[Federal Register Volume 63, Number 185 (Thursday, September 24, 1998)]
[Rules and Regulations]
[Pages 51005-51017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-25545]



[[Page 51005]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE59


Endangered and Threatened Wildlife and Plants; Final Rule To List 
the San Bernardino Kangaroo Rat as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) determines the 
San Bernardino kangaroo rat (Dipodomys merriami parvus) to be an 
endangered species pursuant to the Endangered Species Act of 1973, as 
amended (Act). This subspecies now occurs primarily in alluvial scrub 
habitats with appropriate vegetative cover and substrate composition. 
The historical range of the San Bernardino kangaroo rat has been 
reduced by approximately 95 percent due to agricultural, urban, and 
industrial development. Threats to all of the remaining populations of 
the San Bernardino kangaroo rat include habitat loss, destruction, 
degradation, and fragmentation due to sand and gravel mining 
operations, flood control projects, urban development, off-highway 
vehicle (OHV) use, or some combination of these. In addition, the three 
largest remaining populations of this subspecies are endangered due to 
their small size, and habitat loss caused by changes in the natural 
stream flow regime, including seasonal flooding and associated 
modification of plant succession patterns. This action continues 
protection for the San Bernardino kangaroo rat, which was effective for 
a 240-day period beginning when this species was emergency listed on 
January 27, 1998.

DATES: This rule is effective on September 24, 1998.

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours at the U.S. Fish and 
Wildlife Service, Carlsbad Field Office, 2730 Loker Avenue West, 
Carlsbad, California 92008.

FOR FURTHER INFORMATION CONTACT: Ken S. Berg, Field Supervisor, at the 
above address (telephone 760/431-9440).

SUPPLEMENTARY INFORMATION:

Background

    The San Bernardino kangaroo rat (Dipodomys merriami parvus) is one 
of 19 recognized subspecies of Merriam's kangaroo rat (D. merriami), a 
widespread species distributed throughout arid regions of the western 
United States and northwestern Mexico (Hall 1981, Williams et al. 
1993). In coastal southern California, D. merriami is the only species 
of kangaroo rat with four toes on both of its hind feet. The San 
Bernardino kangaroo rat has a body length of about 95 millimeters (mm) 
(3.7 inches (in)) and a total length of 230 to 235 mm (9 to 9.3 in). 
The hind foot measures less than 36 mm (1.4 in) in length. The body 
color is weakly ochraceous (yellow) with a heavy overwash of dusky 
brown. The tail stripes are medium to dark brown and the foot pads and 
tail hairs are dark brown. The flanks and cheeks of the subspecies are 
dusky (Lidicker 1960). The San Bernardino kangaroo rat is considerably 
darker and much smaller than either of the other two subspecies of 
Merriam's kangaroo rat in southern California, D. merriami merriami and 
D. merriami collinus. Lidicker (1960) noted that the San Bernardino 
kangaroo rat is one of the most highly differentiated subspecies of D. 
merriami and that ``it seems likely that it has achieved nearly species 
rank.'' This differentiation is likely due to its apparent isolation 
from other members of D. merriami.
    The San Bernardino kangaroo rat, a member of the family 
Heteromyidae, was first described by Rhoades in 1894 under the name 
Dipodomys parvus from specimens collected by R.B. Herron in Reche 
Canyon, San Bernardino County, California (Hall 1981). Elliot reduced 
D. parvus to a subspecies of D. merriami (D. merriami parvus) in 1901. 
Hall (1981) and Williams et al. (1993) have confirmed this taxonomic 
treatment of the species.
    The San Bernardino kangaroo rat appears to be separated from 
Merriam's kangaroo rat (D. merriami merriami) at the northernmost 
extent of its range near Cajon Pass by a 8 to 13 kilometer (km) (5 to 8 
mile (mi)) gap of unsuitable habitat. The San Bernardino kangaroo rat 
may have in the distant past also intergraded with D. merriami collinus 
to the south in the vicinity of Menifee in Riverside County (Lidicker 
1960, Hall 1981).
    The historical range of this subspecies extends from the San 
Bernardino Valley in San Bernardino County to the Menifee Valley in 
Riverside County (Lidicker 1960, Hall 1981). Within this range, the San 
Bernardino kangaroo rat was known from over 25 localities (McKernan 
1993). From the early 1880's to the early 1930's, the San Bernardino 
kangaroo rat was a common resident of the San Bernardino and San 
Jacinto valleys of southern California (Lidicker 1960).
    In most heteromyids, soil texture is a primary factor in 
determining species' distributions (Brown and Harney 1993). San 
Bernardino kangaroo rats are found primarily on sandy loam substrates, 
characteristic of alluvial fans and flood plains, where they are able 
to dig simple, shallow burrows (McKernan 1997). Based on the 
distribution of suitable (i.e., sandy) soils and the historical 
collections of this subspecies, the historical range is thought to have 
encompassed an area of approximately 130,587 hectares (ha) (326,467 
acres (ac)) (Service unpub. GIS maps, 1998). Although the entire area 
of the historical range would not have been occupied due to variability 
in vegetation and soils, the San Bernardino kangaroo rat was apparently 
widely distributed across this area. By the 1930's, the habitat had 
been reduced to approximately 11,200 ha (28,000 ac) (McKernan 1997).
    In 1997, the San Bernardino kangaroo rat was known to occupy 
approximately 1,299 ha (3,247 ac) of suitable habitat divided unequally 
among seven locations, which are widely separated from one another 
(McKernan 1997). Four of these locations (City Creek (8 ha (20 ac)), 
Etiwanda (2 ha (5 ac)), Reche Canyon (2 ha (5 ac)), and South 
Bloomington (0.8 ha (2 ac))) support only small, remnant populations 
(McKernan 1997). The remaining three locations (the Santa Ana River 
(690 ha (1,725 ac)), Lytle and Cajon washes (456 ha (1,140 ac)), and 
San Jacinto River (140 ha (350 ac))) contain the largest extant 
concentrations of kangaroo rats and blocks of suitable habitat 
(McKernan 1997, Service unpub. GIS maps 1998).
    Based on further review of available information, the Santa Ana 
River, Lytle and Cajon washes, and the San Jacinto River are estimated 
to have additional habitat that is likely occupied, at least in part, 
by the San Bernardino kangaroo rat (Service unpub. GIS maps, 1998). 
Based on this review, the Santa Ana River contains approximately 2,090 
ha (5,224 ac) of which approximately 545 ha (1,363 ac) have too much 
cover or are otherwise degraded (e.g., percolation ponds). Lytle and 
Cajon washes have approximately 2,787 ha (6,967 ac) of which 
approximately 722 ha (1,806 ac) have too much cover or are otherwise 
degraded (e.g., shielded from flood events). The San Jacinto River has 
approximately 401 ha (1,002 ac) of which approximately 91 ha (227 ac) 
have too much cover or are otherwise degraded (e.g., too frequent of 
flows).

[[Page 51006]]

