[Federal Register Volume 85, Number 5 (Wednesday, January 8, 2020)]
[Proposed Rules]
[Pages 862-872]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-28462]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2019-0006; 4500030113]
RIN 1018-BC62


Endangered and Threatened Wildlife and Plants; Endangered Status 
for the Sierra Nevada Distinct Population Segment of the Sierra Nevada 
Red Fox

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the Sierra Nevada Distinct Population Segment (DPS) of the Sierra 
Nevada red fox (Vulpes vulpes necator) as an endangered species under 
the Endangered Species Act (Act). This DPS of the Sierra Nevada red fox 
occurs along the highest elevations of the Sierra Nevada mountain range 
in California. If we finalize this rule as proposed, it would extend 
the Act's protections to this DPS. The effect of this rule will be to 
add this DPS to the List of Endangered and Threatened Wildlife.

DATES: We will accept comments received or postmarked on or before 
March 9, 2020. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES below) must be received by 11:59 p.m. 
Eastern Time on the closing date. We must receive requests for public 
hearings, in writing, at the address shown in FOR FURTHER INFORMATION 
CONTACT by February 24, 2020.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R8-ES-2019-0006, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the Search panel on the left 
side of the screen, under the Document Type heading, click on the 
Proposed Rule box to locate this document. You may submit a comment by 
clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R8-ES-2019-0006, U.S. Fish and Wildlife 
Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).

FOR FURTHER INFORMATION CONTACT: Jennifer Norris, Field Supervisor, 
U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 
2800 Cottage Way, Room W-2605, Sacramento, California 95825; telephone 
916-414-6700. If you use a telecommunications device for the deaf 
(TDD), call the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Act, if we determine that 
a species may be an endangered or threatened species throughout all or 
a significant portion of its range, we are required to promptly publish 
a proposal in the Federal Register and make a determination on our 
proposal within 1 year. To the maximum extent prudent and determinable, 
we must designate critical habitat for any species that we determine to 
be an endangered or threatened species under the Act. Listing a species 
as an endangered or threatened species and designation of critical 
habitat can only be completed by issuing a rule.
    What this proposed rule does. This document proposes listing the 
Sierra Nevada DPS of the Sierra Nevada red fox (Vulpes vulpes necator; 
hereafter referred to as the Sierra Nevada red fox) as an endangered 
species; we determined that designating critical habitat is not 
prudent. The Sierra Nevada red fox is a candidate species for which we 
have on file sufficient information on biological vulnerability and 
threats to support preparation of a listing proposal, but for which 
development of a listing rule was previously precluded by other higher 
priority listing activities. This proposed rule reassesses (since the 
2015 12-month finding (October 8, 2015, 80 FR 60990)) the best 
available information regarding the status of and threats to the Sierra 
Nevada red fox.
    The basis for our action. Under the Act, we can determine that a 
species is an endangered or threatened species based on any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. The Sierra Nevada red fox faces the following 
threats: (1) Deleterious impacts associated with small population size, 
such as inbreeding depression and reduced genomic integrity (Factor E); 
(2) hybridization with nonnative red fox (Factor E); and possibly (3) 
reduced prey availability and competition with coyotes (Factor E) 
resulting from reduced snowpack levels. Existing regulatory mechanisms 
and conservation efforts do not address the threats to the Sierra 
Nevada red fox to the extent that listing the DPS is not warranted.
    Peer review. In accordance with our joint policy on peer review 
published in the Federal Register on July 1, 1994 (59 FR 34270) and our 
August 22, 2016, memorandum updating and clarifying the role of peer 
review of listing actions under the Act, we sought the expert opinions 
of five appropriate specialists regarding the Species Status Assessment 
(SSA) report, which informed the listing portion of this proposed rule. 
The purpose of peer review is to ensure that our listing and critical 
habitat determinations are based on scientifically sound data, 
assumptions, and analyses. The peer reviewers have expertise in red fox 
biology, habitat, and stressors to the species. We received responses 
from two of the five peer reviewers, which we took into account in our 
SSA report and this proposed rule.

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Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other concerned governmental agencies, 
Native American tribes, the scientific community, industry, or any 
other interested parties concerning this proposed rule. Because we will 
consider all comments and information we receive during the comment 
period, our final determinations may differ from this proposal. We 
particularly seek comments concerning:
    (1) The Sierra Nevada red fox's biology, range, and population 
trends, including:
    (a) Biological or ecological requirements of the species, including 
habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns;
    (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) Factors that may affect the continued existence of the species, 
which may include habitat modification or destruction, overutilization, 
disease, predation, the inadequacy of existing regulatory mechanisms, 
or other natural or manmade factors.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this DPS and existing regulations that 
may be addressing those threats.
    (4) Additional information concerning the historical and current 
status, range, distribution, and population size of this DPS, including 
the locations of any additional populations of the Sierra Nevada red 
fox.
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is an endangered or threatened 
species must be made ``solely on the basis of the best scientific and 
commercial data available.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    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. All 
comments submitted electronically via http://www.regulations.gov will 
be presented on the website in their entirety as submitted. For 
comments submitted via hard copy, we will post your entire comment--
including your personal identifying information--on http://www.regulations.gov. You may request at the top of your document that 
we withhold personal information such as your street address, phone 
number, or email address from public review; however, we cannot 
guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Sacramento Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Public Hearings

    Section 4(b)(5) of the Act provides for one or more public hearings 
on this proposal, if requested. Requests for public hearings must be 
received by the date specified in DATES at the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule public hearings on this 
proposal, if any are requested, and announce the dates, times, and 
places of those hearings, as well as how to obtain reasonable 
accommodations, in the Federal Register and local newspapers at least 
15 days before the hearing.

