Endangered and Threatened Wildlife and Plants; Endangered Species Status for Texas Kangaroo Rat and Designation of Critical Habitat, 55962-55991 [2023-17671]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 88, Number 158 (Thursday, August 17, 2023)]
[Proposed Rules]
[Pages 55962-55991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17671]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2021-0143; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BF90


Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for Texas Kangaroo Rat and Designation of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the Texas kangaroo rat (Dipodomys elator), a rodent from north-
central Texas, as an endangered species and designate critical habitat 
under the Endangered Species Act of 1973, as amended (Act). This 
determination also serves as our 12-month finding on a petition to list 
the Texas kangaroo rat. After a review of the best available scientific 
and commercial information, we find that listing the species is 
warranted. Accordingly, we propose to list the Texas kangaroo rat as an 
endangered species under the Act. If we finalize this rule as proposed, 
it would add this species to the List of Endangered and Threatened 
Wildlife and extend the Act's protections to this species and its 
critical habitat. We also propose to designate critical habitat for the 
Texas kangaroo rat under the Act. In total, approximately 597,069 acres 
(241,625 hectares) in Childress, Cottle, Hardeman, Wichita, and 
Wilbarger

[[Page 55963]]

Counties, Texas, fall within the boundaries of the proposed critical 
habitat designation. We also announce the availability of a draft 
economic analysis (DEA) of the proposed designation of critical habitat 
for Texas kangaroo rat.

DATES: We will accept comments received or postmarked on or before 
October 16, 2023. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. eastern time on the closing date. We must receive requests for a 
public hearing, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by October 2, 2023.

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-2021-0143, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the panel on the left side of 
the screen, under the Document Type heading, check the Proposed Rule 
box to locate this document. You may submit a comment by clicking on 
``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R2-ES-2021-0143, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 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 Information Requested, below, for more information).
    Availability of supporting materials: Supporting materials, such as 
the species status assessment report, are available on the Service's 
website at https://fws.gov/office/arlington-ecological-services, at 
https://www.regulations.gov at Docket No. FWS-R2-ES-2021-0143, or both. 
For the proposed critical habitat designation, the coordinates or plot 
points or both from which the maps are generated are included in the 
decision file for this critical habitat designation and are available 
at https://www.regulations.gov at Docket No. FWS-R2-ES-2021-0143.

FOR FURTHER INFORMATION CONTACT: Beth Forbus, Regional Endangered 
Species Program Manager, Southwest Regional Office, 500 Gold Ave. SW, 
Albuquerque, NM 87102; telephone 505-318-8972. Individuals in the 
United States who are deaf, deafblind, hard of hearing, or have a 
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access 
telecommunications relay services. Individuals outside the United 
States should use the relay services offered within their country to 
make international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Act, a species warrants 
listing if it meets the definition of an endangered species (in danger 
of extinction throughout all or a significant portion of its range) or 
a threatened species (likely to become endangered within the 
foreseeable future throughout all or a significant portion of its 
range). If we determine that a species warrants listing, we must list 
the species promptly and designate the species' critical habitat to the 
maximum extent prudent and determinable. We have determined that the 
Texas kangaroo rat meets the definition of an endangered species; 
therefore, we are proposing to list it as such and proposing a 
designation of its critical habitat. Both listing a species as an 
endangered or threatened species and designating critical habitat can 
be completed only by issuing a rule through the Administrative 
Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
    What this document does. We propose to list the Texas kangaroo rat 
as an endangered species, and we propose the designation of critical 
habitat for the species.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that the Texas kangaroo rat is 
endangered due to the following threats: habitat loss, degradation, or 
fragmentation from loss of historical ecosystem function; conversion of 
rangeland to cropland; development (including commercial development 
and energy development); and woody vegetation encroachment (Factors A 
and E); and the effects of climate change (Factor E).
    Section 4(a)(3) of the Act requires the Secretary of the Interior 
(Secretary), to the maximum extent prudent and determinable, to 
designate critical habitat concurrent with listing. Section 3(5)(A) of 
the Act defines critical habitat as (i) the specific areas within the 
geographical area occupied by the species, at the time it is listed, on 
which are found those physical or biological features (I) essential to 
the conservation of the species and (II) which may require special 
management considerations or protections; and (ii) specific areas 
outside the geographical area occupied by the species at the time it is 
listed, upon a determination by the Secretary that such areas are 
essential for the conservation of the species. Section 4(b)(2) of the 
Act states that the Secretary must make the designation on the basis of 
the best scientific data available and after taking into consideration 
the economic impact, the impact on national security, and any other 
relevant impacts of specifying any particular area as critical habitat.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other governmental agencies, Native 
American Tribes, the scientific community, industry, or any other 
interested parties concerning this proposed rule. We particularly seek 
comments concerning:
    (1) The species' biology, range, and population trends, including:
    (a) Biological or ecological requirements of the species, including 
habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns 
and the locations of any additional populations of this species;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) Threats and conservation actions affecting the species, 
including:
    (a) Factors that may be affecting the continued existence of the 
species, which may include habitat modification or destruction, 
overutilization, disease, predation, the inadequacy of existing 
regulatory mechanisms, or other natural or manmade factors.
    (b) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species.

[[Page 55964]]

    (c) Existing regulations or conservation actions that may be 
addressing threats to this species.
    (3) Additional information concerning the historical and current 
status of this species.
    (4) Specific information on:
    (a) The amount and distribution of Texas kangaroo rat habitat;
    (b) Any additional areas occurring within the range of the species, 
north-central Texas (Archer, Baylor, Childress, Clay, Cottle, Foard, 
Hardeman, Montague, Motley, Wichita, and Wilbarger Counties) and 
southern Oklahoma (Comanche and Cotton Counties), that should be 
included in the critical habitat designation because they (i) are 
occupied at the time of listing and contain the physical or biological 
features that are essential to the conservation of the species and that 
may require special management considerations, or (ii) are unoccupied 
at the time of listing and are essential for the conservation of the 
species; and
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change; and
    (d) Whether occupied areas are adequate for the conservation of the 
species, as this will help us evaluate the potential to include areas 
not occupied at the time of listing. Additionally, please provide 
specific information regarding whether or not unoccupied areas would, 
with reasonable certainty, contribute to the conservation of the 
species and contain at least one physical or biological feature 
essential to the conservation of the species. We also seek comments or 
information regarding whether areas not occupied at the time of listing 
qualify as habitat for the species.
    (5) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (6) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation, and the related benefits of including or excluding 
specific areas.
    (7) Information on the extent to which the description of probable 
economic impacts in the draft economic analysis is a reasonable 
estimate of the likely economic impacts.
    (8) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act, in particular any areas covered by the 
Candidate Conservation Agreement with Assurances for the Texas Kangaroo 
Rat (CCAA) or other conservation agreement providing benefits to the 
Texas kangaroo rat. To obtain a copy of the CCAA, visit https://www.fws.gov/office/arlington-ecological-services. If you think we 
should exclude any additional areas, please provide information 
supporting a benefit of exclusion.
    (9) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    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, do not provide substantial 
information necessary to support a determination. 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, and section 4(b)(2) 
of the Act directs that the Secretary shall designate critical habitat 
on the basis of the best scientific 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.
    Our final determination may differ from this proposal because we 
will consider all comments we receive during the comment period as well 
as any information that may become available after this proposal. Based 
on the new information we receive (and, if relevant, any comments on 
that new information), we may conclude that the species is threatened 
instead of endangered, or we may conclude that the species does not 
warrant listing as either an endangered species or a threatened 
species. For critical habitat, our final designation may not include 
all areas proposed, may include some additional areas that meet the 
definition of critical habitat, or may exclude some areas if we find 
the benefits of exclusion outweigh the benefits of inclusion and 
exclusion will not result in the extinction of the species. In our 
final rule, we will clearly explain our rationale and the basis for our 
final decision, including why we made changes, if any, that differ from 
this proposal.

Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. Requests must be received by the date specified 
in DATES. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this 
proposal, if requested, and announce the date, time, and place of the 
hearing, as well as how to obtain reasonable accommodations, in the 
Federal Register and local newspapers at least 15 days before the 
hearing. We may hold the public hearing in person or virtually via 
webinar. We will announce any public hearing on our website, in 
addition to the Federal Register. The use of virtual public hearings is 
consistent with our regulations at 50 CFR 424.16(c)(3).

Previous Federal Actions

    We identified the Texas kangaroo rat as a Category 2 candidate in 
December 1982 (47 FR 58454). Category 2 candidates were defined as 
species for which we had information that proposed listing was possibly 
appropriate, but conclusive data on biological vulnerability and 
threats were not available to support a proposed rule at the time. The 
species remained so designated in subsequent annual candidate notices 
of review (50 FR 37958, September 18, 1985; 54 FR 554, January 6, 1989; 
56 FR 58804, November 21, 1991; 59 FR 58982, November 15, 1994). In the 
February 28, 1996, Candidate Notice of Review (61 FR 7596), we 
discontinued the designation of Category 2 species as candidates; 
therefore, the Texas kangaroo rat was no longer a candidate species.

[[Page 55965]]

    On January 11, 2010, we received a petition from WildEarth 
Guardians requesting that we list the Texas kangaroo rat as an 
endangered or threatened species under the Act and to designate 
critical habitat. We published a 90-day finding on March 8, 2011 (76 FR 
12683) that the petition presented substantial information that listing 
the Texas kangaroo rat may be warranted.

Peer Review

    A species status assessment (SSA) team prepared an SSA report for 
the Texas kangaroo rat. The SSA team was composed of Service 
biologists, in consultation with other species experts. The SSA report 
represents a compilation of the best scientific and commercial data 
available concerning the status of the species, including the impacts 
of past, present, and future factors (both negative and beneficial) 
affecting the species.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review of 
listing actions under the Act, we solicited independent scientific 
review of the information contained in the Texas kangaroo rat SSA 
report. We sent the SSA report to five independent peer reviewers and 
received two responses. Results of this structured peer review process 
can be found at https://www.regulations.gov. In preparing this proposed 
rule, we incorporated the results of these reviews, as appropriate, 
into the SSA report, which is the foundation for this proposed rule.

Summary of Peer Reviewer Comments

    As discussed in Peer Review above, we received comments from two 
peer reviewers on the draft SSA report. We reviewed all comments we 
received from the peer reviewers for substantive issues and new 
information regarding the information contained in the SSA report. The 
peer reviewers generally concurred with our descriptions of Texas 
kangaroo rat biology and factors influencing the species. The peer 
reviewers provided additional information, clarifications, and 
suggestions, including clarifications in species behavior, such as use 
of unpaved roads and other habitat types, and discussions of climate 
change and models used to identify potential habitat. There were 
several questions and comments about the resiliency metrics used, and 
based on these comments, we further clarified these metrics in the SSA 
report for the species. Otherwise, no substantive changes to our 
analysis and conclusions within the SSA report were deemed necessary, 
and peer reviewer comments are addressed in version 1.0 of the SSA 
report.

I. Proposed Listing Determination

Background

    The Texas kangaroo rat is one of more than 20 kangaroo rats found 
in North America in the family Heteromyidae and genus Dipodomys 
(Genoways and Brown 1993, pp. 40-42). The Texas kangaroo rat is a 
nocturnal, seed-eating rodent that historically occurred across 3.4 
million acres (ac) (1.4 million hectares (ha)) of north-central Texas 
(Archer, Baylor, Childress, Clay, Cottle, Foard, Hardeman, Montague, 
Motley, Wichita, and Wilbarger Counties) and southern Oklahoma 
(Comanche and Cotton Counties). It is now found in the grassland and 
rangeland habitats of the Southwestern Tablelands and Central Great 
Plains within Texas, where its range occurs across 1.4 million ac (0.6 
million ha) in five counties (Childress, Cottle, Hardeman, Wichita, and 
Wilbarger) (see figure 1, below). It is associated with areas 
characterized by bare ground and short-statured vegetation, which 
facilitate locomotion and forage trails, burrow construction, and 
predator avoidance (Nelson et al. 2009, pp. 127-128; Nelson et al. 
2011, p. 15). For the purposes of this proposed rule, we define short-
statured vegetation as herbaceous plant species observed at a shortened 
height rather than their potential maximum height. This definition 
includes young plants and plants that have been shortened by 
mechanical, chemical, or biological means.
    Historically, these rangeland habitats were occupied by large 
concentrations of American bison (Bison bison) and black-tailed prairie 
dog (Cynomys ludovicianus) colonies, which, along with wildfire, 
contributed to maintaining the ideal conditions to support the Texas 
kangaroo rat's habitat needs (Koford 1958, pp. 69-70; Coppock et al. 
1983, p. 10).
    Texas kangaroo rats have long hind feet, a long tail, and external 
cheek pouches (Dalquest and Horner 1984, p. 118). The fur on their 
upper bodies is a pale yellow-brown color with blackish guard hairs, 
and their undersides are white. Their nearly hairless ears are small 
and eyes relatively large. Their laterally white-striped, thick tail 
has a conspicuous white tuft of hair on the tip. Their bodies are 
relatively large, averaging 4.7 inches (in) (12 centimeters (cm)) in 
length with a tail that adds 7.7 in (19.6 cm) (Schmidly 2004, p. 366). 
The sexes are superficially indistinguishable (Strassman 2004, p. 2); 
however, males may be generally larger than females (Best 1987, p. 57). 
Like other Dipodomys spp., both male and female Texas kangaroo rats 
possess skin glands dorsally between their shoulders, which communicate 
sexual receptivity (Stangl et al. 2006, p. 466). Texas kangaroo rats 
use their long hind feet for saltatorial (jumping) locomotion and 
escaping predators (Genoways and Brown 1993, p. 297).
    The lifespan of Texas kangaroo rats in the wild is approximately 2 
years (Martin 2002, p. 28). Texas kangaroo rats appear capable of 
breeding throughout the calendar year, with peak times in February and 
August. Females give birth to a litter of an average of 2.7 pups, and 
young-of-year are able to birth their first litter within a single year 
(Packard 1976, p. 3; Carter et al. 1985, p. 1; Martin 2002, p. 29). 
Each individual establishes a territory where they construct a burrow 
and forage for themselves and their offspring. Dispersing individuals 
generally stay within 3,281 feet (ft) (1,000 meters (m)) of their natal 
burrows when establishing new territories (Genoways and Brown 1993, p. 
585). Territories encompass an average of 0.2 ac (0.1 ha) (Roberts and 
Packard 1973, p. 960). Bare ground is an important component of each 
territory as males and females display sexual receptivity by dust 
bathing at bare-ground sites within their territory and leaving their 
``scent'' (an oily substance exuded by their skin glands) (Genoways and 
Brown 1993, pp. 360, 576, 578; Stangl et al. 2006, pp. 467-468; Goetze 
et al. 2008, pp. 312-313).
    For shelter, reproduction, and food storage, Texas kangaroo rats 
use subterranean tunnels, which they dig into loose, friable clay 
soils. Their burrows have several chambers branching from the main 
tunnel and contain multiple entrances (Roberts 1969, p. 18). Burrows 
are typically 14 to 18 in (36 to 46 cm) deep and 8 ft (2.4 m) long 
(Lewis 1970, p. 8). Texas kangaroo rats are non-colonial and non-social 
(Dalquest and Collier 1964, p. 147; Packard and Roberts 1973, p. 681), 
so each burrow usually contains a single adult (Goetze et al. 2008, p. 
315). They are opportunistic seed gatherers (Martin 2002, p. 31), 
primarily eating grass seeds as well as fruits and flowers from forbs 
(Chapman 1972, pp. 878-879). Food items are not consumed immediately, 
but instead are placed in cheek pouches and later cached inside their 
burrows (Goetze et al. 2008, pp. 311-315). It is assumed that, like 
other Dipodomys spp., Texas kangaroo rats forage within

[[Page 55966]]

328 ft (100 m) of their burrows (Veech et al. 2018, p. 6).
    For more information, please refer to the SSA report (version 1.0; 
Service 2021, pp. 1-18), which presents a thorough review of the 
taxonomy, life history, and ecology of the Texas kangaroo rat.