    The three largest remaining blocks of suitable habitat (i.e., Santa 
Ana River, Lytle/Cajon creeks, and San Jacinto River) (Fish and 
Wildlife Service unpub. GIS maps, 1998; McKernan 1997) are distributed 
across a mosaic of approximately 5,277 ha (13,193 ac) of typically 
suitable, alluvial soils dominated by sage scrub and chaparral. 
Approximately 1,358 ha (3,396 ac) of this area has a vegetation that is 
more mature than the open, early successional habitat structure 
required by the San Bernardino kangaroo rat, or is otherwise degraded. 
Therefore, only about 3,919 ha (9,797 ac) of these areas appear to be 
suitable for this subspecies at this time. The Service considers this 
suitable habitat to be occupied given the San Bernardino kangaroo rat's 
affinity for sandy soils and low vegetative cover (McKernan 1997).
    Existing and proposed hydrological modifications to the river 
systems eliminate habitat renewal and obstruct population recovery over 
these highly fragmented wash habitats (Hanes et al. 1989, McKernan 
1997). Based on information concerning future flows in the Santa Ana 
River (U.S. Army Corps of Engineers (Corps) 1988), a minimum of 80 
percent (i.e., 1,672 ha (4,179 ac)) of the alluvial scrub (2,090 ha 
(5224 ac)) is now shielded from fluvial renewal. Based on more recent 
information (Corps 1998), approximately 90 percent (1,881 ha (4,702 
ac)) of this area is at risk due to projected changes in the hydrology 
of this area. Thus, of the remaining habitat, only about 3,396 ha 
(8,491) are ever likely to be subject to frequent (i.e., 50-100-year 
event) fluvial renewal. The balance of the residual habitat would 
require a catastrophic flood (i.e., greater than 100-year event), or 
intensive management, to maintain a possibility of persistence. 
Conversely, large-scale flooding also poses a threat to populations of 
San Bernardino kangaroo rats that are almost entirely confined to 
fluvial systems (e.g., San Jacinto River).
    The San Bernardino kangaroo rat is now primarily associated with a 
variety of sage scrub vegetation, where the common elements are the 
presence of sandy soils and relatively open vegetation structure 
(McKernan 1997). Where the San Bernardino kangaroo rat occurs in 
alluvial scrub, the subspecies reaches its highest densities in early 
and intermediate seral stages (McKernan 1997). Alluvial scrub includes 
elements from chaparral, coastal sage, and desert communities. Three 
successional phases of alluvial scrub have been described: pioneer, 
intermediate, and mature alluvial scrub. The distribution of these 
phases is influenced by elevation, distance from the main channels, and 
the time since previous flooding (Smith 1980, Hanes et al. 1989). 
Vegetation cover generally increases with distance from the active 
stream channel. The pioneer, or youngest phase, is subject to frequent 
disturbance, and vegetation is usually renewed by annual floods (Smith 
1980, Hanes et al. 1989). The intermediate phase, defined as the area 
between the active channel and mature terraces, is subject to periodic 
flooding at longer intervals. The vegetation on intermediate terraces 
is relatively open, and supports the highest densities of the San 
Bernardino kangaroo rat. The mature phase is rarely affected by 
flooding and supports the highest plant cover (Smith 1980). Flood 
events break out of the main river channel in a complex pattern, 
resulting in a braided appearance to the flood plain. This dynamic 
nature to the habitat leads to a situation where not all the alluvial 
scrub habitat is suitable for the kangaroo rat at any point in time. 
The San Bernardino kangaroo rat, like other subspecies of Merriam's 
kangaroo rat, prefers open habitats characterized by low shrub canopy 
cover (mostly 7 to 22 percent) and rarely occurs in dense vegetation 
(McKernan 1997). The older seral stages of the flood plain vegetation 
are generally less suitable for this subspecies.
    The range of the San Bernardino kangaroo rat partially overlaps the 
distribution of the Stephens' kangaroo rat (Dipodomys stephensi) and 
its range is entirely overlapped by the Pacific kangaroo rat (D. 
simulans). Where these species occur in proximity, they are usually 
concentrated in different areas. The Stephens' kangaroo rat typically 
is associated with open, arid, grassland associations (Lackey 1967, 
O'Farrell et al. 1986, O'Farrell and Uptain 1987, O'Farrell 1990), and 
occurs on a variety of soil types. In contrast, the Pacific kangaroo 
rat typically inhabits areas possessing greater shrub cover. All three 
of these subspecies can be distinguished from one another based on 
morphological characters.
    Home ranges for the Merriam's kangaroo rat average 0.33 ha (0.8 ac) 
for males and 0.31 ha (0.8 ac) for females (Behrends et al. 1986). Long 
sallies (bursting movements) of 100 meters (m) (328 feet (ft)) or more 
beyond these ranges are not uncommon. Although outlying areas of their 
home ranges may overlap, adults actively defend small core areas near 
their burrows (Jones 1993). Home range overlap between males and 
between males and females is extensive, but female-female overlap is 
slight (Jones 1993). McKernan (1993) found pregnant San Bernardino 
kangaroo rats from February through October, and immature individuals 
from April through September. Some females may produce more than one 
litter per year. Litter size averages between two and three young 
(Eisenberg 1993).
    Similar to other kangaroo rats, the San Bernardino kangaroo rat is 
primarily granivorous and often stores large quantities of seeds in 
surface caches (Reichman and Price 1993). Green vegetation and insects 
are also important seasonal food sources. Insects, when available, have 
been documented to constitute as much as 50 percent of a kangaroo rat's 
diet (Reichman and Price 1993). Females are known to increase ingestion 
of foods with higher water content during lactation, presumably to 
compensate for the increased water loss associated with milk production 
(Reichman and Price 1993). Dipodomys merriami are known for their 
ability to live indefinitely without water on a diet consisting 
entirely of dry seeds (Reichman and Price 1993).

Previous Federal Action

    The San Bernardino kangaroo rat was designated by the Service as a 
category 2 candidate species for Federal listing as endangered or 
threatened in 1991 (56 FR 58804). Category 2 comprised taxa for which 
information in the possession of the Service indicated that proposing 
to list as endangered or threatened was possibly appropriate, but for 
which data on biological vulnerability and threat(s) were not available 
to support a proposed rule. Based on a review of status and 
distribution of the San Bernardino kangaroo rat, the subspecies was 
upgraded to a category 1 candidate for listing in 1994 (59 FR 58982). 
Category 1 candidate species were those species for which the Service 
had sufficient information on biological vulnerability and threat(s) to 
support proposals to list them as endangered or threatened species. 
Upon publication of the February 28, 1996, Notice of Review (61 FR 
7596), the Service ceased using category designations and included the 
San Bernardino kangaroo rat as a candidate species. The San Bernardino 
kangaroo rat was retained as a candidate species in the September 19, 
1997, Notice of Review (62 FR 49401). The San Bernardino kangaroo rat 
was emergency listed as endangered on January 27, 1998; concurrently, a 
proposal to make provisions of the emergency listing permanent also was 
published (63 FR 3837 and 63 FR 3877).
    The processing of this final rule conforms with the Service's final 
listing priority guidance published in the Federal Register on May 8, 
1998 (63 FR

[[Page 51007]]

25502). The guidance clarifies the order in which the Service will 
process rulemakings. The guidance calls for giving highest priority to 
handling emergency situations (Tier 1). Second priority (Tier 2) is 
given to processing final determinations on proposed additions to the 
lists of endangered and threatened wildlife and plants; the processing 
of new proposals to add species to the lists; the processing of 
administrative petition findings to add species to the lists, delist 
species, or reclassification of listed species (per petitions filed 
under section 4 of the Act); and a limited number of delisting and 
reclassifying actions. Processing of proposed or final designations of 
critical habitat are accorded the lowest priority (Tier 3). This final 
rule constitutes a Tier 2 action.

Summary of Comments and Recommendations

    In the proposed rule (63 FR 3877), all interested parties were 
requested to submit factual reports or information that might 
contribute to the development of a final rule for the San Bernardino 
kangaroo rat. Appropriate State agencies, County governments, Federal 
agencies, scientific organizations, and other interested parties were 
contacted and requested to comment. Legal notices were published in the 
Riverside Press Enterprise and the San Bernardino Sun on February 5, 
1998, and invited general public comment on the proposal. In 
anticipation of public interest, the Service conducted a public hearing 
consisting of two sessions on March 3, 1998 in San Bernardino, 
California.
    During the 3-month comment period, including the public hearing, 
the Service received a total of 56 comments (multiple comments from the 
same party on the same date were regarded as one comment). Of these 
comments, 29 (51 percent) supported the listing, 14 (24.5 percent) 
opposed the listing, and 14 (24.5 percent) were noncommittal.
    The Service reviewed all of the comments (i.e., written and oral 
testimony) referenced above. The comments were grouped and are 
discussed under the following issue headings. In addition, all 
biological and commercial information obtained through the public 
comment period has been considered and incorporated, as appropriate, 
into the final rule.
    Issue 1: Several commenters requested that the population of San 
Bernardino kangaroo rats on the Santa Ana River not be listed as an 
endangered species. One of these commenters recommended that the animal 
be listed as threatened with a special rule pursuant to section 4(d) of 
the Act.
    Service Response: Threatened status would not accurately reflect 
the current threats to or status of the subspecies as a whole or of the 
subpopulation remaining along the Santa Ana River (See ``Status and 
Distribution'' and ``Summary of Factors Affecting the Species'' 
sections of this rule and the summary conclusion below for further 
discussion of this issue). In addition, sections 10 and 7 of the Act 
provide flexibility for project approval and the incidental take of 
endangered species under certain conditions (e.g., when the proposed 
action is not likely to jeopardize the species' continued existence).
    Issue 2: Several of the commenters contended that the San 
Bernardino kangaroo rat should not be listed as an endangered species 
because the threats facing the kangaroo rat were overstated in the 
proposed rule.
    Service Response: The San Bernardino kangaroo rat's historic range 
has been reduced by approximately 95 percent due to agriculture, urban, 
and industrial development. In addition, all of the remaining 
populations are at risk due to either habitat loss, degradation, and 
fragmentation from sand and gravel mining operations; flood control 
projects; urban development; OHV activity; or a combination of these 
factors. Moreover, the three largest remaining populations are 
threatened by their small size and habitat changes caused by human 
modification of the fluvial system.
    Issue 3: Several commenters stated that the threat posed by 
vandalism or grading of habitat, which was cited in the emergency rule 
as justification for the immediate listing of the San Bernardino 
kangaroo rat, was overstated.
    Service Response: At the time the Service published the emergency 
and proposed rules, the Service believed that publication of a proposed 
listing alone likely would ``elicit preemptive grading.'' The Service's 
reason for this conclusion was detailed in the emergency rule in the 
Reason for Emergency Determination section (63 FR 3840). Since 
publication of the emergency rule, habitat destruction has been 
prevented, and lands inhabited by the San Bernardino kangaroo rat are 
protected under the emergency listing provision of the Act. The area 
once threatened by vandalism or grading has not been damaged. However, 
the San Bernardino kangaroo rat remains vulnerable to vandalism should 
negative public perceptions and attitudes reappear because of the final 
listing action. (see the ``Summary of Factors Affecting the Species'' 
and ``Critical Habitat'' sections of this rule for a more thorough 
discussion of threats). The Service must consider even verbal threats 
of habitat destruction and/or vandalism when conserving critically 
imperilled species, and must act on such threats.
    Issue 4: Several of the commenters stated that inadequate 
information was used to propose the animal as an endangered species. In 
addition, they felt the Service relied too heavily on the report 
prepared by McKernan (1997) in drafting the proposed rule.
    Service Response: The Service is required to base listing decisions 
on the best available scientific and commercial information. In this 
regard, the Service reviewed information from the scientific 
literature, and commercial information (e.g., California Environmental 
Quality Act (CEQA) documents), as well as McKernan (1997). Based on 
this information, the Service concludes that the San Bernardino 
kangaroo rat is in danger of extinction throughout a significant 
portion of its range. In addition, no new information was submitted 
during the public comment period, or at the public hearing, that 
indicated other viable populations of this animal existed or that the 
remaining populations were not at risk. The Service is unaware of any 
data that would lead to a conclusion that the San Bernardino kangaroo 
rat does not warrant listing under the Act.
    Issue 5: Several of the commenters stated that due to errors in the 
technical descriptions of San Bernardino kangaroo rat locations (e.g., 
township and range) contained in McKernan (1997), the report could not 
be relied upon in assessing threats to the San Bernardino kangaroo rat. 
In addition, these commenters recommended that the technical errors be 
corrected prior to the Service making a final determination on whether 
or not to list the San Bernardino kangaroo rat as endangered.
    Service Response: Although some errors exist in the technical 
descriptions regarding the locations of the San Bernardino kangaroo rat 
under the ``Results and Discussion'' section of McKernan (1997), the 
Service did not rely on the township and range information contained in 
this report for determining the distribution of the San Bernardino 
kangaroo rat. In addition, the Service disregarded township and range 
information in assessing threats to the animal's continued existence. 
The distribution of this species, at a landscape scale, has been 
reduced significantly and the remaining

