Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 /Rules and Regulations 3835

Part 73 of title 47 of the Code of

Federal Regulations is amended as

follows:

PART 73—[AMENDED]

1. The authority citation for Part 73

continues to read as follows:

Authority: 47 U.S.C. 154, 303, 334, 336.

§ 73.202 [Amended]

2. Section 73.202(b), the Table of FM

Allotments under Florida, is amended

by adding Satellite Beach and Channel

253A.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 98–1891 Filed 1–26–98; 8:45 am]

BILLING CODE 6712–01–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AE59

Endangered and Threatened Wildlife

and Plants; Emergency Rule To List

the San Bernardino Kangaroo Rat as

Endangered

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Emergency rule.

SUMMARY: The U.S. Fish and Wildlife

Service (Service) exercises its

emergency authority to determine the

San Bernardino kangaroo rat

(Dipodomys merriami parvus) to be an

endangered species pursuant to the

Endangered Species Act of 1973, as

amended (Act). This subspecies occurs

primarily in alluvial scrub habitats with

appropriate vegetative cover and

substrate composition. The historic

range of the San Bernardino kangaroo

rat has been reduced by approximately

96 percent due to agricultural and urban

development. All of the remaining

populations of the San Bernardino

kangaroo rat are threatened by habitat

loss, degradation, and fragmentation

due to sand and gravel mining

operations, flood control projects, urban

development, and vandalism. In

addition, the three largest remaining

populations of the San Bernardino

kangaroo rat are threatened by habitat

loss resulting from a change in the

natural stream flow regime including

seasonal flooding and associated

modification of plant succession

patterns. The threat of vandalism to

large portions of the remaining habitat

may be imminent. Threats have been

made indicating that habitat would be

destroyed if the Service attempted to list

the San Bernardino kangaroo rat.

Because of the need to make protective

measures afforded by the Act

immediately available to this subspecies

and its habitat, the Service finds that an

emergency rule action is justified. This

emergency rule provides Federal

protection pursuant to the Act for this

subspecies for a period of 240 days. A

proposed rule to list the San Bernardino

kangaroo rat, requesting data and

comment from the public, is being

published concurrently in this same

Federal Register issue under the

proposed rule section.

DATES: This emergency rule is effective

on January 27, 1998, and expires on

September 24, 1998.

ADDRESSES: The complete file for this

rule is available for inspection, by

appointment, during normal business

hours at the U.S. Fish and Wildlife

Service, Carlsbad Field Office, 2730

Loker Avenue West, Carlsbad, California

92008.

FOR FURTHER INFORMATION CONTACT:

Field Supervisor, at the above address

(telephone 760/431–9440).

SUPPLEMENTARY INFORMATION:

Background

The San Bernardino kangaroo rat

(Dipodomys merriami parvus) is one of

19 recognized subspecies of Merriam’s

kangaroo rat (D. merriami), a

widespread species distributed

throughout arid regions of the western

United States and northwestern Mexico

(Hall 1981, Williams et al. 1993). In

coastal southern California, D. merriami

is the only species of kangaroo rat with

four toes on each of its hind feet. The

San Bernardino kangaroo rat has a body

length of about 95 millimeters (mm) (3.7

inches (in)) and a total length of 230 to

235 mm (9 to 9.3 in). The hind foot

measures less than 36 mm (1.4 in) in

length. The body color is weakly

ochraceous (yellow) with a heavy

overwash of dusky brown. The tail

stripes are medium to dark brown and

the foot pads and tail hairs are dark

brown. The animal’s flanks and cheeks

are dusky (Lidicker 1960). The San

Bernardino kangaroo rat is considerably

darker and much smaller than either of

the other two subspecies of Merriam’s

kangaroo rat in southern California, D.

merriami merriami and D. merriami

collinus. Lidicker (1960) noted that the

San Bernardino kangaroo rat is one of

the most highly differentiated

subspecies of D. merriami and that ‘‘it

seems likely that it has achieved nearly

species rank.’’ This differentiation is

likely due to its apparent isolation from

other members of D. merriami.

The San Bernardino kangaroo rat, a

member of the family Heteromyidae,

was first described by Rhoades in 1894

under the name Dipodomys parvus from

specimens collected by R.B. Herron in

Reche Canyon, San Bernardino County,

California (Hall 1981). Elliot reduced D.

parvus to a subspecies of D. merriami

(D. merriami parvus) in 1901. The San

Bernardino kangaroo rat appears to be

separated from Merriam’s kangaroo rat

(D. merriami merriami) at the

northernmost extent of its range near

Cajon Pass by a 8 to 13 kilometer (km)

(5 to 8 mile (mi)) gap of unsuitable

habitat. The San Bernardino kangaroo

rat may have in the distant past also

intergraded with D. merriami collinus to

the south in the vicinity of Menifee

(Lidicker 1960, Hall 1981).

The historical range of this subspecies

extends from the San Bernardino Valley

in San Bernardino County to the

Menifee Valley in Riverside County

(Lidicker 1960, Hall 1981). Within this

range, the San Bernardino kangaroo rat

was known from over 25 localities

(McKernan 1993). From the early 1880’s

to the early 1930’s, the San Bernardino

kangaroo rat was a common resident of

the San Bernardino and San Jacinto

valleys of southern California (Lidicker

1960).

In most heteromyids, soil texture is a

primary factor in determining species’

distributions (Brown and Harney 1993).

San Bernardino kangaroo rats are found

primarily on sandy loam substrates,

characteristic of alluvial fans and flood

plains, where they are able to dig

simple, shallow, burrows (McKernan

1997). Based on the distribution of

suitable (i.e., sandy) soils and the

historical collections of this subspecies,

the historical range is thought to have

encompassed an area of approximately

128,000 hectares (ha) (320,000 acres

(ac)) (Service, unpub. GIS maps, 1997).

Although the entire area of the historical

range would not have been occupied

due to variability in vegetation and

soils, the San Bernardino kangaroo rat

was widely distributed across this area.

By the 1930’s, the habitat had been

reduced to approximately 11,200 ha

(28,000 ac)(McKernan 1997).

Currently, the San Bernardino

kangaroo rat occupies approximately

1,299 ha (3,247 ac) of suitable habitat

divided unequally among seven

locations, which are widely separated

from one another (McKernan 1997).

Four of these locations (City Creek (8 ha

(20 ac)), Etiwanda (2 ha (5 ac)), Reche

Canyon (2 ha (5 ac)), and South

Bloomington (.8 ha (2 ac)) support only

small, remnant, populations. The
3836 Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 /Rules and Regulations

remaining three locations (the Santa

Ana River (690 ha (1,725 ac)), Lytle and

Cajon washes (456 ha (1,140 ac)), and

San Jacinto River (140 ha (350 ac))

contain the largest extant concentrations

of kangaroo rats and blocks of suitable

habitat.

