        DEPARTMENT OF HEALTH AND HUMAN SERVICES
        Centers for Medicare & Medicaid Services
        42 CFR Part 414
        [CMS-1317-P]
        RIN 0938-AO11
        Medicare Program; Revisions to the Payment Policies of Ambulance Services Under the Fee Schedule for Ambulance Services

          AGENCY:
          Centers for Medicare & Medicaid Services (CMS), HHS.

          ACTION:
          Proposed rule.

          SUMMARY:
          We are proposing to set forth changes to the fee schedule for payment of ambulance services by adopting revised geographic designations for urban and rural areas as set forth in Office of Management and Budget's (OMB) Core-Based Statistical Areas (CBSAs) standard. We propose to remove the definition of Goldsmith modification and reference the most recent version of Goldsmith modification in the definition of rural area. In addition, we propose to add the definition of urban area as defined by OMB and revise our definitions of emergency response, rural area, and specialty care transport (SCT).
          We also propose to discontinue the annual review of the conversion factor (CF) and of air ambulance rates. We would continue to monitor payment and billing data on an ongoing basis and make adjustments to the CF and to air ambulance rates as appropriate to reflect any significant changes in these data.

          DATES:
          To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on July 25, 2006.

          ADDRESSES:
          In commenting, please refer to file code CMS-1317-P. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.
          You may submit comments in one of four ways (no duplicates, please):
          1. Electronically. You may submit electronic comments on specific issues in this proposed regulation to http://www.cms.hhs.gov/eRulemaking. Click on the link “Submit electronic comments on CMS regulations with an open comment period.” (Attachments should be in Microsoft Word, WordPerfect, or Excel; however, we prefer Microsoft Word.)
          2. By regular mail. You may mail written comments (one original and two copies) to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1317-P, P.O. Box 8017, Baltimore, MD 21244-8017.
          Please allow sufficient time for mailed comments to be received before the close of the comment period.
          3. By express or overnight mail. You may send written comments (one original and two copies) to the following address ONLY: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-1317-P, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
          4. By hand or courier. If you prefer, you may deliver (by hand or courier) your written comments (one original and two copies) before the close of the comment period to one of the following addresses. If you intend to deliver your comments to the Baltimore address, please call telephone number (410) 786-7197 in advance to schedule your arrival with one of our staff members. Room 445-G, Hubert H. Humphrey Building, 200 Independence Avenue, SW., Washington, DC 20201; or 7500 Security Boulevard, Baltimore, MD 21244-1850.
          (Because access to the interior of the HHH Building is not readily available to persons without Federal Government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)
          Comments mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period.

          For information on viewing public comments, see the beginning of the SUPPLEMENTARY INFORMATION section.

          FOR FURTHER INFORMATION CONTACT:
          Anne Tayloe, (410) 786-4546.

        SUPPLEMENTARY INFORMATION:

          Submitting Public Comments: We welcome comments from the public on all issues set forth in this rule to assist us in fully considering issues and developing policies. You can assist us by referencing the file code CMS-1317-P and the specific “issue identifier” that precedes the section on which you choose to comment.

          Inspection of Public Comments: All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. CMS posts all comments received before the close of the comment period on its public Web site as soon as possible after they have been received. Comments received timely will be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1-800-743-3951.
        I. Background
        Under the ambulance fee schedule, the Medicare program pays for transportation services for Medicare beneficiaries when other means of transportation are contraindicated. Ambulance services are classified into different levels of ground (including water) and air ambulance services based on the medically necessary treatment provided during transport. These services include the following levels of service:
        • For Ground—

        ++ Basic Life Support (BLS)
        ++ Advanced Life Support, Level 1 (ALS1)
        ++ Advanced Life Support, Level 2 (ALS2)
        ++ Specialty Care Transport (SCT)
        ++ Paramedic ALS Intercept (PI)

        • For Air—

        ++  Fixed Wing Air Ambulance (FW)
        ++ Rotary Wing Air Ambulance (RW)
        A. History of Medicare Ambulance Services
        1. Statutory Coverage of Ambulance Services
        Under sections 1834(l) and 1861(s)(7) of the Social Security Act (the Act), Medicare Part B (Supplemental Medical Insurance) covers and pays for ambulance services, to the extent prescribed in regulations, when the use of other methods of transportation would be contraindicated by the beneficiary's medical condition.
        The House Ways and Means Committee and Senate Finance Committee Reports that accompanied the 1965 Social Security Amendments suggest that the Congress intended that—
        • The ambulance benefit cover transportation services only if other means of transportation are contraindicated by the beneficiary's medical condition; and
        • Only ambulance service to local facilities be covered unless necessary services are not available locally, in which case, transportation to the nearest facility furnishing those services is covered (H.R. Rep. No. 213, 89th Cong., 1st Sess. 37 and Rep. No. 404, 89th Cong., 1st Sess. Pt 1, 43 (1965)).
        The reports indicate that transportation may also be provided from one hospital to another, to the beneficiary's home, or to an extended care facility.
        2. Medicare Regulations for Ambulance Services
        Our regulations relating to ambulance services are set forth at 42 CFR part 410, subpart B and 42 CFR part 414, subpart H. Section 410.10(i) lists ambulance services as one of the covered medical and other health services under Medicare Part B. Therefore, ambulance services are subject to basic conditions and limitations set forth at § 410.12 and to specific conditions and limitations included at § 410.40. Part 414, subpart H, describes how payment is made for ambulance services covered by Medicare.

        The national fee schedule for ambulance services is being phased in over a 5-year transition period beginning April 1, 2002. (See § 414.615). In accordance with section 414 of the Medicare Prescription Drug, Improvement and Modernization Act of 2003 (MMA) (Pub. L. 108-173), we added new § 414.617 which specifies that for ambulance services furnished during the period July 1, 2004 through December 31, 2009, the ground ambulance base rate is subject to a floor amount, which is determined by establishing nine fee schedules based on each of the nine census divisions, and using the same methodology as was used to establish the national fee schedule. If the regional fee schedule methodology for a given census division results in an amount that is lower than or equal to the national ground base rate, then it is not used, and the national fee schedule amount applies for all providers and suppliers in the census division. If the regional fee schedule methodology for a given census division results in an amount that is greater than the national ground base rate, then the fee schedule portion of the base rate for that census division is equal to a blend of the national rate and the regional rate. For CY 2006, this blend would be 40 percent regional ground base rate and 60 percent national ground base rate. As of January 1, 2006, the total payment amount for air ambulance providers and suppliers will be based on 100 percent of the national ambulance fee schedule, while the total payment amount for ground ambulance providers and suppliers will be based on either 100 percent of the national ambulance fee schedule or 60 percent of the national ambulance fee schedule and 40 percent of the regional ambulance fee schedule.
        II. Provisions of the Proposed Rule
        In this proposed rule, we would set forth changes to the fee schedule for payment of ambulance services by adopting revised geographic designations for urban and rural areas as set forth in OMB's Core-Based Statistical Areas (CBSAs) standard. We propose to remove the definition of Goldsmith modification and reference the most recent version of Goldsmith modification in the definition of rural area. In addition, we propose to add the definition of urban area already defined by OMB.
        We are also proposing to revise the definition of specialty care transport (SCT) to clarify that a hospital is the only appropriate origin and destination point for this level of care.
        In addition, we are proposing to discontinue our annual review of the CF and of air ambulance rates because we have not identified any significant differences from those assumptions in the 4 years since the implementation of the fee schedule. We would continue to monitor payment and billing data on an ongoing basis and make adjustments to the CF and to air ambulance rates as appropriate to reflect any significant changes in these data.
        Finally, we are proposing to revise our current definition of emergency response to specify the conditions that warrant payment for immediate response.
        A. Adoption of New Geographic Standards for the Ambulance Fee Schedule
        Historically, the Medicare ambulance fee schedule has used the same geographic area designations as the acute care hospital inpatient prospective payment system (IPPS) and other Medicare payment systems to take into account appropriate urban and rural differences. While this promotes consistency across the Medicare program, it also provides a consistent and objective national definition for payment purposes and utilizes geographic area designations that more realistically reflect rural and urban populations, resulting in more accurate payments for ambulance services.
        As a result, we are proposing to adopt OMB's CBSA-based geographic area designations to more accurately identify urban and rural areas for ambulance fee schedule payment purposes. We also propose to update the Goldsmith standard, consistent with the provisions of section 1834(l), to more accurately determine rural census tracts within metropolitan areas.
        These changes would affect whether certain areas are recognized as rural or urban. The distinction between urban and rural is important for ambulance payment purposes because ambulance payments are based on the point of pick-up for the transport, and the point of pick-up for urban and rural transport is paid differently. Of particular significance to the ambulance fee schedule, the changes would affect whether or not certain areas are eligible for certain rural bonus payments under the ambulance fee schedule. For example, the changes would affect whether or not certain areas are recognized as what we refer to as “Super Rural Bonus” areas established by section 414(c) of the MMA and set forth in section 1834(l)(12) of the Act. That section specifies that, for services furnished during the period July 1, 2004 through December 31, 2009, the payment amount for the ground ambulance base rate is increased by a “percent increase” (Super Rural Bonus) where the ambulance transport originates in a rural area (which includes Goldsmith areas) that we determine to be in the lowest 25th percentile of all rural populations arrayed by population density.
        1. Core-Based Statistical Areas (CBSAs)—Revised Office of Management and Budget (OMB) Metropolitan Area Definitions
        [If you choose to comment on issues in this section, please include the caption “CBSAs-REVISED OMB METROPOLITAN AREA DEFINITIONS” at the beginning of your comments.]
        In the February 27, 2002 final rule (67 FR 9100), we stated that we could not easily adopt and implement, within the timeframe necessary to implement the fee schedule, a methodology for recognizing geographic population density disparities other than MSA/nonMSA. We also stated that we would consider alternative methodologies that may more appropriately address payment to isolated, low-volume rural ambulance providers and suppliers at a later date. The application of any rural adjustment is determined by the geographic location of the beneficiary at the time he or she is placed on board the ambulance. We are now proposing to adopt OMB's revised geographic area designations for urban and rural areas to address payment to those isolated, low-volume rural providers and suppliers.

