tribal laws, regulations, and other such binding
                legal mechanisms that may ameliorate or exacerbate any of the threats
                we describe in threat analyses under the other four factors or
                otherwise enhance the species' conservation. We give the strongest
                weight to statutes and their implementing regulations and to management
                direction that stems from those laws and regulations. For additional
                information on the existing regulatory mechanisms see section 7 of the
                Species Report (Service 2020, pp. 75-89).
                 Endangered Species Act. As an endangered species, the Stephens'
                kangaroo rat is currently provided all the protections as described
                under section 9(a) of the Act. This includes all forms of ``take'' of
                the species. The term ``take'' means to harass, harm, pursue, hunt,
                shoot, wound, kill, trap, capture, or collect, or to attempt to engage
                in any such conduct. Some of these provisions have been further defined
                in regulation at 50 CFR 17.3. Take can result knowingly or otherwise,
                by direct and indirect impacts, intentionally or incidentally. The
                regulations adopted as part of the Stephens' kangaroo rat being an
                endangered species under the Act have helped conserve the species and
                its habitat. The Act would continue to provide protection to the
                Stephens' kangaroo rat after reclassification to threatened status
                because the proposed 4(d) rule would maintain all section 9
                prohibitions for the species with only those activities which benefit
                the species or its habitat being excepted. See Provisions of the
                Proposed 4(d) Rule.
                 In addition, section 10 of the Act allows for exceptions to section
                9 prohibitions if a Service-approved conservation plan (Habitat
                Conservation Plan (HCP)) is developed for management and conservation
                of a species or its habitat. As described above, two HCPs have been
                developed for conservation of the Stephens' kangaroo rat or its habitat
                in western Riverside County (1996 SKR HCP and the 2003 Western
                Riverside MSHCP). These two HCPs have greatly reduced the amount and
                rate of habitat loss for the species and implemented numerous
                conservation actions for management and conservation of the Stephens'
                kangaroo rat and its habitat in the area of coverage of these two HCPs.
                 Sikes Act. Under section 101 of the Sikes Act (16 U.S.C. 670a), the
                Department of Defense is required to carry out programs to provide for
                the conservation and rehabilitation of natural resources on military
                installations. To facilitate this program, each military department is
                required to prepare and implement an integrated natural resources
                management plan (INRMP) for each military installation in the United
                States unless deemed inappropriate. Section 201 of the Sikes Act states
                that the military facilities are required to cooperate and coordinate
                with the Secretary of Interior on conservation and rehabilitation
                programs including specific habitat improvement projects and related
                activities and adequate protection for threatened or endangered
                wildlife and plants. Each INRMP is reviewed and or revised every 5
                years.
                 As stated above, three military installations occur within the
                range of the species in western San Diego County. These DoD facilities
                have developed Service-approved INRMPs and actively manage their
                activities and habitat for the conservation of the Stephens' kangaroo
                rat. The implementation of these conservation efforts has greatly
                reduced the impact of loss and degradation of habitat for the species
                on the lands managed by the DoD. The INRMPs effectively meet the intent
                of the draft recovery plan's Criterion 2 for downlisting by
                establishing an ecosystem-based reserve in western San Diego County.
                 Environmental Protection Agency (EPA) and California State
                Department of Pesticide Regulation (CDPR). As stated above, Federal and
                State regulations implemented by EPA and the CDPR have limited the
                exposure of wildlife to anticoagulant rodenticides. These include
                restrictions and changes on application, use and availability for the
                public. These restrictions have reduced the impact of nontarget
                poisoning toward wildlife including the Stephens' kangaroo rat.
                 National Environmental Policy Act (NEPA). All Federal agencies are
                required to adhere to the NEPA of 1970
                [[Page 51000]]
                (42 U.S.C. 4321 et seq.) for projects they fund, authorize, or carry
                out. Prior to implementation of such projects with a Federal nexus,
                NEPA requires the agency to analyze the project for potential impacts
                to the human environment, including natural resources.
                 Although NEPA requires full evaluation and disclosure of
                information regarding the effects of contemplated Federal actions on
                sensitive species and their habitats, it does not by itself regulate
                activities that might affect the Stephens' kangaroo rat; that is,
                effects to the species and its habitat would receive the same scrutiny
                as other plant and wildlife resources during the NEPA process and
                associated analyses of a project's potential impacts to the human
                environment.
                 California Endangered Species Act. The Stephens' kangaroo rat is
                designated as threatened under the California Endangered Species Act
                (CESA), which prohibits the take of any species of wildlife designated
                by the California Fish and Game Commission as endangered, threatened,
                or candidate species (CDFW 2018a). Additionally, permits are required
                to take or possess any and all plants and animals in the state, and as
                noted above, the CDFW may authorize the take of any such species if
                certain conditions are met through the issuance of permits (e.g.,
                research permits, Incidental Take Permits) (CDFW 2018b). The Stephens'
                kangaroo rat was identified as important to the State's biodiversity
                and was therefore listed as a Species of Greatest Conservation Need
                (SGCN) in the State's Wildlife Action Plan (CDFW 2015, pp. C-1, C-24;
                Appendix C). State lands within the range of the Stephens' kangaroo rat
                are being managed for the protection and conservation of the species.