The three largest remaining blocks of

occupied habitat (i.e., Santa Ana River,

Lytle/Cajon creeks, and San Jacinto

River) (1,286 ha (3,215 ac)) are

distributed across a mosaic of

approximately 5,479 ha (13,697 ac) of

typically suitable, alluvial soils, which

are dominated by sage scrub and

chaparral. Virtually all remaining

vegetative associations (except about

1,286 ha (3,215 ac)) are more mature

than the open, early successional habitat

structure required by the San

Bernardino kangaroo rat. Existing and

proposed hydrological modifications

eliminate habitat renewal and obstruct

population recovery over these highly

fragmented wash habitats (Hanes et al.

1989, McKernan 1997). Thus, the

residual 4 percent of historical habitat

(5,479 ha (13,697 ac)), supports only

about 1,286 ha (3,215 ac), that are ever

likely to provide habitat, absent habitat

renewal through large-scale flood or

intensive management intervention. It is

estimated that 400 ha (1,000 ac) are

likely to support suitable habitat in the

future, considering that 54 percent of

remaining flood plain habitats are

proposed for development in the

foreseeable future.

Currently, the San Bernardino

kangaroo rat is found primarily

associated with a variety of sage scrub

vegetation, where the common element

is the presence of sandy soils

(McKernan 1997). Where the San

Bernardino kangaroo rat occurs in

alluvial scrub, the subspecies reaches its

highest densities in early and

intermediate seral stages (McKernan

1997). Alluvial scrub includes elements

from chaparral, coastal sage, and desert

communities. Three successional phases

of alluvial scrub have been described:

pioneer, intermediate, and mature

alluvial scrub, depending on elevation

and distance from the main channels,

and the time since previous flooding

(Smith 1980, Hanes et al. 1989).

Vegetative cover generally increases

with distance from the active stream

channel. The pioneer, or youngest

phase, is subject to frequent

disturbance, and vegetation is usually

disturbed by annual floods (Smith 1980,

Hanes et al. 1989). The intermediate

phase, defined as the area between the

active channel and mature terraces, is

subject to periodic flooding at longer

intervals. The vegetation on

intermediate terraces is relatively open,

and supports the highest densities of the

San Bernardino kangaroo rat. The

mature phase is rarely affected by

flooding and supports the highest plant

cover (Smith 1980). These flood events

break out of the main river channel

randomly, resulting in a braided

appearance to the floodplain. This

dynamic nature to the habitat leads to

a situation where not all the alluvial

scrub habitat is suitable for the kangaroo

rat at any point in time. The San

Bernardino kangaroo rat, like other

subspecies of Merriam’s kangaroo rat,

prefers open habitats characterized by

low shrub canopy cover (mostly 7 to 22

percent) and rarely occurs in dense

vegetation (McKernan 1997). The older

seral stages of the floodplain often are

not suitable for this subspecies.

The range of the San Bernardino

kangaroo rat is partially overlapped by

the distribution of the Stephens’

kangaroo rat (Dipodomys stephensi) and

is entirely overlapped by the range of

the Pacific kangaroo rat (D. simulans).

Where these species occur in proximity,

they are usually concentrated in

different areas. The Stephens’ kangaroo

rat typically is associated with open,

arid, grassland associations (Lackey

1967, O’Farrell et al. 1986, O’Farrell and

Uptain 1987, O’Farrell 1990), and

occurs on a variety of soil types. The

Pacific kangaroo rat typically inhabits

denser shrub cover on a variety of soil

types. All three of these species can be

identified from one another based on

morphological characters.

Home ranges for the Merriam’s

kangaroo rat average 0.33 hectares (ha)

(0.8 ac) for males and 0.31 ha (0.8 ac)

for females (Behrends et al. 1986). Long

sallies (bursting movements) of 100

meters (m) (328 feet (ft)) or more beyond

these ranges are not uncommon.

Although outlying areas of their home

ranges may overlap, adults actively

defend small core areas near their

burrows (Jones 1993). Home range

overlap between males and between

males and females is extensive, but

female-female overlap is slight (Jones

1993).

McKernan (1993) has found pregnant

San Bernardino kangaroo rat females

from February through October, and

immatures from April through

September. Some females may produce

more than one litter per year. Litter size

averages between 2 and 3 young

(Eisenberg 1993).

Similar to other kangaroo rats, the San

Bernardino kangaroo rat is primarily

granivorous and often stores large

quantities of seeds in surface caches

(Reichman and Price 1993). Green

vegetation and insects are also

important seasonal food sources.

Insects, when available, have been

documented to constitute as much as 50

percent of a kangaroo rat’s diet

(Reichman and Price 1993). Females are

known to increase ingestion of foods

with higher water content during

lactation, presumably to compensate for

the increased water loss associated with

milk production (Reichman and Price

1993). Dipodomys merriami is known

for its ability to live indefinitely without

water on a diet consisting entirely of dry

seeds (Reichman and Price 1993).

Previous Federal Action

The San Bernardino kangaroo rat was

designated by the Service as a category

2 candidate species for Federal listing as

endangered or threatened in 1991 (56

FR 58804). Category 2 comprised taxa

for which information in the possession

of the Service indicated that proposing

to list as endangered or threatened was

possibly appropriate, but for which

conclusive data on biological

vulnerability and threat(s) were not

available to support a proposed rule.

Based on a review of status and

distribution of the San Bernardino

kangaroo rat, the subspecies was

upgraded to a category 1 candidate for

listing in 1994 (59 FR 58982). Category

1 candidate species were those where

the Service had sufficient information

on biological vulnerability and threat(s)

to support proposals to list them as

endangered or threatened species. Upon

publication of the February 28, 1996,

notice of review (61 FR 7596), the

Service ceased using category

designations and included the San

Bernardino kangaroo rat as a candidate

species. The San Bernardino kangaroo

rat was retained as a candidate species

in the September 19, 1997, notice of

review (62 FR 49401).

The processing of this proposed rule

conforms with the Service’s final listing

priority guidance published in the

Federal Register on December 5, 1996

(61 FR 64475) and extended on October

23, 1997 (62 FR 55268). The guidance

clarifies the order in which the Service

will process rulemakings. The guidance

calls for giving highest priority to

handling emergency situations (Tier 1),

second highest priority (Tier 2) to

resolving the listing status of the

outstanding proposed listings, third

priority (Tier 3) to new proposals to add

species to the list of threatened and

endangered plants and animals and

fourth priority (Tier 4) to designating

critical habitat and processing delistings

and reclassifications. This emergency

rule constitutes a Tier 1 action.
Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 /Rules and Regulations 3837

Summary of Factors Affecting the

Species

Section 4 of the Act and regulations

(50 CFR Part 424) promulgated to

implement the listing provisions of the

Act set forth the procedures for adding

species to Federal lists. A species may

be determined to be an endangered or

threatened species due to one or more

of the five factors described in Section

4(a)(1) of the Act. These factors and

their application to the San Bernardino

kangaroo rat (Dipodomys merriami

parvus) are as follows:

A. The Present or Threatened

Destruction, Modification, or

Curtailment of Its Habitat or Range

All occupied habitat of the

subspecies, which encompasses

approximately 1,300 ha (3,250 ac), is

threatened by the direct and indirect

effects of sand and gravel mining,

highway construction, flood control

operations, urban and industrial

development, water conservation

activities, and vandalism (McKernan

1997, Service unpub. GIS maps 1997).

