[Federal Register Volume 85, Number 196 (Thursday, October 8, 2020)]
[Rules and Regulations]
[Pages 63806-63831]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19136]



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Vol. 85

Thursday,

No. 196

October 8, 2020

Part V





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Threatened Species 
Status for Coastal Distinct Population Segment of the Pacific Marten 
With a Section 4(d) Rule; Final Rule

  Federal Register / Vol. 85, No. 196 / Thursday, October 8, 2020 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2018-0076; FF09E21000 FXES11110900000 201]
RIN 1018-BD19


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status for Coastal Distinct Population Segment of the Pacific Marten 
With a Section 4(d) Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
threatened species status under the Endangered Species Act of 1973 
(Act), as amended, for the coastal distinct population segment (DPS) of 
Pacific marten (Martes caurina), a small mammal from coastal California 
and Oregon. We also issue final regulations that are necessary and 
advisable to provide for the conservation of this DPS under section 
4(d) of the Act (a ``4(d) rule''). This final rule extends the Act's 
protections to the coastal DPS of Pacific marten, subject to the 4(d) 
rule's exceptions.

DATES: This rule is effective November 9, 2020.

ADDRESSES: This final rule is available on the internet at http://www.regulations.gov under Docket No. FWS-R8-ES-2018-0076. Comments and 
materials we received, as well as supporting documentation we used in 
preparing this rule, are available for public inspection at http://www.regulations.gov under Docket No. FWS-R8-ES-2018-0076.

FOR FURTHER INFORMATION CONTACT: Dan Everson, Field Supervisor, U.S. 
Fish and Wildlife Service, Arcata Fish and Wildlife Office (see 
ADDRESSES). Persons who use a telecommunications device for the deaf 
(TDD) may call the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act, a 
species may warrant protection through listing if it is endangered or 
threatened throughout all or a significant portion of its range. 
Listing a species as an endangered or threatened species can only be 
completed by issuing a rule. Further, under the Endangered Species Act, 
any species that is determined to be an endangered or threatened 
species requires critical habitat to be designated, to the maximum 
extent prudent and determinable.
    What this document does. This rule lists the coastal distinct 
population segment (DPS) of Pacific marten (Martes caurina) as a 
threatened species under the Endangered Species Act. This document also 
finalizes a rule under the authority of section 4(d) of the Act that 
provides measures that are necessary and advisable to provide for the 
conservation of the coastal DPS of Pacific marten.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that the coastal DPS of the 
Pacific marten is likely to become in danger of extinction within the 
foreseeable future primarily due to habitat loss (including 
fragmentation) and associated changes in habitat quality and 
distribution.
    Section 4(a)(3) of the Act requires the Secretary of the Interior 
(Secretary) to designate critical habitat concurrent with listing to 
the maximum extent prudent and determinable. In this case, we have 
found that the designation of critical habitat for the coastal DPS of 
Pacific marten is not determinable at this time.
    Peer review and public comment. During the proposed rule stage, we 
sought the expert opinions of 8 peer reviewers and 3 technical experts 
regarding the species status assessment report. We received responses 
from 4 specialists, which informed our determination. We also 
considered all comments and information received from the public during 
the comment period.

Previous Federal Actions

    On October 9, 2018, we published a proposed rule in the Federal 
Register (83 FR 50574) to list the coastal DPS of Pacific marten 
(coastal marten) as a threatened species under the Act (16 U.S.C. 1531 
et seq.). Our proposed rule included a proposed 4(d) rule for the 
coastal marten. Please refer to that proposed rule for a detailed 
description of previous Federal actions concerning this DPS, which we 
refer to as a ``species'' in this rule, in accordance with the Act's 
definition of ``species'' at 16 U.S.C. 1532(16).

Summary of Changes From the Proposed Rule

    In preparing this final rule, we reviewed and fully considered 
comments from the public on the proposed rule. We did not make any 
substantive changes to this final rule after consideration of the 
comments we received. We did update the Species Status Assessment (SSA) 
report (to version 2.1) based on comments and some additional 
information provided, as follows: (1) We made many small, 
nonsubstantive clarifications and corrections throughout the SSA 
report, including ensuring consistency, providing details about data 
sources used, and updating references; and (2) we included additional 
information we received regarding observations of the coastal marten, 
hypothesized historical range of the coastal marten, and more detailed 
life-history data for the species. We also updated our discussion of 
predators and the influence of vegetation management on their use of 
areas occupied by the coastal marten. However, the information we 
received during the comment period for the proposed rule did not change 
our previous analysis of the magnitude or severity of threats facing 
the species.
    In addition, as a result of Federal, State, and public comment, we 
have added clarifying language, improved our rationale, revised our 
preamble discussion of the 4(d) rule, incorporated more specifics into 
the 4(d) rule itself, and added information on management or cleanup 
activities in response to public comments (see Final Rule Issued Under 
Section 4(d) of the Act). The commenters stated that additional detail 
or examples would help them better understand the forest management 
activities excepted by the 4(d) rule. Other comments requested that we 
add additional 4(d) exceptions regarding State employees or agents and 
activities for cleanup of disturbed habitat. In response, we added 
clarifying language as follows: (1) Added an exception for activities 
conducted in accordance with a permit issued under 50 CFR 17.32; (2) 
revised the exception and gave examples of forestry management 
activities to potentially reduce the risk or severity of wildfire (see 
Sec.  17.40(s)(2)(ii) below); (3) clarified the use of State Natural 
Communities Conservation Plan or State Safe Harbor Agreements ((see 
Sec.  17.40(s)(2)(iii) below); (4) added examples of forestry 
management activities which promote the conservation needs of the 
coastal marten (see Sec.  17.40(s)(2)(iv) below); (5)

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added an exception for removal of toxicants and cleanup of coastal 
marten habitat (see Sec.  17.40(s)(2)(v) below); and (6) added an 
exception for activities conducted by State conservation agency 
employees or agents that conserve coastal marten (see Sec.  
17.40(s)(2)(vi) below).
    We also considered the recent Oregon Fish and Wildlife Commission 
decision and associated rule by the Oregon Department of Fish and 
Wildlife (ODFW) banning trapping of marten west of I-5 in Oregon, which 
includes the coastal DPS. Although this new ODFW regulation is expected 
to reduce marten mortality in the Oregon portion of the DPS, trapping 
was considered as one of several threats coastal marten faced, and it 
occurred at a low level (on average, less than 1 marten harvested per 
year over the past 28 years). We considered banning of trapping in one 
of our future scenarios (scenario 2) generated in the coastal marten 
SSA, and it did not result in any projected improvement in population 
resiliency for any of the Oregon populations (Service 2019, pp. 104-
105). Hence, while banning trapping of martens in the coastal DPS will 
reduce marten mortality, there are still substantial threats to the 
DPS. We do not expect this change in management to improve the status 
of the coastal marten to the point that it does not meet the definition 
of a threatened species under the Act.

Supporting Documents

    A species status assessment (SSA) team prepared an SSA report for 
the species. The SSA team was composed of Service biologists, in 
consultation with other species experts. The SSA report represents a 
compilation of the best scientific and commercial data available 
concerning the status of the species, including the impacts of past, 
present, and future factors (both negative and beneficial) affecting 
the species. The SSA report underwent independent peer review by 
scientists with expertise in carnivore biology, habitat management, and 
stressors (factors negatively affecting the species) to the species.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review of 
listing actions under the Act, we sought peer review of the SSA report. 
The Service sent the SSA report to eight independent peer reviewers and 
received two responses. The purpose of peer review is to ensure that 
our listing determinations and 4(d) rules are based on scientifically 
sound data, assumptions, and analyses. The peer reviewers have 
expertise that includes familiarity with the coastal marten and its 
habitat, biological needs, and threats. In addition, we sent the SSA 
report to three technical experts to review specific aspects and use of 
scientific information therein. We received responses from two of the 
technical experts.

I. Final Listing Determination

Background

    On June 23, 2014, we published a notice in the Federal Register (79 
FR 35509) that summarized the taxonomic classification of the 
subspecies (based on current genetic information) and indicated our 
intent to conduct an evaluation of a potential DPS of martens in 
coastal Oregon and coastal northern California relative to the full 
species classification level. On April 7, 2015, we published a DPS 
analysis (80 FR 18742) concluding that Pacific martens in coastal 
Oregon and northern coastal California were both discrete and 
significant to the taxon to which it belongs, and constituted a 
listable entity referred to collectively as the ``coastal DPS of the 
Pacific marten.'' This document and the associated SSA reflect our 
analysis of that DPS. A recent publication evaluating Pacific marten 
genetics indicates that coastal Oregon and northern coastal California 
marten populations likely represent a single subspecies, the Humboldt 
marten (M. c. humboldtensis) (Schwartz et al. 2020, p. 11). Although 
our listable entity may be a subspecies based on this evaluation, the 
DPS analysis for coastal marten as described above remains valid for 
the purposes of this rule.
    The coastal marten is a medium-sized carnivore that historically 
occurred throughout the coastal forests of northwestern California and 
Oregon. The coastal marten has a long and narrow body type typical of 
the mustelid family (e.g., weasels, minks, otters, and fishers), 
generally with brown fur overall, but with distinctive coloration on 
the throat and upper chest that varies from orange to yellow to cream. 
The coastal marten has large and distinctly triangular ears and a bushy 
tail. Its lifespan is usually less than 5 years. The coastal marten 
feeds mainly on small mammals, but also consumes birds, insects, and 
fruits. Coastal martens tend to select older forest stands (e.g., late-
successional, old-growth, large-conifer, mature, late-seral, 
structurally complex forests), or forests that have old-forest 
characteristics such as old and large trees, multiple canopy layers, 
snags, downed logs and other decay elements, dense understory 
development, and biologically complex structure and composition.
    Please refer to the October 9, 2018, proposed rule (83 FR 50574) 
and the species status assessment (SSA) report (Service 2019, entire) 
for a full summary of species information. Both documents are available 
at http://www.regulations.gov under Docket No. FWS-R8-ES-2018-0076, and 
on the Arcata Fish and Wildlife Office's website at https://www.fws.gov/arcata/.

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species is an ``endangered species'' or a ``threatened 
species.'' The Act defines an endangered species as a species that is 
``in danger of extinction throughout all or a significant portion of 
its range,'' and a threatened species as a species that is ``likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range.'' The Act requires that we 
determine whether any species is an ``endangered species'' or a 
``threatened species'' because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the

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action or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the expected response by the species, 
and the effects of the threats--in light of those actions and 
conditions that will ameliorate the threats--on an individual, 
population, and species level. We evaluate each threat and its expected 
effects on the species, then analyze the cumulative effect of all of 
the threats on the species as a whole. We also consider the cumulative 
effect of the threats in light of those actions and conditions that 
will have positive effects on the species, such as any existing 
regulatory mechanisms or conservation efforts. The Secretary determines 
whether the species meets the definition of an ``endangered species'' 
or a ``threatened species'' only after conducting this cumulative 
analysis and describing the expected effect on the species now and in 
the foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as the 
Services can reasonably determine that both the future threats and the 
species' responses to those threats are likely. In other words, the 
foreseeable future is the period of time in which we can make reliable 
predictions. ``Reliable'' does not mean ``certain''; it means 
sufficient to provide a reasonable degree of confidence in the 
prediction. Thus, a prediction is reliable if it is reasonable to 
depend on it when making decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.
    Our proposed rule described ``foreseeable future'' as the extent to 
which we can reasonably rely on predictions about the future in making 
determinations about the future conservation status of the species. The 
Service since codified its understanding of foreseeable future in 50 
CFR 424.11(d) (84 FR 45020). In those regulations, we explain the term 
``foreseeable future'' extends only so far into the future as the 
Service can reasonably determine that both the future threats and the 
species' responses to those threats are likely. The Service will 
describe the foreseeable future on a case-by-case basis, using the best 
available data and taking into account considerations such as the 
species' life-history characteristics, threat-projection timeframes, 
and environmental variability. The Service need not identify the 
foreseeable future in terms of a specific period of time. These 
regulations did not significantly modify the Service's interpretation; 
rather they codified a framework that sets forth how the Service will 
determine what constitutes the foreseeable future based on our long-
standing practice. Accordingly, though the regulations do not apply to 
the final rule for the coastal DPS of the Pacific marten because it was 
proposed prior to their effective date, they do not change the 
Service's assessment of foreseeable future for the coastal DPS of the 
Pacific marten as contained in our proposed rule and in this final 
rule.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological status review for the species, including an assessment of 
the potential threats to the species. The SSA report does not represent 
a decision by the Service on whether the species should be listed as an 
endangered or threatened species under the Act. It does, however, 
provide the scientific basis that informs our regulatory decisions, 
which involve the further application of standards within the Act and 
its implementing regulations and policies. The following is a summary 
of the key results and conclusions from the SSA report; the full SSA 
report can be found at Docket No. FWS-R8-ES-2018-0076, and on the 
Arcata Fish and Wildlife Office's website at https://www.fws.gov/arcata/.
    To assess the species' viability, we used the three conservation 
biology principles of resiliency, redundancy, and representation 
(Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the 
ability of the species to withstand environmental and demographic 
stochasticity (for example, wet or dry, warm or cold years), redundancy 
supports the ability of the species to withstand catastrophic events 
(for example, droughts, large pollution events), and representation 
supports the ability of the species to adapt over time to long-term 
changes in the environment (for example, climate changes). In general, 
the more resilient and redundant a species is and the more 
representation it has, the more likely it is to sustain populations 
over time, even under changing environmental conditions. Using these 
principles, we identified the species' ecological requirements for 
survival and reproduction at the individual, population, and species 
levels, and described the beneficial and risk factors influencing the 
species' viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. This process used the best 
available information to characterize viability as the ability of a 
species to sustain populations in the wild over time. We use this 
information to inform our regulatory decision.