Species Status Assessment

    A team of biologists prepared an SSA report for the Sierra Nevada 
red fox. The SSA team was composed of Service biologists, in 
consultation with other species experts, including coordination with 
the California Department of Fish and Wildlife (CDFW). The SSA report 
represents a compilation of the best scientific and commercial data 
available concerning the status of the Sierra Nevada red fox, including 
the impacts of past, present, and future factors (both negative and 
beneficial) affecting the species. The SSA report underwent independent 
peer review by scientists with expertise in red fox biology, habitat 
management, and stressors (factors negatively affecting the DPS) to the 
species. The SSA report and other materials relating to this proposal 
can be found at http://www.regulations.gov under Docket No. FWS-R8-ES-
2019-0006, and at the Sacramento Fish and Wildlife Office (see FOR 
FURTHER INFORMATION CONTACT).

Previous Federal Actions

    On April 27, 2011, we received a petition dated April 27, 2011, 
from the Center for Biological Diversity, requesting that Sierra Nevada 
red fox be listed as an endangered or threatened species, and that 
critical habitat be designated under the Act. The petition also 
requested that we evaluate populations in the Cascade and Sierra Nevada 
mountain ranges as potential DPSs. On January 3, 2012, we published a 
positive 90-day finding (77 FR 45) that the petition presented 
substantial information indicating that listing may be warranted.
    Following a stipulated settlement agreement requiring our 
completion of a status review of the species by September 30, 2015, we 
issued a 12-month finding (80 FR 60990) on October 8, 2015. We 
concluded at that time that there were two valid DPSs for the Sierra 
Nevada red fox: The Southern Cascades DPS and the Sierra Nevada DPS. We 
determined and reaffirm here that both the Southern Cascades and Sierra 
Nevada segments of the Sierra Nevada red fox's range are both discrete 
and significant based on marked physical separation (discreteness) and 
genetic variation/characteristics (discreteness and significance). 
Please see the 12-month finding (80 FR 60990) for a complete discussion 
of our DPS Policy and rationale for meeting the discreteness and 
significance criteria. Additionally, our September 30, 2015, 12-month 
finding concluded that: (1) Listing the Sierra Nevada red fox across 
its entire range was not warranted; (2) listing the Southern Cascades 
DPS was not warranted; and (3) listing the Sierra Nevada DPS was 
warranted, but temporarily precluded by higher priority listing 
actions.

I. Proposed Listing Determination

Background

    A thorough review of the taxonomy, life history, ecology, and 
overall viability of the Sierra Nevada red fox is presented in the SSA 
report (Service 2018; available at http://www.regulations.gov). This 
report summarizes the relevant biological data and a description of 
past, present, and likely future stressors, and presents an analysis of 
the potential viability of the Sierra Nevada red fox. The SSA report 
documents the results of the comprehensive biological status review

[[Page 864]]

for the Sierra Nevada red fox, provides an evaluation of how potential 
threats may affect the species' viability both currently and into the 
future, and provides the scientific basis that informs our regulatory 
decision regarding whether this species should be listed as an 
endangered or threatened species under the Act, as well as the risk 
analysis on which the determination is based (Service 2018, entire). 
The following discussion is a summary of the SSA report.

Species Information

    Red foxes (Vulpes vulpes) are small, slender, doglike carnivores, 
with elongated snouts, pointed ears, and large bushy tails (Aubry 1997, 
p. 55; Perrine 2005, p. 1; Perrine et al. 2010, p. 5). The Sierra 
Nevada red fox is one of 10 North American subspecies of the red fox 
(Hall 1981, p. 938; Perrine et al. p. 5). Diagnostic features, by which 
red foxes can be distinguished from other small canines, include black 
markings on the backs of their ears, black shins, and white tips on 
their tails (Statham et al. 2012, p. 123).
    Sierra Nevada red foxes average about 4.2 kilograms (kg) (9.3 
pounds (lb)) for males and 3.3 kg (7.3 lb) for females, as compared to 
the general North American red fox average of about 5 kg (11 lb) for 
males and 4.3 kg (9.5 lb) for females (Perrine et al. 2010, p. 5).
    The Sierra Nevada red fox is characterized by what appears to be 
specialized adaptations to cold areas (Sacks et al. 2010, p. 1524). 
These apparent adaptations include a particularly thick and deep winter 
coat (Grinnell et al. 1937, p. 377), longer hind feet (Fuhrmann 1998, 
p. 24), and small toe pads (4 millimeters (mm) (0.2 inch (in)) across 
or less) that are completely covered in winter by dense fur, which may 
facilitate movement over snow (Grinnell et al. 1937, pp. 378, 393; 
Fuhrmann 1998, p. 24; Sacks 2014, p. 30). The Sierra Nevada red fox's 
smaller size may also be an adaptation to facilitate movement over snow 
by lowering weight supported by each footpad (Quinn and Sacks 2014, p. 
17), or it may simply result from the reduced abundance of prey at 
higher elevations (Perrine et al. 2010, p. 5).
    Genetic analyses indicate that red foxes living near Sonora Pass, 
California, as of 2010 are descendants of the Sierra Nevada red fox 
population that was historically resident in the area (Statham et al. 
2012, pp. 126-129). This is the only population known to exist in the 
Sierra Nevada mountain range, and is thus the last known remnant of the 
larger historical population that occurred along the upper elevations 
of the Sierra Nevada mountain range from Tulare to Sierra Counties. The 
only other known Sierra Nevada red fox population in California is 
located near Lassen Peak, in the southern Cascade mountain range, and 
shows clear genetic differences from the Sonora Pass population 
(Statham et al. 2012, pp. 129-130) (see also DPS discussion in our 
October 8, 2015, 12-month finding (80 FR 60990)).
Range and Habitat
    The current range, which is significantly contracted from the 
historical range, runs near the Sierra crest from about Arnot Peak and 
California State Highway 4 south to Yosemite National Park (Cleve et 
al. 2011, entire; Sacks et al. 2015, pp. 10, 14; Eyes 2016, p. 2; Hiatt 
2017, p. 1; Figure 1), and then jumps approximately 48 mi (77 km) 
southeast per two new sightings (photographs; unknown if one or more 
individuals) noted during summer 2018 near the intersection of Fresno/
Mono/Inyo Counties (Quinn 2018a, attachments; Stermer 2018, p. 1).
BILLING CODE 4333-15-P

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[GRAPHIC] [TIFF OMITTED] TP08JA20.000