Loss and fragmentation of San

Bernardino kangaroo rat habitat is

expected to continue as southern

California’s human population expands.

In the 1950’s, the population of

Riverside and San Bernardino counties

combined was about 400,000. Over 2.5

million people reside in this region, and

by the year 2000, the human population

of San Bernardino and Riverside

counties is expected to increase to

nearly 4 million (California Department

of Finance 1993). Further habitat losses

resulting from development or alteration

of the landscape will likely have a

significant adverse effect on the viability

of remaining San Bernardino kangaroo

rat populations. Additionally, habitat

loss from intentional destruction of San

Bernardino kangaroo rat habitat has

been threatened if the species were to be

listed.

Santa Ana River

The largest remaining population of

the San Bernardino kangaroo rat occurs

along the Santa Ana River. The flood

plain terrace habitat encompasses about

1,637 ha (4,092 ac), of which

approximately 690 ha (1,725 ac) are

occupied by the San Bernardino

kangaroo rat (McKernan 1997). The

occupied habitat extends more or less

continuously from the vicinity of

Norton Air Force Base to the Greenspot

Road Bridge north of Mentone (Service

unpub. GIS maps 1997, McKernan

1997). Approximately 66 percent of

flood plain terrace habitat is directly at

risk due to the combined activities of

the Army Corps of Engineers, United

States Bureau of Land Management

(BLM), San Bernardino Valley Water

Conservation District, San Bernardino

County Flood Control District, and two

private sand mining operations (Service

unpub. GIS maps 1997).

At least 80 percent of the remaining

occupied habitat along the Santa Ana

River is indirectly at risk because of the

projected changes in hydrology due to

Seven Oaks Dam (Service unpub. GIS

maps 1997) being constructed by the

Army Corps of Engineers (U.S. Army

Corps of Engineers 1988). An indirect

effect of operation of the Seven Oaks

Dam will be the long-term succession of

various stages of alluvial scrub,

including much of a 775-acre mitigation

area, into even aged stands of habitat

scrub through time due to a reduction

in scouring and deposition of fresh

sands by floods. Curtailed hydrologic

disturbance, where soil moisture is

adequate, will allow shrub densities that

exceed the low to moderate densities

tolerated by the subspecies to develop

(Hanes et al. 1989, McKernan 1997).

Past and ongoing activities of the San

Bernardino County Flood Control

District pose a threat to approximately

400 ha (1,000 ac) of alluvial scrub

habitat in this area. Based on the

distribution of soils and vegetative

cover, approximately 176 ha (440 ac) of

this area is occupied by the San

Bernardino kangaroo rat (Service unpub.

GIS maps 1997). Activities that impact

this subspecies and its habitat include

the construction of levees and sediment

removal. The area at risk due to these

activities supports approximately 25

percent of the population along the

Santa Ana River (Service unpub. GIS

maps 1997, McKernan 1997).

The BLM and San Bernardino Valley

Water Conservation District lands are

managed, in part, for the development

or operation of water spreading basins

for groundwater recharge. Although the

San Bernardino kangaroo rat can occupy

portions of areas modified by spreading

basins, the flooded area is essentially

lost to this animal due to the periodic

presence of standing water and the

degradation of habitat. Based on the

distribution of soils and vegetative

cover, approximately 140 ha (350 ac) of

this area is occupied by the San

Bernardino kangaroo rat (Service unpub.

GIS maps 1997). The area affected by

spreading basins represents

approximately 20 percent of the

population along the Santa Ana River

(Service unpub. GIS maps 1997,

McKernan 1997). The San Bernardino

Valley Water Conservation District and

BLM are coordinating with the Service

and others to develop a regional

conservation plan that attempts to

reconcile conflicts among competing

land uses, including the conservation of

the San Bernardino kangaroo rat.

However, this conservation plan has not

been finalized and is not currently in

effect. Though 371 ha (927 ac) of BLM

land potentially are available for water

percolation ponds, no ponds have been

constructed recently.

Sand and gravel mining poses a

significant and imminent threat to the

San Bernardino kangaroo rat. Two sand

mining operations collectively threaten

approximately 552 ha (1,381 ac) of

alluvial scrub habitat in this area

(Lilburn 1997a and 1997b, P&D

Technologies 1988, Service unpub. GIS

maps 1997). Based on the distribution of

soils and vegetative cover, a minimum

of 150 ha (375 ac) of approved and

proposed project areas is occupied by

the San Bernardino kangaroo rat

(Service unpub. GIS maps 1997). The

area affected by sand mining represents

approximately 22 percent of the

population along the Santa Ana River

(Service unpub. GIS maps 1997,

McKernan 1997).

One proposed sand and gravel mining

expansion is expected to receive

certification under the California

Environmental Quality Act (CEQA) in

the next 2–4 months. A grading permit

would be issued shortly thereafter. This

project would further fragment habitat.

In addition, this operator has repeatedly

and publicly threatened to destroy

habitat if the Service proposes to list the

kangaroo rat.

Additional impacts will occur due to

a large pipeline project (P&D

Technologies 1992). Approximately 60

ha (150 ac) of alluvial scrub in the Santa

Ana River will be impacted by this

project. Based on the distribution of

soils and vegetative cover, a minimum

of 24 ha (60 ac) of this project area is

occupied by the San Bernardino

kangaroo rat (Service unpub. GIS maps

1997). This project has been reviewed

and certified under the CEQA and,

therefore, poses an imminent threat. The

area directly threatened by this pipeline

project represents 3 percent of the Santa

Ana River population. The indirect

effects of this project include further

fragmentation of kangaroo rat habitat.

Other activities that threaten the San

Bernardino kangaroo rat in this region

include the closure of Norton Air Force

Base (San Bernardino County) and the

proposed development of this site into

the San Bernardino International

Airport (U.S. Department of the Air

Force 1993). Habitat for the San

Bernardino kangaroo rat on Norton Air

Force Base will be reduced by
3838 Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 /Rules and Regulations

approximately 2 to 5 percent

(Conservation Management Plan 1997).