Summary of Biological Status and Threats

    Our assessment evaluated the biological condition of the species 
and its resources, and the threats that influence the species' current 
and future condition, in order to assess the species' overall viability 
and the risks to that viability. It was based upon the best available 
scientific and commercial data, including the SSA report (Service 2019, 
entire), and the expert opinion of the SSA team members. Please refer 
to chapter 3 of the SSA report (Service 2019, pp. 36-71) for a more 
detailed discussion of the factors affecting the coastal marten. The 
following is a summary of the key results and conclusions from the SSA 
report.
    The coastal marten historically ranged throughout coastal Oregon 
and coastal northern California, but the species has not recently been 
detected throughout much of the historical range, despite extensive 
surveys. The coastal marten currently exists in four small populations 
(fewer than 100 individuals each) in Oregon and California, and is 
absent from the northern and southern

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ends of its historical range. The current range is approximately 7 
percent of its known historical range. The coastal marten has been 
extirpated from Sonoma and Mendocino Counties, California, and occupies 
small portions of Humboldt, Del Norte, and Siskiyou Counties. In 
Oregon, coastal martens have been largely extirpated from much of the 
inland counties within the historical range and are known to currently 
occur in portions of Coos, Curry, Josephine, Douglas, Lane, and Lincoln 
Counties, Oregon.
    We have assessed the coastal marten's levels of resiliency, 
redundancy, and representation currently and into the future by first 
ranking the condition of each population. We ranked the four 
populations into three categories (high, moderate, and low) based on 
key population factors and habitat elements. We used three between-
population factors (least-cost path distance, filters, and number of 
populations in proximity) and four within-population factors 
(population size, available male home ranges, available female home 
ranges, and proportion of habitat subject to high predation risk). 
Least-cost path distance describes the distance a coastal marten must 
travel for dispersal needs in order to reach the next closest 
population. Filters are barriers to this movement and can be either 
natural or manmade, such as large rivers or highways. This analysis 
provided condition categories to describe the resiliency of each 
population. A summary of this analysis is provided in table 4.3 of the 
SSA report (Service 2019, p. 96).
    Maintaining representation in the form of genetic or ecological 
diversity is important to maintain the coastal marten's capacity to 
adapt to future environmental changes. We consider the coastal marten 
to have representation in the form of two different ecological 
settings. Some animals are adapted to the shore pine (Pinus contorta) 
forests found in coastal margins and dune ecosystems, and others are 
adapted to late-seral forest and serpentine ridges. One population 
represents the shore pine ecological setting, and three represent the 
forest and serpentine ecological settings. Genetic variation between 
populations is unknown at this time, as no studies have been conducted 
to determine the degree of genetic variation between the four 
populations.
    The coastal marten needs to have multiple resilient populations 
distributed throughout its range to provide for redundancy. The more 
populations, and the wider the distribution of those populations, the 
more redundancy the species exhibits. Based on the distributions of 
current verifiable coastal marten detections and adjacent suitable 
habitat, we identified four extant population areas (EPAs) within 
coastal Oregon and northern coastal California:
    (1) Central Coastal Oregon EPA;
    (2) Southern Coastal Oregon EPA;
    (3) Oregon-California Border EPA; and
    (4) Northern Coastal California EPA.
    Additional detections of coastal martens have occurred outside of 
the current EPAs, but they did not meet the criteria of a population 
(most likely, they represent transient individuals in search of new 
territories) according to methods used in the Humboldt Marten 
Conservation Strategy and Assessment (Slauson et al. 2019, pp. 72-73), 
a synthesis of literature on marten ecology developed by the Humboldt 
Marten Conservation Group. This group is made up of State, Federal, 
Tribal, private, and nongovernmental organizations in coastal Oregon 
and northwestern California to conserve and manage coastal martens.
    Our analysis of the past, current, and future influences on what 
the coastal marten needs for long-term viability revealed that two 
factors pose the largest risk to future viability of the species. These 
risks are primarily related to habitat loss and associated changes in 
habitat quality and distribution (including habitat fragmentation) 
(Factor A) and include: (1) A decrease in connectivity between 
populations; and (2) habitat conversion from that suitable for coastal 
martens to that suitable for generalist predators and competitors, 
thereby potentially increasing interactions and subsequent coastal 
marten injury, mortality, or predation. These factors are all 
influenced by vegetation management, wildfire, and changing climate.
    Predation of coastal martens (Factor B) may be affected by changes 
in forest composition, potentially increasing predator habitat and 
increasing coastal marten vulnerability to predation. Bobcats are the 
coastal marten's predominant predator, with predation accounting for 41 
percent of mortalities documented in one study. Bobcats prefer 
regenerating harvested stands less than 30 years old, and are nearly 
absent from older forests, the preferred habitat used by coastal 
marten. Coastal martens are vulnerable to predation and increased 
competition in habitats that have been subject to either high- or 
moderate-severity fires or intensive logging in the last 40 years where 
these events remove the structural characteristics of the landscape 
that provide escape cover and are important to coastal marten viability 
(canopy cover, shrub cover, etc.). These older forests have declined 
substantially from historical amounts: Older forests historically 
encompassed greater than 75 percent of the coastal California area, 50 
percent of the Klamath and Siskiyou region in northern California and 
southwest Oregon, and 25 to 85 percent of the Oregon Coast Range. 
Estimates of the remaining older forests in the redwood region, Oregon 
Coast Range, and Klamath-Siskiyou region are around 5, 20, and 38 
percent, respectively, of what occurred historically.
    In addition to timber harvest activities, wildfires also destroy or 
remove forested habitat and occur regularly throughout the range of the 
coastal marten outside the coastal dunes population. Between 2000 and 
2014, approximately 17 percent of the suitable coastal marten habitat 
in the north coastal California population burned. In 1987, in the 
California-Oregon border population area, roughly 12 percent of 
suitable habitat burned in the Longwood Fire. Substantial amounts of 
habitat occupied by the coastal marten have the potential to burn at 
varying severities in single wildfire events or over a few years. The 
effects from climate change are projected to result in longer wildfire 
seasons, producing more frequent and larger wildfires. Wildfires large 
enough to totally encompass all or most of all four individual 
population areas are already occurring throughout the range of the 
coastal marten and are expected to increase in frequency, raising 
concern over the resiliency of at least the three southern coastal 
marten population areas, which have been most affected by recent fires 
and are in a fire regime particularly vulnerable to future fires.
    Dispersal is the means by which coastal marten populations maintain 
and expand their distribution. Successful dispersal is assisted by 
having suitable habitat between patches occupied by the species. 
Connectivity of habitat between populations allows for the coastal 
marten to maintain or expand population size and distribution. A 
resilient coastal marten population would have suitable habitat 
maintained between populations that provides important habitat for key 
prey, abundant daily resting sites, and a distance between populations 
that is within the range of an average coastal marten dispersal 
distance. Neither of the Oregon populations has functional connectivity 
to any other population and if a stochastic or catastrophic event 
eliminated either of these two populations, natural recolonization from 
the California populations would not be

[[Page 63810]]

feasible. The two California populations have connectivity to one 
another, but not to the Oregon populations.
    In addition to being mostly isolated, all four populations are 
relatively small and face other threats in addition to habitat loss. 
Since 1980, 19 mortalities of coastal martens caused by vehicles 
(Factor E) have been documented, all in Oregon and mostly along U.S. 
Highway 101. We expect that some unknown amount of coastal marten 
roadkill goes undetected, so this is likely an underestimate of the 
number of coastal martens killed by cars. Exposure to rodenticides 
(Factor E), through direct ingestion or the consumption of exposed 
prey, has been documented in coastal martens. This exposure has lethal 
and sub-lethal effects on other mammal species, and similar effects are 
expected for coastal martens. Illegal cannabis cultivation sites on 
public, tribal, and private forest lands are implicated as the likely 
source of these rodenticides in the California and Southern Oregon 
populations. In a similar carnivore species (fisher (Pekania 
pennanti)), 85 percent of carcasses tested were exposed to 
rodenticides, with the exposure in 13 percent being the direct cause of 
death.
    Certain diseases (Factor C) are also a concern to coastal martens 
including canine distemper viruses (CDV), rabies viruses, parvoviruses, 
and the protozoan (single-celled organism) Toxoplasma gondii. We 
acknowledge that there has been limited testing of coastal martens for 
the presence of pathogens or exposure to pathogens, but exposure levels 
and ultimate effect on populations are difficult to document until an 
outbreak is actually observed. While larger populations might display a 
mass mortality as a result of disease infections, extinction or 
extirpation is rare. With population sizes estimated at fewer than 100 
each for all four coastal marten populations, an outbreak in an 
individual population puts it at a higher risk for extirpation.
    The coastal marten faces a variety of threats including loss of 
habitat, threats from wildfire, and increased predation risk. These 
risks play a large role in the resiliency and future viability of the 
coastal marten. Given the lack of connectivity between populations, 
availability of suitable habitat, and increases in predation within the 
populations, we forecasted in the SSA report what the coastal marten 
may have in terms of resiliency, redundancy, and representation under 
three plausible future scenarios. All three scenarios were forecast out 
over the next 15, 30, and 60 years. A range of timeframes with a 
multitude of possible scenarios allows us to create a ``risk profile'' 
for the coastal marten and its viability into the future. Scenario 1 
evaluates the future condition of the coastal marten if there is no 
change in trends in threats to the populations from what exists today, 
while the other two scenarios evaluate the response of the species to 
increases or decreases in the major factors that are influencing 
coastal marten viability. While we do not expect every condition for 
each scenario to be realized, we are using these scenarios to bound the 
range of possibilities. Scenarios 2 and 3 are considered the ``outside 
bounds'' for the range of potential plausible future conditions. For 
each scenario, we describe the stressors that would occur in each 
population. We use the best available science to predict trends in 
future stressors (timber harvest, wildfire, effects of climate change, 
etc.). Data availability varies across States and populations. Where 
data on future trends are not available, we look to past trends and 
evaluate if it is reasonable to assume these trends will continue. The 
results of the analysis of resiliency in our plausible future scenarios 
are described in further detail in the SSA report and summarized in 
table 5.1 of the SSA report (Service 2019, p. 104).
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have not 
only analyzed individual effects on the species, but we have also 
analyzed their potential cumulative effects. We incorporate the 
cumulative effects into our SSA analysis when we characterize the 
current and future condition of the species. Our assessment of the 
current and future conditions encompasses and incorporates the threats 
individually and cumulatively. Our current and future condition 
assessment is iterative because it accumulates and evaluates the 
effects of all the factors that may be influencing the species, 
including threats and conservation efforts. Because the SSA framework 
considers not just the presence of the factors, but to what degree they 
collectively influence risk to the entire species, our assessment 
integrates the cumulative effects of the factors and replaces a 
standalone cumulative effects analysis.