        Prior to the 2000 decennial census, geographic areas were consistently defined by OMB as Metropolitan Statistical Areas (MSAs) with an MSA being defined as an urban area and anything outside an MSA being defined as a rural area. In addition, for purposes of ambulance policy, we recognized the 1990 update of Goldsmith areas (generally, rural census tracts within counties that covered large tracts of land with one predominant urban area only) as rural areas (65 FR 55077 through 55100). In the fall of 1998, OMB chartered the Metropolitan Area Standards Review Committee to examine the Metropolitan Area (MA) standards and develop recommendations for possible changes to those standards. Three notices related to the review of the standards were published on the following dates in the Federal Register, providing an opportunity for public comment on the recommendations of the Committee: December 21, 1998 (63 FR 70525 through 70561); October 20, 1999 (64 FR 56627 through 56644); and August 22, 2000 (65 FR 51059 through 51077).
        In the December 27, 2000, Federal Register (65 FR 82227 through 82238), OMB announced its new standards. In that notice, OMB defines a CBSA, beginning in 2003, as “a geographic entity associated with at least one core of 10,000 or more population, plus adjacent territory that has a high degree of social and economic integration with the core as measured by commuting ties.” CBSAs are conceptually areas that contain a recognized population nucleus and adjacent communities that have a high degree of integration with that nucleus. The purpose of the new OMB standards is to provide nationally consistent definitions for collecting, tabulating, and publishing Federal statistics for a set of geographic areas.
        The OMB standards designate and define two categories of CBSAs—Metropolitan Statistical Areas (MSAs) and Micropolitan Statistical Areas. (65 FR 82227 through 82238) According to OMB, MSAs are based on urbanized areas of 50,000 or more population and Micropolitan Statistical Areas (referred to in this discussion as Micropolitan Areas) are based on urban clusters of at least 10,000 population but less than 50,000 population. Counties that do not fall within CBSAs are deemed “Outside CBSAs.”

        Under the ambulance fee schedule, MSAs would continue to be recognized as urban areas and all other areas outside MSAs (including Micropolitan areas, areas “outside CBSAs”, and areas that meet the updated definition of the Goldsmith Modification) would be recognized as rural areas. As noted previously, these designations are important because under the ambulance fee schedule, Medicare transports are designated either urban or rural based on the pick-up point of the transport.
        The new OMB definitions recognize 49 new MSAs and 565 new Micropolitan Areas, and extensively revise the composition of many of the existing MSAs. There are 1,090 counties in MSAs under the new definitions (previously, there were 848 counties in MSAs). Of these 1,090 counties, 737 are in the same MSA as they were prior to the changes, 65 are in a different MSA, and 288 were not previously designated to any MSA.
        There are 674 counties in Micropolitan Areas. Of these, 41 were previously in an MSA, while 633 were not previously designated to an MSA. There are five counties that previously were designated to an MSA, but are no longer designated to either an MSA or a new Micropolitan Area (Carter County, Kentucky; St. James Parish, Louisiana; Kane County, Utah; Culpepper County, Virginia; and King George County, Virginia).
        The adoption of CBSA-based geographic area designations would mean that ambulance providers and suppliers that pick up Medicare beneficiaries in areas that would be outside of MSAs (but are currently within MSA areas) may experience increases in payment, while those ambulance providers and suppliers that pick up Medicare beneficiaries in areas that would be within MSA areas (but are currently outside of MSAs) may experience decreases in payment.
        The use of updated geographical areas would mean the recognition of new urban and rural boundaries based on the population migration that occurred over a 10-year period, between 1990 and 2000. In general, it is expected that ambulance providers and suppliers in 22 States may experience payment increases and ambulance providers and suppliers in 40 States may experience payment decreases as a result of population shifts recognized by OMB's CBSA-based geographic area designations.
        We believe that updating the MSA definition to conform with OMB's CBSA-based geographic area designations, coupled with updating the Goldsmith Modification (that is, using the current Rural Urban Commuting Areas version, as discussed in Section 2 of this proposed rule), would more accurately reflect the contemporary urban and rural nature of areas across the country for ambulance payment purposes and cause ambulance fee schedule payments to become more accurate.
        As of October 1, 2004, the IPPS adopted OMB's revised metropolitan area definitions to identify “urban areas” for payment purposes. Under the IPPS, MSAs are considered urban areas and Micropolitan Areas and areas “Outside CBSAs” are considered rural areas (§ 412.64(b). We are proposing to adopt similar CBSA-based designations of “urban area” and “rural area” under the ambulance fee schedule for the reasons discussed. Therefore, we propose to revise § 414.605 to include a definition of urban area and to reflect OMB's revised CBSA-based geographic area designations in our definition of rural area.
        2. Updated Goldsmith Modification—Rural Urban Commuting Areas (RUCAs)
        [If you choose to comment on issues in this section, please include the caption “RUCAs” at the beginning of your comments.]
        The Goldsmith Modification evolved from an outreach grant program sponsored by the Office of Rural Health Policy of the Health Resources and Services Administration (HRSA). This program was created to establish an operational definition of rural populations lacking easy access to health services in Large Area Metropolitan Counties (LAMCs). Dr. Harold F. Goldsmith and his associates created a methodology for identifying rural census tracts located within a large metropolitan county of at least 1,225 square miles. Using a combination of data on population density and commuting patterns, census tracts were identified as being so isolated by distance or physical features that they were more rural than urban in character. The original Goldsmith Modification was developed using data from the 1980 census. In order to more accurately reflect current demographic and geographic characteristics of the nation, HRSA's Office of Rural Health Policy, in partnership with the Department of Agriculture's Economic Research Service and the University of Washington, developed an update to the Goldsmith modification designated as Rural-Urban Commuting Area Codes (RUCAs) (69 FR 47518 through 47519).
        Rather than being limited to LAMCs, RUCAs use urbanization, population density, and daily commuting data to categorize every census tract in the country. RUCAs are used to identify rural census tracts in all metropolitan counties. Section 1834(l) of the Act requires that we include the most recent modification of the Goldsmith Modification to determine rural census tracts within MSAs. Therefore, we propose to remove the definition of “Goldsmith modification” at § 414.605 and incorporate a reference to the most current version of the Goldsmith modification in the definition of “rural area.”
        B. Specialty Care Transport (SCT)
        [If you choose to comment on issues in this section, please include the caption “SPECIALTY CARE TRANSPORT” at the beginning of your comments.]

        On February 27, 2002, we published a final rule with comment period in the Federal Register (67 FR 9100) entitled “Fee Schedule for Payment of Ambulance Services and Revisions to the Physician Certification Requirements for Coverage of Nonemergency Ambulance Services” that implemented the ambulance fee schedule. In that final rule, we defined SCT in § 414.605 as the “interfacility transportation of a critically injured or ill beneficiary by a ground ambulance vehicle, including medically necessary supplies and services, at a level of service beyond the scope of the EMT [(Emergency Medical Technician)]—Paramedic. SCT is necessary when a beneficiary's condition requires ongoing care that must be furnished by one or more health professionals in an appropriate specialty area, for example, nursing, emergency medicine, respiratory care, cardiovascular care, or a paramedic with additional training.”
        Additionally, ambulance vehicle staff are to be certified as emergency medical technicians and legally authorized to operate all lifesaving and life-sustaining equipment that are on board the vehicle. (§ 410.41(b)(1)) Typically, a SCT level of care occurs when the patient, who is already receiving a high level of care in the transferring acute care hospital, requires a level of care that the transferring hospital is not able to provide.