Lytle and Cajon Creeks

The second largest remaining

population of the San Bernardino

kangaroo rat occurs along Lytle and

Cajon creeks, from near Interstate 15

downstream on both drainages for

approximately 8 km (5 mi) (McKernan

1997). This area contains approximately

2,688 ha (6,722 ac) of alluvial scrub

habitat, of which approximately 456 ha

(1,140 ac) are occupied. Of the alluvial

scrub habitat, approximately 47 percent

is directly threatened by the combined

activities associated with sand mining

operations, State Route 30, San

Bernardino County Flood Control

District, and urban development (e.g.,

The Villages at Lytle Creek) (Service

unpub. GIS maps 1997). Based on an

evaluation of soils and vegetative cover,

a minimum of 34 percent of the

occupied habitat in this area is

threatened due to the combined effects

of these activities (Service unpub. GIS

maps 1997).

The joint draft environmental impact

report for The Villages at Lytle Creek

and a sand mining operation (T&B

Planning Consultants 1996) describe

some of the threats facing the San

Bernardino kangaroo rat in this area.

The proposed urban community, The

Villages at Lytle Creek, will remove

approximately 728 ha (1,821 ac) of

alluvial scrub habitat (Michael

Brandman Associates 1994, T&B

Planning Consultants 1996). Based on

the distribution of soils and vegetative

cover, at least 132 ha (330 ac) of this

project area is occupied by the San

Bernardino kangaroo rat (Service unpub.

GIS maps 1997). In addition to the

upland development, the document

discloses the proposed channelization

of a portion of Lytle Creek. The area

affected by The Villages at Lytle Creek

represents approximately 29 percent of

the remaining occupied habitat of the

Lytle/Cajon population.

Proposed improvements to State

Route 30 also threaten the San

Bernardino kangaroo rat in the Lytle and

Cajon Creek area. Approximately 2.8 ha

(7 ac) of habitat will be directly removed

due to this project (San Bernardino

Association of Governments 1996).

Based on the distribution of soils and

vegetative cover, all of the project area

in this area (i.e., 2.8 ha (7 ac)) is

occupied by the San Bernardino

kangaroo rat (Service unpub. GIS maps

1997). The area affected by State Route

30 represents approximately 0.1 percent

of the occupied habitat in this area.

San Bernardino County Flood Control

District (District) constructed a levee

and parking lot for Glen Helen Regional

Park. The construction of the levee

continues to impact approximately 22

ha (55 ac) of habitat by precluding

scouring events and the reestablishment

of alluvial scrub vegetation. Given the

attributes of the area, the entire site was

likely occupied by the San Bernardino

kangaroo rat prior to construction of the

levee. The levee also threatens habitat

occupied by the San Bernardino

kangaroo rat on the opposite side of the

Cajon Creek due to the alteration in the

hydrological system. The levee likely

will divert flood flows into the opposite

bank and cause erosion of the Calmat

conservation bank, which was

established to help conserve listed and

sensitive species in the area. The total

amount of occupied habitat anticipated

to be lost is, at a minimum,

approximately 44 ha (110 ac) (Service

unpub. GIS maps 1997). The area

affected by flood control activities

equates to approximately 10 percent of

the occupied habitat in this area.

San Jacinto River

The third largest remaining

population of San Bernardino kangaroo

rat occurs in Riverside County. Here, the

vast majority of alluvial floodplain has

been impacted by flood control

activities, agricultural and urban

development, and sand and gravel

mining in this area. Approximately 295

ha (737 ac) of alluvial scrub remains in

this area and approximately 140 ha (350

ac) is occupied along the San Jacinto

River.

Flood control activities that impact

this species include grading of occupied

habitat. Evidence of extensive grading

exists throughout the remaining alluvial

scrub vegetation within the flood

control berms along the San Jacinto

River in the vicinity of the City of San

Jacinto (Arthur Davenport, Service, pers.

obs. 1995). Flood control structures that

impact this species include concrete

channels and flood confining berms.

The construction of a concrete channel

appears to have isolated a small

population of San Bernardino kangaroo

rat located along Bautista Creek from the

rest of the population along the San

Jacinto River. The construction of berms

too far into the flood plain is

detrimental to the San Bernardino

kangaroo rat in that the construction of

the berms causes a loss of habitat by

increasing the severity of scouring and

land erosion.

Continuing, intermittent, agricultural

activities, such as dry-land farming

along the edges of the San Jacinto River

in the vicinity of Hemet and the City of

San Jacinto, also impact the San

Bernardino kangaroo rat. Patches of

suitable and occupied habitat occurring

outside the flood control berms are

occasionally disced due to agricultural

activities (Arthur Davenport, pers. obs.

1995). Discing adversely affects the

subspecies by destroying its burrows

and habitat.

Urban and commercial development

into the flood plain of the San Jacinto

River continues to threaten the San

Bernardino kangaroo rat. Although flood

control berms have been in place for

years, suitable and occupied habitat

occurs outside the berms. Though

degraded due to agricultural activities,

occupied habitat outside the berms is

critical to the maintenance of the

species along the San Jacinto River

because it provides a source population

for recolonization of habitat within the

berms following flood events.

The San Bernardino kangaroo rat is

also impacted by the maintenance and

expansion of spreading basins within its

habitat. Maintenance of spreading

basins results in the destruction of

habitat and San Bernardino kangaroo

rats that occur along the margins

(Arthur Davenport, pers. obs. 1995).

Similarly, the expansion of spreading

basins results in a direct loss of suitable

and occupied habitat. Eastern Municipal

Water District has proposed

‘‘reconstructing’’ previously authorized

groundwater recharge facilities in the

San Jacinto River (U.S. Army Corps of

Engineers 1997), including a new

location for the recharge area. This

project encompasses approximately 2.6

ha (6.5 ac) of alluvial scrub, and impacts

approximately 2 percent of occupied

habitat in the area (140 ha (350 ac)).

Both sand and gravel mining threaten

the San Bernardino kangaroo rat in the

San Jacinto River area. The operations of

sand mining continue to impact

occupied habitat. One mine site consists

of 100 ha (250 ac) and occurs entirely

in the flood plain of the San Jacinto

River (Army Corps of Engineers 1996,

Pre-discharge Notification 96–00397–

RRS). Based on the distribution of soils

and vegetative cover, a minimum of 40

ha (100 ac) of the project site is

occupied by the San Bernardino

kangaroo rat. Sand mining affects

approximately 28 percent of the

occupied habitat in the San Jacinto

River area.

B. Overutilization for Commercial,

Recreational, Scientific, or Educational

Purposes.

This factor is not known to be

applicable.

C. Disease or Predation.

Disease is not known to be affecting

the San Bernardino kangaroo rat at this
Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 /Rules and Regulations 3839

time. However, fragmentation of habitat

is likely to promote higher levels of

predation by urban-associated animals

(e.g., domestic cats) as the interface

between natural habitat and urban areas

is increased (Churcher and Lawton

1987). Domestic cats are known to be

predators of native rodents (Hubbs 1951,

George 1974), and predation by cats has

been documented for the San

Bernardino kangaroo rat (McKernan,

pers. comm., 1994).