Summary of Comments and Recommendations

    On October 9, 2018, we published in the Federal Register a proposed 
rule (83 FR 50574) to list the coastal marten as a threatened species 
and adopt a 4(d) rule for the coastal marten, which applies the 
prohibitions and provisions of section 9(a)(1) of the Act to the 
species with certain, specific exceptions. We requested that all 
interested parties submit written comments on the proposed rule by 
December 10, 2018. We also contacted appropriate Federal and State 
agencies, scientific experts and organizations, tribal entities, and 
other interested parties, and invited them to comment on the proposed 
rule. Notices inviting the public to comment were published in 
newspapers across the areas where the species is believed to occur. We 
did not receive any requests for a public hearing. All substantive 
information provided to us during the comment period is incorporated 
directly into this final rule, has been used to clarify the information 
in our SSA report, or is addressed (by topic) below.
    We reviewed all the comments we received from the peer and 
technical reviewers for substantive issues and new information 
regarding the coastal marten and its habitat contained in the SSA 
report. We addressed peer reviewer comments in the final SSA and this 
rule as appropriate. We include a summary of the peer review comments 
below.

Peer Review Comments

    As discussed in Supporting Documents above, we received comments 
from two peer reviewers and two technical experts. We reviewed all 
comments we received from the reviewers for substantive issues and new 
information regarding the information contained in the SSA report. The 
peer and technical reviewers generally concurred with our methods used 
to determine, and conclusions drawn from the available information 
regarding, the status of coastal marten populations and their biology 
in California and Oregon. In some cases, they provided additional 
information, clarifications, and suggestions to improve the final SSA 
report. The reviewers also provided or corrected references we cited in 
our SSA report. The additional details and information provided, which 
have been incorporated into the current SSA report and this final 
listing rule, did not substantially alter any of our conclusions, 
including those concerning population resiliency, and current and 
future conditions.
    In addition, we also received comments on the proposed listing and 
4(d) rule during the open comment period. Below, we categorize the 
comments and our responses by Federal, State, Tribal, and public 
comments.

Federal Agency Comments

    Comment 1: The U.S. Forest Service (USFS) encouraged the Service to

[[Page 63811]]

develop additional 4(d) exceptions to include a more diverse set of 
management activities that are more consistent with coastal marten 
conservation (e.g., road closures and removal to increase habitat 
security, restoration to increase habitat connectivity).
    Our Response: We have added clarifying language, improved our 
rationale, and incorporated more specific information into the 4(d) 
rule, as well as added an additional exception related to clean up of 
toxicants and other chemicals from forested areas. The 4(d) rule 
exceptions may include potential road closures and restoration efforts 
if they are consistent with conservation of the coastal marten and 
included in a finalized Service approved conservation plan or strategy. 
Please see our discussions under Summary of Changes From the Proposed 
Rule, above, and Final Rule Issued Under Section 4(d) of the Act, 
below.
    Comment 2: The USFS highlighted work in the Oregon Dunes National 
Recreation Area (Oregon Dunes NRA) to increase understanding of the 
central coastal Oregon coastal marten population that occupies the 
shore pine ecosystem in the recreation area. They also noted a 
collaborative of local landowners, small businesses, the environmental 
community, and off-highway vehicle users that formed several years back 
to restore the dunes ecosystem and maintain the area for recreational 
use. The USFS suggests that working with this group may be a key 
component for successful recovery of the coastal marten, and that 
support for recovery of the species is more likely when communities 
choose to support the efforts rather than being limited by regulations.
    Our Response: We agree that working with local stakeholders to 
develop support and ownership for species recovery is key for 
successful implementation of the Act, and, as is our practice for 
listed species, we have and will continue to work with government and 
nongovernmental entities to recover the coastal marten.
State Comments
    Comment 3: The California Department of Fish and Wildlife (CDFW) 
suggested that the Service identify, either within the 4(d) rule or 
within a supplemental habitat management guide, the key structural 
features important to marten and their prey for planning and risk 
analysis prior to finalizing the listing rule. CDFW states that such 
clarification or guide would inform land managers and the Service of 
the suite of essential and preferred elements to analyze and conserve 
in a wildfire reduction program, while maintaining marten resiliency of 
large populations capable of withstanding stochastic events.
    Our Response: We have added clarifying language, improved our 
rationale, and incorporated more specific information into the 4(d) 
rule. Please see our discussions under Summary of Changes From the 
Proposed Rule, above, and Final Rule Issued Under Section 4(d) of the 
Act, below. In addition, the SSA report for the coastal marten 
identifies those key structural features important to the species. We 
are also working with our Federal and State wildlife agency partners in 
California and Oregon, as well as other land management entities, to 
develop various mechanisms (including those identified by the CDFW) to 
assist in conservation of the coastal marten and its habitat.
    Comment 4: CDFW raised a concern that a wide range of forest 
management activities could be interpreted to fall under the proposed 
4(d) rule because these activities typically include the reduction of 
fire risk as a goal even when reductions are incidental to the 
production of timber for economic reasons. CDFW recommends aligning the 
rule with existing laws governing the approval and exception of certain 
activities designed to reduce wildfire fuels. Specifically, CDFW 
recommends limiting the application of the 4(d) rule in California to 
projects consistent with large-scale strategic fuel reduction projects 
carried out or overseen by land management agencies (Cal Fire, USFS, 
State and Federal Parks, etc.) and Fire Safe Councils, and only to 
those activities that fall within the following exceptions, 
prescriptions, and limitations described in the California Forest 
Practice Rules (CA FPR): Forest fire prevention exceptions that allow 
for: (1) Elimination of vertical and horizontal fuel continuity 
provided certain conditions are met; (2) removal of dead and dying 
trees provided certain conditions are met; (3) removal of fuels within 
150 feet of legally permitted structures and within 300 feet of 
habitable structures provided certain conditions are met; and (4) 
fuelbreak/defensible space prescription that allows for removal of 
trees or other vegetation to create a shaded fuelbreak or defensible 
space.
    Our Response: We have revised the exceptions listed in the 4(d) 
rule, and added explanatory language to clarify our intent and to more 
explicitly describe specific actions subject to this rule. Please see 
our discussions under Summary of Changes From the Proposed Rule, above, 
and Final Rule Issued Under Section 4(d) of the Act, below.
    Comment 5: For the portion of the 4(d) rule that excepts take 
prohibitions for forest management activities in State-approved plans 
or agreements, CDFW pointed out that if the Service uses this rule to 
rely on the State safe harbor agreement (State SHA) to avoid ``take'' 
of a federally listed species, the distinction between State and 
Federal definitions may be important in considering how the State SHA 
meets the intended purpose of Federal protection under the Act. CDFW 
stated that the definition of ``take'' under California Code (section 
86) is narrower in scope than is ``take'' under the Federal Endangered 
Species Act. While both Federal and State SHAs allow for incidental 
take of a species, it is unclear whether a State SHA is consistent with 
Federal SHA definitions.
    Our Response: We are not relying on existing State SHAs, or other 
State-approved plans or agreements addressed in the 4(d) rule, to avoid 
take of a federally listed species, nor for such plans to meet the 
intended purpose of Federal protection under the Act. Rather, we are 
relying on these types of plans to serve their intended purpose of 
improving overall habitat conditions, which will result in a 
conservation benefit to the coastal marten. We recognize that 
implementation of such State-approved plans may result in some short-
term or small level of localized negative effects to coastal martens or 
their habitat, but also that the success of these plans in improving 
habitat conditions may subsequently contribute to the long-term 
viability of the species. As such, we are identifying that take that 
occurs as a result of these plans would be an exception to those 
actions prohibited under section 9 of the Act.
    Comment 6: CDFW recommends defining ``conservation needs of the 
coastal marten,'' as phrased in the 4(d) rule, to ensure that excepted 
activities will contribute to the recruitment or conservation of high-
quality coastal marten habitat. CDFW stated that one option is to 
establish, within this rule, large tree structure density targets, 
shrub layer species composition and coverage targets, and landscape-
scale habitat composition targets to be used by land managers and 
Service biologists when developing and evaluating management activities 
that may be covered by the 4(d) rule.
    Our Response: We have revised the exceptions listed in the 4(d) 
rule; added explanatory language, including specific

[[Page 63812]]

examples of activities designed to promote, retain, or restore suitable 
coastal marten habitat; and more explicitly described, to clarify 
intent, specific actions subject to the 4(d) rule. Coastal martens use 
a variety of habitats, and it would be inappropriate to establish, in 
the 4(d) rule, habitat composition targets for the variety of habitats 
they occupy. We encourage land managers to work cooperatively with the 
Service to develop conservation plans or strategies that are consistent 
with the needs of the coastal marten.
    Comment 7: CDFW recommends defining ``Federal or State plans,'' as 
phrased in the 4(d) rule, and clarifying the process for determining 
consistency of such plans. As an example, CDFW stated it is not clear 
if this provision would apply to California timber harvest plans (THP), 
non-industrial timber management plans (NTMP), program timber harvest 
plans (PTHP), and exceptions reviewed and approved by CalFire. Ensuring 
that these plans rise to the level of ``consistent with the 
conservation needs of coastal marten'' would require a case-by-case 
review. CDFW stated that if this was the Service's intent, an outline 
in the rule would be helpful to address whether a consultation with the 
Service is required to determine whether proposed activities will 
conserve suitable habitat. CDFW stated that without consultation, 
additive effects could result, which may lead to significant impacts 
not intended by the rule. Alternatively, the rule could state that 
THPs, NTMPs, and PTHPs are not included unless they are part of a 
larger plan to improve habitat for coastal martens.
    Our Response: We have revised the exceptions listed in the 4(d) 
rule, and added explanatory language, to clarify our intent and to more 
explicitly describe specific actions subject to this rule. The revised 
language identifies only State approved NCCPs and State SHAs that 
address and authorize State take under CESA and does not discuss or 
include Federal plans. However, activities that may be conducted by 
Federal entities if found to be beneficial to the conservation of the 
coastal marten and is included as part of a Service approved 
conservation strategy or plan would fall under an exception in the 4(d) 
rule. In development of the 4(d) rule, we identified those prohibitions 
and exceptions which would focus on conservation of the coastal marten 
and its habitat. We purposefully did not include exceptions for THPs, 
NTHPs, and PTHPs per se due to their general broad nature and their 
focus on timber harvest rather than habitat management and conservation 
which would benefit the coastal marten. As a result, the mere 
submittal, or State approval, of a timber harvest plan will not meet 
any of the section 9(a)(1) prohibition exceptions listed in the 4(d) 
rule (see Regulation Promulgation, below). However, some measures in 
timber harvest plans may qualify for exception under the 4(d) rule if 
those activities are designed for reducing the risk or severity of 
wildfire or are consistent with finalized coastal marten conservation 
plans or strategies for which the Service has determined that such 
plans or strategies would be consistent with conservation strategies 
for the coastal marten. Please see our discussions under Summary of 
Changes From the Proposed Rule, above, and Final Rule Issued Under 
Section 4(d) of the Act, below.
    Comment 8: With respect to our description of the conservation 
benefit of the proposed 4(d) rule, CDFW generally agreed that a 
tradeoff between short-term impacts and long-term habitat improvement 
may be necessary for the conservation and recovery of the coastal 
marten. However, they believe that each proposed project should be 
weighed carefully to ensure that short-term impacts do not accumulate 
to levels that would further threaten the persistence of the species. 
CDFW recommends establishing a system with identified minimum habitat 
distribution and population size thresholds to track the cumulative 
effect of excepted management activities and to verify suitable habitat 
and population thresholds are not exceeded in the pursuit of long-term 
benefits. CDFW stated that special emphasis should be given to 
Conservation Emphasis Areas, as identified in the Humboldt marten 
conservation assessment and strategy (Slauson et al. 2019, entire), 
because they have the greatest potential to meet overall conservation 
goals, and are also the areas where short-term impacts have the 
greatest potential to preclude long-term recovery. CDFW recommended 
that projects in these areas should receive specific review to ensure 
management actions resulting in ``minimal and temporary harm,'' as 
stated in the proposed 4(d) rule, are beneficial and consistent with 
the Conservation Emphasis Area goals.
    Our Response: We appreciate the CDFW comments on tracking and 
focusing conservation efforts for the coastal marten through the 
implementation of the 4(d) rule and agree that there is a tradeoff 
between short-term impacts and long-term benefits to habitat depending 
on the type of activity. We are in the process of developing such or 
similar tracking methods suggested by the commenter through our section 
7 consultation process. Activities on Federal lands or requiring 
Federal permitting or authorization will be subject to section 7 
consultation requirements under the Act for federally listed species. 
In addition, once critical habitat is established, we would evaluate 
potential effects of Federal project activities on areas designated as 
critical habitat. With respect to guidance, the SSA report for the 
coastal marten and the proposed and final critical habitat rules once 
developed will describe the physical or biological features for the 
coastal marten, as well as any special management that should occur in 
critical habitat units. If landowners have questions or need further 
assistance, we strongly encourage them to contact their local U.S. Fish 
and Wildlife Service office; contact information is available from the 
person listed under FOR FURTHER INFORMATION CONTACT, above.
    Comment 9: CDFW noted that the proposed 4(d) rule objective of 
maintaining ``complex tree and shrub conditions needed to support 
persistence'' is a broad condition not defined in the rule and could be 
interpreted as contradictory. As an example, CDFW stated that a project 
may focus on a single component (increasing shrub complexity) by, or in 
concert with, removing the other entity (large, overstory trees or 
retention trees from past harvest). CDFW stated that this could be 
counterproductive to maintaining or promoting coastal marten habitat. 
CDFW recommended that it would be helpful to provide guidance on the 
range of desirable coastal marten habitat conditions on managed 
landscapes.
    Our Response: We have revised the exceptions listed in the 4(d) 
rule, and added explanatory language, to clarify our intent and to more 
explicitly describe specific actions subject to this rule. 
Specifically, we added the following examples: Forestry management 
activities that promote, retain, or restore suitable coastal marten 
habitat that increase percent canopy cover, percent ericaceous shrub 
cover, and denning and resting structures. See also response to Comment 
7. Please see our discussions under Summary of Changes From the 
Proposed Rule, above, and Final Rule Issued Under Section 4(d) of the 
Act, below.
    Comment 10: The Oregon Department of Fish and Wildlife (ODFW) 
listed several conservation measures underway that should be considered 
in our determination. These include: (1) ODFW, through the Oregon Fish 
and Wildlife Commission, is in a rulemaking