                 California Environmental Quality Act. The California Environmental
                Quality Act (CEQA) (California Public Resources Code 21000-21177) is
                the principal statute mandating environmental assessment of projects in
                California. The purpose of CEQA is to evaluate whether a proposed
                project may have an adverse effect on the environment and, if so, to
                determine whether that effect can be reduced or eliminated by pursuing
                an alternative course of action, or through mitigation. CEQA applies to
                certain activities of State and local public agencies; a public agency
                must comply with CEQA when it undertakes an activity. As with NEPA,
                CEQA does not provide a direct regulatory role for the CDFW relative to
                activities that may affect the Stephens' kangaroo rat. However, CEQA
                requires a complete assessment of the potential for a proposed project
                to have a significant adverse effect on the environment. Among the
                conditions outlined in the CEQA Guidelines that may lead to a mandatory
                findings of significance are where the project ``has the potential to .
                . . substantially reduce the habitat of a fish or wildlife species;
                cause a fish or wildlife population to drop below self-sustaining
                levels; threaten to eliminate a plant or animal community;
                substantially reduce the number or restrict the range of an endangered,
                rare or threatened species'' (14 CCR Sec. 15065(a)(1)). If significant
                effects are identified, the lead agency has the option of requiring
                mitigation through changes in the project or to decide that overriding
                considerations make mitigation infeasible.
                 The Natural Community Conservation Planning Act. The Natural
                Community Conservation Planning Act (NCCP) program is a cooperative
                effort between the State of California and numerous private and public
                partners with the goal of protecting habitats and species. The NCCP
                program identifies and provides for the regional or area-wide
                protection of plants, animals, and their habitats, while allowing
                compatible and appropriate economic activity. The program uses an
                ecosystem approach to planning for the protection and continuation of
                biological diversity. Regional NCCPs provide protection to federally
                listed and other covered species by conserving native habitats upon
                which the species depend. Many NCCPs are developed in conjunction with
                habitat conservation plans (HCPs) developed under section 10 of the ESA
                (CDFW 2020, unpaginated) as is the case of the 2003 Western Riverside
                MSHCP.
                 The existing HCPs on private lands, management plans of State
                lands, and INRMPs on DoD facilities in western Riverside and western
                San Diego Counties are being implemented as intended and are assisting
                to conserve and protect the Stephens' kangaroo rat and its habitat by
                providing for a reduction of threats from development, military
                training, and wildfire. Additional regulatory mechanisms have reduced
                the threat from rodenticides. Commitment to management actions for the
                benefit of Stephens' kangaroo rat is strong among the various
                partnerships; nevertheless, uncertainty of future condition of the
                species does exist. Currently, resource conditions and management are
                adequate in western Riverside and western San Diego Counties. However,
                conservation measures being implemented outside these areas are
                limited, especially in central San Diego County, an area identified as
                being the location of a second ecosystem reserve for the species.
                Although the current risk of extinction has been reduced, there is
                enough risk associated with habitat fragmentation, loss of habitat
                connectivity, and population isolation such that the species is
                vulnerable and likely to become endangered throughout all of its range
                within the foreseeable future despite existing regulatory mechanisms.
                Cumulative Effects
                 In general, threats acting on a species or its habitat may operate
                independently of each other or they may impact the species or its
                habitat in conjunction with each other. Some individually identified
                threats may not rise to a level of concern or be insignificant in
                nature and not influence a decline in the species' status on the
                landscape. However, combined these threats may result in a greater
                overall cumulative impact to a species or its habitat. In our analysis
                of the Stephens' kangaroo rat, the status of the species was determined
                by evaluating the cumulative effects of all the threats, along with the
                effects of all regulatory mechanisms and conservation efforts, to
                arrive at our final determination. We use this analysis to weigh the
                overall impacts from all threats against the overall impact of all
                ameliorating efforts and make a determination on status. In the case of
                the Stephens' kangaroo rat, the cumulative effect of all ameliorating
                efforts helping conserve the species have reduced the level of threats
                currently acting on the species or its habitat.
                Determination of Stephens' Kangaroo Rat Status
                 Section 4 of the Act (16 U.S.C. 1533) and its implementing
                regulations (50 CFR part 424) set forth the procedures for determining
                whether a species meets the definition of ``endangered species'' or
                ``threatened species.'' The Act defines an ``endangered species'' as a
                species that is ``in danger of extinction throughout all or a
                significant portion of its range,'' and a ``threatened species'' as a
                species that is ``likely to become an endangered species within the
                foreseeable future throughout all or a significant portion of its
                range.'' For a more detailed discussion on the factors considered when
                determining whether a species meets the definition of ``endangered
                species'' or ``threatened species'' and our analysis on how we
                determine the foreseeable future in making these decisions, please see
                the Summary of Factors Affecting the Species section above.