D. The Inadequacy of Existing

Regulatory Mechanisms

The decline of the San Bernardino

kangaroo rat is partially due to the

inherent weakness of the existing laws

and regulations that could serve to

protect the animal and its habitat.

Existing regulatory mechanisms that

may provide some protection for the

San Bernardino kangaroo rat include: (1)

The CEQA and National Environmental

Policy Act (NEPA); (2) the California

Natural Community Conservation

Planning Program; (3) the Surface

Mining and Reclamation Act (SMCRA);

(4) the Act in those cases where the San

Bernardino kangaroo rat occurs in

habitat occupied by other listed species;

(5) the California Endangered Species

Act (CESA); (6) conservation provisions

under the Federal Clean Water Act; (7)

land acquisition and management by

Federal, State, or local agencies or by

private groups and organizations; and

(8) local laws and regulations. Many of

these have limited protection authority

since the San Bernardino kangaroo rat is

not federally listed.

The majority of the known

populations of the San Bernardino

kangaroo rat occur on privately owned

land. Local lead agencies responsible

under CEQA and NEPA have made

determinations that have, or would,

adversely affect this taxon and its

habitat. Examples of projects that have

been completed or are currently

undergoing the review process under

CEQA and/or NEPA and will impact

this species include Seven Oaks Dam,

State Route 30 Improvement Project,

Metropolitan Water District Inland

Feeder Pipeline, Calmat Company,

Sunwest Materials, Robertson’s Ready

Mix, San Jacinto Aggregates, and The

Villages at Lytle Creek. Past, present,

and proposed mitigation for impacts to

this species and its habitat have been

inadequate to stop or reverse its decline.

CEQA decisions are also subject to overriding social and economic

considerations.

In 1991, the State of California

established a Natural Community

Conservation Planning Program (NCCP)

to address conservation needs

throughout the State. The initial focus of

the program is the coastal sage scrub

community. Within this program, the

California Department of Fish and Game

(CDFG) included the long-term

conservation of alluvial scrub, which is

in part occupied by the San Bernardino

kangaroo rat. However, participation in

NCCP is voluntary. San Bernardino and

Riverside counties have signed planning

agreements (Memoranda of

Understanding (MOUs)) to develop

multispecies plans that meet NCCP

criteria, but have not enrolled in the

NCCP program during the interim. The

MOUs do not provide protection to

candidate species during the planning

process.

Reclamation of mined areas in the

State of California is required under the

Surface Mining and Reclamation Act

(SMCRA). The County of San

Bernardino also requires that mining

companies submit a reclamation plan

for County approval. The primary

purpose of these ordinances is to

provide for erosion control measures

and to restore slopes to a moderate

slope. However, reclamation is not

likely to resolve the problem of

maintaining or mitigating for the loss of

species or ecosystem functions in a

biologically meaningful way because of

change in topography and altered

hydrology. The feasibility of artificially

creating a viable alluvial scrub plant

community suitable for the San

Bernardino kangaroo rat has not yet

been demonstrated.

The BLM designated an Area of

Critical Environmental Concern (ACEC)

in the Santa Ana River in 1994. The

ACEC is composed of three parcels of

land that total 304 hectares (760 acres).

The purpose of the ACEC is to protect

and enhance the habitat of federally

listed plant species occurring in the

area, such as Santa Ana River wooly-star

(Eriastrum densifolium ssp. sanctorum),

and sensitive species such as the San

Bernardino kangaroo rat, while

providing for the administration of

existing valid rights (BLM 1996).

Although the establishment of the ACEC

is important in regard to conservation of

sensitive habitats and species in this

area, the administration of valid existing

rights conflicts with BLM’s conservation

abilities in this area. Existing rights

include a withdrawal of Federal lands

in this area for water conservation

through an act of Congress, February 20,

1909 (Public, No. 248). The entire ACEC

is included in this withdrawn land and

may be available for water conservation

measures such as the construction of

percolation basins, subject to

compliance with the Act.

The San Bernardino kangaroo rat is

not protected under the CESA. The

Federal and State Acts together can

afford some measure of protection to the

San Bernardino kangaroo rat in those

areas where the species coexists with

other species already listed as

threatened or endangered. Eriastrum

densifolium ssp. sanctorum (Santa Ana

River woolly star) and Dodecahema

leptoceras (slender-horned spineflower)

are listed as endangered under the Act

and the CESA, and the coastal California

gnatcatcher (Polioptila californica

californica) is listed as threatened under

the Act. All three species can occur in

habitats similar to those preferred by the

San Bernardino kangaroo rat. However,

the distribution of D. leptoceras and E.

densifolium ssp. sanctorum is spotty

and discontinuous, and only overlaps

with a small portion of the habitat

occupied by the San Bernardino

kangaroo rat. The coastal California

gnatcatcher, although known to occur

within alluvial scrub habitat, has largely

been extirpated from San Bernardino

County within the range of the San

Bernardino kangaroo rat and, therefore,

occurrence with the listed species

provides little ancillary protection. In

Riverside County, coastal California

gnatcatchers are not currently known to

occur at any sites occupied by the San

Bernardino kangaroo rat.

The San Bernardino kangaroo rat

could potentially be affected by projects

requiring a permit from the Army Corps

of Engineers (Corps) under section 404

of the Clean Water Act. Although the

objective of the Clean Water Act is to

‘‘restore and maintain the chemical,

physical, and biological integrity of the

Nation’s waters’’ (Pub. L. 92–500), no

specific provisions exist that adequately

address the need to conserve candidate

species. A majority of the remaining

populations occur outside areas

delineated as waters of the United States

and, therefore, are not regulated.

Moreover, numerous activities for

which the Corps potentially has

jurisdiction, including sand and gravel

mining and flood control projects, have

proceeded without their overview (see

Factor A).

As a result of Fish and Wildlife

Coordination Act activities, the Corps,

in 1988, initiated a section 7

consultation on Eriastrum densifolium

ssp. sanctorum for the proposed Seven

Oaks Dam project on the Santa Ana

River. About 310 ha (775 ac) of alluvial

scrub habitat has been designated for

preservation as mitigation for impacts to

Eriastrum densifolium ssp. sanctorum

resulting from the construction of the

dam. Approximately 80 ha (200 ac) of

this appears to be currently suitable for
3840 Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 /Rules and Regulations

the San Bernardino kangaroo rat

(Service unpub. GIS maps 1997).

However, the preserved area represents

less than 7 percent of the alluvial scrub

found in the entire Santa Ana River

basin and approximately 12 percent of

the basin habitat occupied by the San

Bernardino kangaroo rat. Thus, the

mitigation preserve, while providing

some benefit, is likely not adequate to

conserve the subspecies.