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an endangered 
species or a threatened species, issuing protective regulations for 
threatened species, and designating critical habitat for endangered and 
threatened species. In 2019, jointly with the National Marine Fisheries 
Service, the Service issued a final rule that revised the regulations 
in 50 CFR part 424 regarding how we add, remove, and reclassify 
endangered and threatened species and the criteria for designating 
listed species' critical habitat (84 FR 45020; August 27, 2019). On the 
same day, the Service also issued final regulations that, for species 
listed as threatened species after September 26, 2019, eliminated the 
Service's general protective regulations automatically applying to 
threatened species the prohibitions that section 9 of the Act applies 
to endangered species (84 FR 44753; August 27, 2019).
    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 that 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.
    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 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 must evaluate all 
identified threats by considering the species' expected response 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 we 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 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 the 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.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent our decision 
on whether the species should be proposed for listing as an endangered 
or threatened species under the Act. However, it does provide the 
scientific basis that informs our regulatory decisions, which involve 
the further application of standards within the Act and its 
implementing regulations and policies.
    To assess the Texas kangaroo rat's viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency is the ability of the species to withstand environmental and 
demographic stochasticity (for example, wet or dry, warm or cold 
years), redundancy is the ability of the species to withstand 
catastrophic events (for example, droughts, large pollution events), 
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment 
(for example, climate conditions, pathogens). In general, species 
viability will increase with increases in resiliency, redundancy, and 
representation (Smith et al. 2018, p. 306). Using these principles, we 
identified the species' ecological requirements for survival and 
reproduction at the individual, population, and species levels, and 
described the beneficial and risk factors influencing the species' 
viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat

[[Page 55967]]

characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time. We use this information to inform our regulatory 
decision.
    The following is a summary of the key results and conclusions from 
the SSA report; the full SSA report can be found at Docket No. FWS-R2-
ES-2021-0143 on https://www.regulations.gov.

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the 
species and its resources, and the threats that influence the species' 
current and future condition, in order to assess the species' overall 
viability and the risks to that viability. We analyze these factors 
both individually and cumulatively to determine the current condition 
of the species and project the future condition of the species under 
several plausible future scenarios.

Species Needs

    We assessed the best available information to identify the physical 
and biological needs to support all life stages for the Texas kangaroo 
rat. Several important habitat parameters vary from the eastern to the 
western portions of the species' range, such as vegetation type, 
precipitation, and amount of woody cover. The structural nature of 
vegetation and soils within occupied areas has been well-studied, and 
there is evidence that specific soil types and vegetation structure are 
important for the Texas kangaroo rat; however, other specific needs, 
especially those related to the species' demographics, are unknown (see 
the SSA; Service 2021, pp. 14-18). Based upon the best available 
scientific and commercial information, and acknowledging existing 
ecological uncertainties, we recognize that Texas kangaroo rats need 
loose, loam/clay-loam soil for burrowing; some form of topographic 
relief (e.g., prairie mounds or roots of shrubs) not prone to flooding 
to support the burrow structure; adequate space (0.2 ac (0.1 ha)) for 
individual territories; bare ground for dust bathing (to ameliorate 
parasites) and scent marking (for territory delineation/sexual 
receptivity); and short-statured grasses and forbs with sparse canopy 
cover for foraging and travel corridors.
    Although no rangewide estimate of the number of Texas kangaroo rats 
exists, many recent rangewide surveys have been conducted. The few 
studies that published statistics on local abundance reported ranges of 
2 to 10 individuals per hectare (1 to 5 individuals per acre) of 
suitable habitat (Roberts and Packard 1973, p. 960; Goetze et al. 2007, 
pp. 20-21; Martin 2002, p. 25). Surveys have documented that the Texas 
kangaroo rat exhibits a particularly dynamic distribution, with only a 
few locations known to be continuously occupied through time (Service 
2021, pp. 10-11). Recent studies have documented sporadic detections 
since 1985, with Texas kangaroo rats disappearing from previously 
occupied areas or reappearing in areas where it had been absent 
(Service 2021, p. 11). These temporal and spatial distribution changes 
are believed to be dependent on the use of travel corridors and the 
availability of suitable habitat; thus, we recognize habitat 
connectivity between sites as an important species need that 
facilitates dispersal (Service 2021, pp. 15-17).
    The most recent surveys for the species were conducted between 2015 
and 2022 by two separate labs: Texas Tech University (Stuhler and 
Stevens 2023, entire) and Texas State University (Veech et al. 2022, 
entire). Surveys by both labs conducted from 2020 to 2022 revealed very 
few individuals compared to surveys conducted from 2015 to 2017 even 
though the researchers conducted a similar or even higher level of 
survey effort. Sites where the species could be reliably detected in 
the past have not had any recent evidence of Texas kangaroo rats, 
despite having suitable habitat considered by experts to be in good 
condition. Because the results of these surveys were published just 
recently, they were not incorporated into the SSA analysis. However, 
they do not contradict or conflict with the information that was used 
and would not significantly alter the results of the analysis.
    We delineated analysis units for the Texas kangaroo rat based on 
recent occupancy information. We used data from three surveys (two 
rangewide and one covering part of the range) conducted between 2015 to 
2018 that resulted in 285 detections in Texas and no evidence of 
occupied areas in Oklahoma, where it is considered extirpated (Braun 
2017; Veech et al. 2018; Ott et al. 2019; Stuhler et al. 2019). These 
surveys represented the best available scientific information at the 
time of the SSA analysis. Using these survey data, we determined the 
Texas kangaroo rat currently exists within four groups, or analysis 
units. We named the analysis units based on their position relative to 
one another within north-central Texas: East, Central, North, and West 
Units (figure 1). The total area of the four analysis units is 
approximately 274,287 ac (111,000 ha), ranging from the largest (East 
Unit) of approximately 115,398 ac (46,700 ha) to the smallest (West 
Unit) of approximately 44,973 ac (18,200 ha). For the purposes of our 
analysis, these four units define areas where a concentration of Texas 
kangaroo rat activity suggests a relatively isolated group of 
individuals. Large distances and habitat fragmentation resulting from 
anthropogenic landscape features, such as highways and developed areas, 
separate the units. While it is possible that individuals could occur 
outside the boundaries of the four units, we determined that it would 
be unlikely for individuals to successfully disperse or travel between 
them.

[[Page 55968]]

[GRAPHIC] [TIFF OMITTED] TP17AU23.164

Figure 1. Estimated current and historical range of the Texas kangaroo 
rat with the four analysis units identified in the SSA report. The 
boundary of the historical range is based on all known detections of 
Texas kangaroo rats since the species was described in 1894; however, 
no individuals have been detected in Tillman County, Oklahoma, though 
they may have once occurred there based on proximity of other records.

    To assess resiliency, we evaluated five components that broadly 
relate to the species' physical environment or its population 
demography. Standardized survey data, which represents individuals 
detected, was combined with four metrics determined to have the most 
influence on the suitability of the species' physical environment: 
availability of potential habitat, proportion of suitable road edge 
habitat, percentage of cropland, and percentage of high-density woody 
cover.
    To assess representation, we evaluated the ecological and genetic 
diversity across the current range of the species. It is important to 
have sufficiently resilient populations (analysis units) where both 
genetic and ecological differences are apparent to maintain the 
existing adaptive capacity. To evaluate representation in the current 
condition of the Texas kangaroo rat, we consider both genetic 
information and the geographic distribution of populations. At a 
minimum, at least one moderate or highly resilient analysis unit should 
be represented in areas where both genetic and ecological differences 
exist within the species' range to maintain adequate representation.
    To assess redundancy, we considered the number and distribution of 
populations across the range of the species and the potential for 
catastrophic events to impact the Texas kangaroo rat's ability to 
maintain viability. To have high redundancy, the species would need to 
have multiple populations distributed across a large area relative to 
the scale of anticipated catastrophic events.

Factors Influencing Species Viability

Loss and Conversion of Habitat
    The primary factor influencing the viability of the Texas kangaroo 
rat is habitat loss and conversion, largely related to historical land 
use changes. The ecological processes within the geographic range of 
the species were historically influenced by the presence of American 
bison, black-tailed prairie dog, and periodic wildfire. Together, these 
three components helped to create a mosaic of habitat features on the 
landscape that included the short-statured vegetation interspersed with 
areas of bare ground and minimal woody cover preferred by the Texas 
kangaroo rat. This ecological association greatly affected vegetation 
succession and composition within the Great Plains region (Koford 1958, 
pp. 69-70; Coppock et al. 1983, p. 10).
    At one time, the foraging habits of bison and prairie dogs 
maintained patches of short grasses and bare ground across the Great 
Plains (Krueger 1986, p. 769). Bison preferred grasslands where prairie 
dog colonies existed, using the area for foraging and wallowing (Tyler 
1968, p. 17; Coppock and Detling 1986, p. 452; Chipault and Detling 
2013, p. 171; Wydeven and Dahlgren 1985, p. 809). Prairie dog foraging 
reduced shrub growth, affected vegetation height and structure, and 
increased the amount of bare ground within the colonies (Agnew et al. 
1986, p. 138; Weltzin et al. 1997b, p. 760; Kotliar et al. 1999, p. 
178). In places where other species of kangaroo rat (e.g., the Ord's 
kangaroo rat (Dipodomys ordii)) coexist with prairie dogs today, the 
patches of short, clipped grass and bare ground may facilitate kangaroo 
rat dispersal (Service 2021, p. 19). Bison once numbered in the tens of 
millions across their range, and prairie dog colonies once occupied 100 
to 250 million ac (40 to 100 million ha) (Knapp et al. 1999, p. 39; 
Miller et al. 2007, p. 678). The expansion of Euro-Americans into the 
West beginning in the 1800s led directly to the decline of bison and 
black-tailed prairie dogs. By the early 1900s, bison were near 
extinction, and prairie dog control substantially reduced once-large 
colonies of black-tailed prairie dogs across the Great Plains, and in 
north-central Texas specifically (Weltzin et al. 1997a, p. 251).

[[Page 55969]]

    Fire also historically shaped prairies. In the Great Plains, it 
influenced the spread of grasslands and reduced tree and shrub 
proliferation (Axelrod 1985, pp. 187-188). Periodic burning of 
grasslands increased species diversity and maintained ecosystem 
functions (Ryan et al. 2013, pp. e17-e18) but also attracted prairie 
dogs and bison (Coppock and Detling 1986, p. 454; Coppedge and Shaw 
1998, p. 262; Augustine et al. 2007, p. 541). These complex 
interactions contributed to maintaining the dynamic prairie ecosystem. 
Since Euro-American expansion to the area, regular prairie fires have 
been scarce, leading to an increase in shrub encroachment across the 
prairie landscape. The alteration of the bison, prairie dog, and fire 
complex has led to increased shrub canopy (Service 2021, p. 7).
    For the Texas kangaroo rat, woody plant encroachment represents a 
loss of suitable habitat, as the species avoids areas of dense 
vegetation and closed canopy cover. Within the microhabitats 
surrounding individual burrow sites, woody canopy cover averages less 
than one percent (Ott et al. 2018, p. 16). Across the broader habitat, 
native woody plants such as honey mesquite (Prosopis glandulosa) can 
increase at a rate of up to 2.3 percent per year when they are not 
managed (from 14.6 to 58.7 percent over 20 years; see Ansley et al. 
2001, pp. 171-172 and Barger et al. 2011, p. 3), quickly spreading and 
replacing suitable Texas kangaroo rat habitat. Prescribed fires are not 
often used to manage woody species within the range of the Texas 
kangaroo rat for various reasons, including the presence of oil field 
equipment and limitations from drought; in addition, mechanical means 
of shrub removal are prohibitively expensive (Stasey et al. 2010, pp. 
11-12). These circumstances allow areas to develop dense stands of 
mesquite and herbaceous understory, which is unsuitable habitat for the 
Texas kangaroo rat.
    Although the loss of the bison, prairie dog, and fire complex has 
negatively impacted the availability of habitat for the Texas kangaroo 
rat, grazing cattle can act as a disturbance surrogate to create 
conditions that are suitable for Texas kangaroo rats. Disturbance 
created by cattle grazing resulted in higher numbers of Texas kangaroo 
rats when compared to ungrazed areas at a Texas ranch, likely due to 
the presence of bare ground and lack of dense vegetation (Nelson et al. 
2009, p. 126; Stasey et al. 2010, pp. 9-12). Much like bison and 
prairie dogs, cattle can create and maintain short-statured grass and 
bare ground.
    However, cattle tend to occur in different areas and do not use the 
habitat in the same way as bison and prairie dogs. When present, bison 
were more likely to occur in upland grassland areas favored by Texas 
kangaroo rats. Bison are not limited by distance to a water source and 
prefer grasslands, whereas cattle often prefer to forage near permanent 
water sources or areas with woody vegetation (Allred et al. 2011, p. 8; 
Knapp et al. 1999, p. 46). Of most importance, cattle confinement 
through fenced pastures leads to reduced biological diversity relative 
to a landscape grazed by wandering bison (Benedict et al. 1996, p. 
155). Both cattle and prairie dogs are grazers, but unlike cattle, 
prairie dogs also move soil, influence nutrient cycling, increase 
nitrogen in soils and plants, and facilitate water infiltration (Miller 
et al. 2007, p. 2807; Whicker and Detling 1988, entire). For species 
such as the Texas kangaroo rat that require open areas within habitat, 
prairie dog colonies can create more bare ground than high-intensity 
cattle grazing (Augustine and Derner 2012, p. 726). Additionally, high-
intensity cattle grazing coupled with lack of fire can quicken the 
conversion of grasslands to shrublands (Brennan and Kuvlesky 2005, p. 
6). For these reasons, domestic cattle may be able to replace some lost 
historical ecosystem functions, but only in a limited capacity.
    The conversion of native rangeland to cropland has resulted in a 
direct loss of habitat because the Texas kangaroo rat does not 
typically construct burrows in soils of agricultural crops (Martin and 
Matocha 1972, p. 874; Martin 2002, pp. 33-34; Goetze et al. 2007, p. 
18; Goetze et al. 2008, p. 313; Nelson et al. 2009, pp. 119-120; Ott et 
al. 2019, p. 627). Ground disturbance caused by plowing and disking 
associated with cultivating cropland disturbs the soil substrate, 
resulting in a loss of burrowing habitat in areas that would have 
previously supported the species. The establishment of cropland has 
eliminated native foraging areas, although some cropland edges may 
provide a forage base, at least opportunistically. The conversion of 
rangeland to cropland has also led to increased habitat fragmentation, 
as it presents a barrier to movement and dispersal, since it appears 
Texas kangaroo rats do not traverse active croplands seeking food, 
shelter, or mates as they would in native rangeland habitats (Stangl et 
al. 1992, p. 31; Goetze et al. 2008, pp. 312-318). The amount of 
cropland acres in Texas increased along with the human population until 
the 1950s (Dethloff and Nall 2010, entire). Since then, the number of 
acres in farming has remained largely the same with some areas seeing a 
slight decline (USDA Census of Agriculture 2020, unpaginated).
    The Conservation Reserve Program (CRP) is a voluntary program that 
provides incentives for private landowners to convert croplands to 
perennial grasslands to provide cover for the prevention of soil 
erosion. It was introduced through the Farm Bill in 1985 and provides 
short-term protection of previously cultivated lands. Under the 
program, the amount of enrolled land fluctuates as contracts expire or 
new lands are enrolled (USDA Farm Service Agency 2016, p. 22). In the 
Great Plains, enrolled CRP lands are largely planted with mid- and 
tallgrass species that often remain undisturbed for the entirety of 
their 10- to 15-year contracts (McLachlan and Carter 2009, p. 28). As a 
result, vegetation structure in CRP fields often includes taller, more 
dense vegetation that differs from native shortgrass or mixed-grass 
prairie (Bidwell and Engle 2005, p. 16). While CRP lands benefit some 
species, shortgrass-adapted birds or mammals such as the Texas kangaroo 
rat may find CRP lands to be poor-quality habitat because the 
vegetation structure does not meet their needs (Kamler et al. 2003, p. 
993; McLachlan and Carter 2009, p. 30). Managed haying and grazing are 
permitted in CRP fields to improve the quality of the land for 
wildlife, but the frequency of haying/grazing (no more than 1 out of 
every 3 years) may not be sufficient to maintain short vegetation 
structures (Noto and Searchinger 2005, p. 153). Because the Texas 
kangaroo rat requires short-statured vegetation with bare ground and 
limited woody cover, lands enrolled in CRP may not be suitable habitat 
for the species (Martin 2002, p. 33; Nelson et al. 2013, p. 12; Ott et 
al. 2019, p. 626). Thus, the amount and distribution of CRP land within 
the range of the Texas kangaroo rat may provide some habitat along the 
edge of the fields or serve as connectivity corridors; however, the 
lands likely have a negative influence on the amount of available 
habitat overall.
    Since the introduction of CRP, peak enrollment acres within the 
Texas portion of the species' historical range generally occurred from 
1989 to 1998, cumulatively peaking at approximately 239,692 ac (97,000 
ha). Since then, enrolled acres have generally decreased over time to 
approximately 126,024 ac (51,000 ha) over the past decade. Counties in 
the western portion of the historical range (Childress, Cottle, Foard, 
Hardeman, and Motley Counties)