BILLING CODE 4333-15-C
    Sierra Nevada red fox sightings have consistently occurred in 
subalpine habitat at elevations ranging from 2,656 to 3,538 meters (m) 
(8,714 to 11,608 feet (ft)) (based on average elevation reported, plus 
or minus three standard deviations) (Sacks et al. 2015, pp. 3, 11). In 
the Sonora Pass area used by the Sierra Nevada red fox, subalpine 
habitat is characterized by a mosaic of high-elevation meadows, rocky 
areas, scrub vegetation, and woodlands (largely mountain hemlock (Tsuga 
mertensiana), whitebark pine (Pinus albicaulus), and lodgepole pine 
(Pinus contorta)) (Fites-Kaufman et al. 2007, p. 475; Sacks et al. 
2015, p. 11; Quinn 2017, p. 3). Snow cover is typically heavy, and the 
growing season lasts only 7 to 9 weeks (Verner and Purcell 1988, p. 3). 
Forested

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areas are typically relatively open and patchy (Verner and Purcell 
1988, p. 1; Lowden 2015, p. 1), and trees may be stunted and bent 
(krumholtzed) by the wind and low temperatures (Verner and Purcell 
1988, p. 3; Sacks et al. 2015, p. 11).
Feeding
    Individuals of the Sierra Nevada red fox are opportunistic 
predators of small mammals such as rodents (Perrine et al. 2010, pp. 
24, 30, 32-33; Cross 2015, p. 72). Leporids such as snowshoe hare 
(Lepus americanus) and white-tailed jackrabbit (Lepus townsendii) are 
also an important food source for the Sierra Nevada red fox, 
particularly in winter and early spring (Aubry 1983, p. 109; Rich 2014, 
p. 1; Quinn 2017, pp. 3-4; Sacks 2017, p. 3). Whitebark pine seeds may 
also be an important food source during some years, particularly in 
winter (Sacks et al. 2017, p. 2).
Life History
    Little information exists regarding Sierra Nevada red fox 
reproductive biology; it is likely similar to other North American red 
fox subspecies (Aubry 1997, p. 57). Other subspecies are predominantly 
monogamous and mate over several weeks in the late winter and early 
spring (Aubry 1997, p. 57). The gestation period for red fox is 51 to 
53 days, with birth occurring from March through May in sheltered dens 
(Perrine et al. 2010, p. 14). Members of the Sierra Nevada red fox use 
natural openings in rock piles at the base of cliffs and slopes as 
denning sites (Grinnell et al. 1937, p. 394). Additionally, they may 
dig earthen dens, similar to Cascade red foxes (Vulpes vulpes 
cascadensis), though this has not been directly documented in the 
Sierra Nevada red fox (Aubry 1997, p. 58; Perrine 2005, p. 153). Litter 
sizes of two to three pups appear to be typical (Perrine 2005, p. 152). 
Reproductive output is generally lower in montane foxes than in those 
living at lower elevations, possibly due to comparative scarcity of 
food (Perrine 2005, pp. 152-153; Sacks 2017, p. 2).
Demographics
    The population size of the Sierra Nevada red fox is estimated 
between 10 to 50 adults, including some young adults forgoing potential 
breeding to help their parents raise their siblings (Sacks 2015, p. 1; 
Sacks et al. 2015, p. 14). This estimate includes hybrids, which recent 
information suggests comprise the majority of known individuals sighted 
within one study area of the population (Sacks et al. 2015, pp. 15, 17, 
29-30).
    The average lifespan, age-specific mortality rates, sex ratios, and 
demographic structure of Sierra Nevada red fox populations are not 
known, and are not easily extrapolated from other red fox subspecies 
because heavy hunting and trapping pressure on those other subspecies 
likely skew the results (Perrine et al. 2010, p. 18). However, three 
individuals within the Southern Cascades DPS (in the Lassen area) lived 
at least 5.5 years (CDFW 2015, p. 2), and an additional study within 
the Sierra Nevada red fox (Sonora Pass area) found the average annual 
adult survival rate to be 82 percent, which is relatively high for red 
foxes (Quinn and Sacks 2014, pp. 10, 14-15, 24).

Summary of Biological Status and Threats Affecting the DPS

    The Act directs us to determine whether any species is an 
endangered species or a threatened species because of any factors 
affecting its continued existence. We completed a comprehensive 
analysis of the biological status of the Sierra Nevada red fox, and 
prepared an SSA report, which provides a thorough assessment of the 
potential threats that may affect the species' viability both currently 
and into the future. We define viability here as the ability of the 
species to persist over the long term and, conversely, to avoid 
extinction. In this section, we summarize that assessment, which can be 
accessed on the internet under Docket FWS-R8-ES-2019-0006 on http://www.regulations.gov.
    To assess Sierra Nevada red fox viability, we used the three 
conservation biology principles of resiliency, representation, and 
redundancy (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency 
supports the ability of the species to withstand stochastic events--for 
example, significant variations to normal demographic or environmental 
conditions (e.g., significant drops in population growth rate, extreme 
weather events, 100-year floods); representation supports the ability 
of the species to adapt over time to changing environmental conditions 
(such as measured by the breadth of genetic or environmental diversity 
within and among populations); and redundancy supports the ability of 
the species to withstand large-scale, catastrophic events (for example, 
multi-year droughts). In general, the more redundant and resilient a 
species is and the more representation and redundancy it has, the more 
likely it is to sustain populations over time, even under changing 
environmental conditions. Using these principles, we identified the 
subspecies' ecological requirements for survival and reproduction, and 
described the beneficial and risk factors influencing the DPS's 
viability.
Resiliency
    Resiliency describes the ability of a species (or DPS) to withstand 
stochastic disturbance. For the Sierra Nevada red fox to maintain 
viability, its population(s) or some portion thereof must be resilient. 
Environmental stochastic disturbances that affect the overall 
reproductive output of the population are reasonably likely to occur 
infrequently, but if they do, they would likely be of a magnitude that 
can drastically alter the ecosystem where they happen. Classic examples 
of environmental stochastic events include drought, major storms (e.g., 
hurricanes), fire, and landslides (Chapin et al. 2002, pp. 285-288), 
and examples of demographic stochastic events include variations in sex 
ratio, birth/death rates, etc. The best available information at this 
time suggests that the Sierra Nevada red fox population needs to be 
larger, to a currently unknown degree, to ensure its viability into the 
future. Given the uncertainties surrounding the adequate population 
size and growth rates for the Sierra Nevada red fox, the best available 
information indicates that the proxies for these indices of abundance 
appear to be diminished; therefore, we assume a diminished resiliency 
for the DPS.
    Given the lack of information on adequate population size for 
subalpine red fox, an example of a resilient population size for an 
island fox subspecies--Santa Catalina Island fox (Urocyon littoralis 
catalinae)--is roughly 150 or more adult individuals (based on 
information presented by Kohlmann et al. (2005, p. 77), assuming 
habitat conditions are adequate to support a population of this size. 
Although this example is not a one-to-one crosswalk for considering the 
minimum viable population size for the Sierra Nevada red fox, it is a 
reference that provides related information for another fox's 
demographic needs. The information for this island fox subspecies 
suggests that this minimum population size likely allows it to survive 
chance deleterious events, whereas stochastic events become an 
increasing risk to viability as population numbers dip below 150.
Redundancy
    Redundancy describes the ability of a species (or DPS) to withstand 
catastrophic events. Currently, there is only one small, isolated 
population of Sierra Nevada red fox known within the Sierra Nevada 
mountain range. In