Local and county zoning designations

are subject to change and do not

specifically address the conservation

and management needs of the San

Bernardino kangaroo rat. However,

numerous jurisdictions in western

Riverside and San Bernardino counties

are beginning a multi-species habitat

conservation planning process,

including coastal sage scrub-associated

species and benefit to the kangaroo rat

may result. Commitments for funding

and implementation of the strategy and

appropriate changes in land-use

regulations to protect potential

preserves during the planning process

have not been made.

The Riverside County Habitat

Conservation Agency is implementing

an approved habitat conservation plan

for the federally endangered Stephens’

kangaroo rat that involves the

establishment of permanent preserves in

western Riverside County (Riverside

County Habitat Conservation Agency

1996). Because the San Bernardino

kangaroo rat occupies a largely different

habitat type than that of the Stephens’

kangaroo rat, the conservation plan for

the Stephens’ kangaroo rat will not

benefit the San Bernardino kangaroo rat.

Despite extensive surveys, no current

records of San Bernardino kangaroo rats

occur within any of the reserves

established for Stephens’ kangaroo rat

(A. Davenport, pers. comm. 1997).

E. Other Natural or Manmade Factors

Affecting Its Continued Existence.

Habitat for the San Bernardino

kangaroo rat has been severely reduced

and fragmented by development and

related activities in the San Bernardino

and San Jacinto Valleys. Habitat

fragmentation results in loss of habitat,

reduced habitat patch size, and an

increasing distance between patches of

habitat. As discussed by Andren (1994)

regarding highly fragmented landscapes,

reduced habitat patch size and isolation

will exacerbate the effect of habitat loss

on a species’ persistence. That is, the

loss of species, or decline in population

size, will be greater than expected from

habitat loss alone. The loss of native

vertebrates, including rodents, due to

habitat fragmentation is well

documented (Soule ́ et al. 1992, Andren

1994, Bolger et al. 1997).

Isolated populations are subject to

extirpation by manmade or natural

events, such as floods and drought.

Furthermore, small populations may

experience a loss of genetic variability

and experience inbreeding depression

(Lacy 1997). Contributing to the

fragmentation of San Bernardino

kangaroo rat habitat are railroad tracks,

roads, and flood control channels. These

structures appear to function as

movement barriers to the San

Bernardino kangaroo rat, preventing

movement between areas of suitable

habitat.

All remaining population segments

are at risk due to their small size and

isolation. This is especially true for the

four smallest populations (i.e., City

Creek, Reche Canyon, Etiwanda, and

South Bloomington). Urbanization

exists throughout most of the San

Bernardino kangaroo rat’s range and the

remaining larger blocks of occupied

habitat (i.e., Santa Ana River, Lytle/

Cajon, and San Jacinto River) now

function independently of each other.

This isolation of occupied patches

places the entire population of San

Bernardino kangaroo rat at risk because

recolonization of suitable habitat

following local extirpation has been

precluded. The extirpation of

populations from local catastrophes,

such as flooding, is becoming more

probable as urban development further

constricts the remaining populations to

the active portion of the flood plain. The

largest remaining populations are now

restricted entirely to flood plain habitats

and vulnerable to extirpation by

naturally occurring events.

Flood control structures alter both the

magnitude and distribution of flooding.

In the absence of flood scouring,

sediments and organic matter

accumulate over time, contributing to

senescence of the alluvial scrub

community and its conversion to coastal

sage scrub or chaparral (Smith 1980,

Wheeler 1991, Jigour and McKernan

1992). The dense canopy of these

communities does not provide the open

environment required by San

Bernardino kangaroo rat, thereby

reducing the habitat suitability for the

species (Beatley 1976, McKernan 1997).

Within the active channels, the confined

flood events scour too frequently to

maintain suitable San Bernardino

kangaroo rat habitat.

The Service has carefully assessed the

best scientific and commercial

information available regarding the past,

present, and future threats faced by this

subspecies in developing this rule.

Based on this evaluation, the Service

finds that the emergency action is to list

the San Bernardino kangaroo rat as

endangered. This taxon is endangered

by one or more of the following factors:

Habitat destruction, degradation, and

fragmentation resulting from sand and

gravel mining, flood control projects,

urban development, vandalism, and

inadequate regulatory mechanisms.

Because of these factors, the San

Bernardino kangaroo rat is in imminent

danger of extinction throughout all or a

significant portion of its range.

Threatened status does not appear

appropriate considering the extent of

decline of the populations of this taxon

and the vulnerability of those

populations remaining.

Reasons for Emergency Determination

Under section 4(b)(7) of the Act and

50 CFR 424.20, the Secretary may

determine a species to be endangered or

threatened by an emergency rule that

shall cease 240 days following

publication in the Federal Register. The

reasons why this rule is necessary are

discussed below. If at any time after this

rule has been published the Secretary

determines that substantial evidence

does not exist to warrant such a rule, it

shall be withdrawn.

As discussed under Factor A, of the

seven remaining populations, only three

are of relatively large (viable) size. Much

of the remaining habitat for the San

Bernardino kangaroo rat is potentially

threatened by vandalism as well as

construction of approved projects.

Threats of vandalism to San Bernardino

kangaroo rat habitat have been made.

Intentional herbicide application and

grading were mentioned as possible

ways to eliminate suitable habitat.

Along the Santa Ana River, at least 80

percent of the remaining occupied

habitat is indirectly at risk because of

the projected changes in hydrology due

to Seven Oaks Dam. Approximately 25

percent of the population along the

Santa Ana River is further threatened by

levee construction and maintenance and

sediment removal activities of the San

Bernardino County Flood Control

District. About 20 percent of the habitat

is managed, in part, for operation of

water spreading basins. Finally, two

proposed sand mining operations

collectively threaten approximately 22

percent of the population along the

Santa Ana River. These proposed sand

and gravel mining expansions are

expected to receive certification under

the CEQA in 2–4 months. A grading

permit would be issued shortly

thereafter. The projects and sand and

gravel mining operations also have the

effect of fragmenting the habitat, further

reducing the security of this species.
Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 /Rules and Regulations 3841

Along Lytle Creek and Cajon Wash, a

minimum of 34 percent of the occupied

habitat in this area is threatened due to

the combined effects of sand and gravel

mining, flood control activities, and the

proposed development of The Villages

at Lytle Creek. At least 28 percent of the

occupied habitat in the San Jacinto

River area is threatened by urban

development, flood control activities,

agricultural activities or sand and gravel

mining.

Attempts to work with stakeholders

have met with little success. When

advised of the sensitivity of alluvial

scrub habitats in the San Bernardino

region in 1992, one local official

threatened to destroy existing habitat

areas by aerial herbicide application

(Edna Rey, Service, pers. comm., 1997).

Finally, the Service has been informed

that an area of approximately 1,440 ha

(3,560 ac) (approximately 26 percent) of

the total remaining alluvial scrub

habitat may be at risk of vandalism.