[[Page 55970]]

have substantially more enrolled acres than the eastern portion (see 
Service 2021, p. 25). The influence of CRP on the species' distribution 
may be similar to cropland by limiting movement and dispersal, limiting 
potential burrow sites, and reducing native forage. However, CRP lands 
do not include the same edge characteristics as cropland that, as 
discussed above, have the potential to provide marginal habitat for the 
Texas kangaroo rat (Ott et al. 2019, p. 624). As such, the conversion 
of cropland to CRP is expected to have a slightly negative impact on 
the Texas kangaroo rat.
    The development of roads within Texas kangaroo rat habitat has had 
mixed impacts on the species. Both paved and unpaved (dirt) roads 
represent a loss of native grassland or rangeland habitat and have the 
potential to fragment the species' range; however, survey data show a 
complex relationship. Because of limited access for surveys on private 
lands, surveying for Texas kangaroo rats using mostly the public 
unpaved road systems has been common practice and accounts for a 
substantial proportion of all published detections. Road surveys, which 
involve sighting individuals while driving or walking along roads, have 
resulted in Texas kangaroo rats being frequently observed using burrows 
in the narrow strip of habitat adjacent to unpaved roads (Stangl et al. 
1992, p. 26; Martin 2002, p. 19; Nelson et al. 2013, p. 8). For similar 
species (e.g., Stephen's kangaroo rat (Dipodomys stephensi) in 
California), unpaved roads can provide substitute habitat for areas of 
bare ground and sparse grass cover and can be used for burrowing, 
foraging, dust bathing, and scent marking (Brock and Kelt 2004, p. 
638). They may connect larger areas of suitable habitat and support 
dispersal between sites.
    While unpaved roads may function as nontraditional habitat and 
travel corridors, paved and gravel roads have an overall negative 
impact. Paved and gravel roads substantially reduce or eliminate bare 
ground and provide a hard substrate assumed to be of limited use by 
Texas kangaroo rats (Goetze et al. 2016, p. 229). Paved roads have a 
higher traffic volume, allow greater vehicle speed, and are generally 
wider than unpaved roads. Small mammals avoid crossing paved or gravel 
roads (Oxley et al. 1974, p. 56; Merriam et al. 1989, pp. 231-232). 
Additionally, small mammals are often killed by traffic (Adams and Geis 
1983, p. 413), and there is documentation of Texas kangaroo rats being 
hit by cars on roads (Dalquest and Collier 1964, p. 146; Jones et al. 
1988, p. 249; Martin 2002, p. 4). Therefore, we determined that paved 
and gravel roads have a negative impact on the Texas kangaroo rat 
because they may restrict movement, increase mortality, and fragment 
habitat. However, as discussed above, the overall effect of unpaved 
roads on the species is unknown because, while the roads lead to 
removal of native habitat, they also may provide substitute habitat in 
some settings.
    Within the Texas kangaroo rat's range, major highways and urban 
areas are expected to impact the distribution of the species. The 
largest thoroughfare within the range is State highway 287, a four-lane 
divided highway, which bisects the entire northern portion of the 
species' range from east to west. Additional highways and the City of 
Wichita Falls also influence Texas kangaroo rat movement by presenting 
a complete or partial dispersal barrier. Within the 11-county 
historical range, human population growth has increased minimally (by 
3,000 people between 1997 and 2017) in comparison to other parts of 
Texas (TAMU 2020), and future growth of the human population within the 
Texas kangaroo rat's range is expected to be similarly minor through 
2040 (Texas Department of Transportation 2015, pp. 4-5).
    The Texas kangaroo rat's association with disturbance (natural and 
anthropogenic) is well established (Stangl et al. 1992, pp. 29-34; 
Goetze et al. 2007, pp. 18-19). Among sources of anthropogenic 
disturbance, oil and gas infrastructure is common throughout the range 
of the species. Texas produces the most crude oil and natural gas of 
any State in the nation. As of June 2, 2020, within the historical 
range 71,843 oil and natural gas well sites occurred across the 11 
Texas counties (Railroad Commission of Texas 2020, unpaginated). The 
majority of all wells within the current range of the Texas kangaroo 
rat occur within Wichita and Wilbarger Counties. The presence of oil 
and gas infrastructure (i.e., oil pad access roads, stacks of drill 
pipe segments, margins of established/maintained well pads, etc.) has 
an unclear impact on the species, but it may provide opportunistic 
burrowing sites for Texas kangaroo rats (Martin 2002, p. 16; Nelson et 
al. 2013, p. 8; Stuhler et al. 2019, p. 139). Oil and gas extraction 
also often involves creating new unpaved roads for access, which could 
benefit the species or further remove native habitat, as discussed 
above. The full extent of the influence of oil and gas on the Texas 
kangaroo rat, including potential benefits or detriments, has not been 
studied. The loss of naturally occurring disturbances (i.e., bison 
grazing, prairie dog towns, wildfire) may make anthropogenic features 
and disturbance more important in creating or maintaining bare ground 
and short-statured vegetation preferred by the Texas kangaroo rat, at 
least opportunistically or as a remnant source of habitat.
Climate Change
    Climate models developed by the Intergovernmental Panel on Climate 
Change (IPCC) have projected a worldwide overall warming trend towards 
the end of the 21st century (IPCC 2007, p. 747). Based on simulations 
of several global climate models, Seager et al. (2007, p. 1181) showed 
that southwestern North America, which encompasses the range of the 
Texas kangaroo rat, is projected to become drier and that the 
transition to a more arid climate is already underway. The main 
scientific measure of climate change, the earth's average annual 
temperature (the surface air temperature above land and oceans), shows 
clear evidence of the change since modern recordkeeping began in 1880. 
Since that time, the average annual temperature has varied (i.e., each 
year is not necessarily warmer than the last), and, despite the 
variability, a clear warming trend is evident (see https://www.ncdc.noaa.gov/cag/time-series/global; IPCC 2014, p. 2).
    Downscaled global climate models predict changes in temperature and 
precipitation across subregions of Texas (Jiang and Yang 2012). 
Evaluating these subregions under the IPCC's emissions scenarios (IPCC 
2000, pp. 177-182), the downscaled models predict that annual 
temperatures in the Central subregion, which includes the Texas 
kangaroo rat's range, will increase with trends ranging from an 
increase of approximately 4.3 [deg]F (2.4 [deg]C, lower emissions 
scenario) to 7.6 [deg]F (4.2 [deg]C, higher emissions scenario) (Jiang 
and Yang 2012, p. 235). Likewise, a continuing drying trend is 
predicted for four of the five subregions analyzed, including the 
Central subregion. The downscaled global climate models also illustrate 
a potential future shift in seasonal rainfall patterns in the Central 
subregion, where summer is projected to have more rainfall, while 
winter is projected to have less rainfall (Jiang and Yang 2012, p. 
238).
    One manifestation of projected warming trends is the greater number 
of days per year that a given region of Texas will experience 
temperatures exceeding 100 [deg]F (38 [deg]C). In the recent past, some 
regions of Texas reached temperatures above 100 [deg]F approximately 
10-20 days per year; however, climate models project more than 100 such 
100 [deg]F days per year by

[[Page 55971]]

the end of the century under a high greenhouse gas emissions scenario 
(Banner et al. 2010, p. 8).
    Climate may have direct or indirect effects on species, and the 
effects may be positive, neutral, or negative, and may change over time 
depending on the species and other relevant considerations, such as 
interactions of climate with other variables. Examples of possible 
results include habitat fragmentation, alterations in key vegetation in 
response to temperature or other climate-related changes (e.g., 
expansion of invasive species), or changes in types or abundance of 
competing species, predators, or prey (Settele et al. 2014, pp. 274-
275, 278-279). The life-history characteristics of many species are 
closely connected with climate conditions (e.g., thermal tolerances 
during certain stages of the life cycle). Accordingly, many climate 
scientists expect numerous species will shift their geographical 
distributions in response to a warming climate (e.g., McLaughlin et al. 
2002, p. 6070). Populations occurring in fragmented habitats can be 
more vulnerable to effects of climate change and other threats, 
particularly those species with limited dispersal abilities (McLaughlin 
et al. 2002, p. 6074).
    Historically, distributions of plants and animals have shifted with 
changes in regional and global temperatures. Studies continue to 
indicate that these changes will impact the distribution of plant and 
animal species as well as the composition of plant and animal 
communities. Projections of the distribution of vegetation across the 
State of Texas predicted that distributions and richness of particular 
taxa of mammals would be altered and fragmented in response to shifts 
in preferred habitats resulting from climate change (Cameron and Scheel 
2001, p. 654). Rodents in general are expected to be more adaptable to 
changes in vegetation than other Texas mammals, whose ranges are 
expected to decrease (Cameron and Scheel 2001, p. 654). The impact of 
climate change in Texas is expected to be greatest under warmer, drier 
climatic scenarios, where rodent geographic ranges are likely to shift 
to areas containing vegetation types different than those historically 
observed. The impact of climate change could be the most severe in 
western and southern Texas if the climate becomes warmer and drier 
because of the expansion of desert and shrub habitats (Cameron and 
Scheel 2001, p. 652), which will have direct implications for the 
future of the Texas kangaroo rat.
    There is some evidence that hotter, drier years limit Texas 
kangaroo rat populations (Nelson et al. 2013, p. 10). Additionally, in 
a vegetation study of rodents in Texas, two climate circulation models 
(one projecting wetter and one projecting drier conditions than the 
current climate) were used to predict climate-vegetation associations 
and vegetation distribution changes over the coming decades as 
atmospheric carbon dioxide doubles from baseline levels (Cameron and 
Scheel 2001, p. 658), which is anticipated to happen after 2050 in the 
most pessimistic climate scenarios (Terando et al. 2020, p. 9). Under 
both scenarios, Texas kangaroo rat were projected to experience a 
decline in suitable habitat and a shift in distribution, though the 
severity depends on precipitation patterns, with the wetter conditions 
model resulting in a greater loss of suitable habitat. However, this 
future suitable habitat overlaps the existing geographic range in only 
494 ac (200 ha; drier conditions) or 2,471 ac (1,000 ha; wetter) and is 
almost entirely composed of new vegetation associations that the Texas 
kangaroo rat does not currently use.
    An increase in woody encroachment associated with climate change 
may also result in a contraction in available suitable Texas kangaroo 
rat habitat. Projected warming temperatures and dry conditions will 
likely have an influence on future shrubland dominance (Van Auken 2000, 
p. 206). In northwest Texas, the effect of climate change and fire 
suppression would result in a shrubland-dominated landscape (White et 
al. 2011, p. 541). As described above, encroachment of woody vegetation 
has deleterious effects to the use of habitat by Texas kangaroo rats. 
Therefore, the expected shift in vegetative structure brought on by 
climate change resulting in woody species encroachment would limit the 
amount of suitable habitat available to the Texas kangaroo rat.
    In the range of the Texas kangaroo rat within the Southwestern 
Tablelands and Central Great Plains regions, climate change is also 
expected to increase drought frequency and severity in the coming 
decades. One metric widely used for drought monitoring is the Palmer 
Drought Severity Index, which uses readily available temperature and 
precipitation data to estimate relative dryness and quantify past long-
term drought. The Palmer Drought Severity Index can also be used to 
model future drought conditions (Cook et al. 2007, p. 103). These model 
projections consistently predict significantly drier conditions in the 
latter half of the 21st century (2050-2099) and suggest an 
exceptionally high risk of a multi-decadal megadrought occurring over 
the Central Plains and Southwest regions during the late 21st century 
(Cook et al. 2015, pp. 1-4).
    To date, a limited number of observations inform our understanding 
of the impacts of drought on the Texas kangaroo rat. On one property, a 
substantial decline in the number of individuals was observed in 2011 
(Nelson et al. 2013, p. 10), the worst single-year drought on record in 
Texas (Nielsen-Gammon 2012, entire). However, it is not known if the 
decline observed was caused directly by drought (e.g., by a lack of 
available water), indirectly (e.g., a change in vegetation and decline 
in food resources resulting from the drought), or by an unrelated or 
unknown factor. The 2011 drought and corresponding heat wave were 
largely attributed to anomalous sea surface temperatures related to La 
Ni[ntilde]a conditions in the Pacific Ocean, rather than anthropogenic 
climate change, and are considered outliers (compared to conditions 
over the past 100 years) not consistent with regional trends (Hoerling 
et al. 2013, entire). Although the effects of the influence of 
prolonged drought on Texas kangaroo rats have not been well studied, 
predicted intensified drought conditions may limit the Texas kangaroo 
rat in the coming decades.
    In some instances, effects from one threat may increase effects of 
another threat, resulting in what is referred to as synergistic 
effects. Synergistic effects often include an increased susceptibility 
to predation (Moore and Townsend 1998, pp. 332-333), disease (Kiesecker 
and Blaustein 1995, pp. 11050-11051; Taylor et al. 1999, pp. 539-540), 
or parasites (Kiesecker 2002, pp. 9902-9903; Gendron et al. 2003, pp. 
472-473). Synergistic interactions are possible between the effects of 
climate change and the effects of other potential threats, especially 
those that affect the composition and structure of the vegetation 
communities, such as energy development, livestock grazing, and woody 
vegetation expansion. Changes in temperature and precipitation 
resulting from climate change are likely to affect the composition and 
structure of the vegetation communities as well, which the Texas 
kangaroo rat is closely associated with, and many of these 
relationships are discussed in the previous sections. While it is 
difficult to project specifically how the climate, especially 
temperature and precipitation, will change and how the vegetation will 
be affected, the effects of climate change are expected to exacerbate 
the increase in woody vegetation and subsequent loss of appropriate 
habitat.

[[Page 55972]]

Other Potential Threats
    Barn owls and diamondback rattlesnakes prey on Texas kangaroo rats 
(Stangl et al. 2005, p. 137, Bailey 1905, p. 149; Veech et al. 2018, p. 
5); however, there is no documentation of predation pressure exerting a 
substantial effect on Texas kangaroo rat populations. Parasites may 
also threaten some rodent populations. However, a nematode first 
described from a Texas kangaroo rat specimen appears to have had no 
deleterious effects on the individual or population from which it came 
(Pfaffenberger and Best 1989, entire).
    The range of the Texas kangaroo rat overlaps areas with adequate 
wind resources necessary for generating energy. There are no published 
records of Texas kangaroo rats using or avoiding habitat associated 
with wind facilities. Similarly, solar energy development is an 
emerging industry in Texas that may also have a substantial impact on 
the landscape within the range of the Texas kangaroo rat. There are no 
published records of Texas kangaroo rats using or avoiding the land 
where solar facilities currently exist. Greater detailed analyses of 
these potential threats can be reviewed in the SSA report (Service 
2021, pp. 37-40).

Conservation Efforts and Regulatory Mechanisms

    The Texas kangaroo rat was listed as threatened by the State of 
Texas (Texas Administrative Code section 65.175) in 1977. A State-
threatened designation makes it unlawful to collect, kill, or take the 
species without a permit from the Texas Parks and Wildlife Department. 
The designation protects the Texas kangaroo rat by increasing its 
restitution value, meaning that if a person violates the law, the fine 
is higher than for other nongame species in Texas.
    Coordinated conservation of the Texas kangaroo rat in the State has 
been ongoing for several years. The Natural Resources Conservation 
Service encourages private landowners to implement compatible 
conservation management practices that may benefit the Texas kangaroo 
rat through habitat improvements. In coordination with the Fort Worth 
Zoo (TX), research on Texas kangaroo rat husbandry has been ongoing 
since 2018. The results from this study are intended to inform a 
potential captive propagation effort that could lead to the release of 
captive-reared individuals into the wild. If successful, captive 
propagation could be a useful conservation tool to augment Texas 
kangaroo rat populations or reintroduce the species to historical 
localities in the future.
    Lastly, we have collaborated with the Texas Parks and Wildlife 
Department and private landowners to develop a CCAA for the species on 
non-Federal lands. The CCAA was completed May 16, 2022, and is 
available to non-Federal landowners within the species' historical 
range in Texas (Service 2022, unpaginated). The purpose of the 
agreement is to maintain, enhance, and establish self-sustaining 
populations of Texas kangaroo rats in the wild through the 
implementation of specific conservation measures. Landowners that 
choose to enroll in the CCAA enter into a cooperative agreement via a 
wildlife management plan or other approved conservation plan with the 
Texas Parks and Wildlife Department to undertake conservation measures 
for the benefit of the Texas kangaroo rat. The key conservation 
measures in the CCAA are designed to increase the resiliency of Texas 
kangaroo rat populations in occupied and historical areas by 
maintaining or improving the habitat through management, restoration, 
or enhancement; by increasing the connectivity of habitat; and by 
establishing new populations in areas where they were previously 
extirpated through translocation of wild or captive-reared individuals 
in the future.