                [[Page 51001]]
                Foreseeable Future
                 To determine if a species is considered a threatened species under
                the Act, we look to future threats facing the species and how the
                species will likely respond to those threats. For the Stephens'
                kangaroo rat, the foreseeable future for the individual threats vary.
                However, as stated above, the major threat driving the overall status
                of Stephens' kangaroo rat is habitat fragmentation. Based solely on
                biological factors, we consider 25-30 years to be the foreseeable
                future within which we can reasonably determine that the future threat
                and Stephens' kangaroo rat's response to the threat of habitat
                fragmentation is likely. This time period includes multiple generations
                of the species and allows adequate time for conservation efforts (such
                as additional land protections or species' relocation efforts) to be
                implemented or changes in threats to be indicated through population
                responses.
                 Extensive land management planning through development of HCPs in
                western Riverside County and management and conservation on DoD lands
                in San Diego County has resulted in large areas being conserved and
                managed for the species. These efforts have largely ameliorated the
                threat of unregulated urban development and conversion of lands to
                agriculture resulting in significant amounts of habitat loss--which was
                the driving factor for originally listing the species as endangered in
                1988. We have determined that the implementation of these conservation
                measures and management plans, essentially meet the criteria for
                downlisting relative to our draft Recovery Plan.
                 While we do not have specific quantified survey information on the
                status and trends for populations of the species, no significant
                population declines or extirpations have been observed and it appears
                that the species remains stable and extant at more locations than were
                originally identified in the 1988 listing. However, we recognize that
                localized habitat loss is still occurring and will occur into the
                future and the impacts from past and future habitat fragmentation
                continue to impact the species. This continued habitat loss/
                fragmentation will result in increasing population isolation and
                habitat dis-connectivity, which we expect will lower the species'
                resiliency, redundancy, and representation, and thus its viability in
                the foreseeable future. We expect that additional conservation of lands
                and management actions will continue to be necessary to maintain
                population connectivity now and into the foreseeable future.
                Status Throughout All of Its Range
                 After evaluating threats to the species and assessing the
                cumulative effect of the threats combined under the section 4(a)(1)
                factors, as well as the factors ameliorating those threats, we have
                found that the current viability of the Stephens' kangaroo rat is
                higher now than at the time of listing as an endangered species under
                the Act, due to implementation of extensive conservation actions and
                management.
                 The Stephens' kangaroo rat was listed as endangered in 1988, mostly
                due to the direct and indirect effects of rapid loss, degradation, and
                fragmentation of habitat for the species. Since the time of listing,
                numerous searches and surveys have resulted in the discovery of
                additional areas where Stephens' kangaroo rat occurs. Currently 18
                areas (12 areas in Riverside County and 6 areas in San Diego County)
                have been identified, 7 more than what was known at the time of
                listing. Although not considered a population expansion since listing,
                the discovery of additional occupied areas has reduced the level of
                threat for the species as a whole and increased the redundancy for the
                species making it more able to recover from catastrophic events.
                 Also since the time of listing, several large-scale habitat
                conservation efforts (SKR HCP, Western Riverside MSHCP) have been
                implemented. These two conservation efforts have established a total of
                eight adaptively managed reserves for Stephens' kangaroo rat in
                Riverside County. In addition, the DoD has developed INRMPs for
                conserving the species and its habitat on two military facilities in
                San Diego County. Together, these conservation efforts in Riverside and
                San Diego Counties have conserved approximately 28,567 ac (11,561 ha)
                of modeled Stephens' kangaroo rat habitat throughout the species'
                range. These conservation measures have largely met the intent of the
                downlisting criteria identified in our draft recovery plan. However,
                the lingering effects of past development have left the habitat
                fragmented and populations isolated. We expect this threat to manifest
                itself in the future if not managed. Therefore, based on the species'
                continued occupancy and distribution across its range and on the
                conservation efforts that have been implemented to curtail habitat loss
                and protect and manage existing populations, we have determined that
                the current viability of the Stephens' kangaroo rat is higher now than
                at the time of listing.
                 Thus, after assessing the best available information, we have
                determine that because of the large scale implementation of habitat
                conservation through HCPs and DoD resource management, the Stephens'
                kangaroo rat is not currently in danger of extinction throughout all of
                its range, but is likely to become so within the foreseeable future.
                Status Throughout a Significant Portion of Its Range
                 Under the Act and our implementing regulations, a species may
                warrant listing if it is in danger of extinction or likely to become so
                in the foreseeable future throughout all or a significant portion of
                its range. The court in Center for Biological Diversity v. Everson,
                2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological
                Diversity), vacated the aspect of the 2014 Significant Portion of its
                Range Policy that provided that the Services do not undertake an
                analysis of significant portions of a species' range if the species
                warrants listing as threatened throughout all of its range. Therefore,
                we proceed to evaluating whether the species is endangered in a
                significant portion of its range--that is, whether there is any portion
                of the species' range for which both (1) the portion is significant;
                and, (2) the species is in danger of extinction in that portion.