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general, given the low number of foxes currently known within this DPS 
and the limited range they inhabit, the DPS appears to have a low 
ability to withstand catastrophic events should they occur. 
Additionally, there do not appear to be any other populations within 
the range of this DPS to serve as a source to recover from a 
catastrophic loss of individuals.
Representation
    Representation describes the ability of a species (or DPS) to adapt 
to changing environmental conditions over time. It is characterized by 
the breadth of genetic and environmental diversity within and among 
populations. The Sierra Nevada red fox historically occurred throughout 
the high elevations of the Sierra Nevada. The current, small population 
has been experiencing genetic challenges, including inbreeding 
depression, as well as hybridization with non-Sierra Nevada red fox 
individuals, which can lower survivorship or reproductive success by 
interfering with adaptive native genes or gene complexes (Allendorf et 
al. 2001, p. 617; Frankham et al. 2002, pp. 386-388). Having broad 
genetic and environmental diversity could help the DPS withstand 
environmental changes. However, at this time, the Sierra Nevada red fox 
does not have this broad diversity. Additionally, regarding 
hybridization, the best available information does not suggest that 
hybridization has negatively affected the DPS's ability to adapt to 
changing environmental conditions.
Summary of Existing Regulatory Measures and Voluntary Conservation 
Efforts
    The U.S. Forest Service (USFS) identifies the Sierra Nevada red fox 
as a sensitive species and has done so since 1998. Sensitive species 
receive special consideration during land use planning and activity 
implementation to ensure species viability and to preclude population 
declines (USFS 2005, section 2670.22). The USFS included Sierra Nevada 
red fox-specific protection measures in the Sierra Nevada Forest Plan 
Amendment (SNFPA) Standards and Guidelines given the extensive overlap 
of suitable and in some cases occupied habitat for the Sierra Nevada 
red fox with Forest Service lands. These specific protection measures 
require the USFS to conduct and analyze potential impacts of activities 
within 5 mi (8 km) of a verified Sierra Nevada red fox individual 
sighting (USFS 2004, p. 54). The protection measures also limit the 
time of year that certain activities may occur to avoid adverse impacts 
to Sierra Nevada red fox breeding efforts, and require 2 years of 
evaluations following activities near sightings that are not associated 
with a den site (USFS 2004, p. 54).
    The National Park Service prohibits hunting and trapping in 
Yosemite National Park and manages natural resources to ``preserve 
fundamental physical and biological processes, as well as individual 
species, features, and plant and animal communities'' (NPS 2006, p. 
26). The land management plan for Yosemite National Park (as well as 
Sequoia National Park, which is not known to currently contain Sierra 
Nevada red fox individuals but does occur within the DPS's historical 
range) does not contain specific measures to protect the Sierra Nevada 
red fox or the subspecies' habitat. However, areas not developed 
specifically for recreation and camping are managed toward natural 
processes and species composition, and the best available information 
indicates that the National Park Service would maintain the subspecies' 
habitat.
    The Department of Defense recently completed an Integrated Natural 
Resources Management Plan (INRMP) for the U.S. Marine Corps Mountain 
Warfare Training Center (MWTC), which is a facility and training area 
that falls within the Sierra Nevada red fox range, including overlap 
with some known sightings. The INRMP includes provisions prohibiting 
disturbance within 330 ft (100.6 m) of Sierra Nevada red fox den sites 
from January 1 to June 30 (MWTC 2018, p. 3-26). Additionally, the INRMP 
states that the MWTC must implement ``measures to prevent habituation 
to human food, an education program on these measures, and avoid 
activities from January 1 to June 27 within 0.25 mi (0.4 km) of den 
sites'' (MWTC 2018, p. 3-67).
    On October 2, 1980, the State of California listed the Sierra 
Nevada red fox as a threatened species. The designation prohibits 
possession, purchase, or ``take'' of threatened or endangered species 
without an incidental take permit, issued by the California Department 
of Fish and Wildlife (CDFW; formerly California Department of Fish and 
Game). Additionally, red foxes in general are protected by the State 
from hunting and trapping (14 C.C.R. 460).
    A conservation effort currently is underway by the Sierra Nevada 
Red Fox Working Group (SNRFWG). This working group was formed in 2015 
by representatives of Federal and State wildlife agencies, state 
universities, and nongovernmental conservation organizations (SNRFWG 
2015, p. 1; SNRFWG 2016, p. 1). In addition to continued monitoring of 
the Sierra Nevada red fox, the SNRFWG proposes to develop a 
conservation strategy, which would include a genetic management plan 
and a feasibility assessment. This conservation strategy would assist 
in addressing possible translocations of Sierra Nevada red fox from 
area(s) within the Southern Cascades DPS to the Sierra Nevada (SNRFWG 
2016, pp. 2-6). Managed Sierra Nevada red fox translocations would 
reduce impacts associated with inbreeding depression and counter 
introgression of nonnative alleles by introducing, in a controlled and 
monitored manner, new (i.e., native) alleles into the Sierra Nevada red 
fox population(s). These new alleles would be more likely to code for 
native local adaptations than would alleles originating in other 
subspecies of red fox (SNRFWG 2016, p. 3). To date, these conservation 
goals are not significantly advanced, and are not factored into this 
analysis (and discussed here primarily for informational purposes). 
However, if carried out in the near future, these actions could address 
significant negative influences currently acting upon the subspecies 
(i.e., reduced genomic integrity and inbreeding depression as a result 
of small population size; hybridization with nonnative red fox).
Risk Factors Affecting the Sierra Nevada DPS of Sierra Nevada Red Fox
    Our SSA considered a variety of environmental and demographic 
characteristics important to the viability of the Sierra Nevada red 
fox, taking into consideration both current and potential future 
conditions that may impact the DPS. The environmental characteristics 
we considered were: (1) Extent of subalpine habitat (with low 
temperatures and short growing seasons), (2) deep winter snow cover, 
(3) rodent and leporid (rabbits and hare) populations, and (4) presence 
of whitebark pine. The best available information suggests that the 
first two characteristics are likely important because the Sierra 
Nevada red fox appears adapted to them. Fox develop dense, fur-covered 
toe pads during the winter (Grinnell et al. 1937, pp. 378, 393; 
Fuhrmann 1998, p. 24; Sacks 2014, p. 30), allowing them to better use 
sites with deep snow cover that coyotes cannot access, thus reducing 
competition for food. The remaining two characteristics are important 
in that rodents and leporids are known prey items of the Sierra Nevada 
red fox, and caches of whitebark pine seeds were