Summary

    Our analysis of the factors influencing the Texas kangaroo rat's 
viability revealed several threats that pose a risk to the species' 
current and future viability: loss of ecosystem functions maintained by 
the bison, prairie dog, and fire complex, encroachment of woody 
vegetation, conversion of native rangeland to cropland and CRP land, 
construction of roads (in particular, paved and gravel roads), 
urbanization, and influences of climate change. Conversely, well-
managed livestock grazing can be compatible with management of Texas 
kangaroo rat habitat. Also, the influences of road construction, oil 
and gas extraction, wind energy, and solar energy development on the 
Texas kangaroo rat's viability are not fully understood. Efforts to 
conserve the species are in the planning stages and are expected to 
benefit the species in future years.

Species Condition

    To evaluate the current condition of the Texas kangaroo rat, we 
considered the resiliency of known populations or groups, the 
redundancy of populations or groups, and the ecological or genetic 
representation within the species across its range. We assessed 
resiliency of the four analysis units using the five metrics (i.e., 
standardized survey data, habitat availability, road edge habitat, 
cropland percentage, and woody cover percentage; see Species Needs, 
above) and assigned a rank of good, fair, or poor for each metric based 
on evidence from documented studies, available unpublished information, 
and expert opinion. Weighting was placed on each metric prior to 
calculating a final resiliency score for each of the analysis units. 
Habitat availability and woody cover percentage were weighted more 
heavily because there is strong evidence that soils and land cover type 
are associated with species presence and that dense woody cover has a 
negative effect. Road edge habitat and cropland percentage were given a 
lower weight because there is less certainty about the influences these 
factors have on the species' resiliency. Based on the total of weighted 
metric scores, a condition category of high, moderate, low, or minimal 
was assigned to each analysis unit to represent its current resiliency. 
The results of our resiliency analysis are presented in table 1.

                                       Table 1--Summary of Current Resiliency of Texas Kangaroo Rat Analysis Units
 [Each metric condition rank of good, fair, and poor refers to the score evaluated in each unit based on either a positive or negative influence of the
                             metric (e.g., ``good'' condition for cropland represents a unit with minimal cropland impact).]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Habitat                                Cropland          Woody cover
         Analysis unit               Survey data        availability      Road edge habitat      percentage          percentage      Overall resiliency
--------------------------------------------------------------------------------------------------------------------------------------------------------
East...........................  Poor..............  Fair..............  Poor..............  Poor..............  Good.............  Moderate.
Central........................  Poor..............  Poor..............  Poor..............  Poor..............  Poor.............  Low.
North..........................  Poor..............  Fair..............  Good..............  Fair..............  Poor.............  Low.
West...........................  Poor..............  Fair..............  Fair..............  Good..............  Poor.............  Low.
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 55973]]

    The analysis results indicate the Central, North, and West analysis 
units have low resiliency. The East Unit has moderate resiliency. None 
of the units have a resiliency that ranked as minimal or high.
    The overall resiliency scores were largely driven by low detections 
during surveys and the amount of woody cover in all units except the 
East Unit. All units scored poor in the standardized survey data 
metric, meaning that fewer than three Texas kangaroo rats were detected 
per 16 kilometers (10 miles) of unpaved road in the unit. It is 
important to note that species detection can be highly variable from 
year to year and there is no population trend information or 
consistency of survey methods over time. Additionally, there are no 
published accounts of a population level that would be considered 
stable. Our analysis estimated the ranking of good in the standardized 
survey data metric based on the largest published record of the species 
collected across a single year and apportioned the other categories 
equally. A ranking of poor in the standardized survey data metric is an 
indication that the species is not currently observed in the analysis 
unit in the same abundance compared to the height of detectability in 
the past. Due to the difficulty in detecting the species and the lack 
of published information on standard population numbers, the 
standardized survey metric ranking should not be interpreted to 
represent the number of individuals needed for persistence, but as a 
contributing factor to the overall resiliency score of a unit.
    To evaluate representation in the current condition of the Texas 
kangaroo rat, we considered both genetic information and the geographic 
distribution of populations. The ecological diversity of the Texas 
kangaroo rat is represented by two ecoregions: the Southwestern 
Tablelands (West Unit) and the Central Great Plains (East, Central, and 
North Units). The two ecoregions generally correspond to an east-west 
environmental gradient. The species exhibits adaptive potential by 
occupying these two different habitat types that vary in terms of 
precipitation, soils, topography, and vegetation.
    Genetic structuring within the Texas kangaroo rat population was 
analyzed in two recent studies (Pfau et al. 2019; Stuhler et al. 2019) 
in which the researchers found spatial separation in genetic variation 
occurring along an east-west gradient. Genetic differences between the 
two sides of the range may be substantial enough to indicate a 
metapopulation dynamic, with at least two subpopulations (Stuhler et 
al. 2019, pp. 105-107). However, the boundaries of the genetic 
subpopulations are uncertain and differ between the two studies. The 
North and West Units are genetically similar, and the East Unit 
differs, but the Central Unit occurs in an intermediate zone (Pfau et 
al. 2019, pp. 1177-1178; Stuhler et al. 2019, pp. 105-107). It is 
unknown if the differences correspond to an environmental gradient, 
geographic or anthropogenic barrier, or some combination of factors, 
but they do not match the geographic boundary between ecoregions 
described above. Samples from the center of the range are limited, 
making it difficult to identify whether the genetic differences are 
true subpopulations or reduced gene flow due to distance across a 
continuous population (Pfau 2019, pers. comm.; Stuhler et al. 2019, p. 
107). There is also evidence that a historical loss of genetic 
diversity or population bottleneck involving the entire species 
occurred prior to the establishment of the current distribution (Pfau 
et al. 2019, p. 1176). However, despite contemporary changes in 
species' distribution, there does not seem to be a substantial loss of 
genetic diversity within the past 30 years (Stuhler et al. 2019, p. 
105).
    Redundancy refers to the species' ability to withstand catastrophic 
events. Because the Texas kangaroo rat is a narrow-ranging endemic, any 
catastrophic event that may happen has the potential to affect the 
entire range of the species, although no specific catastrophic events 
acting on the species in the past or likely to act on the species in 
the future were identified in our analysis. For the purposes of our 
analysis, the species' redundancy was measured by assessing the number 
and average resiliency of the analysis units within each ecoregion 
because the number and the distribution of populations are important to 
mitigate risk and reduce the potential effects of catastrophic events 
should they occur. Average resiliency scores were calculated by 
assigning numerical values to the resiliency metric conditions (see 
Table 1) for each analysis unit and weighting the values to reflect the 
relative importance of having moderately or highly resilient 
populations (or analysis units) within the ecoregion, which would 
indicate that the species is likely to withstand stochastic events (see 
Service 2021, pp. 63-65). The results of our redundancy analysis are 
presented in table 2.

                Table 2--Summary of Current Redundancy Rankings of Texas Kangaroo Rat Ecoregions
----------------------------------------------------------------------------------------------------------------
                                                                     Average unit
         Redundancy ecoregions            Analysis units included     resiliency         Redundancy ranking
----------------------------------------------------------------------------------------------------------------
Central Great Plains...................  East, Central, North.....             1.5  Moderate.
Southwestern Tablelands................  West.....................             1.5  Low.
----------------------------------------------------------------------------------------------------------------

    Populations with adequate resiliency are needed to withstand the 
potential effects of catastrophic events due to the inherently limited 
distribution of the species. The Central Great Plains ecoregion 
contains three extant analysis units (i.e., North, Central, and East). 
While the number of units in the Central Great Plains is considered 
adequate, the average resiliency of those analysis units is low, and 
the ecoregion is therefore considered to have a moderate redundancy. 
The Southwestern Tablelands ecoregion contains just one analysis unit 
(i.e., West), which has low resiliency. Therefore, this region is 
considered to have low redundancy. To maintain viability, the species' 
representation should include at least one moderate to high resilient 
unit within each ecoregion. Under current conditions, representation is 
lacking in the Southwestern Tablelands ecoregion, which maintains a 
single unit that ranks low, and is slightly higher in the Central Great 
Plains ecoregion, which has three units (two that rank low, one that 
ranks moderate). At the species level, the current range of the Texas 
kangaroo rat is spread across two ecoregions encompassing an area of 
approximately 1.4 million ac (0.6 million ha). Based on our current 
knowledge, this represents a substantial reduction from the estimated 
maximum historical distribution that covered approximately 3.4 million 
ac (1.4 million ha).
    As part of the SSA, we also developed four future condition 
scenarios reasonably expected to occur over the next 25 years that 
capture the range of uncertainties regarding future threats

[[Page 55974]]

and the projected responses by the Texas kangaroo rat. Together, these 
scenarios represent the range of plausible outcomes over that 
timeframe. Using the same framework as our analysis under current 
conditions, we evaluated the five metrics (i.e., standardized survey 
data, habitat availability, road edge habitat, cropland percentage, and 
woody cover percentage) used to assess resiliency for each analysis 
unit and developed criteria in which each metric could be projected for 
the future condition. Because we determined that the current condition 
of the Texas kangaroo rat is consistent with an endangered species (see 
Determination of Texas Kangaroo Rat Status, below), we are not 
presenting the results of the future scenarios in this proposed rule. 
Please refer to the SSA report (Service 2021) for the full analysis of 
future scenarios.
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have 
analyzed the cumulative effects of identified threats and conservation 
actions on the species. The best available science indicates that there 
are strong synergistic and cumulative interactions among the factors 
influencing Texas kangaroo rat viability. For example, the reduction of 
ecosystem function from the losses of bison, prairie dogs, and periodic 
fire has synergistically led to increasing shrub canopy, resulting in 
habitat loss and causing Texas kangaroo rat populations to exist in 
increasingly small areas. Development and conversion of native 
rangeland to cropland have also led to increased habitat loss and 
fragmentation. Cumulatively, these factors affect the species' 
viability because there is less connectivity among populations, 
diminishing the species' ability to repopulate areas following 
extirpation. To assess the current and future condition of the species, 
we evaluate the effects of all the relevant factors that may be 
influencing the species, including threats and conservation efforts. 
Because the SSA framework considers not just the presence of the 
factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and replaces a standalone cumulative-effects analysis.

Determination of Texas 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 an endangered species or a 
threatened species. The Act defines an ``endangered species'' as a 
species in danger of extinction throughout all or a significant portion 
of its range and a ``threatened species'' as a species likely to become 
an endangered species within the foreseeable future throughout all or a 
significant portion of its range. The Act requires that we determine 
whether a species meets the definition of 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.

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the section 4(a)(1) factors, we 
find that the viability of the species is currently at risk. Our 
analysis revealed several threats that have caused the Texas kangaroo 
rat's range to become greatly reduced, and much of its remaining 
habitat is now unsuitable. The most important factors affecting the 
species' current status and trend are the destruction and modification 
of its habitat (Factors A and E) and the effects of climate change on 
its habitat (Factor E).
    The primary driver of the status of the Texas kangaroo rat has been 
the loss and degradation of suitable grassland and rangeland habitats 
caused by loss of ecosystem functions, conversion to croplands, and 
development. The historical loss of the bison, prairie dog, and fire 
complex that occurred in the late 1800s to early 1900s resulted in loss 
of the natural disturbance regime essential for maintaining habitat 
suitability. Texas kangaroo rats require a mosaic of short-statured 
vegetation interspersed with areas of bare ground and minimal woody 
cover. Without the complex interactions maintaining that mosaic of 
habitat and dynamic prairie ecosystem, vegetational succession occurred 
in areas across the Great Plains region. In the absence of the natural 
disturbance regime, woody vegetation invaded grasslands, eventually 
converting some to shrublands or woodlands uninhabitable by Texas 
kangaroo rats. Native woody plants such as mesquite continue to 
encroach into the remaining grasslands and are currently estimated to 
increase at a rate of 2.3 percent per year. Warming temperatures and 
dry conditions related to climate change are expected to increase the 
rate of woody plant encroachment, further limiting the amount of 
suitable habitat available to Texas kangaroo rats into the future.
    Another source of historical habitat loss occurred in the early and 
mid-1900s when many native grasslands and rangelands were converted to 
croplands. The impacts of land conversion to cropland, which often 
involved plowing and disking, were initially very high and included 
direct loss of occupied Texas kangaroo rat habitat, destruction of 
burrows, and potential mortality of individuals present at the time. 
The longer term impacts of rangeland conversion have been loss of 
native foraging sources and increased habitat fragmentation. Despite 
this situation, Texas kangaroo rats likely still use portions of 
cropland to opportunistically forage and travel along field edges where 
regular mowing maintains the short-statured vegetation associated with 
their habitat requirements. The CRP program, which was introduced in 
1985, results in tall, dense vegetation on enrolled lands and typically 
does not provide the short-statured vegetation and bare ground suitable 
for Texas kangaroo rats. Additionally, CRP lands do not typically 
maintain the edge characteristics of active or fallow croplands that 
have the potential to provide marginal habitat for the species. 
Conversion of additional grasslands and rangelands to croplands are not 
expected to continue within the range of the species, but conversion of 
cropland to CRP has the potential to further reduce and fragment Texas 
kangaroo rat habitat in the future.
    Development of grasslands and rangelands to roads, highways, and 
urban areas has had significant impacts on connectivity across the 
range of the species. Texas kangaroo rats use unpaved roads and the 
narrow strip of adjacent land as nontraditional habitat and travel 
corridors. In comparison, paved and gravel roads have a negative effect 
on the species because they restrict movement, increase mortality, and 
fragment habitat. Highways, such as State highway 287, have bisected 
the species' range, restricting dispersal and genetic exchange between 
populations. Urban development in some areas has further limited 
movement. Decreased habitat connectivity reduces the Texas kangaroo 
rat's viability by limiting gene flow and the ability of the species to 
repopulate suitable sites where they were previously extirpated.
    Because of these threats acting upon the Texas kangaroo rat, the 
species' range has decreased to approximately 41

[[Page 55975]]

percent of its estimated historical distribution. It currently occurs 
in five counties (Childress, Cottle, Hardeman, Wichita, and Wilbarger), 
and it has been extirpated from seven counties in north-central Texas 
(Archer, Baylor, Clay, Foard, Montague, Motley, and Wilbarger) and two 
counties in southern Oklahoma (Comanche and Cotton). The majority of 
Texas kangaroo rats currently exist in four areas that are 
significantly isolated from each other. The results of our analysis 
showed that three of the four populations that occupy these areas 
currently have low resiliency, indicating a high likelihood that 
environmental and demographic stochasticity would cause them to become 
extirpated. The fourth population has moderate resiliency. The Texas 
kangaroo rat's current range is represented by the Central Great Plains 
and the Southwestern Tablelands ecoregions, which are the same 
ecoregions where it existed historically. Three populations are located 
in the Central Great Plains, indicating moderate redundancy, and one 
population occurs in the Southwestern Tablelands, indicating low 
redundancy. Because the Texas kangaroo rat is a narrow-ranging endemic, 
catastrophic events are likely to affect the entire range of the 
species. Thus, low to moderate redundancy conditions within 
representative units suggest a higher likelihood that a single 
catastrophic event, should one occur, could cause the extinction of the 
Texas kangaroo rat. Under current conditions, representation is lacking 
in the Southwestern Tablelands ecoregion, which maintains a single unit 
that ranks low, and is slightly higher in the Central Great Plains 
ecoregion, which has three units (two that rank low, one that ranks 
moderate).
    In summary, the Texas kangaroo rat is currently experiencing 
significant impacts due to loss of ecosystem functions maintained by 
the historical interactions of bison, prairie dog, and wildfire; 
encroachment of woody vegetation, which is exacerbated by climate 
change; loss of habitat due to conversion of native rangeland to 
cropland; and loss of habitat connectivity due to urban development and 
construction of roads throughout its very limited range. Texas kangaroo 
rats currently occur in a limited portion of north-central Texas, and 
nearly all populations of the species are in low-resiliency condition 
with reduced redundancy. Due to impacts of threats discussed above, we 
find the species is currently at a high risk of extinction. Thus, after 
assessing the best available information, we determine that the Texas 
kangaroo rat is in danger of extinction throughout all of its range. We 
do not find that the species meets the Act's definition of a threatened 
species because the species has already shown low levels in current 
resiliency, redundancy, and representation due to the threats discussed 
above.