                Depending on the case, it might be more efficient for us to address the
                ``significance'' question or the ``status'' question first. We can
                choose to address either question first. Regardless of which question
                we address first, if we reach a negative answer with respect to the
                first question that we address, we do not need to evaluate the other
                question for that portion of the species' range.
                 Following the court's holding in Center for Biological Diversity,
                we now consider whether there are any significant portions of the
                species' range where the species is in danger of extinction now (i.e.,
                endangered). In undertaking this analysis for Stephens' kangaroo rat,
                we choose to address the status question first--we consider information
                pertaining to the geographic distribution of both the species and the
                threats that the species faces to identify any portions of the range
                where the species is endangered.
                 The statutory difference between an endangered species and a
                threatened species is the time horizon in which the species becomes in
                danger of extinction; an endangered species is in danger of extinction
                now while a threatened species is not in danger of extinction now but
                is likely to become so in the foreseeable future. Thus, we considered
                [[Page 51002]]
                the time horizon for the threats that are driving the Stephens'
                kangaroo rat to remain listed as a threatened species throughout all of
                its range. As stated above, the effects of habitat fragmentation
                (limiting dispersal and recolonization, reducing genetic exchange,
                isolating populations) is the greatest future threat to the species.
                These effects are expected to occur in the future throughout its range
                in both western Riverside and San Diego Counties. Based on current
                population sizes, distribution, and trends it appears that the species
                currently has a relatively stable status. Fragmentation will impact the
                species in the future as development continues. Existing conserved and
                managed lands in both western Riverside and San Diego Counties are
                currently benefiting the species to the level that the species is not
                now endangered. However, because development and loss of habitat was so
                extensive and severe in the past, work is needed to reconnect
                populations in conserved areas currently being managed as ecosystem
                reserves and for areas outside those considered as ecosystem reserves
                such as central San Diego County. The impacts from future habitat
                fragmentation will continue to isolate populations. This is especially
                true if land conservation efforts are not able to conserve areas
                between populations for connectivity. In addition, currently occupied
                lands, both conserved and not conserved, will require ongoing
                management such as prescribed fire or other measures to reduce
                vegetation buildup ensuring habitat suitability and persistence of the
                species. We expect vegetation control will be an ongoing habitat
                management concern and the species will continue to be reliant to some
                degree of habitat or species management into the future.
                 Because the Stephens' kangaroo rat's population structure follows a
                metapopulation dynamic and is based on the equilibrium between
                colonization and extirpation of local populations, the importance of
                habitat and population connectivity is emphasized. Our analysis and
                modeling of the existing suitable habitat available to the Stephens'
                kangaroo rat shows the species faces some level of habitat
                fragmentation in both western Riverside and San Diego Counties;
                however, the effects of the fragmentation have not yet impacted the
                species based on the current existing population information.
                Approximately 75 percent of modeled suitable habitat exists in
                continuous patches greater than 1 square kilometer (km\2\) (0.4 square
                mile (mi\2\)--the threshold suggested by at least one study as
                necessary for sustainable populations (Price and Endo 1989, p. 299). We
                expect the effects of habitat fragmentation to impact the species in
                the future. Future habitat loss will continue to isolate and fragment
                habitat occupied by the species and reduce connectivity, but at a
                reduced rate and extent since listing. These analyses indicate that
                restoring connectivity and/or conducting translocation efforts may be
                needed to maintain some populations in the future. In addition,
                although estimates have been made on habitat patch size and its
                availability, there has been no rangewide systematic assessment of the
                population structure for the Stephens' kangaroo rat to determine the
                requirements or characteristics of stable populations or estimate the
                minimum number of interconnected patches needed to support a potential
                metapopulation. Without these forms of information, the current and
                best available information on habitat conditions, species persistence
                within occupied areas, and species distribution indicates that
                populations appear stable.
                 Given this assessment of the current best available information,
                and recognition that the current amount and type of reserves for
                Stephens' kangaroo rat does not meet the draft Recovery Plan
                requirements for delisting, we have concluded that the best scientific
                and commercial data available indicate that the time horizon on which
                those threats to the species and the species' responses to those
                threats are likely to occur is in the foreseeable future in all
                portions of the species' range. Therefore, we determine that the
                Stephens' kangaroo rat is not in danger of extinction now in any
                portion of its range, but that the species is likely to become in
                danger of extinction within the foreseeable future throughout all of
                its range. This is consistent with the courts' holdings in Desert
                Survivors v. Department of the Interior, No. 16-cv-01165-JCS, 2018 WL
                4053447 (N.D. Cal. Aug. 24, 2018), and Center for Biological Diversity
                v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017).