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found to be an important winter food source for Rocky Mountain montane 
foxes in some years. The demographic characteristics we considered 
important to the viability of the Sierra Nevada red fox include: (1) 
Genomic integrity (extent of hybridization or inbreeding depression), 
(2) population size, and (3) number of populations.
    Risk factors affecting the environmental characteristics that the 
subspecies relies on include changing climate conditions (i.e., 
drought, warming temperatures that may affect snowpack levels), which 
promote coyote presence (and thus competition with the Sierra Nevada 
red fox) in high-elevation areas, and potential threats to whitebark 
pine such as rust disease and mountain pine beetles. Risk factors 
affecting the demographic characteristics include deleterious impacts 
associated with small population size, including inbreeding depression 
(as a consequence of population reduction and a lack of other 
populations) and reduced genomic integrity, and levels of hybridization 
with nonnative red foxes. Our evaluation of the best available 
information indicates there is no evidence of significant adverse 
impacts specifically associated with the Sierra Nevada red fox's 
habitat. We presented several potential causal connections between 
habitat conditions and their importance to the Sierra Nevada red fox, 
as well as scenarios related to possible future trajectories of the 
risk factors that could affect those habitat conditions. As we analyzed 
these potentialities, we determined that the relative importance of 
potential causal connections was lower than presented in some 
scenarios, and that the most likely scenario of future conditions would 
exhibit a lower overall risk to the DPS's habitat. As such, we conclude 
that there are not any current or future significant habitat-based 
threats. The best available information suggests that threats to the 
subspecies directly (as opposed to habitat) are of greatest concern. 
Below is a summary of the factors influencing the species viability, 
provided in detail in the SSA report (Service 2018) and available on 
the internet at www.regulations.gov, Docket No. FWS-R8-ES-2019-0006.
Subalpine Habitat Suitability, Snowpack Levels, and Coyote Presence
    Over the past 100 years, average temperatures in alpine regions 
have increased by 0.3 to 0.6 [deg]C (Perrine et al. 2010, p. 30). In 
the Lake Tahoe region (northern Sierra Nevada mountain range in 
California), the average number of days per year for which the average 
temperature was below-freezing has decreased from 79 in 1910 to about 
51 in 2010 (Kadir et al. 2013, p. 102). These increased average 
temperatures coupled with periodic drought conditions can result in 
changed habitat conditions in subalpine habitat. For example, direct 
measurements of primary productivity in a subalpine meadow in Yosemite 
National Park have shown that mesic (medium wet) and hydric (wet) 
meadows both tend to increase productivity in response to warmer, drier 
conditions (Moore et al. 2013, p. 417). Xeric (dry) meadows tend to 
increase productivity due to warmth, but decrease due to drier 
conditions (Moore et al. 2013, p. 417). A comparison of tree biomass 
and age in subalpine forests now and about 75 years ago also points to 
increased productivity over time (Kadir et al. 2013, p. 152). 
Specifically, small trees with comparatively more branches increased by 
62 percent, while larger trees decreased by 21 percent, resulting in 
younger, denser stands (Kadir et al. 2013, p. 152). This overall 
increase in biomass occurred consistently across the subalpine regions 
of the Sierra Nevada mountain range and across tree species. The 
primary cause was an increase in the length of the growing season 
(Kadir et al. 2013, p. 152).
    Increasing average temperatures and periodic drier conditions 
during drought years may have increased the productivity of high-
elevation areas, thus likely supporting higher prey abundance levels 
that (at least in some years) in turn could support more coyotes in 
spring and summer months. The best available information suggests that 
coyotes are present in the Sonora Pass area at the same elevations as 
the Sierra Nevada red fox during summer months, also outnumbering the 
Sierra Nevada red fox individuals in that area (Quinn and Sacks 2014, 
pp. 2, 11, 12, 35). Additionally, several coyotes were found to be 
related, suggesting they were establishing territories and raising pups 
(Quinn and Sacks 2014, p. 12). As a result of this information, coyote 
densities appear to have increased in this area relative to historical 
levels, thus resulting in increased coyote competition with the Sierra 
Nevada red fox. This increased coyote presence (and potentially 
density) on a given landscape can lead to decreased density of Sierra 
Nevada red foxes (Sargeant et al. 1987, p. 288; Harrison et al. 1989, 
p. 185) (see also additional discussion in section 3.1 of the SSA 
report (Service 2018, pp. 15-16)). Also, the increased coyote presence 
may in part result from increased productivity of food sources due to 
changing climate conditions, although snowpack levels were low during 
much of the monitoring period due to drought, and this increased 
productivity may also have affected coyote densities (Kadir et al. 
2013, p. 152) (see below).
    In the central portion of the Sierra Nevada mountain range, average 
current April 1 snowpack levels in Yosemite National Park (which 
overlaps a portion of the known Sierra Nevada red fox sightings) have 
been just above 23.6 in (60 cm) (Curtis et al. 2014, p. 9). To date, 
all Sierra Nevada red fox individuals sighted within the park have been 
in the areas of highest snowpack (Eyes 2016, p. 2).
    While snowpack conditions vary by year and location, the best 
available information suggests that the areas where Sierra Nevada red 
fox occur have been maintaining high snowpack during winter and spring 
most years, regardless that snowpack appears to be decreasing in some 
areas across the mountain range (see section 4.1 of the SSA report 
(Service 2018, pp. 22-23)). Therefore, the current condition for deep 
winter snow appears adequate, noting some years have and will continue 
to result in drought conditions and thus lower snowpack levels.
Prey Availability
    Rodent population numbers in subalpine areas have likely increased 
due to an increase in primary productivity (Service 2018, pp. 21, 24). 
Despite several factors that may limit their availability (e.g., 
increased presence of coyotes, compaction of snow from snowmobile 
activity), the general landscape appears adequate for rodents.
    Adequate leporid population numbers may be of concern given that 
both white-tailed jackrabbits and snowshoe hares are considered species 
of special concern across the Sierra Nevada by CDFW (CDFW 2017, p. 51), 
a designation meaning they are potentially vulnerable to extirpation in 
California (CDFW 2017, p. 10). Regardless of rangewide leporid 
abundance, the best available information does not suggest that leporid 
abundance is inadequate in the vicinity of the majority of known Sierra 
Nevada red fox sighting locations (i.e., Sonora Pass area); leporids 
appear currently to be relatively common and present all year in the 
Sonora Pass area (Rich 2014, p. 1).
Deleterious Effects Associated With Small Populations
    Within the DPS area, the Sierra Nevada red fox is currently known 
from