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. We have determined that the Texas kangaroo rat is in danger 
of extinction throughout all of its range and accordingly did not 
undertake an analysis of any significant portion of its range. Because 
the Texas kangaroo rat warrants listing as endangered throughout all of 
its range, our determination does not conflict with the decision in 
Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 
2020), (Everson) which vacated the provision of the Final Policy on 
Interpretation of the Phrase ``Significant Portion of Its Range'' in 
the Endangered Species Act's Definitions of ``Endangered Species'' and 
``Threatened Species'' (79 FR 37578, July 1, 2014) providing that if 
the Service determines that a species is threatened throughout all of 
its range, the Service will not analyze whether the species is 
endangered in a significant portion of its range.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the Texas kangaroo rat meets the definition 
of an endangered species. Therefore, we propose to list the Texas 
kangaroo rat as an endangered species in accordance with sections 3(6) 
and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition as a listed 
species, planning and implementation of recovery actions, requirements 
for Federal protection, and prohibitions against certain practices. 
Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies, 
including the Service, and the prohibitions against certain activities 
are discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The goal of this process is to restore listed 
species to a point where they are secure, self-sustaining, and 
functioning components of their ecosystems.
    The recovery planning process begins with development of a recovery 
outline made available to the public soon after a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions while a recovery plan is being developed. 
Recovery teams (composed of species experts, Federal and State 
agencies, nongovernmental organizations, and stakeholders) may be 
established to develop and implement recovery plans. The recovery 
planning process involves the identification of actions that are 
necessary to halt and reverse the species' decline by addressing the 
threats to its survival and recovery. The recovery plan identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from protected status (``delisting''), and methods for 
monitoring recovery progress. Recovery plans also establish a framework 
for agencies to coordinate their recovery efforts and provide estimates 
of the cost of implementing recovery tasks. Revisions of the plan may 
be done to address continuing or new threats to the species, as new 
substantive information becomes available. The recovery outline, draft 
recovery plan, final recovery plan, and any revisions will be available 
on our website as they are completed (https://www.fws.gov/endangered), 
or from our Arlington Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive

[[Page 55976]]

propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    If this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost-share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the State of Texas would be eligible 
for Federal funds to implement management actions that promote the 
protection or recovery of the Texas kangaroo rat. Information on our 
grant programs that are available to aid species recovery can be found 
at: https://www.fws.gov/service/financial-assistance.
    Although the Texas kangaroo rat is only proposed for listing under 
the Act at this time, please let us know if you are interested in 
participating in recovery efforts for this species. Additionally, we 
invite you to submit any new information on this species whenever it 
becomes available and any information you may have for recovery 
planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7 of the Act is titled Interagency Cooperation and mandates 
all Federal action agencies to use their existing authorities to 
further the conservation purposes of the Act and to ensure that their 
actions are not likely to jeopardize the continued existence of listed 
species or adversely modify critical habitat. Regulations implementing 
section 7 are codified at 50 CFR part 402.
    Section 7(a)(2) states that each Federal action agency shall, in 
consultation with the Secretary, ensure that any action they authorize, 
fund, or carry out is not likely to jeopardize the continued existence 
of a listed species or result in the destruction or adverse 
modification of designated critical habitat. Each Federal agency shall 
review its action at the earliest possible time to determine whether it 
may affect listed species or critical habitat. If a determination is 
made that the action may affect listed species or critical habitat, 
formal consultation is required (50 CFR 402.14(a)), unless the Service 
concurs in writing that the action is not likely to adversely affect 
listed species or critical habitat. At the end of a formal 
consultation, the Service issues a biological opinion, containing its 
determination of whether the Federal action is likely to result in 
jeopardy or adverse modification.
    In contrast, section 7(a)(4) of the Act requires Federal agencies 
to confer with the Service on any action which is likely to jeopardize 
the continued existence of any species proposed to be listed under the 
Act or result in the destruction or adverse modification of critical 
habitat proposed to be designated for such species. Although the 
conference procedures are required only when an action is likely to 
result in jeopardy or adverse modification, action agencies may 
voluntarily confer with the Service on actions that may affect species 
proposed for listing or critical habitat proposed to be designated. In 
the event that the subject species is listed or the relevant critical 
habitat is designated, a conference opinion may be adopted as a 
biological opinion and serve as compliance with section 7(a)(2).
    Examples of discretionary actions for the Texas kangaroo rate that 
may be subject to conference and consultation procedures under section 
7 are land management or other landscape-altering activities on Federal 
lands as well as actions on State, Tribal, local, or private lands that 
require a Federal permit (such as a permit from the U.S. Army Corps of 
Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et 
seq.) or a permit from the Service under section 10 of the Act) or that 
involve some other Federal action (such as funding from the Federal 
Highway Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency). Federal actions not affecting listed 
species or critical habitat--and actions on State, Tribal, local, or 
private lands that are not federally funded, authorized, or carried out 
by a Federal agency--do not require section 7 consultation. Examples of 
Federal agency actions that may require consultation for the Texas 
kangaroo rat could include transportation projects funded by the 
Federal Highway Administration and authorization by the Federal Energy 
Regulatory Commission for a company to install a gas or oil pipeline. 
Federal agencies should coordinate with the local Service Field Office 
(see FOR FURTHER INFORMATION CONTACT) with any specific questions on 
section 7 consultation and conference requirements.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered wildlife. 
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 
17.21, make it illegal for any person subject to the jurisdiction of 
the United States to commit, to attempt to commit, to solicit another 
to commit or to cause to be committed any of the following: (1) import 
endangered wildlife to, or export from, the United States; (2) take 
(which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect) endangered wildlife within the United States or on 
the high seas; (3) possess, sell, deliver, carry, transport, or ship, 
by any means whatsoever, any such wildlife that has been taken 
illegally; (4) deliver, receive, carry, transport, or ship in 
interstate or foreign commerce in the course of commercial activity; or 
(5) sell or offer for sale in interstate or foreign commerce. Certain 
exceptions to these prohibitions apply to employees or agents of the 
Service, the National Marine Fisheries Service, other Federal land 
management agencies, and State conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered wildlife under certain circumstances. Regulations 
governing permits for endangered wildlife are codified at 50 CFR 17.22. 
With regard to endangered wildlife, a permit may be issued: for 
scientific purposes, for enhancing the propagation or survival of the 
species, or for take incidental to otherwise lawful activities. The 
statute also contains certain exemptions from the prohibitions, which 
are found in sections 9 and 10 of the Act.
    It is the policy of the Service, as published in the Federal 
Register on July 1, 1994 (59 FR 34272), to identify, to the extent 
known at the time a species is listed, specific activities that will 
not be considered likely to result in violation of section 9 of the 
Act. To the extent possible, activities that will be considered likely 
to result in violation will also be identified in as specific a manner 
as possible. The intent of this policy is to increase public awareness 
of the effect of a proposed listing on proposed and ongoing activities 
within the range of the species proposed for listing.
    As discussed above, certain activities that are prohibited under 
section 9 may be permitted under section 10 of the Act. In addition, to 
the extent currently known, the following activities will not be 
considered likely to result in violation of section 9 of the Act:
     normal residential landscaping activities on non-Federal 
lands;
     recreational use with minimal ground disturbance; or
     maintenance (e.g., resurfacing, repair, mowing) of 
existing paved roads.
    This list is intended to be illustrative and not exhaustive; 
additional activities

[[Page 55977]]

that will not be considered likely to result in violation of section 9 
of the Act may be identified during coordination with the local field 
office, and in some instances (e.g., with new information), the Service 
may conclude that one or more activities identified here will be 
considered likely to result in violation of section 9.
    To the extent currently known, the following is a list of examples 
of activities that will be considered likely to result in violation of 
section 9 of the Act in addition to what is already clear from the 
descriptions of the prohibitions found at 50 CFR 17.21:
     unauthorized handling or collecting of Texas kangaroo 
rats;
     unauthorized modification, removal, or destruction of 
native grassland/rangeland habitat in which the Texas kangaroo rat is 
known to occur;
     introduction of nonnative species that compete with or 
prey upon Texas kangaroo rats or that carry pathogens known to or 
suspected to affect Texas kangaroo rats--for example, the introduction 
of competing nonnative rodents or nonnative predators to the State of 
Texas; or
     unauthorized modification of the soil profiles or the 
vegetation components on sites known to be occupied by Texas kangaroo 
rats.
    This list is intended to be illustrative and not exhaustive; 
additional activities that will be considered likely to result in 
violation of section 9 of the Act may be identified during coordination 
with the local field office, and in some instances (e.g., with new or 
site-specific information), the Service may conclude that one or more 
activities identified here will not be considered likely to result in 
violation of section 9. Questions regarding whether specific activities 
would constitute violation of section 9 of the Act should be directed 
to the Arlington Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

II. Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely, by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that each Federal action agency ensure, in 
consultation with the Service, that any action they authorize, fund, or 
carry out is not likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation also 
does not allow the government or public to access private lands. Such 
designation does not require implementation of restoration, recovery, 
or enhancement measures by non-Federal landowners. Rather, designation 
requires that, where a landowner requests Federal agency funding or 
authorization for an action that may affect an area designated as 
critical habitat, the Federal agency consult with the Service under 
section 7(a)(2) of the Act. If the action may affect the listed species 
itself (such as for occupied critical habitat), the Federal agency 
would have already been required to consult with the Service even 
absent the designation because of the requirement to ensure that the 
action is not likely to jeopardize the continued existence of the 
species. Even if the Service were to conclude after consultation that 
the proposed activity is likely to result in destruction or adverse 
modification of the critical habitat, the Federal action agency and the 
landowner are not required to abandon the proposed activity, or to 
restore or recover the species; instead, they must implement 
``reasonable and prudent alternatives'' to avoid destruction or adverse 
modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat).
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the SSA report and information developed during the 
listing process for the species. Additional information sources

[[Page 55978]]

may include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States and counties; scientific status surveys and 
studies; biological assessments; other unpublished materials; or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and (3) the prohibitions found in section 9 of the Act. 
Federally funded or permitted projects affecting listed species outside 
their designated critical habitat areas may still result in jeopardy 
findings in some cases. These protections and conservation tools will 
continue to contribute to recovery of the species. Similarly, critical 
habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans 
(HCPs), or other species conservation planning efforts if new 
information available at the time of those planning efforts calls for a 
different outcome.

Physical or Biological Features Essential to the Conservation of the 
Species

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas we will designate as 
critical habitat from within the geographical area occupied by the 
species at the time of listing, we consider the physical or biological 
features that are essential to the conservation of the species and that 
may require special management considerations or protection. The 
regulations at 50 CFR 424.02 define ``physical or biological features 
essential to the conservation of the species'' as the features that 
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, sites, prey, 
vegetation, symbiotic species, or other features. A feature may be a 
single habitat characteristic or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity. For example, 
physical features essential to the conservation of the species might 
include gravel of a particular size required for spawning, alkaline 
soil for seed germination, protective cover for migration, or 
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include 
prey species, forage grasses, specific kinds or ages of trees for 
roosting or nesting, symbiotic fungi, or a particular level of 
nonnative species consistent with conservation needs of the listed 
species. The features may also be combinations of habitat 
characteristics and may encompass the relationship between 
characteristics or the necessary amount of a characteristic essential 
to support the life history of the species.
    In considering whether features are essential to the conservation 
of the species, we may consider an appropriate quality, quantity, and 
spatial and temporal arrangement of habitat characteristics in the 
context of the life-history needs, condition, and status of the 
species. These characteristics include, but are not limited to, space 
for individual and population growth and for normal behavior; food, 
water, air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, or 
rearing (or development) of offspring; and habitats that are protected 
from disturbance. These characteristics are described below for the 
Texas kangaroo rat:
    (1) Appropriate soils to support burrowing behaviors: Texas 
kangaroo rats dig subterranean burrow systems in predominantly loose, 
loam/clay-loam soils, which are used for shelter, reproduction, and 
food storage.
    (2) Short-statured prairie vegetation: Texas kangaroo rats 
generally prefer shortgrass or mixed-grass prairie with forbs. Woody 
canopy cover should be sparse (less than 50 percent). Maintaining this 
kind of habitat requires a disturbance regime to promote early 
successional grassland habitat, which could be caused by many sources 
including grazing, fire, mesquite removal, etc.
    (3) Home range or territory features: Texas kangaroo rats require 
each of the following within their home ranges to support breeding: a 
proportional mixture of short-statured vegetation and bare ground (at 
the microscale) and loose soil; structure conducive to burrowing; and 
food availability. In the areas surrounding their burrows, individuals 
require the appropriate mixture of grasses, forbs, and bare ground to 
facilitate normal behaviors and movement. These qualities must exist at 
the microscale because they are important factors when individuals 
choose their territories. Loose soils are necessary for dust-bathing 
activities (to ameliorate parasites), scent marking (for territory 
delineation/sexual receptivity), and tunneling (for burrow 
construction). Burrows typically require some form of topographic 
relief in areas not prone to flooding. To provide structure for burrow 
entrance construction, Texas kangaroo rats have been known to 
opportunistically use shrubs; prairie mounds (natural, elevated, and 
relatively bare areas possibly uplifted by clay soils swelling in 
cracks); manmade berms that occur due to road, fence, and oilfield 
construction; and old (>30 years), unburned brush piles where wood has 
decayed leaving a mound of loose friable soil. Their territories must 
also include sources of food with adequate seed-producing grasses and 
forbs. However, specific food preferences are unknown, and the Texas 
kangaroo rat is thought to forage opportunistically and store seeds as 
resources allow.

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential to 
the conservation of Texas kangaroo rat from studies of the species' 
habitat, ecology, and life history as described below. Additional 
information can be found in the SSA report (Service 2021, entire; 
available on https://www.regulations.gov under Docket No. FWS-R2-ES-
2021-0143). We have determined that the following physical or 
biological features are essential to the conservation of the Texas 
kangaroo rat:
    (1) loose loam/clay-loam soils;
    (2) shortgrass or mixed-grass prairie with forbs and less than 50 
percent woody canopy cover;
    (3) early successional grassland habitat often created and 
maintained by a disturbance regime (e.g., grazing, fire);

[[Page 55979]]

    (4) proportional mixture of short-statured vegetation (i.e., 
herbaceous plant species observed at a shortened height rather than 
their potential maximum height) and bare ground (i.e., at microscale);
    (5) structure that provides uplift for burrows (e.g., prairie 
mound, shrub, manmade berm) in areas not prone to flooding; and
    (6) habitat connectivity that supports movement and dispersal of 
Texas kangaroo rats (e.g., open spaces that lack barriers such as large 
paved roads or dense trees and shrubs).