        We implemented the SCT level of payment for hospital-to-hospital ground ambulance transports upon implementation of the ambulance fee schedule on April 1, 2002 and we defined SCT at § 414.605. The definition of SCT in § 414.605 refers to “interfacility transportation.” We based our payment for SCT-level ground ambulance transports on hospital-to-hospital ambulance transportation data. As we stated in the preamble to the February 27, 2002 final rule (67 FR 9100), the SCT level of care includes the situation where a beneficiary is taken by ground ambulance from the hospital to an air ambulance and then from the air ambulance to the final destination hospital. Also, we stated in the preamble for both the September 12, 2000 (65 FR 55077) proposed rule and the February 27, 2002 (67 FR 9108) final rule, that SCT is a level of interhospital service. However, transfer to or from a type of facility other than a hospital (for example, skilled nursing facility or nursing home) is not SCT.
        Subsequent to the implementation of the ambulance fee schedule, we clarified our definition of SCT as hospital-to-hospital transport in a Program Memorandum to Medicare contractors, which was issued on September 27, 2002. (Program Memorandum Intermediaries/Carriers, Transmittal AB-02-130—Change Request 2295, September 27, 2002) That document and subsequent questions and answers related to the definition of SCT were made available to the public on the CMS Medicare ambulance policy Web site.
        In addition, we clarified our definition of SCT in the Medicare Benefit Policy Manual, Chapter 10-Ambulance Services, in which we stated that SCT is regarded as a highly-skilled level of care of a critically injured or ill patient during transfer from one hospital to another. We have also clarified our policy in Ambulance Open Door Forums, conference calls, and oral and paper communication written in response to questions posed by individuals and groups representing the ambulance industry.
        Despite our previous attempts to clarify the scope of SCT transport we nonetheless continue to receive questions. For this reason, we are proposing to revise the definition of “specialty care transport” at § 414.605 to read “hospital-to-hospital” transport as opposed to “interfacility” transportation. We believe this change would make it absolutely clear that a hospital is the only appropriate origin and destination point for the SCT level of care. Since this clarification would only conform the regulation text to our current policy on this issue, there would be no change in policy; there would be no additional cost to the Medicare program, its contractors or ambulance providers and suppliers.
        C. Recalibration of the Ambulance Fee Schedule Conversion Factor
        [If you choose to comment on issues in this section, please include the caption “RECALIBRATION OF THE AMBULANCE FEE SCHEDULE” at the beginning of your comments.]
        In the February 27, 2002 final rule with comment period, (67 FR 9102 and 9103), we indicated that we would adjust the conversion factor (CF) if actual experience under the fee schedule was significantly different from the assumptions used to determine the initial CF and air ambulance rates. We said specifically that we would monitor payment data and evaluate whether the assumptions used were accurate.
        We have continued to review our assumptions annually to determine whether or not a conversion factor adjustment is warranted. We examined the effects of the relative volumes of the different levels of ambulance services (service mix) and the extent of low billing charges to determine whether we should adjust the CF to reflect actual practices. In the 4 years since the implementation of the ambulance fee schedule, no significant differences from our original assumptions have emerged. We have observed only insignificant differences, and, to date, no adjustments in any one year have been warranted. It is for this reason, we believe it is appropriate to discontinue our annual review of the original conversion factor assumptions. We also believe that the formal annual review of air ambulance rates should be discontinued as we propose to monitor all ambulance rates and make adjustments on an “as-needed” basis. We would continue to monitor payment and billing data on an ongoing basis and, if actual practices under the fee schedule differ significantly from any of our assumptions, we would adjust the CF and air ambulance rate appropriately. The ambulance industry has available multiple venues for notifying CMS of potential issues. These are the ambulance fee schedule open door forums, and telephone calls to CMS-designated personnel. As an additional safeguard, CMS generally conducts a review of ambulance data each year in preparation for issuing the Ambulance Inflation Factor (AIF). Therefore, we propose to revise the annual review requirement at § 414.610(g) to indicate that we will adjust the CF and air ambulance rates when appropriate to take into account actual practices under the fee schedule when these differ significantly from assumptions we use to calculate the CF and air ambulance rates.
        D. Hospital-to-Hospital Ambulance Service—Emergency Response
        [If you choose to comment on issues in this section, please include the caption “EMERGENCY RESPONSE” at the beginning of your comments.]
        In § 414.605, we define “emergency response” of an ambulance service to mean “responding immediately at the BLS [(Basic Life Support)] or ALS1 [(Advanced Life Support Level 1)] level of service to a 911 call or the equivalent in areas without a 911 call system. An immediate response is one in which the ambulance entity begins as quickly as possible to take the steps necessary to respond to the call.” In our February 27, 2002 final rule (67 FR 9100) defining “emergency response”, we stated that the additional payment for emergency response is for the additional overhead cost of maintaining the resources required to respond immediately to a call and not for the cost of furnishing a certain level of service to the beneficiary.
        The current “emergency response” definition has created confusion for those transports that originate at a hospital emergency department and the ambulance is transporting the beneficiary to an emergency department at another hospital for either admittance or treatment. For example, in most of these cases, the beneficiary must be stabilized prior to the transport. Therefore, the need to maintain a state of readiness to respond immediately to an urgent call, warranting a higher emergency response payment, does not appear to be applicable to these situations.
        Another example occurs when the ambulance is owned by the originating hospital. We stated in a Program Memorandum to the Medicare contractors (Transmittal AB-02-130, Change Request 2295, September 27, 2002) that upon receipt of a call for ambulance services, the dispatcher makes the determination of whether the call constitutes an “emergency response”. When the ambulance service is already readily available at the originating hospital, an emergency call may not be necessary, much less through a dispatcher for a 911 service.
        While we recognize that there may be instances when an emergency response payment is warranted for a transport between two hospital emergency departments, we believe that payment based on readiness to respond immediately is not justified 100 percent of the time. For this reason, we believe our current definition of “emergency response” needs to be revised to reflect only circumstances where payment for immediate response is truly warranted. Therefore, we are proposing to revise the definition of “emergency response” as follows:
        “Emergency response” means that an ambulance entity—
        • Maintains readiness to respond to urgent calls at the BLS or ALS1 level of service; and

        • Responds immediately at the BLS or ALS1 level of service to 911 calls, the equivalent in areas without a 911 call system or radio calls within a hospital system when the ambulance entity is owned and operated by the hospital.
        III. Collection of Information Requirements
        This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995.
        IV. Response to Comments

        Because of the large number of public comments we normally receive on Federal Register documents, we are not able to acknowledge or respond to them individually. We will consider all comments we receive by the date and time specified in the DATES section of this preamble, and, when we proceed with a subsequent document, we will respond to the comments in the preamble to that document.
        V. Regulatory Impact
        [If you choose to comment on issues in this section, please include the caption “REGULATORY IMPACT” at the beginning of your comments.]
        A. Overall Impact
        We have examined the impacts of this proposed rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132.
        Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). Using CY 2004 data, we estimate that any urban to rural population shifts reflected in the new proposed geographic designations could potentially result in an initial decrease in Medicare payments for all ambulance providers and suppliers of approximately $4.6 million. However, this estimate assumes that the same number of ambulance trips would originate from the same pick-up points as were reported in CY 2004, an unlikely scenario where urban and rural populations are shifting. We expect the initial change in geographic designations to have little, if any, overall effect on ambulance payments (See Section B, Anticipated Effects). This proposed rule does not reach the economic threshold and thus is not considered a major rule.
        The RFA requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $6 million to 29 million in any 1 year. Individuals and States are not included in the definition of a small entity. We are not preparing an analysis for the RFA because we have determined that this rule will not have a significant economic impact on a substantial number of small entities.
        In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 603 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area and has fewer than 100 beds and is located outside of a Metropolitan Statistical Area or in a rural census tract within a Metropolitan Statistical Area as determined under the most recent version of the Goldsmith modification. We are not preparing an analysis for section 1102(b) of the Act because we have determined that this rule will not have a significant impact on the operations of a substantial number of small rural hospitals since small rural hospitals generally do not own and operate ambulance services.
        Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. That threshold level is currently approximately $120 million. This rule will have no consequential effect on State, local, or tribal governments or on the private sector.
        Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. Since this regulation does not impose any costs on State or local governments, the requirements of E.O. 13132 are not applicable.
        B. Anticipated Effects
        As noted in Section A, Overall Impact, we estimate, using CY 2004 data, that adopting CBSA-based urban and rural designations could potentially result in an initial decrease in Medicare payments for ambulance providers and suppliers of approximately $4.6 million. However, we believe this is not likely to be the case. Rather, we believe that the overall effect of adopting the CBSA-based geographic definitions would result in a redistribution of payments from urban to rural areas in some States and from rural to urban areas in other States. As noted in Section A, in using CY 2004 data, we held the number and length of ambulance trips and the pick-up points constant in order to isolate the effect of the adoption of CBSA-based geographic areas. We believe this constant, for all practical purposes, is not likely to occur. We contend that with the use of updated geographical areas where rural areas are redesignated as urban areas, it will be more likely than not, that some level of population growth has occurred resulting in more ambulance trips overall than had occurred in CY 2004, even though these trips are paid at a lower rate per trip (areas designated as rural generally receive a higher payment per trip than areas designated as urban).
        In contrast, where urban areas are redesignated as rural, there will be fewer trips than was reported in CY 2004, but at higher rates. Thus, although ambulance suppliers and providers may bill fewer rural trips at the higher rate or more urban trips at the lower rate, we anticipate that the overall payments will remain the same. For these reasons, we estimate that this proposed rule will have no fiscal impact on the Medicare program because payments will, in effect, be redistributed.
        C. Conclusion
        For these reasons, we are not preparing analyses for either the RFA or section 1102(b) of the Act because we have determined that this rule will not have a significant economic impact on a substantial number of small entities or a significant impact on the operations of a substantial number of small rural hospitals.
        In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.