[[Page 51008]]

populations are at risk due to a variety of factors (see sections on 
``Status and Distribution'' and ``Summary of Factors Affecting the 
Species'' for further discussion of this issue). Therefore, it is 
inappropriate to delay listing of this subspecies as endangered to 
correct transcription errors in McKernan (1997).
    Issue 6: One commenter stated that the Service had misrepresented 
the decline of the San Bernardino kangaroo rat by assuming that all 
habitat within the historic range of the species was occupied.
    Service Response: As stated in the proposed rule, only portions of 
the historic range would have been occupied at any one time due to 
variability in the distribution of vegetation and soils. In fact, an 
effort was made to more accurately portray the decline by not mapping, 
or excluding from the analysis, some areas which could have been 
occupied, but were unavailable because of soil unsuitability or lack of 
connectivity to known occupied locales.
    Issue 7: Several commenters contended that the continuing presence 
of the San Bernardino kangaroo rat within channelized portions of the 
San Jacinto River contradicts the Service's conclusion that 
channelization of these areas is harmful to the persistence of the 
animal.
    Service Response: The presence of the San Bernardino kangaroo rat 
in channelized areas does not necessarily indicate that channelization 
does not have detrimental effects on the kangaroo rat's habitat. 
Channelization has opened flood plain habitats to agricultural, urban, 
and industrial development. In addition, channelization of flood plains 
into narrow, monotypic channels has removed the physical structure 
(i.e., terracing) of the active flood plain and areas of refugia. Based 
on the current distribution, the San Bernardino kangaroo rat occupied 
flood plain habitats as well as adjacent upland habitats containing 
appropriate physical and vegetative characteristics. Therefore, animals 
would have been available from upper tiers of the flood plain as well 
as adjacent uplands to recolonize habitat that was flooded and scoured 
during storm event(s). These refugia are no longer available, or have 
been severely reduced because these areas have been converted into 
agricultural fields, residential sites, and industrial developments. 
Therefore, the remaining population of San Bernardino kangaroo rats 
within the channelized portions of the San Jacinto River is at risk due 
to flooding because of the subspecies' confinement to the active flood 
plain.
    Issue 8: Several commenters stated concern for maintaining the 
ability to protect life and property if the San Bernardino kangaroo rat 
was listed. In addition, these commenters were concerned that the 
listing of the animal would prevent or seriously impare abilities to 
operate and maintain current facilities and would hamper future 
development.
    Service Response: Listing of the San Bernardino kangaroo rat as an 
endangered species will not prevent the protection of human life or 
property. In the event of an emergency, the implementing regulations of 
section 9 of the Act provide that, ``any person may take endangered 
wildlife in defense of his own life or the lives of others.'' In 
addition, the operation and maintenance of current facilities, and the 
construction of future facilities, where there are conflicts with the 
conservation of endangered species, can be addressed pursuant to 
section 7 or 10 of the Act, as appropriate. For example, the 
construction of Seven Oaks Dam, which was likely to adversely affect 
the Santa Ana River wooly-star, a Federal endangered species, was 
allowed to proceed in compliance with section 7 of the Act.
    Issue 9: One commenter disagreed with the Service's estimation 
concerning the area shielded from scouring events due to the operation 
of Seven Oaks Dam, and stated that the Service had overstated the 
threat.
    Service Response: The Service based its estimation of the future 
extent of scouring on information generated by the Corps. According to 
this information, 100-year flows from the Santa Ana River would be 
reduced to approximately 5,000 cubic feet per second (cfs) 
(approximately equivalent to a 4-year rain event) below the dam and 
through the habitat of the San Bernardino kangaroo rat. Therefore, the 
majority of alluvial scrub, once subject to flood flows during 11-year 
events from the Santa Ana River, will be shielded. On this basis, the 
estimate of the flood plain at risk (80 percent) was considered 
conservative. However, based on more recent information (Corps 1998), 
approximately 90 percent of the flood plain is at risk due to projected 
changes in the hydrology of the Santa Ana River.
    Issue 10: One commenter asserted that the listing of the San 
Bernardino kangaroo rat was unnecessary due to the overlap in its 
distribution with Santa Ana River wooly-star (Eriastrum densifolium 
ssp. sanctorum) and slender-horned spineflower (Dodecahema leptoceras).
    Service Response: The partial overlap in distribution of the San 
Bernardino kangaroo rat with Santa Ana River wooly-star and slender-
horned spineflower inadequately protects this animal because of 
differences in spatial and temporal distributions of these species. The 
prohibition for ``take'' under section 9 of the Act applies to wildlife 
and does not protect plants from ``take'' on non-Federal lands. In 
addition, due to changes in hydrology and the anthropogenic confinement 
of the San Bernardino kangaroo rat to the active flood plain, the 
concurrent distribution of the kangaroo rat with the two listed plant 
species does not alleviate the threat facing this species due to 
flooding and inundation of occupied habitat.
    Issue 11: Several commenters suggested it was unlikely that Federal 
listing of this population would result in protection beyond that 
already provided by the California Environmental Quality Act (CEQA). 
One of these commenters stated that CEQA already provided adequate 
protection.
    Service Response: Urban development and associated direct and 
indirect effects, pose the most significant threat to threatened and 
endangered species in California. Though such development is subject to 
review under CEQA, CEQA alone does not adequately protect and conserve 
species because the impacts of proposed projects are often not 
recognized, overridden, or inadequately mitigated in the process (for a 
more thorough discussion of this issue, see factors A and D). Federal 
listing of the San Bernardino kangaroo rat will complement the 
protection options available under State law through measures discussed 
in the ``Available Conservation Measures'' section. The Service will 
use established procedures to evaluate management actions necessary to 
achieve recovery of the species and thereby avoid any undue 
implementation delays. In addition, Federal listing would provide 
additional resources for the conservation of the species through 
sections 6 and 8 of the Act.
    Issue 12: Several commenters stated that listing of the San 
Bernardino kangaroo rat was unnecessary because effective voluntary 
efforts exist for safeguarding this subspecies at no public cost.
    Service Response: Voluntary efforts are important to conservation 
of the San Bernardino kangaroo rat. To date however, these efforts have 
not stabilized or reversed the destruction and degradation of habitat 
essential to this subspecies' survival throughout its range. The 
effects of activities, such as

[[Page 51009]]