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection. The features essential to the conservation of the Texas 
kangaroo rat may require special management considerations or 
protection to reduce the following threats: (1) Conversion of existing 
natural habitat to cropland; (2) urbanization of the landscape, 
including (but not limited to) development of roads and highways; (3) 
encroachment of woody vegetation due to changes in land use as well as 
climate change, resulting in the degradation of habitat; (4) negative 
impacts of CRP land; and (5) the potential effects of energy 
development.
    Special management considerations or protection may be required 
within critical habitat areas to address these threats. Management 
activities that could ameliorate these threats include, but are not 
limited to, protecting grassland and rangeland habitats and maintaining 
the short-statured vegetation; protecting and maintaining corridors 
used by Texas kangaroo rats to travel between sites; proactively 
implementing controlled burns and other forms of habitat management, 
such as cattle grazing, where appropriate, to support long-term habitat 
suitability; and minimizing the likelihood that energy development 
projects will impact the quality or quantity of suitable habitat.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify specific areas within the geographical area 
occupied by the species at the time of listing and any specific areas 
outside the geographical area occupied by the species to be considered 
for designation as critical habitat. We are not currently proposing to 
designate any areas outside the geographical area occupied by the 
species because we have not identified any unoccupied areas that meet 
the definition of critical habitat, and we have determined that the 
occupied areas are sufficient to conserve the species.
    We anticipate that recovery will require maintaining and, where 
necessary, improving habitat and habitat connectivity to ensure the 
long-term viability of the Texas kangaroo rat. We have determined that 
the areas containing one or more of the essential physical or 
biological features and occupied by the Texas kangaroo rat would 
maintain the species' resiliency, redundancy, and representation and 
are sufficient for conservation of the species. Therefore, we are not 
currently proposing to designate any areas outside the geographical 
area occupied by the species.
    In summary, for areas within the geographical area occupied by the 
species at the time of listing, we delineated critical habitat unit 
boundaries using the following criteria: Evaluate suitability of 
habitat within the geographical area occupied at the time of listing 
and delineate those areas that contain some or all of the physical or 
biological features necessary to support life-history functions 
essential to the conservation of the species. Units are proposed for 
designation based on one or more of the physical or biological features 
being present to support the Texas kangaroo rat's life-history 
processes. All identified physical or biological features necessary to 
support the species' life history likely occur in some areas of each 
unit.
    To determine the suitability of the habitat, we referred to a 
habitat model specific to the Texas kangaroo rat that identifies where 
on the landscape the necessary loam/clay-loam soils overlap with 
appropriate grassland and rangeland habitat types (Ott et al. 2019). We 
then removed patches of habitat that are likely too small to support 
the life cycle of a single individual (i.e., less than 11.5 ha [28.5 
ac]). We also removed areas identified in Foard County, which is 
currently unoccupied (i.e., the species has not been detected there in 
40 years). To delineate critical habitat, we grouped the resulting 
habitat patches into six units separated by likely dispersal barriers 
(e.g., rivers, large highways, and urban areas). All the patches of 
habitat within each unit are connected by possible travel corridors 
that facilitate movement of individuals, a feature which is essential 
for the long-term viability of the species.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures because such lands lack 
physical or biological features necessary for the Texas kangaroo rat. 
The scale of the maps we prepared under the parameters for publication 
within the Code of Federal Regulations may not reflect the exclusion of 
such developed lands. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this proposed rule have been 
excluded by text in the proposed rule and are not proposed for 
designation as critical habitat. Therefore, if the critical habitat is 
finalized as proposed, a Federal action involving these lands would not 
trigger section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the physical or biological features in the adjacent critical 
habitat.
    We propose to designate as critical habitat lands that we have 
determined are occupied at the time of listing (i.e., currently 
occupied) and that contain one or more of the physical or biological 
features that are essential to support life-history processes of the 
species. Units are proposed for designation based on one or more of the 
physical or biological features being present to support the Texas 
kangaroo rat's life-history processes. All units likely contain all of 
the identified physical or biological features and support multiple 
life-history processes.
    The proposed critical habitat designation is defined by the maps, 
as modified by any accompanying regulatory text, presented at the end 
of this document under Proposed Regulation Promulgation. We include 
more detailed information on the boundaries of the critical habitat 
designation in the preamble of this document. We will make the 
coordinates or plot points or both on which each map is based available 
to the public on https://www.regulations.gov at Docket No. FWS-R2-ES-
2021-0143 and on our internet site https://www.fws.gov/office/arlington-ecological-services.

Proposed Critical Habitat Designation

    We are proposing to designate approximately 597,069 ac (241,625 ha)

[[Page 55980]]

in six units as critical habitat for the Texas kangaroo rat. The 
critical habitat areas we describe below constitute our current best 
assessment of areas that meet the definition of critical habitat for 
the Texas kangaroo rat. The six areas we propose as critical habitat 
are:
    (1) North of U.S. 287 near the cities of Childress and Quanah 
(Childress, Hardeman, and Wilbarger Counties),
    (2) South of U.S. 287 near the cities of Childress and Quanah 
(Childress, Cottle, Hardeman, and Wilbarger Counties),
    (3) North of U.S. 70 near the city of Paducah (Cottle County),
    (4) South of U.S. 70 near the city of Paducah (Cottle County),
    (5) North of U.S. 287 near the cities of Electra and Vernon 
(Wilbarger and Wichita Counties), and
    (6) South of U.S. 287 near the cities of Electra and Vernon 
(Wilbarger and Wichita Counties).
    Table 3 shows the proposed critical habitat units and the 
approximate area of each unit. All of these units are currently 
occupied by the species.

                         Table 3--Proposed Critical Habitat Units for Texas Kangaroo Rat
                   [Area estimates reflect all land within critical habitat unit boundaries.]
----------------------------------------------------------------------------------------------------------------
                                                                 Size of unit in Ac
       Critical habitat unit           Land ownership  by type           (ha)                 Occupied?
----------------------------------------------------------------------------------------------------------------
1. North of U.S. 287 near the        Private...................             170,078  Yes.
 cities of Childress and Quanah.                                           (68,828)
2. South of U.S. 287 near the        Private...................             188,211  Yes.
 cities of Childress and Quanah.                                           (76,166)
3. North of U.S. 70 near the city    Private...................              17,035  Yes.
 of Paducah.                                                                (6,894)
4. South of U.S. 70 near the city    Private...................              26,727  Yes.
 of Paducah.                                                               (10,816)
5. North of U.S. 287 near the        Private...................              84,004  Yes.
 cities of Electra and Vernon.                                             (33,995)
6. South of U.S. 287 near the        Private...................             111,014  Yes.
 cities of Electra and Vernon.                                             (44,926)
                                                                --------------------
    Total Area.....................  ..........................             597,069  ...........................
                                                                          (241,625)
----------------------------------------------------------------------------------------------------------------


    Note: Area sizes may not sum due to rounding.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for the Texas kangaroo rat, 
below.

Unit 1: North of U.S. 287 (Childress, Hardeman, and Wilbarger Counties)

    Unit 1 consists of 170,078 ac (68,828 ha) in private ownership and 
management in portions of Childress, Hardeman, and Wilbarger Counties, 
Texas. It extends along the northern side of U.S. highway 287, which is 
considered a likely barrier for dispersal, and around the edges of the 
towns of Childress and Quanah. The Texas kangaroo rat occupies the 
entire unit, and the unit contains all of the physical or biological 
features essential to the conservation of the species.
    Special management considerations or protection may be required in 
Unit 1 to address a variety of threats. Ongoing activities in this unit 
include land cultivation for agriculture, livestock production, oil and 
gas exploration and production, and lands potentially enrolled in CRP 
(based on county-level data). Special management focused on 
infrastructure and energy development, activities involving site 
preparation that result in ground disturbance, conversion of rangeland 
to other uses (agricultural, urban/residential development), grazing 
management that maintains a mosaic of short-statured vegetation and 
areas of bare ground, and maintenance of unpaved roads will benefit 
habitat for the species in this unit.

Unit 2: South of U.S. 287 (Childress, Cottle, Hardeman, and Wilbarger 
Counties)

    Unit 2 consists of 188,211 ac (76,166 ha) in private ownership and 
management in portions of Childress, Cottle, Hardeman, and Wilbarger 
Counties, Texas. It extends along the southern side of U.S. highway 287 
and around the edges of the towns of Childress and Quanah. The Texas 
kangaroo rat occupies the entire unit, and the unit contains all of the 
physical or biological features essential to the conservation of the 
species.
    The ongoing activities in Unit 2 are the same as those described in 
Unit 1; therefore, the special management considerations that may be 
required are the same.

Unit 3: North of U.S. 70 (Cottle County)

    Unit 3 consists of 17,035 ac (6,894 ha) in private ownership and 
management in portions of Cottle County, Texas. It extends along the 
northern side of U.S. highway 70, which is considered a likely barrier 
for species dispersal, and around the edges of the town of Paducah. The 
Texas kangaroo rat occupies the entire unit, and the unit contains all 
of the physical or biological features essential to the conservation of 
the species.
    The ongoing activities in Unit 3 are the same as those described in 
Unit 1; therefore, the special management considerations that may be 
required are the same.

Unit 4: South of U.S. 70 (Cottle County)

    Unit 4 consists of 26,727 ac (10,816 ha) in private ownership and 
management in portions of Cottle County, Texas. It extends along the 
southern side of U.S. highway 70 and around the edges of the town of 
Paducah. The Texas kangaroo rat occupies the entire unit, and the unit 
contains all of the physical or biological features essential to the 
conservation of the species.
    The ongoing activities in Unit 4 are the same as those described in 
Unit 1; therefore, the special management considerations that may be 
required are the same.

Unit 5: North of U.S. 287 (Wilbarger and Wichita Counties)

    Unit 5 consists of 84,004 ac (33,995 ha) in private ownership and 
management in portions of Wilbarger and Wichita Counties, Texas. It 
extends along the northern side of U.S. highway 287 and around the 
edges of the town

[[Page 55981]]

of Electra. The Texas kangaroo rat occupies the entire unit, and the 
unit contains all of the physical or biological features essential to 
the conservation of the species.
    The ongoing activities in Unit 5 are the same as those described in 
Unit 1; therefore, the special management considerations that may be 
required are the same.

Unit 6: South of U.S. 287 (Wilbarger and Wichita Counties)

    Unit 6 consists of 111,014 ac (44,926 ha) in private ownership and 
management in portions of Wilbarger and Wichita Counties, Texas. It 
extends along the southern side of U.S. highway 287 and around the 
edges of the town of Electra. The Texas kangaroo rat occupies the 
entire unit, and the unit contains all of the physical or biological 
features essential to the conservation of the species.
    The ongoing activities in Unit 6 are the same as those described in 
Unit 1; therefore, the special management considerations that may be 
required are the same.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they authorize, fund, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action that is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    We published a final rule revising the definition of destruction or 
adverse modification on August 27, 2019 (84 FR 44976). Destruction or 
adverse modification means a direct or indirect alteration that 
appreciably diminishes the value of critical habitat as a whole for the 
conservation of a listed species.
    Compliance with the requirements of section 7(a)(2) is documented 
through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during formal consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Service Director's opinion, avoid the likelihood 
of jeopardizing the continued existence of the listed species and/or 
avoid the likelihood of destroying or adversely modifying critical 
habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 set forth requirements for Federal 
agencies to reinitiate formal consultation if any of the following four 
conditions occur: (1) the amount or extent of taking specified in the 
incidental take statement is exceeded; (2) new information reveals 
effects of the action that may affect listed species or critical 
habitat in a manner or to an extent not previously considered; (3) the 
identified action is subsequently modified in a manner that causes an 
effect to the listed species or critical habitat that was not 
considered in the biological opinion or written concurrence; or (4) a 
new species is listed or critical habitat designated that may be 
affected by the identified action. The reinitiation requirement applies 
only to actions that remain subject to some discretionary Federal 
involvement or control. As provided in 50 CFR 402.16, the requirement 
to reinitiate consultations for new species listings or critical 
habitat designation does not apply to certain agency actions (e.g., 
land management plans issued by the Bureau of Land Management in 
certain circumstances).

Application of the ``Destruction or Adverse Modification'' Standard

    The key factor related to the destruction or adverse modification 
determination is whether implementation of the proposed Federal action 
directly or indirectly alters the designated critical habitat in a way 
that appreciably diminishes the value of the critical habitat as a 
whole for the conservation of the listed species. As discussed above, 
the role of critical habitat is to support physical or biological 
features essential to the conservation of a listed species and provide 
for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may violate section 
7(a)(2) of the Act by destroying or adversely modifying such habitat, 
or that may be affected by such designation.
    Activities that we may, during a consultation under section 7(a)(2) 
of the Act, consider likely to destroy or adversely modify critical 
habitat include, but are not limited to, the following:
    (1) Actions that would physically alter the surface or subsurface 
habitat so that it removes resources on which the Texas kangaroo rats 
depend. Such activities could include, but are not limited to, removal 
of substrate, conversion of unpaved roads to paved roads, activities 
involving site preparation that result in ground disturbance, and other 
activities that result in the physical destruction of habitat or the 
modification of habitat so that it is not suitable for the species. 
These activities could destroy food resources and existing burrows or 
render areas unsuitable for future burrowing and reproduction.
    (2) Actions that would result in the conversion of rangeland 
habitat to other uses. Such activities could include, but are not 
limited to, construction of infrastructure (e.g., paved roads) and 
energy, agricultural, or urban/residential development. Infrastructure 
such as highways that create barriers on the landscape could decrease 
the connectivity between sites. All of these activities could result in 
the physical destruction of habitat or the modification of habitat so 
that it is not suitable for the species.

Exemptions

Application of Section 4(a)(3) of the Act

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that the Secretary shall not designate as critical habitat any 
lands or other geographical areas owned or controlled by the Department 
of Defense (DoD), or

[[Page 55982]]

designated for its use, that are subject to an integrated natural 
resources management plan (INRMP) prepared under section 101 of the 
Sikes Act Improvement Act of 1997 (16 U.S.C. 670a), if the Secretary 
determines in writing that such plan provides a benefit to the species 
for which critical habitat is proposed for designation. No DoD lands 
with a completed INRMP are within the proposed critical habitat 
designation.

Consideration of Impacts Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from designated critical habitat based on 
economic impacts, impacts on national security, or any other relevant 
impacts. Exclusion decisions are governed by the regulations at 50 CFR 
424.19 and the Policy Regarding Implementation of Section 4(b)(2) of 
the Endangered Species Act (hereafter, the ``2016 Policy''; 81 FR 7226, 
February 11, 2016), both of which were developed jointly with the 
National Marine Fisheries Service (NMFS). We also refer to a 2008 
Department of the Interior Solicitor's opinion entitled ``The 
Secretary's Authority to Exclude Areas from a Critical Habitat 
Designation under Section 4(b)(2) of the Endangered Species Act'' (M-
37016).
    In considering whether to exclude a particular area from the 
designation, we identify the benefits of including the area in the 
designation, identify the benefits of excluding the area from the 
designation, and evaluate whether the benefits of exclusion outweigh 
the benefits of inclusion. If the analysis indicates that the benefits 
of exclusion outweigh the benefits of inclusion, the Secretary may 
exercise discretion to exclude the area only if such exclusion would 
not result in the extinction of the species. In making the 
determination to exclude a particular area, the statute on its face, as 
well as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor. In our final rules, we explain any decision to exclude 
areas, as well as decisions not to exclude, to make clear the rational 
basis for our decision. We describe below the process that we use for 
taking into consideration each category of impacts and our analyses of 
the relevant impacts.