          List of Subjects 42 CFR Part 414
          Administrative practice and procedure, Health facilities, Health professions, Kidney diseases, Medicare, Reporting and recordkeeping requirements.

        For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services proposes to amend 42 CFR chapter IV as follows:

          PART 414—PAYMENT FOR PART B MEDICAL AND OTHER HEALTH SERVICES
          1. The authority citation for Part 414 continues to read as follows:

            Authority:
            Secs. 1102, 1871, and 1834(l) of the Social Security Act (42 U.S.C. 1302, 1395hh, and 1395m(l)).

            Subpart H—Fee Schedule for Ambulance Services

          2. Section 414.605 is amended by—
          A. Removing the definition of “Goldsmith modification.”
          B. Revising the definitions of “emergency response,” “rural area,” and “specialty care transport (SCT).”
          C. Adding the definition of “urban area” in alphabetical order.
          The revisions and addition read as follows:

            § 414.605
            Definitions.

              Emergency response means that an ambulance entity—
            (1) Maintains readiness to respond to urgent calls at the BLS or ALS1 level of service; and
            (2) Responds immediately at the BLS or ALS1 level of service to 911 calls, the equivalent in areas without a 911 call system or radio calls within a hospital system when the ambulance entity is owned and operated by the hospital.

              Rural area means an area located outside an urban area, or a rural census tract within a Metropolitan Statistical Area as determined under the most recent version of the Goldsmith modification as determined by the Office of Rural Health Policy of the Health Resources and Services Administration.

              Specialty care transport (SCT) means the hospital-to-hospital transportation of a critically injured or ill beneficiary by a ground ambulance vehicle, including medically necessary supplies and services, at a level of service beyond the scope of the EMT-Paramedic. SCT is necessary when a beneficiary's condition requires ongoing care that must be furnished by one or more health professionals in an appropriate specialty area, for example, nursing, emergency medicine, respiratory care, cardiovascular care, or a paramedic with additional training.

              Urban area means a Metropolitan Statistical Area, as defined by the Executive Office of Management and Budget.

            3. Section 414.610, paragraph (g) is revised to read as follows:

            § 414.610
            Basis of payment.

            (g) Adjustments. The Secretary monitors payment and billing data on an ongoing basis and adjusts the CF and air ambulance rates as appropriate to reflect actual practices under the fee schedule which are significantly different from assumptions used to calculate the CF and air ambulance rates. These rates are not adjusted solely because of changes in the total number of ambulance transports.

              (Catalog of Federal Domestic Assistance Program No. 93.778, Medical Assistance Program)

              (Catalog of Federal Domestic Assistance Program No. 93.773, Medicare—Hospital Insurance; and Program No. 93.774, Medicare—Supplementary Medical Insurance Program)

              Editorial Note:
              This was received in the Office of the Federal Register on May 19, 2006.

            Dated: December 7, 2005.
            Mark B. McClellan,
            Administrator, Centers for Medicare & Medicaid Services.
            Approved: February 28, 2006.
            Michael O. Leavitt,
            Secretary.

      [FR Doc. E6-7929 Filed 5-25-06; 8:45 am]
      BILLING CODE 4120-01-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R2-ES-2011-0011; MO 92210-0-0008]
        Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the Texas Kangaroo Rat as Endangered or Threatened

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Notice of petition finding and initiation of status review.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the Texas kangaroo rat, Dipodomys elator, as endangered or threatened and to designate critical habitat under the Endangered Species Act of 1973, as amended. Based on our review, we find that the petition presents substantial scientific or commercial information indicating that listing the Texas kangaroo rat may be warranted. Therefore, with the publication of this notice, we are initiating a status review to determine if listing the Texas kangaroo rat is warranted. To ensure the status review is comprehensive, we are requesting scientific and commercial data and other information regarding this species. Based on the status review, we will issue a 12-month finding on the petition, which will address whether the petitioned action is warranted, as provided in section 4(b)(3)(B) of the Act.

          DATES:

          To allow us adequate time to conduct this review, we request that we receive information on or before May 9, 2011. Please note that if you are using the Federal eRulemaking Portal (see
            ADDRESSES section, below), the deadline for submitting an electronic comment is 11:59 p.m. Eastern Time on this date. After May 9, 2011, you must submit information directly to the Arlington Ecological Services Field Office (see
            FOR FURTHER INFORMATION CONTACT section below). Please note that we might not be able to address or incorporate information that we receive after the above requested date.

          ADDRESSES:
          You may submit information by one of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. In the box that reads “Enter Keyword or ID,” enter the Docket number for this finding, which is FWS-R2-ES-2011-0011. Check the box that reads “Open for Comment/Submission,” and then click the Search button. You should then see an icon that reads “Submit a Comment.” Please ensure that you have found the correct rulemaking before submitting your comment.
          • U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS-R2-ES-2011-0011; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.

          We will post all information received on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Request for Information section below for more details).

          FOR FURTHER INFORMATION CONTACT:
          Thomas J. Cloud, Jr., Field Supervisor, Arlington Ecological Services Field Office, 711 Stadium Drive, Suite 252, Arlington, TX 76011; by telephone (817) 277-1100; or by facsimile (817) 277-1129. If you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:
        Request for Information
        When we make a finding that a petition presents substantial information indicating that listing a species may be warranted, we are required to promptly review the status of the species (status review). For the status review to be complete and based on the best available scientific and commercial information, we request information on the Texas kangaroo rat from governmental agencies, Native American Tribes, the scientific community, industry, and any other interested parties. We seek information on:
        (1) The species' biology, range, and population trends, including:
        (a) Habitat requirements for feeding, breeding, and sheltering;
        (b) Genetics and taxonomy;
        (c) Historical and current range, including distribution patterns;
        (d) Historical and current population levels, and current and projected trends; and
        (e) Past and ongoing conservation measures for the species, its habitat, or both.

        (2) The factors that are the basis for making a listing determination for a species under section 4(a) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), which are:
        (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.
        (3) Current land use or recent trends in north-central Texas as they pertain to both cultivated crop and cattle ranching.