Statements have been made advising the

Service repeatedly that an attempt to list

the San Bernardino kangaroo rat would

elicit preemptive grading to protect

corporate assets (Pete Sorensen, Service,

pers. comm. 1996).

An emergency posing a significant

risk to the well-being and continued

survival of the San Bernardino kangaroo

rat exists as the result of the immediate

threat of destruction of a significant

portion of the subspecies’ remaining

habitat by sand and gravel mining

activities. For these reasons, the Service

finds that the San Bernardino kangaroo

rat is in imminent danger of extinction

throughout all or a significant portion of

its range and warrants immediate

protection under the Act.

Critical Habitat

Critical habitat is defined in section

3(5)(A) of the Act as: (i) the specific

areas within the geographical area

occupied by a species, at the time it is

listed in accordance with the Act, on

which are found those physical or

biological features (I) essential to the

conservation of the species and (II) that

may require special management

consideration or protection and; (ii)

specific areas outside the geographical

area occupied by a species at the time

it is listed, upon a determination that

such areas are essential for the

conservation of the species.

‘‘Conservation’’ means the use of all

methods and procedures needed to

bring the species to the point at which

listing under the Act is no longer

necessary.

Section 4(a)(3) of the Act, as

amended, and implementing regulations

(50 CFR 424.12) require that, to the

maximum extent prudent and

determinable, the Secretary designate

critical habitat at the time a species is

designated to be endangered or

threatened. The Service finds that

designation of critical habitat is not

prudent for the San Bernardino

kangaroo rat. The Service’s regulations

(50 CFR 424.12(a)(1)) state that

designation of critical habitat is not

prudent when one or both of the

following situations exist: (1) the

species is threatened by taking or other

human activity, and identification of

critical habitat can be expected to

increase the degree of threat to the

species, or (2) such designation of

critical habitat would not be beneficial

to the species.

Critical habitat designation for the

San Bernardino kangaroo rat is not

prudent because an increase in the

degree of threat to the species is

expected. This subspecies is found in

fragmented habitat composed of various

sage scrub shrub vegetation in the

presence of sandy soils. The designation

of critical habitat, including the

required publication of maps providing

precise locations, would bring

unnecessary attention to those areas of

the range that are occupied by this

kangaroo rat and encourage acts of

vandalism or intentional destruction of

habitat. This attention would likely lead

to an increase in activities (such as

discing or blading) by landowners who

do not want listed species on their

property (see Factor A, above).

Therefore, given the limited/habitat

specific distribution of the San

Bernardino kangaroo rat, and the

possibility that a significant portion of

the species’ remaining habitat could be

rapidly vandalized and destroyed, the

Service concludes that it is not prudent

to designate critical habitat for that

reason alone.

The designation of critical habitat is

also not prudent due to an expected lack

of benefit to the species. Although a

majority of San Bernardino kangaroo rat

habitat occurs on privately owned

lands, many activities that pose threats

to the continued existence of this

subspecies are funded, permitted, or

carried out by Federal agencies (e.g.,

section 404 of the Clean Water Act,

flood control, impoundment, and other

stream and wetland modification

projects). Section 7 of the Act requires

that Federal agencies refrain from

contributing to the destruction or

adverse modification of critical habitat

in any action authorized, funded or

carried out by such agency. This

requirement is in addition to the section

7 prohibition against jeopardizing the

continued existence of a listed species,

and it is the only mandatory legal

consequence of a critical habitat

designation. Any action that would

adversely modify San Bernardino

kangaroo rat critical habitat would

likely jeopardize the continued

existence of the subspecies because the

biological threshold for either

determination would be the same. Thus,

if the San Bernardino kangaroo rat is

listed, activities occurring on all lands

under Federal jurisdiction or ownership

that may adversely affect the San

Bernardino kangaroo rat would prompt

the requirement for consultation

pursuant to section 7(a)(2) of the Act

and the implementing regulations

pertaining thereto, regardless of whether

critical habitat has been designated.

Furthermore, the designation of critical

habitat would have no regulatory effect

on activities that are not subject to a

Federal nexus.

The Service acknowledges that

critical habitat designation, in some

situations, may provide some value to

the species by identifying areas

important for species conservation and

calling attention to those areas in

special need of protection. Critical

habitat designation of unoccupied

habitat may also benefit this subspecies

by alerting Federal action agencies to

potential sites for reintroduction and

allow them to evaluate proposals that

may affect these areas. However, in this

the case, any benefit provided by

designation of critical habitat for the

San Bernardino kangaroo rat would be

accomplished more effectively through

the recovery process and the jeopardy

prohibition of section 7. Designating

critical habitat for this kangaroo rat

would not address vegetation seral stage

management or control urban

development, all of which need to be

addressed in the recovery of this

subspecies.

Accordingly, the Service concludes

that designation of critical habitat

would not be beneficial to the species

and could increase the degree of threat

from taking. Therefore, designation of

critical habitat for the San Bernardino

kangaroo rat is not prudent at this time.

The Service will continue in its efforts

to obtain more information on the San

Bernardino kangaroo rat biology and

ecology, including essential habitat

characteristics particularly in regard to

stream flow regimes, current and

historical distribution, and existing and

potential sites that can contribute to

conservation of the species. The

information resulting from this effort

will be used to identify measures

needed to achieve conservation of the

species, as defined under the Act. Such

measures could include, but are not
3842 Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 /Rules and Regulations

limited to, development of conservation

agreements with the State, other Federal

agencies, local governments, private

landowners and organizations.

Available Conservation Measures

Conservation measures provided to

species listed as endangered or

threatened under the Endangered

Species Act include recognition,

recovery actions, requirements for

Federal protection, and prohibitions

against certain activities. Recognition

through listing encourages and results

in conservation actions by Federal,

State, and private agencies, groups, and

individuals. The Act provides for

possible land acquisition and

cooperation with the States and requires

that recovery actions be carried out for

all listed species. The protection

required of Federal agencies and the

prohibitions against certain activities

involving listed plants and animals are

discussed, in part, below.

Section 7(a) of the Act, as amended,

requires Federal agencies to evaluate

their actions with respect to any species

that is proposed or listed as endangered

or threatened and with respect to its

critical habitat, if any is being

designated. Regulations implementing

this interagency cooperation provision

of the Act are codified at 50 CFR Part

402. Section 7(a)(4) of the Act requires

Federal agencies to confer informally

with the Service on any action that is

likely to jeopardize the continued

existence of a proposed species or result

in destruction or adverse modification

of proposed critical habitat. If a species

is subsequently listed, section 7(a)(2)

requires Federal agencies to ensure that

activities they authorize, fund, or carry

out are not likely to jeopardize the

continued existence of such a species or

to destroy or adversely modify its

critical habitat. If a Federal action may

affect a listed species or its critical

habitat, the responsible Federal agency

must enter into formal consultation with

the Service.