[[Page 869]]

a single population extending along the Sierra Nevada crest near Sonora 
Pass (State Route 108), with species experts providing an overall 
estimate of about 10 to 50 adults residing in the center of the DPS's 
historical range (Sacks 2015, p. 1; Sacks et al. 2015, p. 14). Two new 
(2018) Sierra Nevada red fox sightings are now known from about 32 mi 
(51 km) southeast of the previously known southern sightings (i.e., 
eastern edge of Yosemite National Park) of the population (Stermer 
2018a, p. 1). It is unclear whether these 2018 sightings are of the 
same or different foxes (Stermer 2018b, p. 1), or whether that fox or 
foxes dispersed from the Sonora Pass area. Our estimate of population 
numbers includes an unknown number of hybrids, which in 2014 comprised 
8 of 10 non-immigrant individuals sighted (Sacks et al. 2015, pp. 17, 
29). No evidence of reproduction of pure Sierra Nevada red fox was 
observed at a 50-mi\2\ (130-km\2\) study site for the 2011 to 2014 
breeding seasons (Sacks et al. 2015, pp. 3, 15, 30). This finding is 
consistent with low reproductive success due to inbreeding depression 
(Sacks et al. 2015, p. 15). Given this population information, the 
current condition of the Sierra Nevada red fox likely includes 
inbreeding depression and a population size lower than necessary to 
reduce risks associated with stochastic events (i.e., a portrayal of 
low resiliency).
Genomic Integrity
    Prior to spring of 2013, no reproduction between native individuals 
of the Sierra Nevada red fox and nonnative immigrant red fox was known 
to have occurred (Sacks et al. 2015, p. 9; Sacks 2017, p. 4). However, 
two nonnative male red foxes with a mixture of montane (V. v. macroura) 
and fur-farm ancestry arrived at the Sonora Pass area in 2012 and by 
2014 had produced a total of 11 hybrid pups (Sacks et al. 2015, pp. 3, 
10, 29-30). These constituted the only known pups produced in the 
Sonora Pass area (i.e., the only area/population of the Sierra Nevada 
red fox within the DPS area) during the four breeding seasons from 2011 
to 2014 (Sacks et al. 2015, pp. 3, 15, 30). A third nonnative male was 
sighted (once) in 2014, bringing the known individuals in that year to 
three nonnatives, eight hybrids, and two native Sierra Nevada red fox 
individuals (Sacks et al. 2015, pp. 17, 22, 29). While the hybrid pups 
assist in helping the Sierra Nevada red fox experience less inbreeding 
depression at the current point in time when the overall population is 
small, the best available scientific and commercial information 
suggests that the current condition with regard to maintaining high 
genomic integrity is poor, and thus, species representation is 
considered low. Additionally, low representation is further 
characterized by this DPS's single, small population, which is spread 
in a relatively constricted geographic arrangement and not indicative 
of a resilient or redundant mammalian population to withstand 
stochastic or catastrophic events.
Current Condition Summary
    Overall, the current small population size is a direct result of 
decades of heavy hunting and trapping pressure across its range prior 
to the State of California's prohibition of ``take'' and designation of 
the Sierra Nevada red fox as a threatened species in 1980. Since that 
time, the remaining small population has experienced pressures from 
competition for prey resources by coyotes, deleterious impacts 
associated with small population size, including inbreeding depression 
(as a consequence of population reduction and a lack of other 
populations) and reduced genomic integrity, and levels of hybridization 
with nonnative red foxes. At this time, the best available scientific 
and commercial information suggest that the most significant threats to 
the Sierra Nevada red fox within this DPS are those Factor E stressors 
that directly affect the few individuals on the landscape (i.e., 
deleterious effects associated with small population size that are 
resulting in low reproductive success (inbreeding depression) and 
genomic integrity).
Potential Future Conditions
    We evaluated three future scenarios over a 50-year timeframe. This 
time period was chosen because it is within the range of the available 
hydrological and climate change model forecast information (IPCC 2014, 
pp. 10, 13), and coincidentally encompasses roughly 25 generations of 
the subspecies (Perrine et al. 2010, p. 15). The three scenarios 
included improved viability and conditions into the future, the 
persistence of current conditions into the future, and a decreased 
viability scenario where current conditions worsen into the future. The 
SSA report contains a full description of the projected future 
scenarios and potential outcomes (Service 2018, pp. 29-30).
    Risks to the future viability of the Sierra Nevada red fox appear 
high given the small size and limited distribution of the current 
population and the factors that are negatively influencing the 
subspecies currently and into the future, which include deleterious 
effects associated with small population size (genomic integrity and 
inbreeding depression), hybridization with nonnative red fox, and 
possibly reduced prey availability (given observations of scarce 
leporid observations in some subalpine areas) and competition with 
coyotes for both leporid and rodent prey due to reduced snowpack 
levels. Redundancy is likely to remain poor into the future until such 
time as the current, isolated small population increases in size or an 
additional population provides protection against a catastrophic event 
eradicating the whole subspecies. Resiliency will likely remain low 
given continued periodic drought conditions and temperature increases 
that reduce snow depth and consequently may cause increased competition 
with coyotes. Rodent population sizes will likely increase if primary 
productivity of the subalpine habitat increases in the future; however, 
red fox access to rodents could be limited due to coyote competition. 
Leporid and whitebark pine populations may decrease or become less 
dependable.
    The recent increase in pup production is encouraging (although 
minimizing future hybridization would be preferable); however, 
representation is low and likely to remain so due to the small size and 
genetic integrity of the population, which would likely remain 
susceptible to inbreeding depression if the population(s) fails to 
increase sufficiently. Additionally, the geographic range of the 
population(s) is limited (even though suitable habitat is not) 
especially when compared to the historical extent within the Sierra 
Nevada. In total, these threats (i.e., deleterious impacts associated 
with small population size (including inbreeding depression and genomic 
integrity), hybridization concerns, and possibly reduced prey 
availability and competition with coyotes) currently leave the DPS 
susceptible to stochastic or catastrophic effects, both currently and 
in the future.