sand and gravel mining, flood control activities, agricultural 
activities, and urban and commercial development, continue to represent 
imminent and tangible threats to this animal. The inadequacy of 
existing regulatory mechanisms to stabilize or reverse the decline is 
discussed under Factor D of the ``Summary of Factors Affecting the 
Species'' section.
    Issue 13: Several commenters stated that the Service has ignored 
existing efforts to conserve the San Bernardino kangaroo rat and had, 
in fact, undermined the conservation of the animal by publishing the 
proposed rule.
    Service Response: The Service strongly supports the establishment 
of the multispecies planning process in San Bernardino and Riverside 
counties, and the progress, to date, in the latter County. However, 
these ongoing planning efforts are in the early stages and have yet to 
address the conservation of habitat essential for the recovery of 
listed species, including the San Bernardino kangaroo rat. Federal 
listing will complement these conservation planning efforts (see, in 
particular, the Service response to Issue 10).
    Issue 14: Several commenters criticized the Service for failing to 
address the economic impacts of listing the San Bernardino kangaroo 
rat. One of these commenters stated that the San Bernardino kangaroo 
rat should not be listed if it would stifle economic development.
    Service Response: In accordance with 16 U.S.C. 1533(b)(1)(A) and 50 
CFR 424.11(b), listing decisions are made solely on the basis of the 
best scientific and commercial data available. In adding the word 
``solely'' to the statutory criteria for listing a species, Congress 
specifically addressed this issue in the 1982 amendments to the Act. 
The legislative history of the 1982 amendments states: ``The addition 
of the word ``solely'' is intended to remove from the process of the 
listing or delisting of species any factor not related to the 
biological status of the species. The Committee strongly believes that 
economic considerations have no relevance to determinations regarding 
the status of species and intends that the economic analysis 
requirements of Executive Order 12291, and such statutes as the 
Regulatory Flexibility Act and the Paperwork Reduction Act, not apply. 
Applying economic criteria to the analysis of these alternatives and to 
any phase of the species' listing process is applying economics to the 
determinations made under section 4 of the Act, and is specifically 
rejected by the inclusion of the word ``solely'' in this legislation.'' 
H.R. Rep. No.567, Part I, 97th Cong., 2d Sess. 20 (1982).
    Issue 15: One commenter recommended that the Service designate 
critical habitat.
    Service Response: The Service has determined that designation of 
critical habitat is unlikely to provide a net benefit to the 
conservation of the San Bernardino kangaroo rat. For the San Bernardino 
kangaroo rat, protection of habitat and other conservation actions are 
better addressed through recovery planning and the section 7 
consultation processes (see section on Critical Habitat for a more 
thorough discussion of this issue).
    Issue 16: Several of the commenters stated that estimated acreage 
of the San Bernardino kangaroo rat's range found in Table 2 (McKernan 
1997) did not agree with the estimated decline of the species' occupied 
habitat identified in the proposed rule.
    Service Response: The reason there is a difference in the estimated 
acreage is the basic difference among the concepts of ``range,'' 
``potential occupied habitat,'' and ``occupied habitat.'' Occupied 
habitat, in the case of many rodents, typically represents a subset of 
a species' range because not all areas within the ``range'' are 
suitable or occupied by the animal. In addition, occupied habitat 
indicates that the animals were confirmed to be present and are 
expected to still occur on site. The amount cited in the proposed rule 
(i.e., 1,299 ha (3,247 ac)) refers to the estimated amount of known 
``occupied habitat'' whereas the information from Table 2 in McKernan 
(1997) represents coarser ``potential occupied habitat.'' It is 
important to stress that even the acreage of ``occupied habitat'' is 
imprecise because of--(1) issues of scale; (2) differences in 
individual or populations' perception and use of habitat; and (3) 
population dynamics influenced by a large number of ecological and 
biological parameters.
    Issue 17: One commenter argued that the Service lacked authority to 
list the San Bernardino kangaroo rat under the Act because there is no 
interstate commerce involving this animal.
    Service Response: In accordance with 16 U.S.C. 1533(b)(1)(A) and 50 
CFR 424.11(b), listing decisions are made solely on the basis of the 
best scientific and commercial data available. In a recent court ruling 
(December 1997), the U.S. Court of Appeals for the District of Columbia 
upheld the listing of the Delhi sands flower-loving fly under the Act. 
The court stated that the loss of species has a substantial effect on 
interstate commerce by diminishing a natural resource that could 
otherwise be used for present and future commercial purposes. Following 
this court decision, the Supreme Court refused the plaintiffs' request 
that they hear the case. Importantly, the distribution of the Delhi 
sands flower-loving fly, like the San Bernardino kangaroo rat, is 
endemic only to California and does not occur in adjacent states.

Peer Review

    In compliance with the July 1, 1994, Service Peer Review Policy (59 
FR 34270), the Service solicited the expert opinions of independent 
specialists regarding pertinent scientific or commercial data and 
issues relating to the supportive biological and ecological information 
for the San Bernardino kangaroo rat. The responses received from the 
reviewers supported the proposed listing action. Information and 
suggestions provided by the reviewers were considered in developing 
this final rule, and incorporated where applicable.

Summary of Factors Affecting the Species

    Section 4 of the Act and regulations (50 CFR part 424) promulgated 
to implement the listing provisions of the Act set forth the procedures 
for adding species to Federal lists. A species may be determined to be 
an endangered or threatened species due to one or more of the five 
factors described in section 4(a)(1) of the Act. These factors and 
their application to the San Bernardino kangaroo rat (Dipodomys 
merriami parvus) are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. The majority of all remaining 
suitable habitat, and the long-term persistence of the subspecies, is 
threatened by the direct and indirect effects of either, or some 
combination of, sand and gravel mining, flood control structures and 
operations, agricultural activities, urban and industrial development, 
water conservation activities, and off-road activity.
    Loss and fragmentation of San Bernardino kangaroo rat habitat is 
expected to continue as southern California's human population expands. 
In the 1950's, the population of Riverside and San Bernardino counties 
combined was about 400,000. Over 2.5 million people currently reside in 
this region, and by the year 2000, the human population of San 
Bernardino and Riverside counties is expected to increase to nearly 4 
million (California Department of Finance 1993). Further habitat losses 
resulting from development or alteration of the

[[Page 51010]]

landscape will likely have a significant adverse effect on the 
viability of remaining San Bernardino kangaroo rat populations. Threats 
to the largest of these extant populations are individually addressed 
below.

Santa Ana River

    The largest documented remaining population of the San Bernardino 
kangaroo rat occurs along the Santa Ana River (McKernan 1997). Based on 
a review of aerial imagery (Service unpub. GIS maps, 1998), the amount 
of estimated occupied habitat in this area, including degraded habitat, 
encompasses about 2,090 ha (5,224 ac), of which approximately 690 ha 
(1,725 ac) are known to be occupied by the San Bernardino kangaroo rat 
(McKernan 1997). The occupied habitat extends more or less continuously 
from the vicinity of Norton Air Force Base to the Greenspot Road Bridge 
north of Mentone (Service unpub. GIS maps 1998, McKernan 1997). 
Approximately 47 percent of the alluvial scrub habitat within this area 
is directly at risk due to the combined activities of the Corps, U. S. 
Bureau of Land Management (BLM), San Bernardino Valley Water 
Conservation District, San Bernardino County Flood Control District, 
two private sand mining operations, and Metropolitan Water District's 
Inland Feeder Project.
    Based on a review of projected flows in the Santa Ana River 
following completion of Seven Oaks Dam (Corps 1988, 1998) and the 
approximate distribution of the San Bernardino kangaroo rat (Service 
unpub. GIS maps 1997, McKernan 1997), at least 80 percent of the 
remaining occupied habitat along the Santa Ana River is indirectly at 
risk because of the projected changes in hydrology of this system 
resulting from severe reductions in peak flows during flood events. 
Based on more recent information (Corps 1998), approximately 90 percent 
of the flood plain is at risk for the same reason. That is, an indirect 
effect of construction and operation of the Seven Oaks Dam will be the 
long-term succession of various stages of alluvial scrub, including 
much of a 310-ha (775-ac) mitigation area established for this project, 
into even-aged stands of habitat scrub persisting through time due to a 
reduction in scouring and deposition of fresh sands by floods. 
Curtailed hydrologic disturbance, where soil moisture is adequate, will 
allow shrub densities to develop that exceed the low to moderate 
densities tolerated by the subspecies (Hanes et al. 1989, McKernan 
1997).
    Activities of the San Bernardino County Flood Control District pose 
a threat to approximately 310 ha (775 ac) of alluvial scrub habitat in 
this area. Based on the distribution of soils and vegetative cover, 
approximately 310 ha (775 ac) of this area is estimated to be occupied 
by the San Bernardino kangaroo rat (Service unpub. GIS maps 1998). 
Activities that impact this subspecies and its habitat, both directly 
and indirectly, include the construction of levees and sediment 
removal. The general area at risk due to these potential activities 
supports approximately 15 percent of the projected population along the 
Santa Ana River (Service unpub. GIS maps 1998).
    The BLM and San Bernardino Valley Water Conservation District lands 
are managed, in part, for the development or operation of water 
spreading basins for groundwater recharge. Although the San Bernardino 
kangaroo rat can occupy portions of areas modified by spreading basins, 
flooded areas are essentially lost to this animal due to the periodic 
presence of standing water and the degradation of habitat. Based on the 
distribution of soils and vegetative cover, approximately 388 ha (970 
ac) are at risk due to these potential activities (Service unpub. GIS 
maps 1998). The area potentially affected by spreading basins 
represents approximately 18 percent of the habitat along the Santa Ana 
River (Service unpub. GIS maps 1998). The San Bernardino Valley Water 
Conservation District and BLM are coordinating with the Service and 
others to develop a regional conservation plan that attempts to 
reconcile conflicts among competing land uses, including the 
conservation of the San Bernardino kangaroo rat. However, this 
conservation plan has not been finalized and is not currently in 
effect. Although 322 ha (806 ac) of BLM land are potentially available 
for water-spreading basins (or water percolation ponds), no ponds have 
been constructed recently.
    Proposed and approved sand and gravel mining poses a significant 
and imminent threat to the San Bernardino kangaroo rat. Two sand mining 
operations collectively threaten approximately 410 ha (1,025 ac) of 
alluvial scrub habitat in the Santa Ana River (Lilburn 1997a and 1997b, 
P&D Technologies 1988, Service unpub. GIS maps 1998). Based on the 
distribution of soils and vegetative cover, all of the approved and 
proposed project areas are estimated to be occupied by the San 
Bernardino kangaroo rat (Service unpub. GIS maps 1998). The area 
potentially affected by sand mining activities represents approximately 
20 percent of the population along the Santa Ana River (Service unpub. 
GIS maps 1998).
    Additional impacts will occur due to a large pipeline project 
(Metropolitan Water District Inland Feeder) (P&D Technologies 1992). 
Approximately 60 ha (150 ac) of alluvial scrub in the Santa Ana River 
are likely to be impacted by this project. Based on the distribution of 
soils and vegetative cover, a minimum of 24 ha (60 ac) of this project 
area are estimated to be occupied by the San Bernardino kangaroo rat 
(Service unpub. GIS maps 1997). This project has been reviewed and 
certified under the CEQA and, therefore, poses an imminent threat. The 
area that will be directly impacted by this pipeline project represents 
approximately 1 percent of the Santa Ana River population.
    Other activities that threaten the San Bernardino kangaroo rat in 
this region include the closure of Norton Air Force Base (San 
Bernardino County) and the proposed development of this site into the 
San Bernardino International Airport (U.S. Air Force 1993). 
Approximately 132 ha (331 ac) are estimated to be occupied by the San 
Bernardino kangaroo rat on Norton Air Force Base (Service unpub. GIS 
maps, 1998). The area at risk represents approximately 6 percent of the 
estimated Santa Ana River population. The area estimated to be occupied 
by the San Bernardino kangaroo rat on Norton Air Force Base would be 
reduced by approximately 2 to 5 percent (U.S. Air Force Conservation 
Management Plan, 1997).