Federal agencies expected to have

involvement with the San Bernardino

kangaroo rat or its habitat include the

Corps and the Environmental Protection

Agency due to their permit authority

under section 404 of the Clean Water

Act. The Federal Aviation

Administration has jurisdiction over

areas with potentially suitable San

Bernardino kangaroo rat habitat in the

vicinity of Redlands Municipal Airport

and Norton Air Force Base in San

Bernardino County. The Federal

Highway Administration will likely be

involved through potential funding of

highway construction projects near

Devore, Rancho Cucamonga, Rialto, and

San Bernardino (San Bernardino

County). Because the San Bernardino

kangaroo rat occurs on Norton Air Force

Base (San Bernardino County), the base

will likely be involved through the

transfer of Federal lands to a nonFederal entity and the conversion of this

area to a civilian airport. The BLM has

jurisdiction over a portion of the habitat

occupied by the San Bernardino

kangaroo rat along the Santa Ana River.

The Forest Service will likely be

involved because populations of the San

Bernardino kangaroo rat occur within or

near the boundaries of the Cleveland

National Forest and San Bernardino

National Forest. The Bureau of

Reclamation may be involved through

the potential funding of water

reclamation and flood control projects.

The Bureau of Indian Affairs may be

involved with this taxon at Soboba

Indian Reservation (Riverside County).

The Federal Housing Administration

could potentially be involved through

loans for housing projects in the region.

The Federal Energy Regulatory

Commission could be involved in

projects affecting existing or proposed

transmission lines in the Santa Ana

River or Etiwanda Creek areas.

The Act and implementing

regulations found at 50 CFR 17.21 set

forth a series of general trade

prohibitions and exceptions that apply

to all endangered wildlife. These

prohibitions, in part, make it illegal for

any person subject to the jurisdiction of

the United States to take (includes

harass, harm, pursue, hunt, shoot,

wound, kill, trap, capture, collect, or to

attempt any of these), import or export,

ship in interstate commerce in the

course of commercial activity, or sell or

offer for sale in interstate or foreign

commerce any listed species. It also is

illegal to possess, sell, deliver, carry,

transport, or ship any such wildlife that

has been taken illegally. Certain

exceptions apply to agents of the

Service and State conservation agencies.

Permits may be issued to carry out

otherwise prohibited activities

involving endangered and threatened

wildlife under certain circumstances.

Regulations governing permits are at 50

CFR 17.22, 17.23 and 17.32. Such

permits are available for scientific

purposes, to enhance the propagation or

survival of the species, or for incidental

take in connection with otherwise

lawful activities.

It is the policy of the Service (59 FR

34272) to identify to the maximum

extent practical at the time a species is

listed, those activities that would or

would not constitute a violation of

section 9 of the Act. The intent of this

policy is to increase public awareness of

the effect of listing on proposed and

ongoing activities within a species’

range, and to assist the public in

identifying measures needed to protect

the species. The Service believes that,

based on the best available information,

the following actions would not be

likely to result in a violation of section

9:

(1) Possession, delivery, or movement,

including interstate transport and

import into or export from the United

States, involving no commercial

activity, dead specimens of this taxa

that were collected prior to the date of

publication in the Federal Register of

the final regulation adding this taxa to

the list of endangered species;

(2) Road kills or injuries by vehicles

on designated public roads.

Potential activities involving the San

Bernardino kangaroo rat that the Service

believes likely would be considered a

violation of section 9 include, but are

not limited to, the following:

(1) Take of San Bernardino kangaroo

rat without a permit, which includes

harassing, harming, pursuing, hunting,

shooting, wounding, killing, trapping,

capturing, or collecting, or attempting

any of these actions, except in

accordance with applicable State fish

and wildlife conservation laws and

regulations;

(2) Possess, sell, deliver, carry,

transport, or ship illegally taken San

Bernardino kangaroo rats;

(3) Interstate and foreign commerce

(commerce across State and

international boundaries) and import/

export (as discussed earlier in this

section) without appropriate permits;

(4) Destruction or alteration of San

Bernardino kangaroo rat habitat by

discing, grading, sand or gravel mining,

flooding, vehicle operation, or other

activities that result in the destruction

or significant degradation of vegetative

composition, substrate composition, or

other activity that impacts breeding,

feeding, or availability of cover;

(5) Alteration of hydrology that results

in adverse modification of San

Bernardino kangaroo rat habitat (e.g.,

establishment of inappropriate stages of

vegetation).

Questions regarding whether specific

activities will constitute a violation of

section 9 or to obtain approved

guidelines for actions within the

kangaroo rat habitat should be directed

to the Service’s Carlsbad Field Office

(see ADDRESSES section). Requests for

copies of the regulations concerning

listed animals and inquiries regarding

prohibitions and permits may be

addressed to the U.S. Fish and Wildlife

Service, Endangered Species Permits,

911 NE. 11th Avenue, Portland, Oregon
Federal Register / Vol. 63, No. 17 /Tuesday, January 27, 1998 /Rules and Regulations 3843

97232–4181 (telephone 503/231–6241;

facsimile 503/231–6243).

National Environmental Policy Act

The Service has determined that an

Environmental Assessment or

Environmental Impact Statement, as

defined under the authority of the

National Environmental Policy Act of

1969, need not be prepared in

connection with regulations adopted

pursuant to section (4)(a) of the

Endangered Species Act of 1973, as

amended. A notice outlining the

Service’s reasons for this determination

was published in the Federal Register

on October 25, 1983 (48 FR 49244).

Required Determinations

This rule does not contain collections

of information that require approval by

the Office of Management and Budget

under 44 U.S.C. 3501 et seq.

References Cited

A complete list of references cited in

this rule is available upon request from

the Carlsbad Field Office of the U.S.

Fish and Wildlife Service (see

ADDRESSES section).

Author

The primary author of this proposed

rule is Arthur Davenport of the Carlsbad

Field Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements,

Transportation.

Regulation Promulgation

Accordingly, the Service amends part

17, subchapter B of chapter I, title 50 of

the Code of Federal Regulations, as

follows:

PART 17—[AMENDED]

1. The authority citation for part 17

continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C.

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500; unless otherwise noted.

2. Amend § 17.11(h) by adding the

following, in alphabetical order under

Mammals, to the List of Endangered and

Threatened Wildlife to read as follows:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Species

Historic range

Vertebrate population where endangered or threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

MAMMALS

* * * * * * *

Kangaroo rat, San

Bernardino.

Dipodomys merriami

parvus.

U.S.A. (CA) ............. NA ........................... E 631 NA NA

* * * * * * *

Dated: January 20, 1998.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 98–2011 Filed 1–26–98; 8:45 am]

BILLING CODE 4310–55–P