        If, after the status review, we determine that listing the Texas kangaroo rat is warranted, we will propose critical habitat (see definition in section 3(5)(A) of the Act) under section 4 of the Act, to the maximum extent prudent and determinable at the time we propose to list the species. Therefore, within the geographical range currently occupied by the Texas kangaroo rat, we request data and information on:
        (1) What may constitute “physical or biological features essential to the conservation of the species;”
        (2) Where such physical or biological features are currently found; and
        (3) Whether any of these features may require special management considerations or protection.
        In addition, we request data and information on “specific areas outside the geographical area occupied by the species” that are “essential to the conservation of the species.” Please provide specific comments and information as to what, if any, critical habitat you think we should propose for designation if the species is proposed for listing, and explain why such habitat meets the requirements of section 4 of the Act.
        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.
        Submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

        You may submit your information concerning this status review by one of the methods listed in the ADDRESSES section. If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If you submit a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

        Information and supporting documentation that we received and used in preparing this finding will be available for you to review at http://www.regulations.gov, or you may make an appointment during normal business hours at the U.S. Fish and Wildlife Service, Arlington Ecological Services Field Office (see
          FOR FURTHER INFORMATION CONTACT).
        Background

        Section 4(b)(3)(A) of the Act (16 U.S.C. 1533(b)(3)(A)) requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information indicating that the petitioned action may be warranted. We are to base this finding on information submitted with the petition, supporting information submitted with the petition, and information otherwise available in our files at the time we make the finding. The following five documents represent information contained within our files and are cited in this document: Jones and Bogan (1986), Martin (2002), Shaw (1990), Stangl and Schafer (1990), and Wahl (1987). All other cited references were supplied as part of the petition. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish our notice of the finding promptly in the Federal Register.
        Our standard for substantial scientific or commercial information within the Code of Federal Regulations (CFR) with regard to a 90-day finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial scientific or commercial information was presented, we are required to promptly conduct a species status review, which is subsequently summarized in our 12-month finding.
        Petition History
        On January 15, 2010, we received a petition dated January 11, 2010, from WildEarth Guardians of Denver, Colorado, requesting the Texas kangaroo rat be listed as endangered or threatened and that critical habitat be designated under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, as required by 50 CFR 424.14(a). In a July 19, 2010, letter to the petitioner, we responded that we reviewed the information presented in the petition and determined that issuing an emergency regulation temporarily listing the species under section 4(b)(7) of the Act was not warranted. We also stated that due to court orders and judicially approved settlement agreements for other listing and critical habitat determinations under the Act that required nearly all of our listing and critical habitat funding for fiscal year 2010, we would not be able to further address the petition at that time but would complete the action when workload and funding allowed. This finding addresses the petition.
        Previous Federal Actions
        The Texas kangaroo rat was previously listed as a category 2 candidate species under the Act on December 30, 1982 (47 FR 58454). Category 2 candidates were taxa for which information in our possession indicated that proposing to list was possibly appropriate, but for which substantial data on biological vulnerability and threats were not available to support a proposed listing rule. On December 5, 1996, we published a notice of decision that discontinued the practice of maintaining a category 2 candidate list (61 FR 64481).
        Species Information
        The Texas kangaroo rat (Dipodomys elator), also referred to as Loring's kangaroo rat (Davis 1942, pp. 328-329), was first described by Merriam in 1894 (pp. 109-110). Merriam (1894, pp. 109-110) originally stated D. elator was similar to the banner-tailed kangaroo rat (D. spectabilis) based on general external morphology (body structure) and Phillip's kangaroo rat (D. phillipsii) based on its cranial arch (curve of the skull). Dalquest and Collier (1964, p. 148) suggested D. elator most resembles D. ornatus (no common name) with regard to its habits, appearance, and skull. Best and Schnell (1974, p. 266) also indicated the Texas kangaroo rat most resembled D. ornatus based on bacular (penis bone) measurements. Measurements taken from the baculum, a bone found in the penis of some mammals, varies in shape and size by species and its characteristics are sometimes used to differentiate between similar species. More recent studies have suggested the Texas kangaroo rat is closely associated with Phillip's kangaroo rat, although these studies did not include D. ornatus in their methodology (Hamilton et al. 1987, p. 777; Mantooth et al. 2000, p. 888). Even though the phylogenetic relationship (genetic relationship of a group of organisms) between Dipodomys species is not currently resolved, we accept the characterization of the Texas kangaroo rat as a species because this status is generally accepted in the scientific community (Mantooth et al. 2000, p. 885).

        The Texas kangaroo rat has an average total length of approximately 290 millimeters (mm) (11.4 inches (in)) (Merriam 1894, p. 109), and has large hind feet as is typical of members of this genus. It has a brownish-yellow dorsum (upper surface) and is whitish along its ventral (belly) surface. The Texas kangaroo rat also has a white-tipped tail and four toes on its hind feet, distinguishing it from Ord's kangaroo rat (D. ordii), which has five toes on its hind feet and whose range overlaps that of the Texas kangaroo rat (Caire et al. 1989, p. 204).

        Generally, Texas kangaroo rats inhabit arid areas that are not prone to flooding (Martin 2002, p. 34); are characterized by short, sparse grasses (Dalquest and Collier 1964, p. 147; Goetze et al. 2007, p. 18; Nelson et al. 2009, p. 126); and contain little woody canopy cover (Goetze et al. 2007, p. 18). Texas kangaroo rats prefer areas where the soil contains a sufficient clay component to support their burrows (Bailey 1905, p. 149; Dalquest and Collier 1964, p. 148; Roberts and Packard 1973, p. 958; Martin and Matocha 1991, p. 355; Goetze et al. 2007, p. 17), although it is not exclusively restricted to such soils (Martin and Matocha 1991, p. 355). Their burrows are often associated with Prosopis spp. (mesquite trees) (Dalquest and Collier 1964, p. 147; Martin and Matocha 1972, p. 875), although subsequent research has suggested this association may be circumstantial (Stangl et al. 1992b, p. 31; Goetze et al. 2007, p. 20; Nelson et al. 2009, p. 128). For dust bathing, Texas kangaroo rats require areas of bare ground that may not be available in patches of dense vegetation (Goetze et al. 2008, pp. 312-313; Nelson et al. 2009, p. 127). As such, the Texas kangaroo rat appears to opportunistically burrow in minimally disturbed areas (Stangl et al. 1992b, pp. 25-35; Goetze et al. 2007, p. 19; Nelson et al. 2009, pp. 128-129).
        Texas kangaroo rats primarily feed on grass seeds (Chapman 1972, pp. 878-879). However, the seeds, leaves, fruits, and flowers of annual forbs may also be a significant portion of their diet (Chapman 1972, pp. 878-879). Although they do not tend to construct their burrows in croplands (Martin and Matocha 1972, p. 874), Texas kangaroo rats may occasionally enter agricultural fields to gather seeds (Chapman 1972, p. 879). Similar to other kangaroo rats, the Texas kangaroo rat stores food items in burrow caches (Chapman 1972, p. 879).

        Little is known about this species' reproductive behavior or physiology (a branch of biology that deals with the functions and activities of life or of living matter, i.e., organs, tissues, or cells), although it is known that the species does not hibernate and evidence suggests it may be capable of breeding throughout the year (Carter et al. 1985, p. 1).

        The first recorded instance of the Texas kangaroo rat was a specimen collected in 1894 from Clay County, Texas (Merriam 1894, p. 109). In 1905, this species was reported from the Chattanooga vicinity, Comanche County, Oklahoma (Bailey 1905, pp. 148-149). Since these early records, additional Texas kangaroo rat sightings have been recorded from the following counties: Archer, Baylor, Childress, Clay, Cottle, Foard, Hardeman, Montague, Motley, Wichita, and Wilbarger Counties, Texas; and Comanche and Cotton Counties, Oklahoma (Dalquest and Collier 1964, pp. 146-147; Packard and Judd 1968, p. 536; Martin and Matocha 1972, pp. 873-876; Cokendolpher et al. 1979, p. 376; Baumgardner 1987, pp. 285-286; Martin and Matocha 1991, p. 354; Martin 2002, p. 10). A single, disjunct record was reported from an unverified sighting in Coryell County, Texas; however, subsequent attempts to confirm its presence in this region have failed, suggesting the original sighting was probably false (Martin and Matocha 1972, pp. 874-875; Martin 2002, p. 10).

        The present extent of the Texas kangaroo rat's distribution is largely unknown, but evidence indicates that the species may inhabit only half of its former range. Of the 11 Texas counties that once contained Texas kangaroo rats, it has been suggested that only 5 were known to support them in 2002: Archer, Childress, Hardeman, Motley, and Wichita (Martin 2002, p. 10). The petition cites surveys published in peer-reviewed scientific journals that we deem as reliable information, and indicates that the species may be extirpated from Oklahoma, having last been sighted there in 1969 (Baumgardner 1987, pp. 285-286; Moss and Mehlhop-Cifelli 1990, p. 357; Stangl et al. 1992a, p. 19). However, more surveys are needed to determine the species' current distribution.
        Evaluation of Information for This Finding
        Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR part 424 set forth the procedures for adding a species to, or removing a species from, the Federal Lists of Endangered and Threatened Wildlife and Plants. 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:
        (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.
        In considering what factors might constitute threats, we must look beyond the exposure of the species to a particular factor to evaluate whether the species may respond to that factor in a way that causes actual impacts to the species. If there is exposure to a factor and the species responds negatively, the factor may be a threat and we attempt to determine how significant a threat it is. The threat may be significant if it drives, or contributes to, the risk of extinction of the species such that the species may warrant listing as endangered or threatened as those terms are defined by the Act. The identification of factors that could impact a species negatively may not be sufficient to compel a finding that substantial information has been presented suggesting that listing may be warranted. The information should contain evidence or the reasonable extrapolation that any factor(s) may be an operative threat that acts on the species to the point that the species may meet the definition of endangered or threatened under the Act.