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. To assess the probable economic impacts of a 
designation, we must first evaluate specific land uses or activities 
and projects that may occur in the area of the critical habitat. We 
then must evaluate the impacts that a specific critical habitat 
designation may have on restricting or modifying specific land uses or 
activities for the benefit of the species and its habitat within the 
areas proposed. We then identify which conservation efforts may be the 
result of the species being listed under the Act versus those 
attributed solely to the designation of critical habitat for this 
particular species. The probable economic impact of a proposed critical 
habitat designation is analyzed by comparing scenarios both ``with 
critical habitat'' and ``without critical habitat.''
    The ``without critical habitat'' scenario represents the baseline 
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource 
users potentially affected by the designation of critical habitat 
(e.g., under the Federal listing as well as other Federal, State, and 
local regulations). Therefore, the baseline represents the costs of all 
efforts attributable to the listing of the species under the Act (i.e., 
conservation of the species and its habitat incurred regardless of 
whether critical habitat is designated). The ``with critical habitat'' 
scenario describes the incremental impacts associated specifically with 
the designation of critical habitat for the species. The incremental 
conservation efforts and associated impacts would not be expected 
without the designation of critical habitat for the species. In other 
words, the incremental costs are those attributable solely to the 
designation of critical habitat, above and beyond the baseline costs. 
These are the costs we use when evaluating the benefits of inclusion 
and exclusion of particular areas from the final designation of 
critical habitat should we choose to conduct a discretionary 4(b)(2) 
exclusion analysis.
    Executive Order (E.O.) 12866, as amended by E.O.s 13563 and 14094, 
directs Federal agencies to assess the costs and benefits of available 
regulatory alternatives in quantitative (to the extent feasible) and 
qualitative terms. Consistent with these regulatory analysis 
requirements, our effects analysis under the Act may take into 
consideration impacts to both directly and indirectly affected 
entities, where practicable and reasonable. If sufficient data are 
available, we assess to the extent practicable the probable impacts to 
both directly and indirectly affected entities. Section 3(f) of E.O. 
12866 identifies four criteria when a regulation is considered a 
``significant regulatory action'' and requires additional analysis, 
review, and approval if met. The criterion relevant here is whether the 
designation of critical habitat may have an economic effect of $200 
million or more in any given year (section 3(f)(1)). Therefore, our 
consideration of economic impacts uses a screening analysis to assess 
whether a designation of critical habitat for the Texas kangaroo rat is 
likely to exceed the economically significant threshold.
    For this particular designation, we developed an incremental 
effects memorandum (IEM) considering the probable incremental economic 
impacts that may result from this proposed designation of critical 
habitat. The information contained in our IEM was then used to develop 
a screening analysis of the probable effects of the designation of 
critical habitat for the Texas kangaroo rat (IEc 2021). We began by 
conducting a screening analysis of the proposed designation of critical 
habitat in order to focus our analysis on the key factors that are 
likely to result in incremental economic impacts. The purpose of the 
screening analysis is to filter out particular geographical areas of 
critical habitat that are already subject to such protections and are, 
therefore, unlikely to incur incremental economic impacts. In 
particular, the screening analysis considers baseline costs (i.e., 
absent critical habitat designation) and includes any probable 
incremental economic impacts where land and water use may already be 
subject to conservation plans, land management plans, best management 
practices, or regulations that protect the habitat area as a result of 
the Federal listing status of the species. Ultimately, the screening 
analysis allows us to focus our analysis on evaluating the specific 
areas or sectors that may incur probable incremental economic impacts 
as a result of the designation. The presence of the listed species in 
occupied areas of critical habitat means that any destruction or 
adverse modification of those areas is also likely to jeopardize the 
continued existence of the species. Therefore, designating occupied 
areas as critical habitat typically causes little if any incremental 
impacts above and beyond the impacts of listing the species. As a 
result, we generally focus the screening analysis on areas of

[[Page 55983]]

unoccupied critical habitat (unoccupied units or unoccupied areas 
within occupied units). Overall, the screening analysis assesses 
whether designation of critical habitat is likely to result in any 
additional management or conservation efforts that may incur 
incremental economic impacts. This screening analysis combined with the 
information contained in our IEM constitute what we consider to be our 
draft economic analysis (DEA) of the proposed critical habitat 
designation for the Texas kangaroo rate; our DEA is summarized in the 
narrative below.
    In our evaluation of the probable incremental economic impacts that 
may result from the proposed designation of critical habitat for the 
Texas kangaroo rat, first we identified, in the IEM dated April 30, 
2021, probable incremental economic impacts associated with the 
following categories of activities: (1) agriculture; (2) 
transportation; (3) communications; (4) development; (5) oil and gas 
exploration and development; (6) other power generation; (7) 
transmission lines; (8) water or wastewater related; (9) land related; 
(10) vegetation management; and (11) other, non-specific activities. We 
considered each industry or category individually. Additionally, we 
considered whether their activities have any Federal involvement. 
Critical habitat designation generally will not affect activities that 
do not have any Federal involvement; under the Act, designation of 
critical habitat only affects activities conducted, funded, permitted, 
or authorized by Federal agencies. If we list the species, in areas 
where the Texas kangaroo rat is present, Federal agencies would be 
required to consult with the Service under section 7 of the Act on 
activities they authorize, fund, or carry out that may affect the 
species. If, when we list the species, we also finalize this proposed 
critical habitat designation, Federal agencies would be required to 
consider the effects of their actions on the designated habitat, and if 
the Federal action may affect critical habitat, our consultations would 
include an evaluation of measures to avoid the destruction or adverse 
modification of critical habitat.
    In our IEM, we attempted to clarify the distinction between the 
effects that would result from the species being listed and those 
attributable to the critical habitat designation (i.e., difference 
between the jeopardy and adverse modification standards) for the Texas 
kangaroo rat's critical habitat. Because the designation of critical 
habitat for the Texas kangaroo rat is being proposed concurrently with 
the listing, it has been our experience that it is more difficult to 
discern which conservation efforts are attributable to the species 
being listed and those which will result solely from the designation of 
critical habitat. However, the following specific circumstances in this 
case help to inform our evaluation: (1) The essential physical or 
biological features identified for critical habitat are the same 
features essential for the life requisites of the species, and (2) any 
actions that would result in sufficient harm or harassment to 
constitute jeopardy to the Texas kangaroo rat would also likely 
adversely affect the essential physical or biological features of 
critical habitat. The IEM outlines our rationale concerning this 
limited distinction between baseline conservation efforts and 
incremental impacts of the designation of critical habitat for this 
species. This evaluation of the incremental effects has been used as 
the basis to evaluate the probable incremental economic impacts of this 
proposed designation of critical habitat.
    The proposed critical habitat designation for the Texas kangaroo 
rat totals 597,069 ac (241,625 ha) in six units, all of which are 
currently occupied by the species. In these areas, any actions that may 
affect the species or its habitat would also affect designated critical 
habitat. We anticipate consultations for projects where the species is 
locally absent (e.g., due to lack of habitat at the site-specific 
scale) but critical habitat is present to allow for movement of the 
species to be largely informal and resulting in mostly administrative 
costs and minor project adjustments to minimize impacts. For those 
formal consultations that may occur, they would most likely be of a 
magnitude that would involve both the species and critical habitat, and 
any reasonable and prudent alternatives to avoid jeopardy and/or 
adverse modification would be the same. Based on historical economic 
activity levels within the 5 counties overlapping proposed critical 
habitat for the Texas kangaroo rat, staff may be required to complete 
1.2 formal consultations, 39.8 informal consultations, and 4.2 
technical assistances per year on average. The cost of addressing 
critical habitat as part of these consultations may range from $110,000 
to $310,000 per year, depending on how many consultations are triggered 
by critical habitat alone. While this additional analysis will require 
time and resources, we believe that in most circumstances these costs 
would predominantly be administrative in nature and would not exceed 
$200 million in any single year. Therefore, based on the definition of 
significance in E.O. 12866, they would not be significant.
    The entities most likely to incur incremental costs are parties to 
section 7 consultations, including Federal action agencies and, in some 
cases, third parties, most frequently State agencies or municipalities. 
Activities we expect would be subject to consultations that may involve 
private entities as third parties are farms and ranches acquiring 
funding through Federal agricultural programs, oil and gas production, 
and infrastructure projects that involve Federal funding or 
authorization. However, based on coordination efforts with State and 
local agencies, the cost to private entities in these sectors is 
expected to be relatively minor (administrative costs of less than 
$10,000 per consultation effort) and would not be significant (i.e., 
exceed $200 million in a single year).
    In conclusion, the probable incremental economic impacts of the 
Texas kangaroo rat critical habitat designation are expected to be 
limited to additional administrative effort as well as minor costs of 
conservation efforts resulting from future section 7 consultations. 
Because all of the proposed critical habitat units are considered to be 
occupied by the species, and incremental economic impacts of critical 
habitat designation, other than administrative costs, are expected to 
be limited, few actions are anticipated to result in section 7 
consultation for critical habitat only and associated project 
modifications. Thus, the annual administrative burden is unlikely to 
reach $200 million, which is the threshold for a significant regulatory 
action under E.O. 12866.
    We are soliciting data and comments from the public on the DEA 
discussed above, as well as on all aspects of this proposed rule and 
our required determinations. During the development of a final 
designation, we will consider the information presented in the DEA and 
any additional information on economic impacts we receive during the 
public comment period to determine whether any specific areas should be 
excluded from the final critical habitat designation under authority of 
section 4(b)(2), our implementing regulations at 50 CFR 424.19, and the 
2016 Policy. We may exclude an area from critical habitat if we 
determine that the benefits of excluding the area outweigh the benefits 
of including the area, provided the exclusion will not result in the 
extinction of this species.

[[Page 55984]]

Consideration of National Security Impacts

    Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or 
areas that pose potential national-security concerns (e.g., a DoD 
installation that is in the process of revising its INRMP for a newly 
listed species or a species previously not covered). If a particular 
area is not covered under section 4(a)(3)(B)(i), then national-security 
or homeland-security concerns are not a factor in the process of 
determining what areas meet the definition of ``critical habitat.'' 
However, the Service must still consider impacts on national security, 
including homeland security, on those lands or areas not covered by 
section 4(a)(3)(B)(i), because section 4(b)(2) requires the Service to 
consider those impacts whenever it designates critical habitat. 
Accordingly, if DoD, Department of Homeland Security (DHS), or another 
Federal agency has requested exclusion based on an assertion of 
national-security or homeland-security concerns, or we have otherwise 
identified national-security or homeland-security impacts from 
designating particular areas as critical habitat, we generally have 
reason to consider excluding those areas.
    However, we cannot automatically exclude requested areas. When DoD, 
DHS, or another Federal agency requests exclusion from critical habitat 
on the basis of national-security or homeland-security impacts, we must 
conduct an exclusion analysis if the Federal requester provides 
information, including a reasonably specific justification of an 
incremental impact on national security that would result from the 
designation of that specific area as critical habitat. That 
justification could include demonstration of probable impacts, such as 
impacts to ongoing border-security patrols and surveillance activities, 
or a delay in training or facility construction, as a result of 
compliance with section 7(a)(2) of the Act. If the agency requesting 
the exclusion does not provide us with a reasonably specific 
justification, we will contact the agency to recommend that it provide 
a specific justification or clarification of its concerns relative to 
the probable incremental impact that could result from the designation. 
If we conduct an exclusion analysis because the agency provides a 
reasonably specific justification or because we decide to exercise the 
discretion to conduct an exclusion analysis, we will defer to the 
expert judgment of DoD, DHS, or another Federal agency as to: (1) 
Whether activities on its lands or waters, or its activities on other 
lands or waters, have national-security or homeland-security 
implications; (2) the importance of those implications; and (3) the 
degree to which the cited implications would be adversely affected in 
the absence of an exclusion. In that circumstance, in conducting a 
discretionary section 4(b)(2) exclusion analysis, we will give great 
weight to national-security and homeland-security concerns in analyzing 
the benefits of exclusion.
    In preparing this proposal, we have determined that the lands 
within the proposed designation of critical habitat for the Texas 
kangaroo rat are not owned or managed by DoD or DHS. Therefore, we 
anticipate no impact on national security or homeland security.

Consideration of Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security discussed above. To identify other relevant impacts that may 
affect the exclusion analysis, we consider a number of factors, 
including whether there are permitted conservation plans covering the 
species in the area--such as HCPs, safe harbor agreements (SHAs), or 
CCAAs--or whether there are non-permitted conservation agreements and 
partnerships that may be impaired by designation of, or exclusion from, 
critical habitat. In addition, we look at whether Tribal conservation 
plans or partnerships, Tribal resources, or government-to-government 
relationships of the United States with Tribal entities may be affected 
by the designation. We also consider any State, local, social, or other 
impacts that might occur because of the designation.
    When analyzing other relevant impacts of including a particular 
area in a designation of critical habitat, we weigh those impacts 
relative to the conservation value of the particular area. To determine 
the conservation value of designating a particular area, we consider a 
number of factors, including, but not limited to, the additional 
regulatory benefits that the area would receive due to the protection 
from destruction or adverse modification as a result of actions with a 
Federal nexus, the educational benefits of mapping essential habitat 
for recovery of the listed species, and any benefits that may result 
from a designation due to State or Federal laws that may apply to 
critical habitat.
    In the case of the Texas kangaroo rat, the benefits of critical 
habitat include public awareness of the presence of Texas kangaroo rats 
and the importance of habitat protection, and, where a Federal nexus 
exists, increased habitat protection for the species due to protection 
from destruction or adverse modification of critical habitat. 
Alternatively, continued implementation of an ongoing management plan 
that provides conservation equal to or more than the protections that 
result from a critical habitat designation would reduce those benefits 
of including that specific area in the critical habitat designation.
    After identifying the benefits of inclusion and the benefits of 
exclusion, we carefully weigh the two sides to evaluate whether the 
benefits of exclusion outweigh those of inclusion. If our analysis 
indicates that the benefits of exclusion outweigh the benefits of 
inclusion, we then determine whether exclusion would result in 
extinction of the species. If exclusion of an area from critical 
habitat will result in extinction, we will not exclude it from the 
designation.
Private or Other Non-Federal Conservation Plans Related to Permits 
Under Section 10 of the Act
    HCPs for incidental take permits under section 10(a)(1)(B) of the 
Act provide for partnerships with non-Federal entities to minimize and 
mitigate impacts to listed species and their habitat. In some cases, 
HCP permittees agree to do more for the conservation of the species and 
their habitats on private lands than designation of critical habitat 
would provide alone. We place great value on the partnerships that are 
developed during the preparation and implementation of HCPs.
    CCAAs and SHAs are voluntary agreements designed to conserve 
candidate and listed species, respectively, on non-Federal lands. In 
exchange for actions that contribute to the conservation of species on 
non-Federal lands, participating property owners are covered by an 
``enhancement of survival'' permit under section 10(a)(1)(A) of the 
Act, which authorizes incidental take of the covered species that may 
result from implementation of conservation actions, specific land uses, 
and, in the case of SHAs, the option to return to a baseline condition 
under the agreements. We also provide enrollees assurances that we will 
not impose further land-, water-, or resource-use restrictions, or 
require additional commitments of land, water, or finances, beyond 
those agreed to in the agreements.
    When we undertake a discretionary section 4(b)(2) exclusion 
analysis based on permitted conservation plans (such

[[Page 55985]]

as CCAAs, SHAs, and HCPs), we anticipate consistently excluding such 
areas if incidental take caused by the activities in those areas is 
covered by the permit under section 10 of the Act and the CCAA/SHA/HCP 
meets all of the following three factors (see the 2016 Policy for 
additional details):
    a. The permittee is properly implementing the CCAA/SHA/HCP and is 
expected to continue to do so for the term of the agreement. A CCAA/
SHA/HCP is properly implemented if the permittee is and has been fully 
implementing the commitments and provisions in the CCAA/SHA/HCP, 
implementing agreement, and permit.
    b. The species for which critical habitat is being designated is a 
covered species in the CCAA/SHA/HCP, or very similar in its habitat 
requirements to a covered species. The recognition that the Service 
extends to such an agreement depends on the degree to which the 
conservation measures undertaken in the CCAA/SHA/HCP would also protect 
the habitat features of the similar species.
    c. The CCAA/SHA/HCP specifically addresses that species' habitat 
and meets the conservation needs of the species in the planning area.
    The proposed critical habitat designation includes areas that are 
covered by the following permitted plan providing for the conservation 
of the Texas kangaroo rat: the CCAA for the Texas Kangaroo Rat.
CCAA for the Texas Kangaroo Rat
    The CCAA is an agreement between the Texas Parks and Wildlife 
Department and the Service that was finalized May 16, 2022, to provide 
a net conservation benefit for the Texas kangaroo rat in the historical 
range of the species. It is part of Texas Parks and Wildlife 
Department's application to the Service for an enhancement of survival 
permit under section 10(a)(1)(A) of the Act. The permit authorizes take 
of the Texas kangaroo rat, should it become listed as endangered or 
threatened. The permitted take would result from activities undertaken 
by eligible non-Federal landowners (participants) who are willing to 
engage in voluntary conservation actions on their properties for the 
Texas kangaroo rat in accordance with the CCAA and the terms and 
conditions of the permit.
    The conservation activities in the CCAA are expected to benefit the 
Texas kangaroo rat by reducing fragmentation, increasing the 
connectivity of habitats, maintaining or increasing populations, and 
enhancing and restoring habitats. The restoration and management of 
habitat on enrolled lands is expected to help maintain and enhance 
existing populations of Texas kangaroo rats and support the 
establishment of additional populations through natural dispersal, 
translocation of wild individuals, or release of captive-reared 
individuals. The conservation measures recommended in the CCAA include 
the following: (1) prescribed grazing, (2) prescribed fire, (3) brush 
management, (4) early successional habitat maintenance and development, 
(5) disturbed field edge management, (6) native range planting and 
reseeding, (7) maintenance of unpaved roads, and (8) prairie dog colony 
conservation. Each of these measures would support the physical or 
biological features essential to the conservation of the species by 
maintaining or restoring the shortgrass or mixed-grass prairie, 
providing a disturbance regime, and/or conserving Texas kangaroo rat 
home range or territory features.
    Landowners who enroll their lands in the CCAA may continue to 
engage in activities related to agricultural operations and 
agritourism, but the CCAA does not cover activities such as energy 
development and production, commercial mining, public transportation, 
or residential or commercial development. Participants in the CCAA will 
work with the Texas Parks and Wildlife Department and agree to 
implement appropriate conservation measures from those listed above for 
the benefit of the Texas kangaroo rat and will allow access by Texas 
Parks and Wildlife Department staff onto their property for purposes 
related to the conservation measures, technical assistance, and/or 
conservation monitoring. The CCAA will be in place until 2032 but may 
be renewed prior to expiration.
    Should participants choose to enroll in the CCAA, we would consider 
excluding enrolled lands from the final critical habitat designation. 
Additionally, we are requesting information supporting a benefit of 
excluding any other areas from the critical habitat designation. Based 
on our evaluation of the information we receive, we may determine that 
we have reason to exclude one or more areas from the final designation.