Lytle and Cajon Creeks

    The second largest documented population of the San Bernardino 
kangaroo rat occurs along Lytle and Cajon creeks, from near Interstate 
15 downstream on both drainages for approximately 8 km (5 mi) (McKernan 
1997, Service unpub. GIS maps, 1998). The amount of estimated occupied 
habitat in this area encompasses about 2,787 ha (6,967 ac) (Service 
unpub. GIS maps, 1998), of which approximately 456 ha (1,140 ac) are 
known to be occupied by the San Bernardino kangaroo rat (McKernan 
1997). Approximately 10 percent of the estimated occupied habitat is 
directly at risk due to the combined activities of the San Bernardino 
County Flood Control District, San Bernardino County Parks and 
Recreation, and sand and gravel mining. In addition to areas directly 
at risk, a minimum of 560 ha (1,400 ac) (20 percent) of habitat has 
been degraded because of the location of flood control berms and the 
resultant shielding of habitat from fluvial events

[[Page 51011]]

(Service unpub. GIS maps, 1998). Therefore, based on an evaluation of 
soils and vegetative cover, a minimum of 30 percent of the estimated 
occupied habitat in this area is at risk (Service unpub. GIS maps 
1997).
    Sand and gravel mining poses a significant threat to the San 
Bernardino kangaroo rat. Based on information provided by Sunwest 
Materials, they own approximately 373 ha (932 ac) and are planning 
expansion of their operations. Expansion of their operations is 
anticipated to directly impact approximately 168 ha (420 ac) of 
estimated occupied habitat. In addition to potential direct impacts, 
continuation of this sand mining operation in its current location will 
continue to indirectly impact a minimum of 60 ha (150 ac) of estimated 
occupied habitat through disruption of fluvial processes needed to 
maintain habitat quality. Therefore, based on an evaluation of soils 
and vegetative cover, a minimum of 8 percent of the estimated occupied 
habitat in this area is at risk (Service unpub. GIS maps 1997).
    The construction of a levee and parking lot for Glen Helen Regional 
Park by San Bernardino County Flood Control District (District) 
continues to impact approximately 22 ha (55 ac) of habitat by 
precluding scouring events and the reestablishment of alluvial scrub 
vegetation. Given the attributes of the area, the entire site was 
likely occupied by the San Bernardino kangaroo rat prior to 
construction of the levee and parking lot. The levee also threatens 
habitat occupied by the San Bernardino kangaroo rat on the opposite 
side of Cajon Creek due to the alteration of the local hydrological 
system. The levee likely will divert flood flows into the opposite bank 
and cause erosion of the Calmat conservation bank, which was 
established to help conserve listed and sensitive species in the area. 
The total amount of occupied habitat anticipated to be lost is, at a 
minimum, 44 ha (110 ac) (Service unpub. info. 1998). The combined 
impacts of the parking lot and associated levee amounts to 
approximately 2 percent of the estimated occupied habitat in this area.

San Jacinto River

    The third largest remaining population of San Bernardino kangaroo 
rat occurs in Riverside County. Here, the vast majority of alluvial 
flood plain has been impacted by flood control activities, agricultural 
and urban development, and sand and gravel mining. The amount of 
estimated occupied habitat in this area encompasses approximately 310 
ha (775 ac) (Service unpub. GIS maps, 1998), of which approximately 140 
ha (350 ac) are known to be occupied by the San Bernardino kangaroo rat 
(McKernan 1997). A minimum of 41 percent of estimated occupied habitat 
is at risk due to the combined activities of the Corps, Riverside 
County Flood Control, sand mining operations, Eastern Municipal Water 
District, and OHV use.
    Flood control activities that impact this species include grading 
of occupied habitat. Evidence of past, extensive grading that appears 
to have been related to flood control activities exists throughout the 
remaining alluvial scrub vegetation within the flood control berms 
along the San Jacinto River in the vicinity of the City of San Jacinto 
(Arthur Davenport, Service pers. obs. 1995). Flood control structures 
that impact this species include concrete channels and flood confining 
berms. The construction of a concrete channel appears to have isolated 
a small population of San Bernardino kangaroo rats located along 
Bautista Creek from the rest of the population along the San Jacinto 
River. The construction of berms into the flood plain is detrimental to 
the San Bernardino kangaroo rat in that the berms cause a loss of 
habitat by increasing the frequency and severity of scouring and land 
erosion. Based on an examination of this area (Service unpub. GIS maps, 
1998), a minimum of 80 ha (200 ac) (20 percent) is at risk due to this 
factor.
    Continuing, intermittent, agricultural activities, such as dry-land 
farming along the edges of the San Jacinto River in the vicinity of 
Hemet and the City of San Jacinto also impact the San Bernardino 
kangaroo rat. Patches of suitable or occupied habitat occurring outside 
the flood control berms are occasionally disced due to agricultural 
activities (Arthur Davenport, Service pers. obs. 1995). Discing 
adversely affects the subspecies by destroying the animals' burrows and 
degrading habitat.
    Urban and commercial development into the flood plain of the San 
Jacinto River also continue to threaten the San Bernardino kangaroo 
rat. Although flood control berms are currently in place, suitable or 
occupied habitat occurs outside the berms. Although degraded due to 
agricultural activities, conservation and enhancement of suitable or 
occupied habitat outside the berms are critical to the maintenance of 
the species along the San Jacinto River because the habitat provides a 
source population for recolonization of habitat within the berms 
following flood events. Urban development is proceeding adjacent to the 
San Jacinto River as indicated by the processing of three related Tract 
Maps (Nos. 28770, 28771, and 28772) (43 ha (107 ac)) by the Riverside 
County Planning Department (Riverside County Planning Department 1998). 
Thus, the opportunity for conserving this subspecies along the San 
Jacinto River appears to be diminishing.
    The San Bernardino kangaroo rat is also impacted by the maintenance 
and expansion of spreading basins within its habitat. Maintenance of 
spreading basins results in the degradation of habitat and mortality of 
San Bernardino kangaroo rats that occur along the margins (Arthur 
Davenport, Service pers. obs. 1995). Similarly, the expansion of 
spreading basins results in a direct loss of suitable or occupied 
habitat. Eastern Municipal Water District has proposed reconstructing 
previously authorized experimental groundwater recharge facilities in 
the San Jacinto River (Corps 1997). This project would likely directly 
impact approximately 2.6 ha (6.5 ac) of early successional alluvial 
scrub, and approximately 2 percent of the estimated occupied habitat in 
this area.
    Sand and gravel mining threaten the San Bernardino kangaroo rat in 
the San Jacinto River area. The operations of sand mining continue to 
impact occupied habitat. One mine site consists of 94 ha (235 ac) of 
leased land and occurs entirely in the flood plain of the San Jacinto 
River (Corps 1996, Pre-discharge Notification 96-00397-RRS; KCT 
Consultants, Inc. 1998). Mining activities have impacted approximately 
32 ha (80 ac) and are proposed to expand into an additional 34 ha (86 
ac) (KCT Consultants, Inc. 1998). Based on the distribution of soils 
and vegetative cover, a minimum of 40 ha (100 ac) of the project site 
will be degraded. Therefore, this project would likely directly impact 
approximately 10 percent of the estimated occupied habitat in the San 
Jacinto River area.
    OHV use in the San Jacinto River degrades habitat occupied by the 
San Bernardino kangaroo rat (Arthur Davenport, Service pers. obs. 1997, 
1998). Significant areas of potential and occupied habitat are degraded 
due to extensive OHV use in this area. In addition, areas that would 
revegetate following flood events, and therefore provide temporary use 
for the San Bernardino kangaroo rat, are essentially devegetated due to 
vehicle activity. A minimum of 40 ha (100 ac)(10 percent of the 
estimated occupied habitat) is at risk due to this activity.
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. This factor is not known to be applicable.