Proposed Determination

    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 
species to the Federal Lists of Endangered and Threatened Wildlife and 
Plants. Under section 4(a)(1) of the Act, we may list a species based 
on: (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)

[[Page 870]]

other natural or manmade factors affecting its continued existence. The 
Sierra Nevada red fox faces the following threats: Deleterious impacts 
associated with small population size (including inbreeding depression 
and reduced genomic integrity) (Factor E), hybridization with nonnative 
red fox (Factor E), and possibly reduced prey availability and 
competition with coyotes (Factor E) resulting from reduced snowpack 
levels. Existing regulatory mechanisms and conservation efforts do not 
address the threats to the Sierra Nevada red fox to the extent that 
listing the DPS is not warranted.
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the Sierra Nevada DPS of the Sierra Nevada red fox. The Act defines 
an endangered species as any species that is ``in danger of extinction 
throughout all or a significant portion of its range'' and a threatened 
species as any species ``that is likely to become endangered throughout 
all or a significant portion of its range within the foreseeable 
future.''
    We considered whether the DPS is presently in danger of extinction 
and determined that proposing endangered status is appropriate. We have 
shown that there are negative influences on the DPS, including 
deleterious impacts associated with small population size, including 
(but not limited to) inbreeding depression. Since 2015, the best 
available information indicates that additional nonnative red fox 
hybridization has occurred, which has resulted in documented hybrid red 
fox pups. Although this hybridization may adversely affect the genetic 
integrity of the DPS, it likely has prevented further decreases in the 
size of the Sierra Nevada red fox population. Regardless, the DPS' size 
and distribution remain critically low such that resiliency, 
redundancy, and representation are insufficient and place the DPS in 
danger of extinction throughout all of its range.
    Although production of pups in monitored areas appears to have 
increased in 2013 and 2014 due to hybridization as compared to previous 
years (Sacks et al. 2015, p. 29), and two additional sightings of 
individuals of the Sierra Nevada red fox have recently (December 2017) 
extended the known current range of the Sierra Nevada red fox in the 
Sierra Nevada DPS to the vicinity of Mt. Hopkins (approximately 30 mi 
(48 km) south of Yosemite and about 70 mi (113 km) from the southern 
end of the Sonora Pass area) (Stermer 2018a, p. 1), these few new 
individuals have not increased the population size or extent to the 
degree that the subspecies is not in danger of extinction, including 
from potential stochastic or catastrophic events.
    The primary threats to the DPS, described above, are likely to 
become exacerbated in the future. Given current and future decreases in 
resiliency, the population has become more vulnerable to extirpation 
from stochastic events, and subsequent loss of representation and 
redundancy. The range of future scenarios of the DPS's environmental 
and demographic conditions suggest current danger of extirpation 
throughout the Sierra Nevada mountain range. Under the current 
condition analysis as well as the potential future scenarios presented 
in the SSA report, the best available information suggests that the 
Sierra Nevada red fox has such low resiliency, redundancy, and 
representation that it is in danger of extinction currently.
    Our analysis of the DPS's current and future environmental and 
demographic conditions, as well as consideration of existing regulatory 
mechanisms and initiation of conservation efforts with partners (as 
discussed under ``Available Conservation Measures,'' above), show that 
the factors used to determine the resiliency, representation, and 
redundancy for the Sierra Nevada red fox will likely continue to 
decline. Therefore, the Sierra Nevada DPS of the Sierra Nevada red fox 
is likely in danger of extinction currently throughout all of its 
range.
Determination of Status Throughout a Significant Portion of Its Range
    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. Because we have determined that the Sierra Nevada DPS of the 
Sierra Nevada red fox is in danger of extinction throughout all of its 
range, we find it unnecessary to proceed to an evaluation of 
potentially significant portions of the range. Where the best available 
information allows the Services to determine a status for the species 
rangewide, that determination should be given conclusive weight because 
a rangewide determination of status more accurately reflects the 
species' degree of imperilment and better promotes the purposes of the 
Act. Under this reading, we should first consider whether the species 
warrants listing ``throughout all'' of its range and proceed to conduct 
a ``significant portion of its range'' analysis if, and only if, a 
species does not qualify for listing as either an endangered or a 
threatened species according to the ``throughout all'' language. We 
note that the court in Desert Survivors v. Department of the Interior, 
No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), did not 
address this issue, and our conclusion is therefore consistent with the 
opinion in that case.
    Therefore, on the basis of the best available scientific and 
commercial information, we propose to list the Sierra Nevada DPS of the 
Sierra Nevada red fox as an endangered species throughout all of its 
range in accordance with sections 3(20) and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness and 
conservation by Federal, State, Tribal, and local agencies; private 
organizations; and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies and 
the prohibitions against certain activities are discussed, in part, 
below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act calls for the Service to develop 
and implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning includes the development of a recovery outline 
shortly after a species is listed and preparation of a draft and final 
recovery plan. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan also identifies 
recovery