        In making this 90-day finding, we evaluated whether information regarding threats to the Texas kangaroo rat, as presented in the petition and other information available in our files, is substantial, thereby indicating that the petitioned action may be warranted. Our evaluation of this information is presented below.

        A. Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range
        Information Provided in the Petition
        The petition asserts that present or threatened destruction, modification, or curtailment of the habitat or range of the Texas kangaroo rat threatens this species such that listing may be warranted. It identifies five key components affecting the destruction, modification, or curtailment of this species' habitat and range:
        (1) Conversion of native habitat to cropland;
        (2) Loss of historical ecological processes;
        (3) Domestic livestock grazing;
        (4) Brush control; and
        (5) Development and roads.
        The petition suggests that crop fields and cultivated land are uninhabitable by Texas kangaroo rats (WildEarth Guardians 2010, p. 11). It estimates that greater than 15 percent of the range of the Texas kangaroo rat is encroached upon by agriculture, with areas in southwestern Oklahoma being the most impacted (WildEarth Guardians 2010, pp. 11-12); however, the petition did not provide information regarding current land use trends within this species' range. The petition also states that human activities have altered the natural ecological processes within the range of the Texas kangaroo rat and specifically identifies the extirpation of bison and prairie dogs and suppression of naturally occurring fires (WildEarth Guardians 2010, pp. 13-16). It claims that these natural factors were historically responsible for creating and maintaining Texas kangaroo rat habitat, and that their alteration has negatively impacted the species (WildEarth Guardians 2010, p. 13). The petition suggests that domestic livestock grazing has historically been a threat to the Texas kangaroo rat by promoting the encroachment of weeds and woody shrubs, although it also suggests alterations in rangeland management techniques may benefit the species by promoting shortened vegetation and areas of bare ground (WildEarth Guardians 2010, p. 16). In addition, the petition suggests that development and roads have encroached on Texas kangaroo rat habitat (WildEarth Guardians 2010, pp. 16-19), thereby increasing the risks of predation and direct mortality from vehicle collisions (WildEarth Guardians 2010, p. 25). However, it did not explicitly indicate how the encroachment of other urban developments may affect this species. Lastly, the petition suggests that brush control, particularly through the use of chemicals, may be responsible for the degradation of Texas kangaroo rat habitat (WildEarth Guardians 2010, p. 20).
        Evaluation of Information Provided in the Petition and Available in Service Files
        The sources cited within the petition provide reliable and accurate information regarding the potential impacts that the conversion of native habitat to cropland, the loss of historical ecological processes, domestic livestock grazing, development and roads, and brush control may have on the Texas kangaroo rat. However, upon further examination of the cited materials, we note that the portrayal of this information within the petition may be misleading, and the information requires further examination, as it does not adequately address the potential positive impacts that some of these factors may have on the Texas kangaroo rat or its habitat. An examination of the materials cited in the petition and of those contained within our files is presented below.

        One of the primary factors that may be negatively impacting the Texas kangaroo rat is conversion of native habitat to cropland. The conversion of native habitat to cropland results in a loss of habitat because the Texas kangaroo rat does not construct burrows in 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). Additionally, in regions with substantial agricultural development, Texas kangaroo rats can often be found burrowing along the disturbed shoulder of roads, suggesting the practice of cultivating crop land to the margins of roads may further preclude this species from utilizing these areas (Wahl 1987, p. 2; Martin 2002, pp. 35-36). Further, given their relatively small home ranges and movement patterns (Roberts and Packard 1973, pp. 958-961; Stangl and Schafer 1990, p. 6), the fragmentation of suitable habitat by agricultural cultivation of land may isolate Texas kangaroo rats from other nearby populations, thereby reducing genetic exchange (Wahl 1987, p. 2). Over time, reduced genetic exchange may cause isolated populations to die out from the deleterious effects of inbreeding (Keller and Waller 2002, pp. 230-241). Thus, there appears to be substantial information indicating that loss of habitat due to conversion of native rangeland into cropland may be negatively impacting the species. Based on the above evaluation, we find that the information provided in the petition, as well as other information readily available in our files, presents substantial scientific or commercial information indicating that the loss of burrowing habitat due to the conversion of rangeland to cropland may pose a threat to the Texas kangaroo rat such that the petitioned action may be warranted.

        The petition also asserts that, in addition to loss of burrowing habitat, the conversion of native rangeland to cropland results in a loss of foraging habitat, which has been presumed to be a key factor in the disappearance of the Texas kangaroo rat from Oklahoma (Moss and Melhop-Cifelli 1990, p. 357). However, the use of cropland for foraging is not completely understood. Goetze et al. (2008, p. 313) did not record any Texas kangaroo rats foraging in, or otherwise utilizing, adjacent wheat fields, either before or after harvesting. In contrast, through an analysis of cheek pouch contents, Chapman (1972, pp. 878-879) indicated Texas kangaroo rats foraged in adjacent oat fields following harvest. Bailey (1905, p. 149) found a single specimen whose pouches contained grain from a nearby corn field. Therefore, based on information in our files, there is evidence that Texas kangaroo rats will forage in croplands. Thus, the conversion of rangeland to cropland does not seem to result in a loss of foraging habitat. Based on the above evaluation, we find that the information provided in the petition, as well as other information readily available in our files, does not present substantial scientific or commercial information indicating that the loss of foraging habitat due to the conversion of rangeland to cropland may pose a threat to the Texas kangaroo rat such that the petitioned action may be warranted.

        Free-ranging bison, prairie dog colonies, and naturally occurring fires contributed to creation and maintenance of prairies containing short vegetation and areas of bare ground, the preferred habitat of the Texas kangaroo rat (Stangl et al. 1992b, pp. 33-34; Nelson et al. 2009, p. 128). The propensity of the Texas kangaroo rat to inhabit disturbed areas may be indicative of the species having evolved in the presence of these three factors. The petition asserts that removal of bison, prairie dogs, and naturally occurring fires from the historical range of the Texas kangaroo had a negative impact on this species. However, information in our files indicates that Texas kangaroo rats occur in habitats without bison, prairie dogs colonies, or natural fires (Dalquest and Collier 1964, pp. 146-147; Packard and Judd 1968, p. 536; Martin and Matocha 1972, pp. 873-876; Cokendolpher et al. 1979, p. 376; Baumgardner 1987, pp. 285-286; Martin and Matocha 1991, p. 354; Martin 2002, p. 10). In addition, given the persistence of Texas kangaroo rats in areas without bison, prairie dog colonies, or natural fires, it appears that, while each may help create and maintain suitable habitat, they are not essential for its survival. In the absence of these historical processes, heavy cattle grazing and anthropomorphic disturbances may create suitable Texas kangaroo rat habitat (Stangl et al. 1992b, p. 34; Martin 2002, p. 35; Goetze et al. 2007, p. 19; Nelson et al. 2009, pp. 120-129). Therefore, information provided by the petitioner and in our files does not indicate that the lack of free-ranging bison, prairie dog colonies, and naturally occurring fires has contributed to loss of habitat for the Texas kangaroo rat. Based on the above evaluation, we find that the information provided in the petition, as well as other information readily available in our files, fails to meet our standard for substantial scientific or commercial information indicating that the lack of free-ranging bison, prairie dog colonies, and naturally occurring fires may pose a threat to the Texas kangaroo rat such that the petitioned action may be warranted.

        Domestic livestock grazing was noted by the petition as a factor negatively impacting the Texas kangaroo rat by promoting the encroachment of weeds and woody shrubs. The petitioner cites Hafner (1998, p. 16) in suggesting that the Texas kangaroo rat is vulnerable to grazing pressures because grazing presumably degrades grasslands. We believe this claim lacks substantiation because grazing that produces areas of short vegetation interspersed with bare ground is conducive to Texas kangaroo rat inhabitation (Stangl et al. 1992b, p. 32; Martin 2002, p. 34; Nelson et al. 2009, p. 120). On the other hand, ranch management practices that are designed to maintain dense grass stands lacking areas of bare ground are not suitable for maintaining Texas kangaroo rat habitat (Goetze 2001, pp. 1-3; Martin 2002, p. 34; Nelson et al. 2009, p. 120). Under light to moderate grazing pressure, localized areas of heavy grazing and soil disturbance can be achieved through the strategic placement of supplemental feeders and stock tanks (Stangl et al. 1992b, pp. 32-34).