[[Page 51012]]

    C. Disease or predation. Disease is not known to be affecting the 
San Bernardino kangaroo rat at this time. However, fragmentation of 
habitat is likely to promote higher levels of predation by urban-
associated animals (e.g., domestic cats) as the interface between 
natural habitat and urban areas is increased (Church and Lawton 1987). 
Domestic cats are known to be predators of native rodents (Hubbs 1951, 
George 1974), and predation by cats has been documented for the San 
Bernardino kangaroo rat (McKernan, pers. comm., 1994).
    D. The inadequacy of existing regulatory mechanisms. The decline of 
the San Bernardino kangaroo rat has occurred despite existing laws and 
regulations that could contribute to the protection of the animal and 
its habitat. Existing regulatory mechanisms that may provide some 
protection for the San Bernardino kangaroo rat include: (1) CEQA and 
National Environmental Policy Act (NEPA); (2) the California Natural 
Community Conservation Planning Program; (3) the Surface Mining Control 
and Reclamation Act (SMCARA); (4) the Act in those cases where the San 
Bernardino kangaroo rat occurs in habitat occupied by other listed 
species; (5) the California Endangered Species Act (CESA); (6) 
conservation provisions under the Federal Clean Water Act; (7) land 
acquisition and management by Federal, State, or local agencies or by 
private groups and organizations; and (8) local laws and regulations.
    The majority of the known populations of the San Bernardino 
kangaroo rat occur on privately owned land. Local lead agencies 
responsible under CEQA and NEPA have made determinations that have, or 
would, adversely affect this taxon and its habitat. Examples of 
projects that have been completed or are currently undergoing the 
review process under CEQA and/or NEPA that could impact this species 
include Seven Oaks Dam, State Route 30 Improvement Project, 
Metropolitan Water District Inland Feeder Pipeline, Calmat Company, 
Sunwest Materials, Robertson's Ready Mix, and San Jacinto Aggregates. 
Past, present, and proposed mitigation for impacts to this species and 
its habitat have been inadequate to stop or reverse its decline at the 
regional level. CEQA decisions are also subject to over-riding social 
and economic considerations.
    In 1991, the State of California established a Natural Community 
Conservation Planning Program (NCCP) to address conservation needs 
throughout the State. The initial focus of the program is the coastal 
sage scrub community. Within this program, the California Department of 
Fish and Game (CDFG) included the long-term conservation of alluvial 
scrub, which is in part occupied by the San Bernardino kangaroo rat. 
However, participation in NCCP is voluntary. San Bernardino and 
Riverside counties have signed planning agreements (Memoranda of 
Understanding (MOUs)) to develop multispecies plans that meet NCCP 
criteria, but have not enrolled in the NCCP program in the interim. The 
MOU's do not provide protection to candidate species during the 
planning process.
    Reclamation of mined areas in the State of California is required 
under SCMARA. The County of San Bernardino also requires that mining 
companies submit a reclamation plan for County approval. The primary 
purpose of these ordinances is to provide for erosion control measures 
and to restore slopes to a moderate slope. However, reclamation is not 
likely to resolve the problem of maintaining or mitigating for the loss 
of species or ecosystem functions in a biologically meaningful way 
because of project (and mitigation) related changes in topography and 
altered hydrology. In this regard, Calmat has utilized the red-line 
mining method, which attempts to maintain streambed equilibrium and 
associated fluvial geomorphology. The feasibility of artificially 
creating and maintaining a viable alluvial scrub plant and animal 
community suitable for the long-term conservation of the San Bernardino 
kangaroo rat and associated species has yet to be demonstrated.
    The BLM designated an Area of Critical Environmental Concern (ACEC) 
in the Santa Ana River in 1994. The ACEC is composed of three parcels 
of land that total 304 ha (760 ac). The purpose of the ACEC is to 
protect and enhance the habitat of federally listed plant species 
occurring in the area, such as Santa Ana River wooly-star (Eriastrum 
densifolium ssp. sanctorum), and sensitive species such as the San 
Bernardino kangaroo rat, while providing for the administration of 
valid existing rights (BLM 1996). Although the establishment of the 
ACEC is important in regards to conservation of sensitive habitats and 
species in this area, the administration of valid existing rights 
conflicts with BLM's conservation abilities in this area. Existing 
rights include a withdrawal of Federal lands in this area for water 
conservation through an act of Congress, February 20, 1909 (Pub. L. 
248). The entire ACEC is included in this withdrawn land and may be 
available for water conservation measures such as the construction of 
percolation basins, subject to compliance with the Act.
    The San Bernardino kangaroo rat is not protected under the CESA. 
The Federal and State Acts together can afford some measure of 
protection to the San Bernardino kangaroo rat in those areas where the 
species coexists with other species already listed as threatened or 
endangered. Santa Ana River wooly-star and slender-horned spineflower 
are listed as endangered under the Act and the CESA, and the coastal 
California gnatcatcher (Polioptila californica californica) is listed 
as threatened under the Act. All three species can occur in habitats 
similar to those preferred by the San Bernardino kangaroo rat. However, 
the distribution of D. leptoceras and E. densifolium ssp. sanctorum is 
spotty and discontinuous, and only overlaps with a small portion of the 
habitat occupied by the San Bernardino kangaroo rat. The coastal 
California gnatcatcher, although known to occur within alluvial scrub 
habitat, has largely been extirpated from San Bernardino County within 
the range of the San Bernardino kangaroo rat and, therefore, occurrence 
with the listed species provides little ancillary protection. In 
Riverside County, coastal California gnatcatchers are not currently 
known to occur at any sites occupied by the San Bernardino kangaroo 
rat.
    The San Bernardino kangaroo rat could potentially be affected by 
projects requiring a permit from the Corps under section 404 of the 
Clean Water Act. Although the objective of the Clean Water Act is to 
``restore and maintain the chemical, physical, and biological integrity 
of the Nation's waters'' (Pub. L. 92-500), no specific provisions exist 
that adequately address the need to conserve unlisted species. A 
majority of the remaining populations of kangaroo rats occur outside 
areas delineated as waters of the United States and, therefore, are not 
regulated. Moreover, numerous activities for which the Corps 
potentially has jurisdiction, including sand and gravel mining and 
flood control projects, have proceeded without their overview (see 
Factor A of the ``Summary of Factors Affecting the Species'' section of 
this rule).
    As a result of Fish and Wildlife Coordination Act activities, the 
Corps, in 1988, initiated a section 7 consultation on Eriastrum 
densifolium ssp. sanctorum for the proposed Seven Oaks Dam project on 
the Santa Ana River. About 310 ha (775 ac) of alluvial scrub habitat 
has been designated for preservation as mitigation for impacts to 
Eriastrum densifolium ssp. sanctorum resulting from the construction of 
the dam. Approximately 176 ha (440 ac) of

[[Page 51013]]