[[Page 63813]]

process to restrict trapping of coastal marten west of Interstate 5 
(note: This action was a possible occurrence in Scenario 2 of the SSA 
report that suggested a population improvement through threat 
reduction); (2) ODFW is working on a connectivity analysis for multiple 
species, including the coastal marten, to help identify areas for 
habitat restoration or protection; (3) Federal agencies are currently 
implementing fuels-reduction efforts on Federal forests across the 
coastal marten's range to decrease wildfire impact, frequency, and 
intensity; and (4) ODFW has capitalized on renewed interest in the 
coastal marten by acquiring funds and establishing partnerships to 
expand monitoring efforts, with the intent of gaining information that 
will guide the management and restoration of coastal marten.
    Our Response: With respect to conservation measure (1), we 
acknowledge the recent decision (September 2019) by the Oregon Fish and 
Wildlife Commission (OFWC) to ban marten trapping in the DPS (OFWC 
2019, entire) (also see Comment 43). Regarding conservation measure 
(2), we commend the ODFW for their proactive work on martens in the 
coastal DPS; while their connectivity analysis, when completed, will 
help inform recovery actions for martens, it is not sufficient to 
reduce the threats to a level where we can determine that listing the 
coastal marten DPS is no longer warranted. With respect to conservation 
measure (3), we evaluated the impact of wildfire and fuels reduction 
efforts currently in place in our threats analysis, and have included 
such measures to reduce the impact of wildfire in our 4(d) rule's 
exceptions. Finally, as to conservation measure (4), we appreciate our 
partnership with ODFW and look forward to continuing our joint efforts 
in working towards coastal marten conservation.

Tribal Comments

    We solicited information from and met with members of the Yurok 
Tribe regarding the proposed listing of the coastal marten. We also 
sent the draft SSA report to the Yurok Tribe; the Confederated Tribes 
of Coos, Lower Umpqua and Siuslaw Indians; the Coquille Indian Tribe; 
the Cow Creek Band of Umpqua Tribe of Indians; the Confederated Tribes 
of Grand Ronde; and the Confederated Tribes of Siletz Indians for 
comment. We did not receive comments on the proposed rule from any 
tribal entities.

Public Comments

4(d) Rule
    Comment 11: Two commenters requested that forest practices 
conducted under the Oregon Forest Practices Act and its implementing 
regulations be included under the 4(d) rule. One of these commenters 
also requested that activities certified by third-party forest 
sustainability systems (e.g., Sustainable Forestry Initiative) be 
excepted from take prohibitions under the 4(d) rule.
    Our Response: We did not specifically identify the Oregon Forest 
Practices Act (OFPA) as a mechanism for excepting activities from 
section 9(a)(1) prohibitions as actions undertaken through the OFPA may 
include additional activities outside our intended scope of the 4(d) 
rule. The commenters did not provide specific forestry practices that 
should be considered for exception under the 4(d) rule; however, our 
4(d) rule does provide that certain forestry management activities that 
are for the purpose of reducing the risk or severity of wildfire may be 
excepted from the section 9(a)(1) prohibitions, as described in 50 CFR 
17.40(s)(2)(ii), and this may include actions conducted under the 
Oregon Forest Practice Act if those activities meet the descriptions in 
our 4(d) rule.
    Regarding third-party forest sustainability certifications, the 
commenter did not provide specific application and subsequent 
conservation benefits these certifications would provide to coastal 
martens. As a result, we could not evaluate the commenter's request. 
However, the exception under 50 CFR 17.40(s)(2)(iv) (see Regulation 
Promulgation, below) allows for forest management activities consistent 
with the conservation needs of the coastal marten developed in 
finalized conservation plans and strategies that are determined by the 
Service to be consistent with conservation strategies for the coastal 
marten.
    Comment 12: One commenter suggested that the willingness of private 
landowners to implement a full suite of additional conservation 
measures, such as environmental research and site-specific conservation 
plans, should also be recognized by the Service as ``activities 
consistent with formal approved conservation plans or strategies,'' as 
described in our proposed 4(d) rule.
    Our Response: We concur with the commenter and recognize private 
landowner activities furthering conservation of the coastal marten as 
important. Such activities would be reviewed under the applicable 
exceptions of the 4(d) rule, and the Service will determine if the 
activity is consistent with conservation strategies for the coastal 
marten, and thus qualifies as an exception under the 4(d) rule.
    Comment 13: One commenter stated that the 4(d) rule is vague and 
will be difficult to apply because it is based on language subject to 
interpretation. Another commenter believed more clarity was needed on 
specific activities not covered by the 4(d) rule and raised several 
questions about how it should be interpreted.
    Our Response: We have revised the exceptions listed in the 4(d) 
rule, and added explanatory language, to clarify our intent and to more 
explicitly describe specific actions subject to the 4(d) rule.
    Comment 14: One commenter stated that rather than using vague and 
confusing language in a 4(d) rule to except landowners from take, we 
should have landowners use the Act's existing regulatory framework and 
develop habitat conservation plans (HCPs) or other mechanisms under 
section 10 of the Act. The commenter stated that an HCP would provide a 
more tailored and particularized look at the individual circumstances 
of the landowner and of the species' use of their land.
    Our Response: To improve clarity and avoid confusion, we have 
revised the exceptions listed in the 4(d) rule, and added explanatory 
language to clarify our intent and to more explicitly describe specific 
actions subject to the 4(d) rule. In our 4(d) rule, we provide specific 
exceptions from take for those forestry management activities such as 
fuels reduction and other vegetation management to assist in preventing 
catastrophic wildfire or are consistent with conservation strategies 
for the coastal marten through State or Service approved plans. 
Landscape planning efforts such as HCPs are large scale conservation 
efforts developed to conserve sensitive species and their habitats 
while providing long term planning assurances and consistency. Although 
we agree with the commenter that HCPs are a valuable conservation tool, 
they are not the only tool available for conservation and recovery of a 
threatened species. We determined that by specifically providing 
exceptions from take for a few specific activities which overall 
provide benefits for the coastal marten and its habitat, we can further 
conservation of the coastal marten.
    Applicants conducting activities that may cause incidental take of 
coastal

[[Page 63814]]

martens as a result of any activity not described in our 4(d) rule may 
seek an HCP and a permit under section 10(a) of the Act, or 
consultation under section 7 of the Act if there is a Federal nexus.
    Comment 15: One commenter stated that a broader 4(d) rule may 
provide landowners incentive to retain forests (as opposed to 
converting forest land to other land uses) and to participate in 
cooperative conservation measures.
    Our Response: One of the reasons we issue 4(d) rules is to 
incentivize positive conservation actions and streamline the regulatory 
process for land managers. Our 4(d) rule for the coastal marten is just 
one of many tools we use to accomplish conservation. Although a broader 
4(d) rule may allow for additional actions to take place without 
significant regulatory oversight, we have determined that such a 
strategy would not be necessary or advisable for conservation of the 
coastal marten. We conclude that broadening the 4(d) rule will not 
result in a benefit to the species, and may increase its likelihood of 
becoming an endangered species.
    We strongly encourage landowners working with the Service to 
cooperatively develop conservation measures for the coastal marten. In 
both Oregon and California, the Service has already begun working with 
Federal, State, and nongovernmental forest managers to develop a 
conservation strategy that would meet the requirements of the final 
4(d) rule (50 CFR 17.40(s)(2)(iii and iv)) (see Regulation 
Promulgation, below).
    Comment 16: One commenter stated that the Service's authority to 
issue 4(d) rules is narrowly confined by the definition of 
``conservation,'' which the Act defines as the use of all [emphasis 
added by the commenter] methods and procedures which are necessary to 
bring any endangered species or threatened species to the point at 
which the measures provided are no longer necessary. The commenter 
points to the Service's policy of extending all the section 9 
prohibitions of endangered species to threatened species (50 CFR 
17.31(a)), which, according to the commenter, means the Service found 
that the best way to ``conserve'' threatened species is to apply all 
prohibitions afforded to endangered species. The commenter concluded 
that, if the Service decides to depart from this practice, then the 
Service must otherwise ``provide for the conservation of the species.''
    Our Response: We have determined to extend all the section 9 
prohibitions of an endangered species to the coastal marten, with 
certain specific exceptions, in order specifically to provide for the 
conservation of the species. The exceptions in the 4(d) rule were 
identified as actions that will assist in potentially reducing the risk 
of largescale wildfire, as well as other State or Service approved 
measures that are consistent with conservation strategies for the 
coastal marten. We have determined that such exceptions will benefit 
the overall conservation of the species.
    Comment 17: One commenter stated that the portion of the 4(d) rule 
referring to State-approved plans or agreements that cover the coastal 
marten and are approved by CDFW is a special exception for Green 
Diamond Resource Company because they are the only large industrial 
timberland owner in the range that has obtained such an approved 
agreement with CDFW. The commenter believes the agreement fails to 
provide meaningful benefits to coastal martens and is insufficient to 
conserve the coastal marten as required under the Act. The commenter 
raised several issues with the agreement, including the reliance on 
translocation when it is unknown if translocation is feasible, changes 
to the company's wildlife tree retention program that do not allow 
trees to become old and complex, designating a ``marten habitat 
reserve'' in an area that was already unavailable for harvesting, and 
espousing agreement benefits that are already in place.
    Our Response: We are not intending that the conservation of the 
coastal marten be achieved solely through the implementation of the 
State issued Green Diamond SHA. Conservation of the species, as 
required under the Act, will depend on a variety of recovery actions 
over time. In addition, although the Green Diamond SHA currently is the 
only CDFW-approved plan in place for the coastal marten, we anticipate 
additional plans to be developed by other entities in the future. We 
have revised the 4(d) to specifically except only those forestry 
management activities included in a plan or agreement for lands covered 
by NCCPs or State SHAs that address and authorize take of coastal 
marten as a covered species and which have been approved by the CDFW 
under the California Endangered Species Act. The Green Diamond SHA 
allows for certain forestry management activities conducted on their 
lands that are reasonably expected to provide a net conservation 
benefit for the coastal marten. The Green Diamond SHA provides aspects 
of habitat retention and wildfire management which will benefit the 
coastal marten. However, we also understand that the Green Diamond SHA 
does not provide for all aspects of coastal marten conservation. Any 
activities outside those described in the plan would not be included 
within the 4(d) exceptions as they would not be part of a CDFW-approved 
plan or agreement as described in 50 CFR 17.40(s)(2)(iii)
    The Act provides a broad and flexible framework to facilitate 
conservation with a variety of stakeholders through various means. 
Working with our State resource agency partners in implementing 
conservation is one of many ways we work with, leverage, and expand our 
existing network of conservation partnerships to produce effective 
conservation practices and conservation strategies on the ground for 
all endangered or threatened species and their habitats. Working and 
collaborating with our State wildlife agency partners, tribes, private 
landowners, non-governmental organizations, and Federal partners to 
achieve on-the-ground conservation for endangered or threatened species 
and habitats will lead to greater conservation than if done 
independently. It is only through our inclusive efforts with the 
conservation community that we can collectively protect our shared 
resources.
    Comment 18: One commenter pointed out that the Service did not 
cover the coastal marten under the habitat conservation plan with Green 
Diamond Resource Company (Green Diamond), wherein the company attempted 
to cover the same prescriptions currently in place in the Green Diamond 
safe harbor agreement (SHA) (see Comment 17). The commenter stated that 
the Service rejected the inclusion of coastal martens because of 
insufficient information available to consider the range of effects. 
The commenter questioned how the Service could conclude that the SHA 
would promote the conservation of the species if the prescribed 
management in the HCP was too uncertain to meet HCP issuance criteria. 
The commenter stated that, although the legal standard for issuing an 
incidental take permit (the Service needs to find the HCP minimizes and 
mitigates take to the maximum extent practicable) differs from issuing 
a 4(d) rule (covered actions must provide for the conservation of the 
species), the practical result of the 4(d) rule will forgive all taking 
of coastal marten by Green Diamond.
    Our Response: The commenter is correct that the coastal marten is 
not a covered species in the Green Diamond HCP. However, since the 
implementation of the Green Diamond HCP, a conservation strategy has 
been