                Determination of Status
                 Our review of the best available scientific and commercial
                information indicates that the Stephens' kangaroo rat meets the
                definition of a threatened species in accordance with section 3(20) of
                the Act. Therefore, we propose to reclassify the Stephens' kangaroo rat
                as a threatened species on the List of Endangered and Threatened
                Wildlife (50 CFR 17.11).
                II. Proposed Rule Issued Under Section 4(d) of the Act
                Background
                 Section 4(d) of the Act contains two sentences. The first sentence
                states that the ``Secretary shall issue such regulations as he deems
                necessary and advisable to provide for the conservation'' of species
                listed as threatened. The U.S. Supreme Court has noted that statutory
                language like ``necessary and advisable'' demonstrates a large degree
                of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)).
                Conservation is defined in the Act to mean ``the use of all methods and
                procedures which are necessary to bring any endangered species or
                threatened species to the point at which the measures provided pursuant
                to [the Act] are no longer necessary.'' Additionally, the second
                sentence of section 4(d) of the Act states that the Secretary ``may by
                regulation prohibit with respect to any threatened species any act
                prohibited under section 9(a)(1), in the case of fish or wildlife, or
                section 9(a)(2), in the case of plants.'' Thus, the combination of the
                two sentences of section 4(d) provides the Secretary with a wide
                latitude of discretion to select and promulgate appropriate regulations
                tailored to the specific conservation needs of the threatened species.
                The second sentence grants particularly broad discretion to the Service
                when adopting the prohibitions under section 9.
                 The courts have recognized the extent of the Secretary's discretion
                under this standard to develop rules that are appropriate for the
                conservation of a species. For example, courts have upheld rules
                developed under section 4(d) as a valid exercise of agency authority
                where they prohibited take of threatened wildlife or included a limited
                taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007
                U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council
                v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D.
                Wash. 2002)). Courts have also upheld 4(d) rules that do not address
                all of the threats a species faces (see State of Louisiana v. Verity,
                853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when
                the Act was initially enacted, ``once an animal is on the threatened
                list, the Secretary has an almost infinite number of options available
                to him with regard to the permitted activities for those species. He
                may, for example, permit taking, but not importation of such species,
                or he may choose to forbid both taking and importation but allow the
                transportation
                [[Page 51003]]
                of such species,'' (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).
                 Exercising its authority under section 4(d), the Service has
                developed a proposed rule that is designed to address the Stephens'
                kangaroo rat's specific threats and conservation needs. Although the
                statute does not require the Service to make a ``necessary and
                advisable'' finding with respect to the adoption of specific
                prohibitions under section 9, we find that this rule as a whole
                satisfies the requirement in section 4(d) of the Act to issue
                regulations deemed necessary and advisable to provide for the
                conservation of the Stephens' kangaroo rat. As explained above, we have
                determined that the Stephens' kangaroo rat meets the definition under
                the Act of a threatened species, in that it is likely to become an
                endangered species within the foreseeable future throughout its range.
                As such, we are proposing to reclassify Stephens' kangaroo rat as a
                threatened species on the List of Endangered and Threatened Wildlife.
                We have also determined that it is necessary and advisable to issue
                protective regulations under section 4(d) of the Act in order to reduce
                the likelihood of the Stephens' kangaroo rat becoming an endangered
                species. Under our proposed section 4(d) rule, except as described and
                explained below, all prohibitions and provisions that apply to
                endangered wildlife under section 9(a)(1) of the Act would apply to the
                Stephens' kangaroo rat. Applying these section 9(a)(1) prohibitions
                will help minimize threats that could cause further declines in the
                status of the species. The provisions of this rule are one of many
                tools that the Service would use to promote the conservation of this
                species. This proposed 4(d) rule would apply only if and when the
                Service makes final the reclassification of the Stephens' kangaroo rat
                as a threatened species.
                Provisions of the Proposed 4(d) Rule
                 This proposed 4(d) rule would provide for the conservation of the
                Stephens' kangaroo rat by prohibiting the following activities, except
                as otherwise authorized or permitted: importing or exporting; take;
                possession and other acts with unlawfully taken specimens; delivering,
                receiving, carrying, transporting, or shipping in interstate or foreign
                commerce in the course of commercial activity; or selling or offering
                for sale in interstate or foreign commerce.
                 Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,
                wound, kill, trap, capture, or collect, or to attempt to engage in any
                such conduct. Some of these provisions have been further defined in
                regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by
                direct and indirect impacts, intentionally or incidentally. The long-
                term viability of the Stephens' kangaroo rat, as with many wildlife
                species, is intimately tied to the availability and condition of its
                habitat. As described in our analysis of the species' status, the
                primary driving threats to the Stephens' kangaroo rat's continued
                viability is habitat fragmentation and modification. These threats
                reduce habitat availability and suitability due to a lack of
                connectivity between areas and buildup of dense vegetation resulting
                from a lack of disturbance. The Stephens' kangaroo rat prefers open,
                annual grasslands and open intermediate-seral-stage (secondary
                succession) plant communities that are maintained by disturbance. Areas
                with dense vegetation (grasses or shrubs) are avoided and are not
                suitable habitat. Therefore, activities that are conducted for the
                purpose of maintaining, enhancing, or restoring open areas are
                beneficial for providing the habitat needs of the species. Such
                activities may include, but are not limited to: nonnative or invasive
                plant removal, grazing activities used for the purpose of vegetation
                management, prescribed burns, wildfire suppression activities, mowing,
                activities designed to promote native annual forbs and maintain or
                restore open habitat for the species, or other actions related to
                habitat restoration or species' recovery efforts.