Summary of Exclusions Considered Under Section 4(b)(2) of the Act

    We have reason to consider excluding the following areas under 
section 4(b)(2) of the Act from the final critical habitat designation 
for the Texas kangaroo rat: any lands enrolled under the CCAA for the 
Texas Kangaroo Rat. We specifically solicit comments on the inclusion 
or exclusion of such areas. We also solicit comments on whether there 
are potential economic, national security, or other relevant impacts 
from designating any other particular areas as critical habitat. As 
part of developing the final designation of critical habitat, we will 
evaluate the information we receive regarding potential impacts from 
designating the areas described above or any other particular areas, 
and we may conduct a discretionary exclusion analysis to determine 
whether to exclude those areas under authority of section 4(b)(2) and 
our implementing regulations at 50 CFR 424.19. If we receive a request 
for exclusion of a particular area and after evaluation of supporting 
information we do not exclude, we will fully describe our decision in 
the final rule for this action.

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.

Regulatory Planning and Review--Executive Orders 12866, 13563, and 
14094

    Executive Order 14094 reaffirms the principles of E.O. 12866 and 
E.O. 13563 and states that regulatory analysis should facilitate agency 
efforts to develop regulations that serve the public interest, advance 
statutory objectives, and are consistent with E.O. 12866, E.O. 13563, 
and the Presidential Memorandum of January 20, 2021 (Modernizing 
Regulatory Review). Regulatory analysis, as practicable and 
appropriate, shall recognize distributive impacts and equity, to the 
extent permitted by law. E.O. 13563 emphasizes further that regulations

[[Page 55986]]

must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. We have developed this final rule in a manner consistent with 
these requirements.
    E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides 
that the Office of Information and Regulatory Affairs (OIRA) in the 
Office of Management and Budget (OMB) will review all significant 
rules. OIRA has determined that this rule is not significant.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine whether potential 
economic impacts to these small entities are significant, we considered 
the types of activities that might trigger regulatory impacts under 
this designation as well as types of project modifications that may 
result. In general, the term ``significant economic impact'' is meant 
to apply to a typical small business firm's business operations.
    Under the RFA, as amended, and as understood in light of recent 
court decisions, Federal agencies are required to evaluate the 
potential incremental impacts of rulemaking on those entities directly 
regulated by the rulemaking itself; in other words, the RFA does not 
require agencies to evaluate the potential impacts to indirectly 
regulated entities. The regulatory mechanism through which critical 
habitat protections are realized is section 7 of the Act, which 
requires Federal agencies, in consultation with the Service, to ensure 
that any action authorized, funded, or carried out by the agency is not 
likely to destroy or adversely modify critical habitat. Therefore, 
under section 7, only Federal action agencies are directly subject to 
the specific regulatory requirement (avoiding destruction and adverse 
modification) imposed by critical habitat designation. Consequently, it 
is our position that only Federal action agencies would be directly 
regulated if we adopt the proposed critical habitat designation. The 
RFA does not require evaluation of the potential impacts to entities 
not directly regulated. Moreover, Federal agencies are not small 
entities. Therefore, because no small entities would be directly 
regulated by this rulemaking, the Service certifies that, if made final 
as proposed, the proposed critical habitat designation will not have a 
significant economic impact on a substantial number of small entities.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. For the above reasons and based on currently 
available information, we certify that, if made final, the proposed 
critical habitat designation would not have a significant economic 
impact on a substantial number of small business entities. Therefore, 
an initial regulatory flexibility analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare statements of energy effects when undertaking 
certain actions. In our draft economic analysis, we did not find that 
this proposed critical habitat designation would significantly affect 
energy supplies, distribution, or use. Oil and gas activities are among 
the more common Federal activities that occur within the range of the 
Texas kangaroo rat (IEc 2021, Exhibit 4; Service 2021, pp. 9-10). The 
U.S. Army Corps of Engineers currently consults with the Service to 
permit impacts to waters of the United States resulting from power 
generation and oil and gas exploration and development in all the 
counties in the proposed critical habitat units under section 7 of the 
Act. As discussed in the draft economic analysis, the costs associated 
with consultations related to occupied critical habitat would be 
largely administrative in nature and are not anticipated to reach $200 
million in any given year based on the anticipated annual number of 
consultations and associated consultation costs, which are not expected 
to exceed $310,000 per year (2021 dollars) (IEc 2021, pp. 10, 16-17). 
Therefore, this action is not a significant energy action, and no 
statement of energy effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following finding:
    (1) This proposed rule would not produce a Federal mandate. In 
general, a Federal mandate is a provision in legislation, statute, or 
regulation that would impose an enforceable duty upon State, local, or 
Tribal governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or Tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and Tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare

[[Page 55987]]

Services; and Child Support Enforcement. ``Federal private sector 
mandate'' includes a regulation that ``would impose an enforceable duty 
upon the private sector, except (i) a condition of Federal assistance 
or (ii) a duty arising from participation in a voluntary Federal 
program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions are not likely to destroy or adversely modify 
critical habitat under section 7. While non-Federal entities that 
receive Federal funding, assistance, or permits, or that otherwise 
require approval or authorization from a Federal agency for an action, 
may be indirectly impacted by the designation of critical habitat, the 
legally binding duty to avoid destruction or adverse modification of 
critical habitat rests squarely on the Federal agency. Furthermore, to 
the extent that non-Federal entities are indirectly impacted because 
they receive Federal assistance or participate in a voluntary Federal 
aid program, the Unfunded Mandates Reform Act would not apply, nor 
would critical habitat shift the costs of the large entitlement 
programs listed above onto State governments.
    (2) We do not believe that this rule would significantly or 
uniquely affect small governments because it is not anticipated to 
reach a Federal mandate of $200 million in any given year; that is, it 
is not a ``significant regulatory action'' under the Unfunded Mandates 
Reform Act. The designation of critical habitat imposes no obligations 
on State or local governments. By definition, Federal agencies are not 
considered small entities, although the activities they fund or permit 
may be proposed or carried out by small entities. Consequently, we do 
not believe that the proposed critical habitat designation would 
significantly or uniquely affect small government entities. Therefore, 
a small government agency plan is not required.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for the Texas kangaroo rat in a takings implications 
assessment. The Act does not authorize the Service to regulate private 
actions on private lands or confiscate private property as a result of 
critical habitat designation. Designation of critical habitat does not 
affect land ownership, or establish any closures, or restrictions on 
use of or access to the designated areas. Furthermore, the designation 
of critical habitat does not affect landowner actions that do not 
require Federal funding or permits, nor does it preclude development of 
habitat conservation programs or issuance of incidental take permits to 
permit actions that do require Federal funding or permits to go 
forward. However, Federal agencies are prohibited from carrying out, 
funding, or authorizing actions that would destroy or adversely modify 
critical habitat. A takings implications assessment has been completed 
for the proposed designation of critical habitat for the Texas kangaroo 
rat, and it concludes that, if adopted, this designation of critical 
habitat does not pose significant takings implications for lands within 
or affected by the designation.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this proposed rule does 
not have significant federalism effects. A federalism summary impact 
statement is not required. In keeping with Department of the Interior 
and Department of Commerce policy, we requested information from, and 
coordinated development of this proposed critical habitat designation 
with, appropriate State resource agencies. From a federalism 
perspective, the designation of critical habitat directly affects only 
the responsibilities of Federal agencies. The Act imposes no other 
duties with respect to critical habitat, either for States and local 
governments, or for anyone else. As a result, the proposed rule does 
not have substantial direct effects either on the States, or on the 
relationship between the Federal government and the States, or on the 
distribution of powers and responsibilities among the various levels of 
government. The proposed designation may have some benefit to these 
governments because the areas that contain the features essential to 
the conservation of the species are more clearly defined, and the 
physical or biological features of the habitat necessary for the 
conservation of the species are specifically identified. This 
information does not alter where and what federally sponsored 
activities may occur. However, it may assist State and local 
governments in long-range planning because they no longer have to wait 
for case-by-case section 7 consultations to occur.
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) of the Act would be required. While 
non-Federal entities that receive Federal funding, assistance, or 
permits, or that otherwise require approval or authorization from a 
Federal agency for an action, may be indirectly impacted by the 
designation of critical habitat, the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule would not 
unduly burden the judicial system and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have proposed designating 
critical habitat in accordance with the provisions of the Act. To 
assist the public in understanding the habitat needs of the species, 
this proposed rule identifies the physical or biological features 
essential to the conservation of the species. The proposed areas of 
critical habitat are presented on maps, and the proposed rule provides 
several options for the interested public to obtain more detailed 
location information, if desired.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain information collection requirements, and 
a submission to OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.) is not required. We may not conduct or sponsor and 
you are not required to respond to a collection of information unless 
it displays a currently valid OMB control number.

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

    Regulations adopted pursuant to section 4(a) of the Act are exempt 
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et 
seq.) and do not require an environmental analysis under NEPA. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This includes 
listing, delisting, and reclassification rules, as well as critical 
habitat designations. In a line of cases starting with Douglas County 
v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this 
position.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994

[[Page 55988]]

(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 federally recognized 
Tribes on a government-to-government basis. In accordance with 
Secretaries' 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. We have determined that no Tribal 
lands fall within the boundaries of the proposed critical habitat for 
the Texas kangaroo rat, so no Tribal lands would be affected by the 
proposed designation.

References Cited

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

Authors

    The primary authors of this proposed rule are the staff members of 
the Fish and Wildlife Service's Species Assessment Team and the 
Arlington Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Plants, 
Reporting and recordkeeping requirements, Transportation, Wildlife.

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

0
2. Amend Sec.  17.11, in paragraph (h), by adding an entry for 
``Kangaroo rat, Texas (Dipodomys elator)'' to the List of Endangered 
and Threatened Wildlife in alphabetical order under MAMMALS to read as 
follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                              Listing citations
           Common name              Scientific name        Where listed          Status         and applicable
                                                                                                    rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
             Mammals
 
                                                  * * * * * * *
Kangaroo rat, Texas.............  Dipodomys elator...  Wherever found.....               E   [Federal Register
                                                                                              citation when
                                                                                              published as a
                                                                                              final rule]; 50
                                                                                              CFR 17.95(a).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.95, in paragraph (a), by adding an entry for ``Texas 
Kangaroo Rat (Dipodomys elator)'' after the entry for ``San Bernardino 
Kangaroo Rat (Dipodomys merriami parvus)'', to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

    (a) Mammals.
* * * * *
    Texas Kangaroo Rat (Dipodomys elator)
    (1) Critical habitat units are depicted for Childress, Cottle, 
Hardeman, Wichita, and Wilbarger Counties, Texas, on the maps in this 
entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of the Texas kangaroo rat consist of the 
following components:
    (i) Loose loam/clay-loam soils;
    (ii) Shortgrass or mixed-grass prairie with forbs and less than 50 
percent woody canopy cover;
    (iii) Early successional grassland habitat often created and 
maintained by a disturbance regime (e.g., grazing, fire);
    (iv) Proportional mixture of short-statured vegetation (i.e., 
herbaceous plant species observed at a shortened height rather than 
their potential maximum height) and bare ground (i.e., at microscale);
    (v) Structure that provides uplift for burrows (e.g., prairie 
mound, shrub, manmade berm) in areas not prone to flooding; and
    (vi) Habitat connectivity that supports movement and dispersal of 
Texas kangaroo rats (e.g., open spaces that lack barriers such as large 
paved roads or dense trees and shrubs).
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, paved roads, and other paved areas) and 
the land on which they are located existing within the legal boundaries 
on the effective date of the final rule.
    (4) Data layers defining map units were created using a geographic 
information system (GIS), which included Texas kangaroo rat locations, 
potential habitat modeling, waterways (i.e., streams and rivers), 
aerial imagery, and StreetMap USA (for highways and cities). Critical 
habitat unit areas were identified using a range-wide map of potential 
habitat modeled on the basis of the association of the Texas kangaroo 
rat with specific soil and land-cover types. Potential barriers to 
dispersal (i.e., rivers, wide paved roads, and large cities) were used 
to divide habitat blocks into separate units. Possible travel corridors 
between units were identified by the presence of unpaved roads or 
appropriate land cover based on aerial imagery, recent Texas kangaroo 
rat detections, and the absence of barriers to dispersal. The maps in 
this entry, as modified by any accompanying regulatory text, establish 
the boundaries of the critical habitat designation. The coordinates or 
plot points or both on which each map is based are available to the 
public at the Service's internet site at https://fws.gov/office/arlington-ecological-services, at https://www.regulations.gov at Docket 
No. FWS-R2-ES-2021-0143, and at the field office responsible for this 
designation. You may obtain field office location information by 
contacting one of the Service regional offices, the

[[Page 55989]]

addresses of which are listed at 50 CFR 2.2.
    (5) Index map follows:
BILLING CODE 4333-15-P
Figure 1 to Texas Kangaroo Rat (Dipodomys elator) paragraph 5
[GRAPHIC] [TIFF OMITTED] TP17AU23.165

    (6) Unit 1: North of U.S. 287 (Childress, Hardeman, and Wilbarger 
Counties, Texas).
    (i) Unit 1 consists of 170,078 ac (68,828 ha) in private ownership 
and management in Childress, Hardeman, and Wilbarger Counties, Texas.
    (ii) Map of Units 1 and 2 follows:

Figure 2 to Texas Kangaroo Rat (Dipodomys elator) paragraph (6)(ii)
[GRAPHIC] [TIFF OMITTED] TP17AU23.166


[[Page 55990]]


    (7) Unit 2: South of U.S. 287 (Childress, Cottle, Hardeman, and 
Wilbarger Counties, Texas).
    (i) Unit 2 consists of 188,211 ac (76,166 ha) in private ownership 
and management in Childress, Cottle, Hardeman, and Wilbarger Counties, 
Texas.
    (ii) Map of Unit 2 is provided in paragraph (6)(ii) of this entry.
    (8) Unit 3: North of U.S. 70 (Cottle County, Texas).
    (i) Unit 3 consists of 17,035 ac (6,894 ha) in private ownership 
and management in Cottle County, Texas.
    (ii) Map of Units 3 and 4 follows:

Figure 3 to Texas Kangaroo Rat (Dipodomys elator) paragraph (8)(ii)
[GRAPHIC] [TIFF OMITTED] TP17AU23.167

    (9) Unit 4: South of U.S. 70 (Cottle County, Texas).
    (i) Unit 4 consists of 26,727 ac (10,816 ha) in private ownership 
and management in Cottle County, Texas.
    (ii) Map of Unit 4 is provided in paragraph (8)(ii) of this entry.
    (10) Unit 5: North of U.S. 287 (Wilbarger and Wichita Counties, 
Texas).
    (i) Unit 5 consists of 84,004 ac (33,995 ha) in private ownership 
and management in Wilbarger and Wichita Counties, Texas.
    (ii) Map of Units 5 and 6 follows:

Figure 4 to Texas Kangaroo Rat (Dipodomys elator) paragraph (10)(ii)

[[Page 55991]]

[GRAPHIC] [TIFF OMITTED] TP17AU23.168

    (11) Unit 6: South of U.S. 287 (Wilbarger and Wichita Counties, 
Texas).
    (i) Unit 6 consists of 111,014 ac (44,926 ha) in private ownership 
and management in Wilbarger and Wichita Counties, Texas.
    (ii) Map of Unit 6 is provided in paragraph (10)(ii) of this entry.
* * * * *

Wendi Weber,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-17671 Filed 8-16-23; 8:45 am]
BILLING CODE 4333-15-C