[[Page 63815]]

developed (Slauson et al. 2019, entire) that outlines a three-pronged 
conservation strategy for the coastal marten and its habitat. The first 
two prongs of this strategy seek to: (1) Protect existing populations 
and currently suitable habitat, and (2) reestablish coastal marten 
populations where currently suitable habitat is inaccessible owing to 
existing dispersal barriers. Green Diamond and CDFW have developed a 
State SHA that is reasonably expected to provide a net conservation 
benefit for the coastal marten on Green Diamond lands for certain 
activities. The Green Diamond SHA is authorized under the CESA, and 
addresses, in part, the first and second prongs of the strategy. The 
Green Diamond SHA accomplishes this by implementing certain coastal 
marten habitat management and assisted dispersal commitments including 
funding, monitoring, and adaptive management (see CDFW 2018, entire). 
Moreover, the State SHA includes measures that were not originally 
included in the HCP, including financial and technical assistance for 
assisted dispersal. Accordingly, the State SHA provides additional 
protections for the coastal marten beyond those contained in the Green 
Diamond HCP. The commenter's statement that the practical result of the 
4(d) exception of the State SHA would allow Green Diamond any manner of 
take is not correct because the 4(d) rule sets out specific and limited 
exceptions to the section 9 prohibition on take; as applicable to this 
comment, forestry management activities may be exempted from the take 
prohibition if included in a plan or agreement for lands covered by a 
NCCP or State SHA that addresses and authorizes State take of coastal 
marten as a covered species and is approved by the CDFW under CESA.
    Comment 19: One commenter stated the Service failed to provide an 
adequate rationale for the 4(d) rule. The commenter stated that the 
Service's rationale that the exception of forestry management 
activities will, ``encourage active forest management that creates and 
maintains the complex tree and shrub conditions needed to support the 
persistence of marten populations'' would not occur under the Green 
Diamond SHA (see Comments 17 and 18). The commenter stated that 
management under the Green Diamond SHA prevents the development of 
suitable complex tree conditions and shrub layer because it will lower 
the age class of forests outside of riparian reserves. The commenter 
also stated that those riparian reserves were already protected prior 
to the State SHA and therefore the State SHA does not provide 
additional conservation for the coastal marten. The commenter further 
stated that the Service also claims that by excepting some forest 
management activities from take prohibitions, ``these provisions can 
encourage cooperation . . . in implementing conservation measures that 
will maintain or enhance habitat and expand the population,'' yet 
provides no explanation of how excepting take would encourage better 
behavior.
    Our Response: We have determined that the measures identified in 
the 4(d) rule are necessary and advisable for conservation of the 
coastal marten. The provisions of the 4(d) rule for coastal marten will 
promote conservation of the species and its habitat by encouraging 
management of the landscape in ways that allow land management 
considerations while meeting the conservation needs of the coastal 
marten. This is accomplished by applying all the prohibitions for an 
endangered species, except as otherwise authorized or permitted. The 
long-term viability of the coastal marten, as with many wildlife 
species, is directly tied to the condition of its habitat. As described 
in our analysis of the species' status, one of the primary driving 
threats to the coastal marten's continued viability is the destruction 
of its habitat from catastrophic wildfires. The potential for an 
increase in frequency and severity of these catastrophic wildfires from 
the effects of climate change subsequently increases the risk to the 
species posed by this threat. We have determined that actions taken by 
forest management entities in the range of the coastal marten for the 
purpose of reducing the risk or severity of catastrophic wildfires, or 
conducting forestry management activities covered by California-
approved SHAs or NCCPs, even if these actions may result in some short-
term or small level of localized negative effect to coastal martens, 
will further the goal of reducing the likelihood of the species from 
becoming an endangered species, and will also likely contribute to its 
conservation and long-term viability. We have added clarifying 
language, improved our rationale, and incorporated more specifics into 
the 4(d) rule. Additionally, we removed the language within the 
preamble of the 4(d) rule that states, ``These provisions can encourage 
cooperation . . . in implementing conservation measures that will 
maintain or enhance habitat and expand the population.'' Please see our 
discussions under Summary of Changes From the Proposed Rule, above.
    Comment 20: One commenter stated that in order to issue a 4(d) rule 
the Service must adhere to the National Environmental Policy Act (NEPA; 
42 U.S.C. 4321 et seq.) and complete internal section 7 consultation 
under the Act, and that failure to conduct these activities is a 
violation of NEPA and the Act.
    Our Response: The courts have ruled that NEPA does not apply to 
listing decisions under section 4(a) of the Act, nor to 4(d) rules 
issued concurrent with listing (see Pacific Legal Foundation v. Andrus, 
657 F.2d 829 (6th Cir. 1981); and Center for Biological Diversity v. 
U.S. Fish and Wildlife Service, No. 04-4324, 2005 WL 2000928, at *12 
(N.D. Cal. Aug. 19, 2005). In addition, the Service has determined that 
section 7 does not apply to the promulgation of 4(d) rules. Under the 
Act, we are to base listing decisions on the best available scientific 
and commercial information. If a species warrants listing under the Act 
based on a review of the best available scientific and commercial 
information, the Service must list the species, if not precluded by 
other higher priority listing actions. In other words, the Service does 
not have discretion to not list a species in consideration of other 
information, including the results of a section 7 analysis. This 4(d) 
rule is being promulgated concurrent with the listing of the species, 
and by extension, is therefore also not subject to section 7 
consultation requirements. Further, the Service's determination that a 
4(d) rule is necessary and advisable to provide for conservation of the 
species necessarily subsumes a determination that the rule will not 
jeopardize the species or adversely modify its critical habitat.
    Comment 21: One commenter supported the 4(d) rule but stated its 
benefits were primarily afforded to non-Federal activities because the 
consultation requirements of section 7 for Federal activities remain in 
place. The commenter requested that we except Federal activities from 
section 7 consultation if they are consistent with the 4(d) rule, as it 
is well within the Service's general rulemaking authority under the 
Act.
    Our Response: The overall intent of any 4(d) rule is to develop 
protective regulations necessary and advisable for the conservation of 
the species, not necessarily to provide regulatory ``benefits'' to any 
Federal entity. The 4(d) rule for the coastal marten applies all the 
prohibitions and provisions for the protection of endangered wildlife 
under section 9(a)(1) of the Act, with the exception of certain 
activities that we

[[Page 63816]]

have determined are not likely to be primary drivers of the species' 
status, and which are likely to provide an overall conservation benefit 
by reducing wildfire impact, providing for habitat management, and 
allowing clean-up of contaminated habitat. Under section 7(a)(2) of the 
Act, Federal agencies, in consultation with the Service, must insure 
that their action, viewed against the aggregate effects of everything 
that has led to the species' current status and the cumulative effects 
of non-federal activities that are likely to affect the species in the 
future, is not likely to jeopardize the continued existence of the 
species. However, section 7 consultations for actions that are not 
prohibited by a 4(d) rule should be streamlined, as any action that we 
determine is compatible with the conservation of the species in a 4(d) 
rule should not result in jeopardy to the species.
    Comment 22: More than 2,500 commenters, submitting the same or 
similar comment letters, stated that the 4(d) rule is insufficient to 
ensure the coastal marten's survival and will condemn the coastal 
marten to extinction because it largely excepts ``State logging plans'' 
(timber harvest plans), even though logging has been the main driver of 
the marten's decline. Another 190 comments by email, submitting the 
same or similar text, stated that the proposed 4(d) rule excepts from 
section 9 prohibitions the very things that have brought coastal 
martens to the point where they should be listed as endangered under 
the Act.
    Our Response: The 4(d) rule does not specifically identify or 
except timber harvest plans (including THPs, NTHPs, and PTHPs) per se 
due to their general broad nature and their focus on timber harvest 
rather than habitat management and conservation that would benefit the 
coastal marten. As a result, the mere submittal, or State approval, of 
a timber harvest plan will not meet any of the section 9(a)(1) 
prohibition exceptions listed in the 4(d) rule (see Regulation 
Promulgation, below). However, some measures in timber harvest plans 
may qualify for exception under the 4(d) rule if those activities are 
designed for reducing the risk or severity of wildfire or are 
consistent with finalized coastal marten conservation plans or 
strategies for which the Service has determined that such plans or 
strategies would be consistent with conservation strategies for the 
coastal marten.
    As for the remaining comments on the proposed 4(d) rule, we have 
excepted certain activities from take that would reduce habitat loss 
through fire, or that would occur subject to a plan or agreement 
covered by a NCCP or State Safe Harbor Agreement approved by CDFW under 
the authority of CESA, or forestry management activities consistent 
with marten conservation that are also consistent with finalized 
conservation plans or strategies for which the Service has determined 
that meeting such plans or strategies would be consistent with marten 
conservation strategies. We conclude that these activities meet the 
standards set out in the 4(d) rule and in addressing the stressors of 
fire and timber harvest that could could result in habitat loss for the 
coastal marten.
    Comment 23: One commenter stated that the 4(d) rule is overly broad 
and lacks conservation measures to protect the marten from jeopardy. 
The commenter stated that the protections afforded to endangered 
species by the Act are necessary to protect the coastal marten because 
State regulations are not protective of the species, and are pushing 
the species towards extinction. The commenter raised concerns that the 
State of Oregon's authorizations of forestry practices, which allow the 
use of strychnine and other poisons, are not compatible with marten 
conservation. The commenter concludes that a 4(d) rule that would 
except State-approved logging plans is not adequately protective and 
will not provide for the survival and recovery of the coastal marten.
    Our Response: Under the 4(d) rule, State-approved logging plans are 
not excepted from section 9(a)(1) prohibitions (see our responses to 
Comments 11 and 22). The exception under 50 CFR 17.40(s)(2)(iii) (see 
Regulation Promulgation, below) is specific to agreements approved by 
the CDFW under the authority of the CESA. Oregon does not have 
analogous agreement instruments under its Endangered Species Act; 
hence, there is not a similar exception in Oregon. The exception at 50 
CFR 17.40(s)(2)(iv) (see Regulation Promulgation, below) applies to 
forest management activities consistent with marten conservation needs, 
and any forest management activity must be consistent with finalized 
conservation plans or strategies which the Service has determined is 
consistent with the conservation strategies of the coastal marten.
    Comment 24: One commenter stated that a 4(d) rule for the marten is 
not needed, but should the Service proceed with one, it must include 
enforceable protective conservation measures to ensure the marten is 
not lost in the few areas where it persists. The commenter stated that 
conservation measures should prohibit logging within extant coastal 
marten population areas and curtail clear-cut logging and similar 
logging activities in mature forests between existing coastal marten 
population areas to facilitate habitat development. The commenter 
stated that projects that leave shelter trees or resting structures in 
an otherwise inhospitable landscape would not meet the definition of 
conservation measures. The commenter stated that Federal lands alone 
cannot provide enough habitat to ensure marten viability without 
connectivity on private and State lands.
    Our Response: Without a 4(d) rule for the coastal marten, the 
species would have no protective regulations in effect. By applying all 
the prohibitions and provisions of section 9(a)(1) of the Act, which 
are the same for endangered species, to the coastal marten, except for 
certain forest management activities associated with: (1) Wildfire 
management activities intended to reduce the risk or severity of 
wildfire; (2) State NCCPs or SHAs approved by CDFW under CESA; (3) 
finalized plans or strategies consistent with conservation needs of the 
coastal marten and which are Service approved for coastal marten; and 
(4) removal of toxicants consistent with conservation of the coastal 
marten, the 4(d) rule includes protective measures to ensure the 
coastal marten and its habitat is conserved. The 9(a)(1) prohibitions 
mean that any activity apart from those excepted in this 4(d) rule that 
would result in take of the marten, such as those examples described by 
the commenter, would be unlawful. The exceptions outlined in the 4(d) 
rule are not ownership specific and are not intended to rely on just 
Federal lands or on Federal agency conservation actions; the exceptions 
would apply to those entities that have appropriate plans in place 
across the landscape that provide for management and are designed to 
reduce the risk of coastal marten habitat loss. We conclude that 
allowing these specific activities under the conditions described in 
the 4(d) rule would promote conservation of the species and its 
habitat.
    Comment 25: One commenter urged the Service to condition any 
listing of the marten with measures such as a 4(d) rule that would 
allow and promote continued and expanded vegetation management in the 
Oregon Dunes National Recreation Area (NRA) that is necessary to 
control invasion by both native and nonnative plants that are rapidly 
colonizing and eliminating unique elements of this ecosystem. The 
commenter believes the Service must