                 More specifically, nonnative, invasive, or noxious plant removal
                includes noxious weed control in the course of habitat management and
                restoration to benefit Stephens' kangaroo rat or other sensitive
                species in the grassland habitat. Livestock grazing includes those
                grazing activities conducted as part of habitat management and
                restoration to benefit Stephens' kangaroo rat or other native species
                in the grassland habitat as described in a Service-approved plan. Fire
                and wildfire management and suppression includes activities such as
                prescribed burns, fuel reduction activities, maintenance of fuel
                breaks, defensible space maintenance actions, and firefighting
                activities associated with actively burning fires to reduce risk to
                life or property.
                 We believe that actions taken by management entities in the range
                of the Stephens' kangaroo rat for the purpose of reducing the risk or
                severity of habitat modification and designed to promote native annual
                forbs and maintain or restore open habitat for Stephens' kangaroo rat,
                even if these actions may result in some short-term or small level of
                localized negative effect to Stephens' kangaroo rats, will further the
                goal of reducing the likelihood of the species from becoming an
                endangered species, and will also continue to contribute to its
                conservation and long-term viability.
                 We recognize that the types of actions identified above are often
                undertaken by land management entities or private land owners through
                inclusion in land management plans, or strategies, or cooperative
                agreements that are approved by the Service, and that these plans,
                strategies, and agreements address identified negative effects to
                Stephens' kangaroo rat conservation. We believe that such approved
                plans, strategies, or agreements, developed in coordination with the
                Service, will adequately reduce or offset any negative effects to
                Stephens' kangaroo rat so that they will not result in a further
                decline of the species. Likewise, actions undertaken by management
                entities included in formal, Service-approved land management
                conservation plans (such as INRMPs), where the intended purpose is
                consistent with the conservation needs of the Stephens' kangaroo rat,
                also provide an overall conservation benefit for the species.
                 We also recognize the special and unique relationship with our
                State natural resource agency partners in contributing to conservation
                of listed species. State agencies often possess scientific data and
                valuable expertise on the status and distribution of endangered,
                threatened, and candidate species of wildlife and plants. State
                agencies, because of their authorities and their close working
                relationships with local governments and landowners, are in a unique
                position to assist the Services in implementing all aspects of the Act.
                In this regard, section 6 of the Act provides that the Services shall
                cooperate to the maximum extent practicable with the States in carrying
                out programs authorized by the Act. Therefore, any qualified employee
                or agent of a State conservation agency which is a party to a
                cooperative agreement with the Service in accordance with section 6(c)
                of the Act, who is designated by his or her agency for such purposes,
                will be able to conduct activities designed to conserve the Stephens'
                kangaroo rat that may result in otherwise prohibited take without
                additional authorization.
                 In addition, because the Stephens' kangaroo rat is an endangered
                species under the California Endangered Species Act (CESA), there may
                be other actions undertaken by State natural resource entities, such as
                the California
                [[Page 51004]]
                Department of Fish and Wildlife (CDFW) under the authority of the CESA,
                to improve habitat conditions, conduct research, or contribute to the
                long-term viability of species. We realize these actions may also
                result in some short-term or small level of localized negative effects
                to Stephens' kangaroo rats or their habitat. However, we acknowledge
                that these types of actions are often undertaken through inclusion in
                land management plans or agreements that are approved by the CDFW,
                under the authority of the CESA, and that these plans and agreements
                address effects to the Stephens' kangaroo rat. In our view, actions
                under such State-approved plans or agreements will adequately reduce or
                offset any negative effects to the Stephens' kangaroo rat so that they
                will not result in a further decline of the species, and, therefore, we
                are excepting take as a result of them from the section 9(a)(1)
                prohibitions in the 4(d) rule.
                 While we recognize the potential that the actions identified above
                may result in some small level of localized disturbance or temporary
                negative effects to Stephens' kangaroo rat or their habitat, we believe
                these conservation actions will improve overall habitat conditions or
                contribute to the species' overall long-term viability. As such, we
                have determined that any resulting take from these actions do not need
                to be included in the section 9(a)(1) prohibitions provided for the
                species.
                 Therefore, we are proposing to issue protective regulations under
                section 4(d) of the Act, in which all the prohibitions and provisions
                that apply to endangered wildlife under section 9(a)(1) of the Act,
                with the exemptions outlined below, would apply to the Stephens'
                kangaroo rat.