[[Page 871]]

criteria for review of when a species may be ready for reclassification 
(such as ``downlisting'' from endangered to threatened) or removal from 
the Federal Lists of Endangered and Threatened Wildlife and Plants 
(``delisting''), and methods for monitoring recovery progress. Recovery 
plans also establish a framework for agencies to coordinate their 
recovery efforts and provide estimates of the cost of implementing 
recovery tasks. Recovery teams (composed of species experts, Federal 
and State agencies, nongovernmental organizations, and stakeholders) 
are often established to develop recovery plans. When completed, the 
recovery outline, draft recovery plan, and the final recovery plan will 
be available on our website (http://www.fws.gov/endangered), or from 
our Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands. 
If we list the Sierra Nevada red fox, funding for recovery actions will 
be available from a variety of sources, including Federal budgets, 
State programs, and cost-share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the State of California would be 
eligible for Federal funds to implement management actions that promote 
the protection or recovery of the DPS. Information on our grant 
programs that are available to aid species recovery can be found at: 
http://www.fws.gov/grants.
    Although the Sierra Nevada red fox is only proposed for listing 
under the Act at this time, please let us know if you are interested in 
participating in recovery efforts for this species. Additionally, we 
invite you to submit any new information on this species whenever it 
becomes available and any information you may have for recovery 
planning purposes (see FOR FURTHER INFORMATION CONTACT).

II. Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines, provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.

Prudency Determination

    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 shall designate critical 
habitat at the time the species is determined to be an endangered or 
threatened species. The regulations at 50 CFR 424.12(a)(1) state that 
the Secretary may, but is not required to, determine that a designation 
would not be prudent in the following circumstances:
    (i) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (ii) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (iii) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States;
    (iv) No areas meet the definition of critical habitat; or
    (v) The Secretary otherwise determines that designation of critical 
habitat would not be prudent based on the best scientific data 
available
    The best available scientific and commercial information suggests 
that designating critical habitat is not

[[Page 872]]

prudent because we have determined that the present or threatened 
destruction, modification, or curtailment of a species' habitat or 
range is not a threat to the Sierra Nevada red fox. Habitat also does 
not appear to be a limiting factor for the species (see Proposed 
Determination, above); there is abundant, protected adjacent habitat 
for Sierra Nevada red fox populations to expand into, should their 
population numbers rebound. Where the Sierra Nevada red fox currently 
occur, none of the threats we identified (small population size, 
hybridization, competition with coyotes) fall in the category of 
present or threatened destruction, modification, or curtailments of the 
fox's habitat. Overall, we conclude that there are not any current or 
future significant habitat-based threats, and the best available 
information suggests that threats to the subspecies directly (i.e., 
deleterious effects associated with small population size and genomic 
integrity) are of greatest concern.
    In addition, for those potential habitat-based stressors we 
evaluated (see Current and Future Conditions sections of the SSA report 
for additional discussion), the best available information indicates 
some changes to high elevation, subalpine areas may be occurring both 
currently and in the future with continued changing climate conditions 
(e.g., less snowpack in some years with potential for increased primary 
productivity, potential for rust disease and wildfire (see sections 4.1 
and 5.1 in the SSA report)). However, those changes are not currently 
expected, nor in the future projected, to result in significant 
negative influences on the viability of the DPS.
    Because we assessed that the present or threatened destruction, 
modification, or curtailment of the Sierra Nevada red fox's habitat is 
not a significant threat to the species, we have determined that 
designating critical habitat is not prudent at this time.

III. Required Determinations

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
    We have determined that environmental assessments and environmental 
impacts statements, as defined under the authority of the National 
Environmental Policy Act, need not be prepared in connection with 
listing a species as an endangered or threatened species under the 
Endangered Species Act. We published a notice outlining our reasons for 
this determination in the Federal Register on October 25, 1983 (48 FR 
49244).
References Cited
    A complete list of references cited in this rulemaking is available 
on the internet at http://www.regulations.gov and upon request from the 
Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).
Authors
    The primary authors of this proposed rulemaking are the staff 
members of the U.S. Fish and Wildlife Service Species Assessment Team 
and Sacramento Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

0
2. Amend Sec.  17.11(h) by adding an entry for ``Fox, Sierra Nevada red 
[Sierra Nevada DPS]'' under ``MAMMALS'' to the List of Endangered and 
Threatened Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                              Listing citations
            Common name                Scientific name        Where listed        Status    and applicable rules
----------------------------------------------------------------------------------------------------------------
              MAMMALS
 
                                                  * * * * * * *
Fox, Sierra Nevada red [Sierra      Vulpes vulpes         U.S.A. (CA)--Sierra           E   [Federal Register
 Nevada DPS].                        necator.              Nevada.                           citation when
                                                                                             published as a
                                                                                             final rule].
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

     Dated: November 26, 2019.
Margaret E. Everson
Principal Deputy Director, U.S. Fish and Wildlife Service, Exercising 
the Authority of the Director, U.S. Fish and Wildlife Service.
[FR Doc. 2019-28462 Filed 1-7-20; 8:45 am]
 BILLING CODE 4333-15-P