Endangered and Threatened Wildlife and Plants; Reclassification of Stephens' Kangaroo Rat From Endangered To Threatened With a Section 4(d) Rule, 50991-51006 [2020-16719]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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: https://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 https://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 https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov.

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 https://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 https://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