                 Exemptions from prohibitions. This proposed 4(d) rule would exempt
                from the general prohibitions in 50 CFR 17.21 take that is incidental
                to the following activities when conducted within habitats currently or
                historically occupied by Stephens' kangaroo rat:
                 (1) Activities conducted in accordance with a permit issued under
                Sec. 17.32.
                 (2) Actions taken by the CDFW for conserving Stephens' kangaroo rat
                under the California Endangered Species Act (CESA).
                 (3) Actions, approved by the Service and conducted by entities
                outside those identified in (1) above, that implement measures for
                maintaining, enhancing, or restoring open habitat areas, such as:
                livestock grazing, wildfire management and suppression, prescribed fire
                activities, or nonnative, invasive, or noxious plant removal in the
                course of habitat management and restoration for the purpose of
                Stephens' kangaroo rat conservation;
                 (4) Actions identified in and conducted as part of a Service- or
                State-approved plan that are for the purpose of Stephens' kangaroo rat
                conservation;
                 While we are providing these exemptions to the prohibitions and
                provisions of section 9(a)(1) of the Act, we clarify that all Federal
                agencies (including the Service) that fund, permit, or carry out the
                activities described above will still need to ensure, in consultation
                with the Service (including intra-Service consultation when
                appropriate), that the activities are not likely to jeopardize the
                continued existence of the species. Private entities who undertake any
                actions other than those described in the exceptions above that may
                result in adverse effects to Stephens' kangaroo rat, when there is no
                associated Federal nexus to the action, may wish to seek an incidental
                take permit from the Service before proceeding with the activity.
                Nothing in this proposed 4(d) rule would change in any way the recovery
                planning provisions of section 4(f) of the Act, the consultation
                requirements under section 7 of the Act, or the ability of the Service
                to enter into partnerships for the management and protection of
                Stephens' kangaroo rat. However, interagency cooperation may be further
                streamlined through planned programmatic consultations for the species
                between Federal agencies and the Service, where appropriate. We ask the
                public, particularly State agencies and other interested stakeholders
                that may be affected by the proposed 4(d) rule, to provide comments and
                suggestions regarding additional guidance and methods that the Service
                could provide or use, respectively, to streamline the implementation of
                this proposed 4(d) rule (see Information Requested). Additional details
                on the proposed 4(d) exemptions are found in Proposed Regulation
                Promulgation, below.
                Permits for Threatened Wildlife
                 We may issue permits to carry out otherwise prohibited activities
                involving threatened wildlife under certain circumstances. Regulations
                governing permits for threatened wildlife are codified at 50 CFR 17.32.
                With regard to threatened wildlife, a permit may be issued for the
                following purposes: Scientific purposes, to enhance the 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 and prohibitions, which are found in sections 9
                and 10 of the Act. Questions regarding whether specific activities
                would constitute a violation of 50 CFR 17.40 should be directed to the
                Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION
                CONTACT).
                Effects of the Rule
                 Nothing in this proposed 4(d) rule would change in any way the
                recovery planning provisions of section 4(f) of the Act, the
                consultation requirements under section 7 of the Act, or our ability to
                enter into partnerships for the management and protection of the
                Stephens' kangaroo rat. However, interagency cooperation may be further
                streamlined through planned programmatic consultations for the species
                between us and other Federal agencies, where appropriate. We ask the
                public, particularly State agencies and other interested stakeholders
                that may be affected by the proposed 4(d) rule, to provide comments and
                suggestions regarding additional guidance and methods that we could
                provide or use, respectively, to streamline the implementation of this
                proposed 4(d) rule (see Information Requested).
                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.
                National Environmental Policy Act (42 U.S.C. 4321 et seq.)
                 It is our position that, outside the jurisdiction of the U.S. Court
                of Appeals for the Tenth Circuit, we do not need to
                [[Page 51005]]
                prepare environmental analyses pursuant to the National Environmental
                Policy Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with
                designating critical habitat under the Act. We published a notice
                outlining our reasons for this determination in the Federal Register on
                October 25, 1983 (48 FR 49244). This position was upheld by the U.S.
                Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48
                F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).]
                Government-to-Government Relationship With Tribes
                 In accordance with the President's memorandum of April 29, 1994
                (Government-to-Government Relations with Native American Tribal
                Governments; 59 FR 22951), Executive Order 13175 (Consultation and
                Coordination with Indian Tribal Governments), and the Department of the
                Interior's manual at 512 DM 2, we readily acknowledge our
                responsibility to communicate meaningfully with recognized Federal
                Tribes on a government-to-government basis. In accordance with
                Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
                Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
                we readily acknowledge our responsibilities to work directly with
                tribes in developing programs for healthy ecosystems, to acknowledge
                that tribal lands are not subject to the same controls as Federal
                public lands, to remain sensitive to Indian culture, and to make
                information available to tribes. There are no federally recognized
                tribes affected by this proposed rule.