        The petition also claims that cattle grazing can lead to rangeland encroachment by weeds, woody shrubs, and invasive plants that can be detrimental to the Texas kangaroo rat (WildEarth Guardians 2010, p. 16). According to information we reviewed, the mere presence of woody shrubs, weedy species, and nonnative plants does not preclude the presence of Texas kangaroo rats. In fact, a study of cheek pouch contents indicated that a wide variety of plants, including several nonnative species, serve as possible food sources for the Texas kangaroo rat (Dalquest and Collier 1964, pp. 147-148; Chapman 1972, pp. 878-879; Carter et al. 1985, p. 1), and that woody forbs may collect wind-blown soil in which this species constructs its burrows (Nelson et al. 2009, p. 120).
        We believe that, besides heavy grazing regimes, burrowing and forage habitat for Texas kangaroo rats is not negatively impacted by livestock grazing. Based on the above evaluation, we find that the information provided in the petition, as well as other information readily available in our files, fails to meet our standard for substantial scientific or commercial information indicating that domestic livestock grazing may pose a threat to the Texas kangaroo rat such that the petitioned action may be warranted.

        The petition suggests that brush control, particularly through the use of chemicals, is responsible for the degradation of Texas kangaroo rat habitat (WildEarth Guardians 2010, p. 20). Although not scientifically assessed, Chapman (1972, p. 879) found that chemically treated brush control sites showed little evidence of Texas kangaroo rat inhabitation, and indicated additional studies should be conducted to quantify the effects of range and agricultural practices on this species. In contrast, Stangl et al. (1992b, p. 31) found that chemical brush control actually enhanced Texas kangaroo rat habitat by providing more bare ground and grassy areas that the species prefers (Goetze et al. 2007, p. 18). Further, Texas kangaroo rats have also been shown to preferentially construct burrows on elevated soil mounds, including those that formed around old brush piles (Nelson et al. 2009, pp. 124, 128). Thus, we find no evidence that brush control, even through the use of chemicals, is having a detrimental effect on Texas kangaroo rat habitat. Based on the above evaluation, we find that the information provided in the petition, as well as other information readily available in our files, fails to meet our standard for substantial scientific or commercial information indicating that brush control may pose a threat to the Texas kangaroo rat such that the petitioned action may be warranted.

        The petition suggests that development and roads have encroached on Texas kangaroo rat habitat (WildEarth Guardians 2010, pp. 16-19), thereby increasing the risks of predation and direct mortality from vehicle collisions (WildEarth Guardians 2010, p. 25). While development and road construction have increased throughout the historic range of the Texas kangaroo rat since its description by Merriam in 1894, the impact of urban expansion on the species' status is unclear. Brock and Kelt (2004, pp. 638-639) suggest that roads increase the likelihood of predation of Texas kangaroo rats and facilitate invasion by exotic plants. Martin (2002, p. 35) found that Texas kangaroo rats extensively utilize suitable, previously disturbed areas along the edges of roadsides, including roadside habitats within agricultural areas, where they may otherwise be precluded. Others have noted that Texas kangaroo rats (Roberts and Packard 1973, p. 960; Stangl and Schafer 1990, p. 11; Stangl et al. 1992b, p. 34), and other similar species (Brock and Kelt 2004, pp. 633-639), may preferentially use dirt roads as migration corridors. Also, it is well established that nighttime road surveys are an easy and effective way to determine the presence of the Texas kangaroo rat, suggesting they do not entirely avoid these areas. Although there are reports of specimens killed by vehicular traffic (Dalquest and Collier 1964, p. 146; Jones et al. 1988, p. 249), information we reviewed suggests that this is not having a negative impact on the overall species' status.

        Additionally, Texas kangaroo rats are nocturnal and remarkably tolerant of human presence (Stangl et al. 2005, p. 140; Goetze et al. 2008, p. 310), suggesting that urban development around otherwise suitable habitat may not preclude their inhabitance. There is some indication that Texas kangaroo rats are less active on brightly moonlit nights and more active during the darkest times of the night (Jones et al. 1988, p. 253; Stangl and Schafer 1990, p. 4; Martin 2002, p. 31), suggesting light may negatively affect this species. In contrast, others have noted this species is tolerant of higher light levels (Bailey 1905, p. 149; Goetze et al. 2008, p. 314). Based on the above evaluation, we find that the information provided in the petition, as well as other information readily available in our files, fails to meet our standard for substantial scientific or commercial information indicating that development and roads may pose a threat to the Texas kangaroo rat such that the petitioned action may be warranted.

        In conclusion, the fragmentation of the native landscape by conversion of land to cropland has likely impacted the Texas kangaroo rat by reducing burrowing habitat. This threat, in conjunction with the species' limited long-distance mobility, may be impairing the species' ability to maintain viable populations by genetically isolating them from one another (Wahl 1987, p. 1). However, the effects of cattle grazing, encroachment of roads and development, and brush control methods on Texas kangaroo rat habitat are less certain, and may be beneficial under certain circumstances. Similarly, it appears that loss of historical disturbance by bison, prairie dogs, and fire may be offset by heavy grazing of domestic cattle. We will further analyze potential threats under Factor A during our status review for this species.
        Therefore, we find that the information presented in the petition, as well as other information readily available in our files, presents substantial scientific or commercial information to indicate that the Texas kangaroo rat may warrant listing due to present or threatened destruction, modification, or curtailment of the species' habitat or range, primarily due to conversion of native rangeland to agricultural cropland.
        B. Overutilization for Commercial, Recreational, Scientific or Educational Purposes
        Information Provided in the Petition

        The petition claims that early scientific overutilization involving the collection and preservation of Texas kangaroo rat specimens may have had an impact on its range contraction (WildEarth Guardians 2010, p. 20). As indicated in the petition, many early scientific studies of Texas kangaroo rats resulted in preservation of specimens as museum vouchers (Dalquest and Collier 1964, p. 146; Packard and Judd 1968, pp. 535-536; Martin and Matocha 1972, p. 876; Cokendolpher et al. 1979, p. 376; Hamilton et al. 1987, p. 776).
        Evaluation of Information Provided in the Petition and Available in Service Files
        We acknowledge that the historical collection and preservation of Texas kangaroo rat specimens were lethal means of collection; however, we have no evidence that collections occurred at a level that impacted the status of the species. Further, current collection methods have resulted in fewer deaths. More recent studies have used live-trapping techniques, although Texas kangaroo rats left overnight in traps are susceptible to cold nightly temperatures and may die following release (Stangl and Schafer 1990, p. 9). In conclusion, we acknowledge that scientific studies have resulted in the death of Texas kangaroo rats, but neither the petition nor information within our files presents substantial scientific or commercial information indicating that collection was, or is, occurring at a level that impacts the overall status of the species. Therefore, we find the petition does not present substantial scientific or commercial information to indicate that overutilization for commercial, recreational, scientific, or educational purposes may present a threat to the Texas kangaroo rat such that the petitioned action may be warranted.
        C. Disease or Predation
        Information Provided in the Petition
        The petition did not identify disease or predation as factors impacting Texas kangaroo rats. In fact, the petition suggests that there are no records of natural predation acting as a threat to Texas kangaroo rats. However, the petition identifies several Texas kangaroo rat parasites, but indicates that disease is not currently known to be a major mortality factor. The petition also recommends further investigation of the potential for sylvatic plague to affect the Texas kangaroo rat (WildEarth Guardians 2010, pp. 20-21).
        Evaluation of Information Provided in the Petition and Available in Service Files

        After reviewing the original source material cited with the petition, we find that the information within the petition is reliable and accurate regarding Texas kangaroo rat disease and predation. Information in our files suggests that the potential for infection from sylvatic plague does exist, but the disease rarely causes mortality in Texas kangaroo rats (Martin 2002, p. 30). A number of external parasites (Thomas et al. 1990, pp. 111-114) and an internal parasite (Pfaffenberger and Best 1989, pp. 76-80) are known to use the Texas kangaroo rat as a host, but their effects on the survival and proliferation of this species are not known. Even though the Texas kangaroo rat is exposed to disease, there is no evidence to indicate that the species is responding to the factor in a way that causes actual impacts to the species.