[[Page 63817]]

consider the long-term risk to the broader dunes ecosystem, including 
marten and other at-risk organisms residing there, and allow invasive 
plant control intended to protect and/or restore sites. The commenter 
believes slowing or stopping these efforts at this time risks 
irreversible loss of the dunes and the diverse habitats associated with 
them.
    Our Response: Portions of the Oregon Dunes NRA provide nearly all 
of the coastal shore pine habitat known to be used by coastal martens 
in the central coastal Oregon population. Activities associated with 
removal of shore pine habitat that is used by coastal marten in 
restoration of dune habitat are not part of the 4(d) exceptions. 
Conservation of the shore pine ecosystem is important for the 
conservation of the coastal marten. We are in conference, under section 
7 of the Act, with the Oregon Dunes NRA on the impacts of implementing 
the Oregon Dunes Restoration Project on the coastal marten population. 
We will continue with section 7 consultation after listing becomes 
final, working with the agencies managing the Oregon Dunes NRA to help 
meet the project objectives while also meeting the conservation needs 
of the marten and ensuring the project does not jeopardize the species. 
As a result of the section 7 consultation efforts, any restoration 
efforts associated with the Oregon Dunes NRA will also take into 
consideration conservation of the coastal marten and its shore pine 
habitat within the area.
Existing Regulatory and Conservation Actions
    Comment 26: One commenter encouraged the Service to consider not 
only the threats, but also the existing conservation measures in place 
to conserve coastal martens, including the Northwest Forest Plan, 
Redwood National Park management, listing status in California and 
associated CESA regulations, and the Green Diamond Resource Company SHA 
for coastal martens in California.
    Our Response: In the SSA report, we describe the current resiliency 
of the coastal marten. Our conclusions on current resiliency for the 
coastal marten took into consideration the existing conservation 
actions as well as any regulatory mechanisms being implemented to 
conserve habitat used by the species.
    Comment 27: One Board of County Commissioners and two 
nongovernmental organizations pointed out that we did not address 
existing State and Federal regulatory mechanisms that provide 
substantial conservation benefits to coastal martens. Coastal martens 
are listed under the CESA, and take of coastal martens is negligible in 
Oregon. The commenters stated that other regulatory mechanisms are in 
place, such as the Northwest Forest Plan (NWFP), Oregon Dunes 
management plans, and Oregon land use laws that provide protection for 
coastal martens and need to be considered in a listing determination. 
One commenter pointed out specific aspects of the NWFP that we noted in 
the SSA report as providing benefits to coastal martens, including 
habitat recruitment that would contribute to coastal marten population 
connectivity, as well as reduced levels of timber harvest compared to 
non-Federal forests. The commenter stated that the prohibition of take 
of coastal martens as a listed species under the CESA is not addressed 
in terms of its reduction of threat levels to coastal martens, at least 
in California. The commenters believe that these mechanisms, as well as 
ODFW management programs, research efforts, and initiation of 
rulemaking to ban coastal marten trapping, are either adequate to the 
degree that listing the coastal DPS is not warranted, or need to be 
fully and robustly considered before a listing decision is made.
    Our Response: We agree with the comments regarding the benefits of 
State and Federal regulatory mechanisms for the conservation of listed 
species. For the coastal marten, we took into account Federal, State, 
and Tribal regulatory mechanisms and conservation measures when 
determining the Federal listing status of the DPS and have concluded 
that even with the existing regulatory mechanisms in place, the coastal 
marten still needs protections under the Act. See Determination of 
Coastal Marten Status, below, for our review of existing regulatory 
mechanisms.
    Comment 28: Three commenters stated that the Service did not fully 
consider existing regulatory mechanisms because we inadequately 
addressed the potential ban on coastal marten trapping in Oregon.
    Our Response: At the time of our proposed listing rule for the 
coastal marten (83 FR 50574; October 9, 2018), the State of Oregon had 
not yet proposed or finalized restrictions on trapping in the State. We 
have revised this final rule to incorporate the latest status of ODFW's 
rulemaking effort to ban harvest of coastal martens by trapping in 
western Oregon. However, although trapping is considered a threat to 
the coastal marten, trapping is not considered one of the main drivers 
leading toward our determination of threatened status for the species, 
but is considered along with all other threats cumulatively affecting 
the species.
    Comment 29: Two commenters stated that the Service did not fully 
consider existing regulatory mechanisms because we inadequately 
addressed the effect of legalization of cannabis on coastal marten 
exposure to anticoagulant rodenticides. One of the commenters further 
stated that cannabis growers in California are required to apply 
pesticides in accordance with U.S. Environmental Protection Agency 
(U.S. EPA)-approved labeling, as well as State and local permitting 
requirements. The commenters stated that these requirements would 
result in a reduced incidence of unlawful cannabis growing and 
pesticide application, thereby reducing the threats from this activity 
on the species.
    Our Response: We discuss legalization of cannabis and its effects 
on anticoagulant rodenticide exposure to coastal martens in our SSA 
report (Service 2018, pp. 48-49; Service 2019, pp. 39-42). However, it 
is unclear at this time as to how legalization will influence the use 
of anticoagulant rodenticides or other toxicants and subsequent coastal 
marten exposures, especially with respect to illegal cannabis grow 
sites. The commenter seems to assume that regulation of legalized 
cannabis cultivation has reduced the amount of unlawful cannabis 
cultivation and unlawful use of pesticides. However, the commenter 
provides no information to support that assumption.
    We have no information to indicate that legalization of cannabis 
cultivation will reduce ``black market'' activities and associated grow 
sites, or how local regulations and zoning ordinances for cannabis 
cultivation on private lands will alter the number of illegal grows on 
public land (Owley 2018, pp. 1713-1714). There is no indication illegal 
growing has decreased with legalization of cannabis; continued lack of 
enforcement, as well as financial advantages over legally registered 
businesses, allow illegal underground operations to thrive (Bureau of 
Cannabis Control California 2018, pp. 28, 30). In fact, legalization 
may increase ``black market'' sales in other States, thereby increasing 
illegal grows to meet demand (Hughes 2017, entire).
    Although cannabis growers are required to apply pesticides in 
accordance with U.S. EPA-approved labeling requirements, no pesticides 
are currently registered by the U.S. EPA for application on cannabis, 
because the U.S. EPA cannot recognize cannabis as a legal crop due to 
its status as a federally controlled substance. Unless

[[Page 63818]]