this area appears to be currently suitable for the San Bernardino 
kangaroo rat (Service unpub. GIS maps 1997). However, the preserved 
area represents only approximately 4 percent of the alluvial scrub 
found in this area. In addition, based on recent information provided 
by the Corps, the majority of this conserved habitat will not, in 
contrast to previous determinations, receive scouring events (Corps 
1998). Thus, the mitigation preserve, while providing some benefit, is 
likely not adequate to conserve the subspecies.
    Local and County zoning designations are subject to change and do 
not specifically address the conservation and management needs of the 
San Bernardino kangaroo rat. However, numerous jurisdictions in western 
Riverside and San Bernardino counties are beginning a multi-species 
habitat conservation planning process, including coastal sage scrub-
associated species, and benefit to the kangaroo rat may result. 
However, commitments for funding, implementation of the plan, and 
resultant, appropriate changes in land-use regulations to protect 
potential preserves during the planning process have not been made.
    The Riverside County Habitat Conservation Agency is implementing an 
approved habitat conservation plan for the federally endangered 
Stephens' kangaroo rat that involves the establishment of permanent 
preserves in western Riverside County (Riverside County Habitat 
Conservation Agency 1996). Because the San Bernardino kangaroo rat 
occupies a largely different habitat type than that of the Stephens' 
kangaroo rat, the conservation plan for the Stephens' kangaroo rat will 
not benefit the San Bernardino kangaroo rat. Despite extensive surveys, 
no current records of San Bernardino kangaroo rats occur within any of 
the reserves established for the Stephens' kangaroo rat (Arthur 
Davenport, Service pers. comm. 1997).
    E. Other natural or manmade factors affecting its continued 
existence. Habitat for the San Bernardino kangaroo rat has been 
severely reduced and fragmented by development and related activities 
in the San Bernardino and San Jacinto Valleys. Habitat fragmentation 
results in loss of habitat, reduced habitat patch size, and an 
increasing distance between patches of habitat. As noted by Andren 
(1994) in a discussion of highly fragmented landscapes, reduced habitat 
patch size and isolation will exacerbate the effect of habitat loss on 
a species' persistence. That is, the loss of species, or decline in 
population size, will be greater than expected from habitat loss alone. 
The loss of native vertebrates, including rodents, due to habitat 
fragmentation is well documented (Soule et al. 1992, Andren 1994, 
Bolger et al. 1997).
    Isolated populations are subject to extirpation by manmade or 
natural events, such as floods and drought. Furthermore, small 
populations may experience a loss of genetic variability and experience 
inbreeding depression (Lacy 1997). Contributing to the fragmentation of 
San Bernardino kangaroo rat habitat are railroad tracks, roads, and 
flood control channels. These structures appear to function as movement 
barriers to the San Bernardino kangaroo rat, preventing movement 
between areas of suitable habitat.
    All remaining population segments are at risk due to their small 
size and isolation. This is especially true for the four smallest 
populations (i.e., City Creek, Reche Canyon, Etiwanda, and South 
Bloomington). Urbanization occurs throughout most of the San Bernardino 
kangaroo rat's range and the remaining larger blocks of occupied 
habitat (i.e., Santa Ana River, Lytle/Cajon, and San Jacinto River) now 
function independently of each other. This isolation of occupied 
patches places the entire population of San Bernardino kangaroo rat at 
risk because recolonization of suitable habitat following local 
extirpation has been precluded. The extirpation of populations from 
local catastrophes, such as flooding, is becoming more probable as 
urban development further constricts the remaining populations to the 
active portion of the flood plain. The largest remaining populations 
are now essentially restricted entirely to flood plain habitats and 
vulnerable to extirpation by naturally occurring events.
    Flood control structures alter both the magnitude and distribution 
of flooding. In the absence of flood scouring, sediments and organic 
matter accumulate over time, contributing to senescence of the alluvial 
scrub community and its conversion to coastal sage scrub or chaparral 
(Smith 1980, Wheeler 1991, Jigour and McKernan 1992). The dense canopy 
of these communities does not provide the open environment required by 
the San Bernardino kangaroo rat, thereby reducing the habitat 
suitability for the species (Beatley 1976, McKernan 1997). Within the 
active channels, the confined flood events scour too frequently to 
maintain suitable San Bernardino kangaroo rat habitat.
    The intentional destruction of areas occupied by declining species 
continues to be an issue of serious concern and is a potential threat 
to the San Bernardino kangaroo rat. The propensity of some individuals 
to destroy habitat occupied by declining species, in an apparent effort 
to remove environmental concerns, is underscored by the illegal 
destruction of areas occupied by federally listed species. Based on 
information available to the Service, such activities frequently occur 
within the range of the San Bernardino kangaroo rat (Service unpub. 
info. 1998). The illegal destruction of habitat occupied by the 
Stephens' kangaroo rat (Dipodomys stephensi), a similar animal that 
occurs within the range of the San Bernardino kangaroo rat, is 
representative of the threats facing this subspecies.
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by this subspecies in developing this final rule. 
The remaining populations at City Creek (8 ha (20 ac)), Etiwanda (2 ha 
(5 ac)), Reche Canyon (2 ha (5 ac)), and South Bloomington (0.8 ha (2 
ac)) are extremely small, isolated, subject to the indirect effects of 
urban development (e.g., predation due to house cats), likely prone to 
inbreeding depression, and therefore have little chance of long-term 
survival without intensive management. The three largest remaining 
populations (i.e., Santa Ana River (2,090 ha (5,224 ac)), Lytle and 
Cajon washes (2,787 ha (6,967 ac)), and the San Jacinto River (401 ha 
(1,002 ac))), are also endangered. The Santa Ana River population is 
endangered due to the disruption of the hydrological system, and 
activities such as sand and gravel mining and water development 
projects. The Lytle and Cajon wash population is endangered due to 
disruption of the hydrological system and activities such as 
encroaching urban development, sand and gravel mining, and flood 
control. The San Jacinto River population is endangered due to its near 
total anthropogenic restriction to the active flood plain, and 
activities such as urban development, sand and gravel mining, water 
development, and OHV activity. In addition, all of these populations 
are at risk due to future development projects because there is no 
conservation plan in place that ensures their preservation in the wild. 
Therefore, the Service finds that the action to list the San Bernardino 
kangaroo rat as endangered is warranted. Because of these factors, even 
in the absence of additional future impacts, the San Bernardino 
kangaroo rat is now in danger of extinction throughout all or a 
significant portion of

[[Page 51014]]

its range. Threatened status is not appropriate considering the extent 
of loss and degradation of the animal's habitat and the vulnerability 
of the remaining populations.

Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the Act as: (i) 
The specific areas within the geographical area occupied by a species, 
at the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
consideration or protection and; (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. ``Conservation'' means the use of all methods and 
procedures needed to bring the species to the point at which listing 
under the Act is no longer necessary.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
a species is designated to be endangered or threatened. The Service 
finds that designation of critical habitat is not prudent for the San 
Bernardino kangaroo rat. According to the Service's regulations (50 CFR 
424.12(a)(1)), designation of critical habitat is not prudent when one 
or both of the following situations exist: (1) The species is 
threatened by taking or other human activity, and identification of 
critical habitat can be expected to increase the degree of threat to 
the species, or (2) such designation of critical habitat would not be 
beneficial to the species.
    Critical habitat designation for the San Bernardino kangaroo rat is 
not prudent because an increase in the degree of threat could result. 
This subspecies is found in fragmented habitat composed of various sage 
scrub shrub vegetation in the presence of sandy soils. As stated under 
Factor E of the ``Summary of Factors Affecting the Species'' section, 
intentional destruction of areas occupied by listed species occurs 
frequently within the range of the San Bernardino kangaroo rat. In 
addition, as detailed in the emergency rule listing the San Bernardino 
kangaroo rat (63 FR 3840), threats of intentional grading directed 
specifically at habitat for the San Bernardino kangaroo rat have been 
documented. The designation of critical habitat, including the 
publication of maps providing precise locations, would bring 
unnecessary attention to those areas of the range that are occupied by 
this species and would encourage acts of vandalism or intentional 
destruction of habitat. This action also could lead to an increase in 
activities (such as discing or blading) by landowners who do not want 
listed species on their property. The possible misperception that 
critical habitat designation on private lands necessarily imposes 
restrictions on private landowners would be counterproductive and would 
render cooperative efforts with landowners to recover species more 
difficult.
    Moreover, the designation of critical habitat for the San 
Bernardino kangaroo rat is not prudent due to the lack of benefit to 
the species. Section 7 of the Act requires that Federal agencies ensure 
that any action authorized, funded, or carried out not result in the 
destruction or adverse modification of critical habitat. Although this 
requirement is in addition to the section 7 prohibition against 
jeopardizing the continued existence of a listed species, it is the 
only mandatory legal consequence of a critical habitat designation. The 
Act's section 7 implementing regulations define ``jeopardizing the 
continued existence of'' and ``destruction or adverse modification of'' 
in virtually identical terms. ``Jeopardize the continued existence of'' 
means engage in an action ``that reasonably would be expected * * * to 
reduce appreciably the likelihood of both the survival and recovery of 
a listed species.'' ``Destruction or adverse modification'' means an 
``alteration that appreciably diminishes the value of critical habitat 
for both the survival and recovery of a listed species.'' Common to 
both definitions is an appreciable detrimental effect on both survival 
and recovery of a listed species, in the case of critical habitat by 
reducing the value of the habitat so designated. Thus actions 
satisfying the standard for adverse modification are nearly always 
found to also jeopardize the species' continued existence.
    The Service considers all suitable habitat associated with Lytle 
and Cajon washes and the Santa Ana River to be essential for the 
conservation of the San Bernardino kangaroo rat. Without these areas, 
recovery of the San Bernardino kangaroo rat would not be possible. 
Given that the suitable habitat is considered occupied, all Federal 
activities that would impact habitat at these locales would require 
consultation under section 7 of the Act. Accordingly, any activity that 
would be determined to cause an adverse modification to critical 
habitat also likely would jeopardize the continued existence of this 
subspecies given its restricted distribution and imperiled status. 
Therefore, the designation of critical habitat would have no net 
benefit to the conservation of the species in these areas.
    The same argument applies to the population of San Bernardino 
kangaroo rats associated with the San Jacinto River, except for a large 
area of unoccupied habitat that may be needed for conservation of this 
animal. However, the area of unoccupied habitat is in private 
ownership. Designation of critical habitat provides no limitations or 
constraints on private landowners if there is no Federal involvement 
and, as such, provides this species with no additional conservation 
benefit beyond listing. This area is characterized as a broad, 
relatively flat, valley that is essentially bisected by the channelized 
San Jacinto River. Therefore, urban and industrial development can 
likely proceed and encroach upon the area needed for conservation of 
the San Bernardino kangaroo rat without the need of Federal permits 
(e.g., per section 404 of the Clean Water Act). Because the designation 
of critical habitat in this area would also have minimal or no net 
benefit to the conservation of the San Bernardino kangaroo rat given 
the potential intentional destruction threat, conservation of the 
animal would be better served through the recovery planning and 
implementation process.
    The Service acknowledges that critical habitat designation, in some 
situations, may provide limited value to a species by identifying areas 
important for the conservation of the species and calling attention to 
those areas in special need of protection. Critical habitat designation 
of unoccupied habitat may also benefit a species by alerting Federal 
action agencies to potential issues and allowing them to evaluate 
proposals that may affect these areas. However, in this case, given the 
familiarity of the distribution of the San Bernardino kangaroo rat to 
local planning agencies and regulatory agencies such as the Corps, and 
its close relationship to areas identified as waters of the United 
States, deriving any benefit from designation of critical habitat is 
unlikely. Additionally the increased risk of adverse public reaction 
from designation of critical habitat exceeds any potential benefits to 
the species from such designation. Conservation of the San Bernardino 
kangaroo rat would be accomplished more efficiently through the 
recovery