        Similarly, there is no evidence indicating predation is having an impact on the species. Stangl et al. (2005, p. 139) found that the Texas kangaroo rat was underrepresented in the diet of barn owls, and attributed this partly to the auditory and locomotion abilities of the rat, which allowed it to escape predation. Remnants of a similar species, the Ord's kangaroo rat (Dipodomys ordii), were found in only 4.3 percent of coyote scats in south Texas, suggesting coyotes may not depend heavily on kangaroo rats as a part of their diet (Martin 2002, p. 29). In addition, domesticated cats have been found to prey on the Texas kangaroo rats, but only to a limited extent (Martin 2002, p. 29). Although available information in the petition and our files suggests that Texas kangaroo rats are susceptible to predation, the information we reviewed does not suggest that predation occurs at levels that act as a significant limiting factor to the species throughout its range.
        We reviewed information in our files and the information provided by the petitioners, and did not find substantial information to indicate that disease or predation may be outside the natural range of variation such that either could be considered a threat to the Texas kangaroo rat. Therefore, we find the petition does not present substantial scientific or commercial information to indicate that disease or predation may present a threat to the Texas kangaroo rat such that the petitioned action may be warranted.
        D. Inadequacy of Existing Regulatory Mechanisms
        Information Provided in the Petition
        The petition claims there are insufficient existing regulatory mechanisms protecting the Texas kangaroo rat. While this species is listed as threatened under Texas Parks and Wildlife Code, Chapter 68, this status does not prevent the destruction or degradation of Texas kangaroo rat habitat (WildEarth Guardians 2010, p. 21).
        Evaluation of Information Provided in the Petition and Available in Service Files

        We find that the information within the petition, although limited, is reliable and accurate regarding the inadequacies of existing regulatory mechanisms in protecting the Texas kangaroo rat. As discussed above under Factor A, Texas kangaroo rats do not inhabit cultivated cropland; thus, the expansion of cultivated cropland may fragment existing populations until they are no longer viable (Wahl 1987, p. 1). The “threatened” status of the Texas kangaroo rat under Texas Parks and Wildlife Code does not preclude further land conversion in areas occupied by the species. Therefore, we find that the information provided in petition, as well as other information readily available in our files, presents substantial scientific or commercial information indicating the petitioned action may be warranted due to the inadequacy of existing regulatory mechanisms.
        E. Other Natural or Manmade Factors Affecting the Species' Continued Existence
        Information Provided in the Petition
        The petition claims that road construction, extermination programs, and climate change are, or may become, threats to the continued existence of the Texas kangaroo rat (WildEarth Guardians 2010, pp. 21-26). The effects of road construction on this species are evaluated above under Factor A. The petition suggests that kangaroo rat extermination programs in the 1920s and 1930s were initiated because these species were implicated in the ongoing desertification of rangeland. The petition also provides evidence of climate change trends (WildEarth Guardians 2010, pp. 21-24) and suggests that the ensuing ecological changes would make this species' current range more unsuitable for its inhabitation.
        Evaluation of Information Provided in the Petition and Available in Service Files
        After reviewing the original source material cited in the petition, we find that these sources are reliable and accurate. However, we believe that the portrayal of this information within the petition requires further examination as described below.

        The petitioner claims that extermination programs may be threatening the continued existence of the Texas kangaroo rat. Sjoberg et al. (1984, p. 13) suggested that kangaroo rats, particularly the banner-tailed kangaroo rat (Dipodomys spectabilis), whose mound system is extensive, were treated by various methods to remove them from rangelands. However, the Texas kangaroo rat does not make extensive mounds, and its exceptionally small burrow entrances occupy very little of the landscape (Bailey 1905, p. 149; Carter et al. 1985, p. 1; Martin 2002, p. 3). This species also has minimal economic impact on agriculture (Martin 2002, p. 3). Therefore, it is unlikely the Texas kangaroo rat was historically subjected to extensive eradication efforts, and there is no evidence presented by the petitioner or readily available in our files indicating that the Texas kangaroo rat was impacted by eradication efforts aimed at other species. In addition, the Texas kangaroo rat is currently protected as a nongame species under Texas Parks and Wildlife Code, Chapter 68, making such eradication efforts illegal. Therefore, we found no evidence that extermination programs are negatively impacting the Texas kangaroo rat.

        Also, the petition asserts that climate change trends will make the current range more unsuitable for the Texas kangaroo rat to inhabit (WildEarth Guardians 2010, pp. 21-24). The petitioner presents information that plant and animal communities are expected to shift toward the poles or increase in altitude with increasing global temperatures and drought conditions (Parmesan et al. 2000, p. 443; Cameron and Scheel 2001, p. 676; Root and Schneider 2002, pp. 22-23; Karl et al. 2009, pp. 72, 132). However, the petition does not provide substantial information indicating how pole-ward shifts in plant and animal communities would negatively impact the Texas kangaroo rat. We believe that increasing global temperatures and drought conditions will likely have little impact on kangaroo rats because they are physiologically and behaviorally well adapted to warm, arid landscapes (Sjoberg et al. 1984, p. 12). In addition, Texas kangaroo rats do not appear to be particularly dependent on any single type of vegetation for survival, and are capable of adapting to changing vegetation as is evident from their behavior of gathering nonnative plant seeds (Dalquest and Collier 1964, pp. 147-148; Chapman 1972, pp. 878-879). As such, the information we reviewed does not indicate that climate change-induced, pole-ward shifts in plant and animal communities would result in the Texas kangaroo rat's current range becoming unsuitable for the species to inhabit.
        The petition further claims that climate change models show a loss of Texas kangaroo rat habitat. Cameron and Scheel (2001, p. 664) predicted that between 48 and 80 percent of suitable Texas kangaroo rat habitat would be lost under two different climate change models. These losses were estimated from a 2001 baseline of approximately 103,400 square kilometers (km2) (39,923 square miles (mi2)) of suitable Texas kangaroo rat habitat, and following correction for vegetation preferences (Cameron and Scheel 2001, p. 664). However, the combined acreage of the 11 Texas counties from which the Texas kangaroo rat has been recorded is approximately 24,500 km2 (9,460 mi2), a value much closer to their pre-corrected habitat estimate of 21,200 km2 (Cameron and Scheel 2001, p. 655). This suggests that the model may have overestimated current suitable habitat. In addition, the study found vegetation preference significantly affected habitat suitability for this species while soil preferences were not significant (Cameron and Scheel 2001, p. 655). In contrast, Shaw (1990, p. 16) found Texas kangaroo rat distributions to vary significantly with soil type. Furthermore, Cameron and Scheel (2001, p. 659) did not assess habitat outside of Texas. If animals are generally predicted to move pole-ward as a result of climate change, the Texas kangaroo rat may partially relocate to Oklahoma, which was not included as part of the Cameron and Scheel (2001) study. Even though Cameron and Scheel (2001, p. 664) predicted theoretically severe implications for climate change on the Texas kangaroo rat based on their models, we could find no evidence to substantiate their claims. Additional analysis is needed to determine the effect of these impacts on the Texas kangaroo rat. We will further analyze the potential impacts of climate change on the species during our status review.
        Therefore, we find the petition does not present substantial scientific or commercial information indicating that other natural or manmade factors may affect the continued existence of the Texas kangaroo rat such that the petitioned action may by warranted.
        Finding
        On the basis of our determination under section 4(b)(3)(A) of the Act, we find that the petition presents substantial scientific or commercial information indicating that listing the Texas kangaroo rat throughout its entire range may be warranted. This finding is based on potential threats posed under Factor A, The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range, and Factor D, The Inadequacy of Existing Regulatory Mechanisms. Specifically, we find that the loss of burrowing habitat and genetic isolation of populations due to the conversion of native rangeland to agricultural cropland, and the inadequacy of existing regulatory mechanisms to protect against such land conversion, may pose a threat to the Texas kangaroo rat throughout all or a significant portion of its range, such that the petitioned action may be warranted. The information provided under Factors B, C, and E was not substantial.

        Because we have found that the petition presents substantial information indicating that listing the Texas kangaroo rat may be warranted, we are initiating a status review to determine whether listing the Texas kangaroo rat under the Act is warranted.
        The “substantial information” standard for a 90-day finding differs from the Act's “best scientific and commercial data” standard that applies to a status review to determine whether a petitioned action is warranted. A 90-day finding does not constitute a status review under the Act. In a 12-month finding, we will determine whether a petitioned action is warranted after we have completed a thorough status review of the species, which is conducted following a substantial 90-day finding. Because the Act's standards for 90-day and 12-month findings are different, as described above, a substantial 90-day finding does not mean that the 12-month finding will result in a warranted finding.
        References Cited

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

        The primary author of this notice is a staff member of the Arlington Ecological Services Field Office (see
          FOR FURTHER INFORMATION CONTACT).
        Authority

        The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

          Dated: February 16, 2011.
          Rowan W. Gould,
          Acting Director, U.S. Fish and Wildlife Service.

      [FR Doc. 2011-5177 Filed 3-7-11; 8:45 am]
      BILLING CODE 4310-55-P