                References Cited
                 A complete list of all references cited in this proposed rule is
                available at http://www.regulations.gov at Docket No. FWS-R8-ES-2019-
                0113, or upon request from the Carlsbad Fish and Wildlife Office (see
                FOR FURTHER INFORMATION CONTACT).
                Authors
                 The primary authors of this proposed rule are staff members of the
                Interior's California Great Basin and Lower Colorado Basin Region and
                Field Offices.
                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 follows:
                PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
                0
                1. The authority citation for part 17 continues to read as follows:
                 Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
                unless otherwise noted.
                0
                2. Amend Sec. 17.11(h) by revising the entry for ``Kangaroo rat,
                Stephens' '' under Mammals in the List of Endangered and Threatened
                Wildlife to read as follows:
                Sec. 17.11 Endangered and threatened wildlife.
                * * * * *
                 (h) * * *
                ----------------------------------------------------------------------------------------------------------------
                 Listing citations and
                 Common name Scientific name Where listed Status applicable rules
                ----------------------------------------------------------------------------------------------------------------
                 Mammals
                ----------------------------------------------------------------------------------------------------------------
                
                 * * * * * * *
                Kangaroo rat, Stephens'...... Dipodomys Wherever found.. T............ 53 FR 38465, 9/30/1988;
                 stephensi [Federal Register citation
                 (incl. D. when published as a final
                 cascus). rule];
                 50 CFR 17.40(s).\4d\
                
                 * * * * * * *
                ----------------------------------------------------------------------------------------------------------------
                0
                3. Amend Sec. 17.40 by adding paragraph (s) to read as follows:
                Sec. 17.40 Special rules--mammals.
                * * * * *
                 (s) Stephens' kangaroo rat (Dipodomys stephensi).
                 (1) Prohibitions. The following prohibitions that apply to
                endangered wildlife also apply to Stephens' kangaroo rat. Except as
                provided under paragraph (s)(2) of this section and Sec. Sec. 17.4 and
                17.5, it is unlawful for any person subject to the jurisdiction of the
                United States to commit, to attempt to commit, to solicit another to
                commit, or cause to be committed, any of the following acts in regard
                to this species:
                 (i) Import or export, as set forth at Sec. 17.21(b).
                 (ii) Take, as set forth at Sec. 17.21(c)(1).
                 (iii) Possession and other acts with unlawfully taken specimens, as
                set forth at Sec. 17.21(d)(1).
                 (iv) Interstate or foreign commerce in the course of commercial
                activity, as set forth at Sec. 17.21(e).
                 (v) Sale or offer for sale, as set forth at Sec. 17.21(f).
                 (2) Exceptions from prohibitions. For Stephens' kangaroo rat, you
                may engage in the following actions:
                 (i) Activities in accordance with a permit issued under Sec.
                17.32.
                 (ii) Take, as set forth at Sec. 17.21(c)(2) through (4) for
                endangered wildlife.
                 (iii) Take, as set forth at Sec. 17.31(b).
                 (iv) Possession and other acts with unlawfully taken specimens, as
                set forth at Sec. 17.21(d)(2) for endangered wildlife.
                 (v) Actions taken by the California Department of Fish and Wildlife
                for conserving Stephens' kangaroo rat under the California Endangered
                Species Act (CESA).
                 (vi) Livestock grazing in the course of habitat management and
                restoration to benefit Stephens' kangaroo rat or other native species
                in the grassland habitat as approved by the Service.
                 (vii) The following wildfire suppression activities:
                 (A) Activities necessary to maintain the minimum clearance
                (defensible space) requirement of 30 meters (100 feet) from any
                occupied dwelling, occupied structure, or to the property line,
                whichever is nearer, to provide reasonable fire safety and comply with
                State of California fire codes to reduce wildfire risks.
                 (B) Fire management actions (e.g., prescribed burns, hazardous fuel
                reduction activities) on protected/preserve lands to maintain, protect,
                or enhance habitat occupied by Stephens' kangaroo rat. These activities
                are to be coordinated with and reported to the Service in writing and
                approved the first time an individual or agency undertakes them.
                [[Page 51006]]
                 (C) Maintenance of existing fuel breaks identified by local fire
                authorities to protect existing structures.
                 (D) Firefighting activities associated with actively burning
                wildfires to reduce risk to life or property.
                 (viii) Removal of nonnative, invasive, or noxious plants for the
                purpose of Stephens' kangaroo rat conservation as approved by the
                Service. This includes noxious weed control and other vegetation
                reduction in the course of habitat management and restoration to
                benefit Stephens' kangaroo rat, provided that these activities are
                conducted in a manner consistent with Federal and applicable State
                laws, including Environmental Protection Agency label restrictions for
                pesticide application.
                 (ix) Activities conducted as part of a Service- or State-approved
                plan that are for the purpose of Stephens' kangaroo rat conservation.
                * * * * *
                Aurelia Skipwith,
                Director, U.S. Fish and Wildlife Service.
                [FR Doc. 2020-16719 Filed 8-18-20; 8:45 am]
                BILLING CODE 4333-15-P
                

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