exempt from registration requirements, use of a pesticide on a crop for 
which it is not registered is illegal. Yet tests of cannabis products 
grown by the cannabis industry reveal the presence of pesticides 
applied contrary to their registered label, including 71 percent of 
cannabis flowers grown for medical marijuana in Oregon (Voelker and 
Holmes 2015, pp. 7-8; Sandler et al. 2019, pp. 41-42). None of the 
pesticides tested were rodenticides, but the assertion that cannabis 
legalization has reduced the unlawful use of pesticides appears to be 
unfounded.
    Moreover, legalization of cannabis cultivation may have increased 
the number of grow sites in some areas. Within the DPS counties in 
Oregon, over 2,000 legal operations have been permitted (Oregon Liquor 
Control Commission (OLCC) 2019, unpaginated); this number is in 
addition to existing illegal grow sites, which may not diminish as a 
result of legalized cultivation. Associated rodenticide use on the 
permitted grow sites is difficult to determine, and, as far as we know, 
has not been assessed.
    Hence, we stand by our conclusion that the threat of coastal marten 
exposure to rodenticides remains, and it is uncertain as to whether 
cannabis legalization will decrease the threat to coastal martens by 
toxicant exposure.
Distinct Population Segment
    Comment 30: The Douglas County Board of Commissioners stated that 
designation of the DPS is arbitrary and capricious, basing this 
conclusion on the premise that if there is no contemporary or 
historical biogeographic barrier to the interaction between coastal 
marten populations in Oregon and coastal marten populations in 
California (citing Slauson et al. 2009), then there similarly is no 
reason to conclude that the coastal population as a whole in California 
and Oregon cannot interact with the rest of the M. caurina taxon in 
Oregon or elsewhere in North America (see Comment 31).
    Our Response: Contemporary or historical biogeographic barriers are 
only one of multiple factors we consider when determining whether a 
population meets the standards for designation as a DPS. Under our DPS 
Policy (Service 1996), a population segment of a vertebrate taxon must 
be both discrete and significant to the taxon to which it belongs. The 
commenter is referring to the discreteness portion of the policy, which 
we address here. A population segment may be considered discrete if it 
satisfies either of two conditions. The condition relevant to this 
comment states that the population segment is markedly separated from 
other populations of the same taxon as a consequence of physical, 
physiological, ecological, or behavioral factors. Quantitative measures 
of genetic or morphological discontinuity may provide evidence of this 
separation. We articulate our position in detail in our April 7, 2015, 
12-month finding (80 FR 18742, pp. 18744-18746). In short, we found 
substantial genetic differences between the coastal marten population 
(combined coastal Oregon and California) and other populations of 
Pacific martens, indicating that they are markedly separated from each 
other and providing evidence of a long-standing geographic separation. 
Although some low degree of introgression indicates occasional past 
movement of individuals between coastal and inland marten populations, 
evidence suggests this was an infrequent occurrence. Further, recently 
published results of a genetic evaluation of the Pacific marten 
indicate that coastal Oregon and coastal California marten populations 
likely represent a single subspecies (Schwartz et al. 2020, p. 11). 
Consequently, the coastal marten may actually be a subspecies, which is 
also a listable entity under section 3(16) of the Act.
    Comment 31: As a follow up to Comment 30, the same commenter stated 
that researchers (Dawson et al. 2017, entire) provided further evidence 
that our DPS determination was arbitrary and capricious. Specifically, 
the commenter believes this publication continues to reflect a wider 
range for Martes americana caurina, providing a context not only for 
characterizing the genetics of M. a. caurina and M. a. humboldtensis, 
but also providing a context for the Federal listing status of M. a. 
caurina relative to its wider range rather than just the Oregon and 
California coastal populations.
    Our Response: It appears the commenter has misapplied the results 
of Dawson et al. (2017) for the coastal marten. First, the commenter 
incorrectly labels the two currently designated subspecies as belonging 
to the American marten species (Martes americana) when in fact they 
belong to the Pacific marten species (M. caurina), as supported by 
recent data (Dawson and Cook 2012, p. 35; Dawson et al. 2017, p. 716). 
Consequently, the correct nomenclature for these two subspecies is M. 
c. caurina and M. c. humboldtensis, not M. a. caurina and M. a. 
humboldtensis. In that light, Dawson et al. (2017, pp. 721, 724) 
further supports our DPS designation because they determined that 
American marten populations exhibit greater genetic variability among 
populations and greater geographic distribution of individual genetic 
haplotypes than do Pacific martens, indicating American marten 
populations are more similar to each other than are Pacific marten 
populations. Because Dawson et al. conclusions support a determination 
that the Pacific marten is a different entity than the American marten, 
the status of the American marten is not relevant to this 
determination.
    Comment 32: The Douglas County Board of Commissioners stated that 
we assumed that the three coastal marten populations identified in the 
SSA report were in decline and that we based this assumption on a 
reduction in the number of coastal martens trapped and anecdotal 
observations of road-killed coastal martens. They believe these records 
may not provide scientific evidence to support a declining population. 
In addition, the commenters believe that a more robust survey effort in 
the Oregon Coast Range would likely result in finding additional 
populations of coastal martens. Finally, they conclude that in order 
for the Service to make a finding on the listing status of the coastal 
marten, we must first determine the size and extent of the current 
population(s).
    Our Response: The best available scientific information for the 
coastal marten does not allow us to determine the exact number of 
individuals and population sizes. However, we did not intend our 
discussion of trapping and anecdotal records in our analysis to be used 
to demonstrate that coastal martens are declining in trend. The only 
available population estimates are a single recent estimate for the 
central coastal Oregon population published in 2018, and two estimates 
for the northern coastal California population, one from 2008 and a 
subsequent estimate in 2012 that estimated fewer coastal martens than 
in 2008. Without additional information, it is not clear whether the 
decreased population estimate for the northern coastal California 
population represents a true long-term population decline, a short-term 
decline in response to a stochastic event such as a weather event or 
disease outbreak, or natural variation. Our only conclusion specific to 
a coastal marten population trend was our finding that the distribution 
of the coastal marten and its habitat has substantially declined from 
its historical range.
    We do not feel that a more robust survey effort in coastal Oregon 
would result in discovering additional populations of coastal martens. 
Central and southern coastal Oregon was surveyed systematically in 2014 
and 2015 with 348 sample units (908 survey

[[Page 63819]]

stations), which was the largest carnivore survey done in Oregon up to 
that time (Moriarty et al. 2016, pp. 72, 76-77). The authors surveyed 
70 percent of the coastal marten's historical range in Oregon; they 
acknowledged that while their survey methodology may have missed 
individuals, they were unlikely to miss a thriving, sizeable population 
of coastal martens. Hence, published research indicates additional 
coastal marten populations do not currently occur in central and 
southern coastal Oregon. Apparently suitable marten habitat occurs in 
northern coastal Oregon, some of which has since been surveyed with no 
detections. Further surveys in this area would be desirable to settle 
questions about coastal marten distribution along the north coast. 
However, even if a coastal marten population were found in northern 
coastal Oregon, it would still be an isolated population removed from 
the remainder of the taxon, with low likelihood of genetic intermixing 
with populations to the south.
    The commenter believes that the Service must determine the current 
population (we assume they mean population size) and quantify what 
represents a population that needs protection under the Act. To 
determine population size requires a census, which is rarely done for 
wild animal populations, and then usually only when the population is 
extremely small and survey methodology can reliably detect all 
individuals. Instead, we rely on population estimates, which have 
inherent variability. As noted above, we have three empirical estimates 
for coastal martens, and alone they tell us little about current 
population trends of coastal martens. The commenter seems to believe 
that without quantitative data, we must refrain from making a decision 
on the listing status of a species. However, upon receiving a petition 
to list a species, the Act and our regulations require us to make our 
determination solely on the basis of the best scientific and commercial 
data available. Hence, we have used the population estimate and 
distribution data combined with other available data on coastal martens 
to inform our analysis in the SSA report to assess the viability of the 
coastal marten. This assessment of the biological information, along 
with the threats facing the species or its habitat, was used to inform 
the Service in making a listing determination for the coastal marten.
    Comment 33: One commenter questioned the accuracy of the historical 
range and its use in deriving the DPS boundary, stating that the 
historic range is a coarse boundary and that no genetic data have been 
used to confirm its validity southeast of the Klamath River. In 
addition, the commenter states that the occurrence of the Humboldt 
(Martes caurina humboldtensis) and Sierran (M. c. sierra) subspecies in 
the same wilderness area with no discernable barriers creates confusion 
and raises questions about the discreteness of the DPS.
    Our Response: Additional genetic information would be useful in 
further defining the boundary of the DPS. We used the best available 
information to determine where to most accurately capture the DPS 
boundary (Grinnell and Dixon 1926, p, 415; Bailey 1936, p. 296; 
Grinnell et al. 1937, pp. 190, 207, 209; Zielinski and Golightly 1996, 
p. 115; Zielinski et al. 2001, p. 480; Slauson et al. 2019, entire) 
(see section 4.1, Historical Range and Distribution, of the SSA report; 
Service 2019, pp. 73-75). In addition, a DPS may be considered discrete 
if it is markedly separated from other populations of the same taxon as 
a consequence of physical, physiological, ecological, or behavioral 
factors. Quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation. Complete 
separation is not necessary under our DPS policy. Given this definition 
of discreteness and the most recently available genetic analysis, we 
continue to assert that the coastal marten meets the definition of, and 
qualifies as a valid, DPS under our policy. This conclusion is further 
supported by recent information that the coastal marten may be a valid 
subspecies of the Pacific marten (Schwartz et al. 2020, p. 11).
Forest Management
    Comment 34: Several commenters raised concerns regarding forest 
management. One commenter stated that we automatically correlated 
forest management with habitat loss (83 FR 50574, October 9, 2018, p. 
50577). In addition, they believed that we need to acknowledge that 
coastal martens exist across a range of habitat and management 
conditions, including intensively managed forests. They stated that we 
further need to acknowledge that coastal martens use a variety of 
habitat types (e.g., young forests with abundant shrub cover in the 
central Oregon coast population) and should not be singly focused on a 
specific habitat type, specifically old forest, as preferential for 
coastal martens (83 FR 50574, October 9, 2018, pp. 50575-50576). As an 
example, one of the commenters referenced a comparison of coastal 
marten survival between unharvested reserves and a clear-cut landscape 
(Payer and Harrison 1999). The commenter states that the study found no 
differences in survival for coastal marten in the two landscapes.
    Our Response: Coastal martens exist across a range of habitat and 
management conditions, and we acknowledge the coastal marten's use of 
serpentine and shore pine vegetation types, contrasting them with the 
older forest stands used elsewhere in the study area (Service 2018, pp. 
34-35). We also acknowledge the coastal marten's use of intensively 
managed forests, although research indicates that coastal martens still 
need a high proportion of older forest or serpentine habitat at the 
home range and landscape scale (Service 2018, pp. 36-40). Payer and 
Harrison (1999, pp. 43-44) also acknowledge this, noting that coastal 
marten densities were higher in reserve landscapes, and that in areas 
managed as industrial forest landscapes, coastal martens positioned 
their home ranges in areas with more mature forest habitat and less in 
recently clear-cut forests.
    We did not automatically correlate forest management with habitat 
loss. In the referenced page of the October 9, 2018, proposed rule (83 
FR 50577), we note that habitat loss has and continues to be influenced 
by wildfire, vegetation management, and a changing climate, but we do 
not maintain that all forest management results in habitat loss, or 
similarly, that all wildfire or climate change effects will result in 
habitat loss.
    Comment 35: One commenter states that the Service should recognize 
that managed forest landscapes are dynamic through space and time, with 
recent harvest units interspersed across landscapes with younger or 
mature forest stands and retention buffers. In addition, the commenter 
states that modern forest practice regulations, such as the Oregon 
Forest Practices Act (OFPA) provide, at the landscape level, forests 
that produce a mixture of old and large trees, multiple canopy layers, 
snags and other decay elements, understory development, and 
biologically complex structure and composition. The commenter believes 
these structural attributes complement late-successional conditions 
often associated with public forests.
    Our Response: Managed forest landscapes are dynamic with shifting 
mosaics of forest stand ages, and that forest practice regulations 
require retention of some forest structural components. However, the 
quantity and scale of these components, as required in the OFPA, does 
not necessarily result in suitable coastal marten habitat, and may have 
resulted in a landscape that

[[Page 63820]]