[[Page 51015]]

process and the jeopardy prohibition of section 7.
    As for all the known remaining populations (City Creek (8 ha (20 
ac)), Etiwanda (2 ha (5 ac)), Reche Canyon (2 ha (5 ac)), and South 
Bloomington (0.8 ha (2 ac), designation of critical habitat would not 
assist in conservation of these groups because of their critically 
small size and complete isolation from the three remaining, relatively 
large groups (i.e., Lytle and Cajon washes, Santa Ana, and San Jacinto) 
due to urban development. These fragmented and isolated portions of the 
overall population will need continual high intensity management to 
sustain them.
    Accordingly, the Service concludes that any benefit from 
designation of critical habitat is far outweighed by the increase in 
the degree of threat to the subspecies. Therefore, designation of 
critical habitat for the San Bernardino kangaroo rat is not prudent.
    The Service will continue in its efforts to obtain more information 
on the San Bernardino kangaroo rat biology and ecology, including 
essential habitat characteristics particularly in regard to stream flow 
regimes, current and historical distribution, and existing and 
potential sites that can contribute to conservation of the species. The 
information resulting from this effort will be used to identify 
measures needed to achieve conservation of the species, as defined 
under the Act. Such measures could include, but are not limited to, 
development of conservation agreements with the State, other Federal 
agencies, local governments, private landowners, and organizations.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
activities. Recognition through listing encourages and results in 
conservation actions by Federal, State, and private agencies, groups, 
and individuals. The Act provides for possible land acquisition and 
cooperation with the States and requires that recovery actions be 
carried out for all listed species. The protection required of Federal 
agencies and the prohibitions against certain activities involving 
listed plants and animals are discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is being designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer informally with the Service on any action that is likely to 
jeopardize the continued existence of a proposed species or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is subsequently listed, section 7(a)(2) requires Federal 
agencies to ensure that activities they authorize, fund, or carry out 
are not likely to jeopardize the continued existence of such a species 
or to destroy or adversely modify its critical habitat. If a Federal 
action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into formal consultation with the 
Service.
    Federal agencies expected to have involvement with the San 
Bernardino kangaroo rat or its habitat include the Corps and the 
Environmental Protection Agency due to their permit authority under 
section 404 of the Clean Water Act. The Federal Aviation Administration 
has jurisdiction over areas with potentially suitable San Bernardino 
kangaroo rat habitat in the vicinity of Redlands Municipal Airport and 
Norton Air Force Base in San Bernardino County. The Federal Highway 
Administration will likely be involved through potential funding of 
highway construction projects near Devore, Rancho Cucamonga, Rialto, 
and San Bernardino (San Bernardino County). Because the San Bernardino 
kangaroo rat occurs on Norton Air Force Base (San Bernardino County), 
the U.S. Air Force will likely be involved through the transfer of 
Federal lands to a non-Federal entity and the conversion of this area 
to a civilian airport. The BLM has jurisdiction over a portion of the 
habitat occupied by the San Bernardino kangaroo rat along the Santa Ana 
River. The Forest Service will likely be involved because populations 
of the San Bernardino kangaroo rat occur within or near the boundaries 
of the Cleveland National Forest and San Bernardino National Forest. 
The Bureau of Reclamation may be involved through the potential funding 
of water reclamation and flood control projects. The Bureau of Indian 
Affairs may be involved with this taxon at Soboba Indian Reservation 
(Riverside County). The Federal Housing Administration could 
potentially be involved through loans for housing projects in the 
region. The Federal Energy Regulatory Commission could be involved in 
projects affecting existing or proposed transmission lines in the Santa 
Ana River or Etiwanda Creek areas.
    The Act and implementing regulations found at 50 CFR 17.21 set 
forth a series of general trade prohibitions and exceptions that apply 
to all endangered wildlife. These prohibitions, in part, make it 
illegal for any person subject to the jurisdiction of the United States 
to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, collect, or to attempt any of these), import or export, ship 
in interstate commerce in the course of commercial activity, or sell or 
offer for sale in interstate or foreign commerce any listed species. It 
also is illegal to possess, sell, deliver, carry, transport, or ship 
any such wildlife that has been taken illegally. Certain exceptions 
apply to agents of the Service and State conservation agencies.
    Permits may be issued to carry out otherwise prohibited activities 
involving endangered and threatened wildlife under certain 
circumstances. Regulations governing permits are at 50 CFR 17.22, 
17.23, and 17.32. Such permits are available for scientific purposes, 
to enhance the propagation or survival of the species, or for 
incidental take in connection with otherwise lawful activities.
    It is the policy of the Service (59 FR 34272) to identify to the 
maximum extent practical at the time a species is listed, those 
activities that would or would not constitute a violation of section 9 
of the Act. The intent of this policy is to increase public awareness 
of the effect of listing on proposed and ongoing activities within a 
species' range, and to assist the public in identifying measures needed 
to protect the species. The Service believes that, based upon the best 
available information, the following actions will not result in a 
violation of section 9, provided these activities are carried out in 
accordance with existing regulations and permit requirements:
    (1) Activities authorized, funded, or carried out by Federal 
agencies (e.g., grazing management, agricultural conversions, wetland 
and riparian habitat modification, flood and erosion control, 
residential development, recreational trail development, road 
construction, hazardous material containment and cleanup activities, 
prescribed burns, pesticide/herbicide application, pipelines or utility 
lines crossing suitable habitat) when such activity is conducted in 
accordance with any reasonable and prudent measures given by the 
Service in a consultation conducted under section 7 of the Act;
    (2) Casual, dispersed human activities on foot or horseback (e.g., 
bird watching, sightseeing, photography, camping, hiking);

[[Page 51016]]

    (3) Residential landscape maintenance, including the clearing of 
vegetation around one's personal residence as a fire break; and
    (4) Road kills or injuries to the San Bernardino kangaroo rat by 
vehicles on designated public roads.
    The Service believes that the following might potentially result in 
a violation of section 9; however, possible violations are not limited 
to these actions alone:
    (1) Take of San Bernardino kangaroo rat, which includes harassing, 
harming, pursuing, hunting, shooting, wounding, killing, trapping, 
capturing, or collecting, or attempting any of these actions, except in 
accordance with applicable Federal and State fish and wildlife 
conservation laws and regulations;
    (2) Possess, sell, deliver, carry, transport, or ship illegally 
taken San Bernardino kangaroo rats;
    (3) Unlawful destruction or alteration of San Bernardino kangaroo 
rat habitat by discing, grading, sand or gravel mining, flooding, 
vehicle operation, or other activities that result in the destruction 
of vegetative composition, substrate composition, or other intentional 
activity that impacts breeding, feeding, or availability of cover;
    (4) Application of pesticides/herbicides in violation of label 
restrictions;
    (5) Interstate or foreign commerce and import/export without 
previously obtaining an appropriate permit. Permits to conduct 
activities are available for purposes of scientific research and 
enhancement of propagation or survival of the species.
    Questions regarding whether specific activities will constitute a 
violation of section 9 or to obtain approved guidelines for actions 
within the kangaroo rat habitat should be directed to the Service's 
Carlsbad Field Office (see ADDRESSES section). Requests for copies of 
the regulations concerning listed animals and inquiries regarding 
prohibitions and permits may be addressed to the U.S. Fish and Wildlife 
Service, Endangered Species Permits, 911 NE. 11th Avenue, Portland, 
Oregon 97232-4181 (telephone 503/231-6241; facsimile 503/231-6243).

Reasons for Effective Date

    The Service is concerned that the issuance of the final rule for 
the San Bernardino kangaroo rat will result in the destruction of 
habitat essential for maintaining the remaining populations of this 
animal if not made effective upon publication. There are a number of 
projects poised for development that would both directly and indirectly 
impact this animal. Because of the immediate threat posed by these 
activities, the Service finds that good cause exists for this rule to 
take effect immediately upon publication in accordance with 5 U.S.C. 
553(d)(3), so that the protections implemented under the emergency rule 
will not lapse.

National Environmental Policy Act

    The Service has determined that an Environmental Assessment or 
Environmental Impact Statement, as defined under the authority of the 
National Environmental Policy Act of 1969, need not be prepared in 
connection with regulations adopted pursuant to section (4)(a) of the 
Endangered Species Act of 1973, as amended. A notice outlining the 
Service's reasons for this determination was published in the Federal 
Register on October 25, 1983 (48 FR 49244).

Paperwork Reduction Act

    This rule does not contain any information collection requirements 
for which the Office of Management and Budget (OMB) approval under the 
Paperwork reduction Act, 44 U.S.C. 3501 et seq. is required. An 
information collection related to the rule pertaining to permits for 
endangered and threatened species has OMB approval and is assigned 
clearance number 1018-0094. This rule does not alter that information 
collection requirement. For additional information concerning permits 
and associated requirements for endangered species, see 50 CFR 17.22.

References Cited

    A complete list of references cited in this rule is available upon 
request from the Carlsbad Field Office of the U.S. Fish and Wildlife 
Service (see ADDRESSES section).

Author

    The primary author of this final rule is Arthur Davenport of the 
Carlsbad Field Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
record keeping requirements, Transportation.

Regulation Promulgation

    Accordingly, the Service amends part 17, subchapter B of chapter I, 
title 50 of the Code of Federal Regulations, as follows:

PART 17--[AMENDED]

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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. Amend Sec. 17.11(h) by adding the following, in alphabetical 
order under MAMMALS, to the List of Endangered and Threatened Wildlife 
to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                       When       Critical     Special
                                                           Historic  range       endangered or         Status         listed      habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
             Mammals
                   *                  *                  *                  *                  *                  *                  *
Kangaroo rat, San Bernardino.....  Dipodomys merriami    U.S.A. (CA)........  NA.................  E                       645           NA           NA
                                    parvus.
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 51017]]

    Dated: September 15, 1998.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 98-25545 Filed 9-23-98; 8:45 am]
BILLING CODE 4310-55-P