has increased competition and predation pressures on coastal martens. 
While the OFPA requires retention of certain types of vegetation and 
structure at the landscape scale, coastal martens respond to threats at 
smaller scales including home-range and stand scales where this mixture 
of elements necessary for survival are not always present.
    Comment 36: One commenter stated that vegetation management is not 
a threat, per se, because recent experience suggests that timber 
harvest and coastal marten occupancy are not mutually exclusive. The 
commenter believes there is no definitive research that shows coastal 
martens do not use younger forest stands on managed lands, and in fact, 
coastal martens are found in managed forests. The commenter states that 
the frequency, extent, and quality of timber harvesting varies greatly 
across the DPS with varying adverse and even beneficial effects, and 
some forest management provides coastal marten habitat and contradicts 
blanket assertions that younger forests are a threat to coastal 
martens. The commenter also asserts that the Service did not adequately 
address how managed forests provide suitable habitat for coastal 
martens and how these forests function to connect coastal marten 
populations.
    Our Response: Definitive research is not available that shows 
coastal martens do not use younger forest stands on managed lands. We 
have acknowledged the coastal marten's use of intensively managed 
forest landscapes (see our response to Comments 34), and find that the 
degree to which timber harvest will affect coastal marten habitat may 
vary greatly with the magnitude, intensity, frequency, and other site-
specific and landscape conditions. We acknowledge some of these effects 
in the SSA report (Service 2019, pp. 61-62). However, multiple studies 
show the importance of mature and old forests to coastal martens. 
Coastal marten densities are higher in reserve landscapes, and in areas 
managed as industrial forest landscapes, coastal martens position their 
home ranges in areas with more mature forest habitat and less in 
recently clear-cut forests (Payer and Harrison 1999, pp. 43-44; 
Thompson et al. 2012, p. 228; Service 2018, p. 61).
Habitat and Habitat Modeling
    Comment 37: Two commenters stated that the habitat model used in 
the SSA report was insufficient, and raised multiple technical issues 
regarding its development and applicability. They believe that more 
effort is needed to assess potential predicted coastal marten habitat.
    Our Response: The SSA report (Service 2019, pp. 84-86) acknowledges 
limitations with the coastal marten habitat model used, particularly 
its application in Oregon. However, while we agree that more improved 
habitat modeling for the species would be useful, we are required to 
make our listing determinations on the best scientific and commercial 
data available at the time of listing. While the commenters pointed out 
limitations with the model, they did not provide an alternative to the 
information resulting from the model. One of the commenters suggested 
we consider an independent analysis similar to what was done for 
northern spotted owls (Davis et al. 2016, entire). To account for the 
limitations of the model developed by researchers, we adjusted certain 
aspects of the model such as elevation and removed areas where the 
species is known not to occur. As a result, we consider the modeling as 
described in the SSA to be an appropriate tool for assisting to 
determine the distribution of habitat and conservation status of the 
coastal marten. Although we are pursuing additional modeling to better 
represent coastal marten habitat in Oregon, such a model is not yet 
available. Until it is, we are relying on the existing habitat modeling 
used in the SSA report as the best available data, while still 
acknowledging the limitations of its application in Oregon.
    Comment 38: One commenter felt that the habitat model used in the 
proposed rule likely underestimates habitat suitability for the coastal 
marten and should be updated to include seral stages in addition to the 
Old Growth Structure Index (OGSI) to evaluate connectivity of habitats 
used in the Service's least cost path modeling analysis that was used 
to evaluate population resiliency in the SSA report. The commenter 
states that given that coastal martens clearly occupy and reproduce on 
managed lands, these younger forests should be incorporated into a 
least cost path model, which may provide a much different assessment of 
connectivity.
    Our Response: We acknowledge the limitations with the coastal 
marten habitat model used and took those limitations into consideration 
in determining the status of the coastal marten. While there is 
evidence that coastal martens use a variety of habitats, there is no 
evidence that younger seral stages would improve the model fit or 
provide the necessary elements required for dispersal. While we are 
aware that coastal martens occur on and reproduce in managed forests, 
multiple studies of martens across North America show the importance of 
mature and old forests to martens in general (Thompson et al. 2012, p. 
228), and the coastal marten model performed best when using OGSI. 
Further, the Service's least cost model did identify connectivity 
across managed lands and currently remains the best available data to 
use to evaluate connectivity.
    Comment 39: One commenter stated that the SSA report and proposed 
rule regarding understory shrub associations with both managed and 
unmanaged forests do not reflect the uncertainty in the science. The 
commenter provides information indicating that vegetation associations, 
including understory shrub layers, can be highly variable within the 
coastal marten's range and it is not clear that past or present forest 
management activities have substantially altered, or will substantially 
alter, vegetation associations in a manner that will limit habitat 
suitability for the species.
    Our Response: While we agree with the commenter that understory 
shrub layers can be highly variable within the range of the coastal 
marten, and that landscapes managed for timber harvest, depending on 
frequency, intensity, and extent of activities, may provide some level 
of understory shrub habitat for the coastal marten, the best available 
literature indicates that coastal martens select habitat that has a 
dense understory shrub layer (Andruskiw et al. 2008, pp. 2275-2277; 
Slauson and Zielinski 2009, pp. 39-42; Eriksson 2016, pp. 19-23). These 
areas provide food and prey resources for coastal martens and provide 
cover from predators. Dense understory shrub layers, used by coastal 
martens for breeding, are most often found outside of areas subject to 
timber harvest activities.
Listing Status
    Comment 40: Two commenters stated that we should list the coastal 
marten as endangered rather than threatened. One commenter based that 
opinion on researchers' estimates of the coastal marten total 
population of fewer than 500 animals. The other commenter based their 
opinion on a variety of factors, including a population of fewer than 
400 animals; the coastal marten's extirpation from 93 percent of its 
range, with 72 percent of mature forest logged, leaving coastal martens 
in isolated, remnant populations; increased threats to isolated 
populations; human-caused mortalities in the central coastal Oregon 
population resulting in a 99 percent risk of population extirpation 
within 30

[[Page 63821]]

years (Linnell et al. 2018); suitable habitat conditions in central and 
northern coastal Oregon being so curtailed as to only be capable of 
supporting a single population (Slauson et al. 2018 [2019]); increased 
threats specifically to the California population; and California's 
listing of the coastal marten as endangered under the CESA.
    Our Response: The Act defines an endangered species as any species 
which is in danger of extinction throughout all or a significant 
portion of its range (section 3(6)), and a threatened species as any 
species which is likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its range 
(section 3(20)). Although smaller populations are often more at risk of 
extinction than larger populations, whether a population meets the 
definition of endangered or threatened under the Act is not solely 
limited to population size, and varies by species and circumstance. 
Vulnerability to extinction is a complex interplay between the species' 
existing condition, including population size, the types and timing of 
threats and their interactions and magnitude, and how populations 
respond or are expected to respond to those threats.
    We took into consideration the factors identified by the commenter 
(i.e., small, isolated, populations; human-caused mortalities) in our 
determination of threatened status. We also reviewed the literature 
cited by the commenter, which references coastal marten population 
persistence and habitat conditions in Oregon (Linnell et al. 2018; 
Slauson et al. 2018 [2019]). We find that Linnell et al. (2018) gives a 
range of modeled outcomes regarding persistence of the single 
population analyzed by the researchers and that the modeled outcome 
depends on population size and number of human-caused mortalities 
(Linnell et al. 2018, pp. 14-15). The statement by the commenter points 
to the smallest potential population (20 individuals) having the 
highest human-caused mortalities (3 mortalities) per year. The 
commenter also points to trapping in Oregon as being part of the reason 
for increased human-caused mortalities. With trapping of the coastal 
marten now being banned by Oregon, the threat from trapping taking 
coastal martens has been greatly reduced, thereby making this ``worst-
case'' scenario less likely.
    Regarding the commenter's reference to Slauson et al. 2018 
(published February 2019), we acknowledge that the existing populations 
of coastal marten are isolated and small, and that habitat conditions 
in some cases are limiting. However, the conclusion made by the 
researchers that habitat is limited in central and northern coastal 
Oregon is based on modeled habitat that in some cases does not reflect 
the areas actually being used by the coastal marten. For example, the 
model does not take into consideration lower elevation areas that are 
being used by the coastal marten.
    The commenter stated that the CDFW's determination of endangered 
status under the CESA was reason to conclude federally endangered 
status under the Act. Comparing the analysis conducted by the CDFW 
determining that the coastal marten should be considered endangered 
under the CESA to that of the Service's threatened determination is not 
appropriate. The CDFW determination does not take into consideration 
Oregon populations. In our analysis of the best available commercial 
and scientific information, we determined that the coastal marten is 
not in danger of extinction (i.e., ``endangered''), but is likely to 
become an endangered species within the foreseeable future 
(``threatened'') based on the timing of threats acting on the species 
and its habitat. See Determination of Coastal Marten Status, below.
    Comment 41: One Board of County Commissioners stated that it is 
inappropriate for the Service to list the coastal marten as threatened 
because we know very little about the actual prevalence of the species 
due to limited and inadequate surveying effort and data.
    Our Response: We are required to make listing determinations based 
on the best scientific and commercial information available. Since 
2014, extensive coastal marten surveys have been conducted encompassing 
more than 70 percent of the coastal marten's predicted historical range 
in Oregon, including survey stations in Lincoln, Benton, Lane, Douglas, 
Coos, Curry, and Josephine Counties (Moriarty et al. 2016, pp 72-73). 
Extensive surveys for coastal marten have also been conducted in 
California (Service 2018, p. 82). Although the survey methodology may 
have resulted in some individuals being missed in some locations, the 
existing survey protocol was unlikely to miss a ``thriving, sizable 
population'' of coastal martens (Moriarty et al. 2016, p. 77).
    Comment 42: One commenter encouraged the Service to consider the 
positive impacts that private timberlands have on coastal martens, 
including restricted public access that reduces the risk of illegal 
activities such as illegal cannabis cultivation sites and associated 
toxicants, reduced road traffic and associated road mortalities, and 
reduced trapping pressures. They concluded that managed timberlands 
contribute to a lessened risk of mortality from these factors.
    Our Response: While some of the stressors may be reduced on managed 
timberlands, or other ownerships for that matter, we still look at the 
cumulative effect of all stressors and conservation actions addressing 
them collectively across the DPS to assess their effects on coastal 
martens and determine the DPS' listing status. Based on our 
consideration of the five listing factors, we find that the current 
condition of the coastal marten still provides for enough resiliency, 
redundancy, and representation within the four existing populations; 
however, the threats from wildfire and habitat loss, exacerbated by 
small population size, are expected to manifest in a decline of the 
species' status into the future. The association of specific threats to 
specific ownerships, geographic locations, or other conditions will be 
important in recovery planning and developing conservation strategies 
for the coastal marten.
    Comment 43: One commenter requested that the Service ``emergency 
list'' the coastal marten because of the ongoing coastal marten 
trapping season on Federal lands. The commenter stated that recent 
research on coastal martens in the central coastal Oregon population 
concluded that human-caused mortality of two to three coastal martens 
per year in this area could extirpate this population within 30 years. 
The commenter stated that continued trapping clearly meets the 
statutory definition of jeopardy and should be halted immediately. The 
commenter postulated that the Service has the authority to end trapping 
of coastal martens on Federal lands by enacting emergency protection 
for the coastal marten under the Act while the Federal listing is in 
process.
    Our Response: Although trapping has been identified as a threat to 
coastal martens, we did not consider this threat to be a driver for 
determining if the coastal marten should be listed as an endangered or 
threatened species. We considered trapping to be part of the cumulative 
threats facing the species. Our analysis of the threat from trapping 
indicated that, on average, less than one animal has been lost annually 
over the last 28 years due to trapping. Additionally, there have been 
no legally trapped or harvested coastal martens in Oregon since 2014. 
Further, on September 13, 2019, the Oregon Fish and Wildlife Commission 
banned trapping coastal martens in areas where

[[Page 63822]]

it is known to occur in Oregon, which includes Federal lands (OFWC 
2019, entire). As a result, we do not consider trapping impacts to be 
as severe as characterized by the commenter, and with the new 
restrictions, we do not consider trapping a threat to the viability of 
the coastal marten and as a result not a condition for emergency 
listing under section 4(b)(7) of the Act.
    Comment 44: One commenter, concerned with the central coastal 
Oregon population and its associated habitat located within the Oregon 
Dunes ecosystem, suggested that the coastal marten in this area should 
not be listed because coastal marten and habitat in this area are 
already adequately protected under existing Federal law and 
regulations, and because a listing will add a complex, time-consuming 
procedural consultation hurdle that will slow and/or limit critical and 
time-sensitive habitat protection and restoration work in the Oregon 
Dunes. The commenter stated that this would likely result in the 
following immediate and long-term detrimental effects to the broader 
dunes ecosystem, which supports other rare, at-risk, and listed 
species: (1) Risk to maintenance of high-quality coastal marten habitat 
conditions in this area; (2) threat to the long-term persistence of 
values for which the Oregon Dunes NRA was established; and (3) 
associated negative economic effects on surrounding communities. In 
addition, the commenter stated that other listed or rare species depend 
on the restoration of the Oregon dunes, including the threatened 
western snowy plover (Charadrius alexandrinus nivosus), and several 
rare plants and invertebrates.
    The commenter went on to recognize the work of the Oregon Dunes 
Restoration Collaborative (ODRC), which was formed to increase 
engagement of local communities and coordinate efforts to significantly 
expand protection and restoration of the dunes. The commenter stated 
that there are limited resources for the ODRC to complete restoration 
work, and the commenter believes additional administrative procedures 
associated with listing the coastal marten, or slowing the process, 
will be burdensome and likely result in loss of public interest and 
support for restoration. In addition, the commenter stated that the 
coastal marten and its habitat are already adequately protected under 
the National Forest Management Act, and because it is a candidate 
species under the Act and is on the Regional Forester's (USFS) 
sensitive species list.
    Our Response: Based on our assessment of the threats facing the 
coastal marten as well as conservation measures, management, and 
regulatory mechanisms in place, we have determined that the coastal 
marten meets the definition of a threatened species under the Act. We 
are working with the USFS and stakeholders such as ODRC on management 
of the Oregon Dunes NRA. We agree that working with land managers and 
local stakeholders to develop support and ownership for species 
recovery is key for successful implementation of the Act, and, as is 
our practice for listed species, we will work with government and 
nongovernmental entities as we work to recover the coastal marten.
Off-Highway Vehicle Recreation
    Comment 45: One commenter stated that coastal martens co-exist with 
off-highway vehicle (OHV) activities that occur in the Oregon Dunes 
NRA. They stated that if the coastal marten is listed, then listing 
should not limit the ability to recreate in the area in designated 
riding routes.
    Our Response: Habitat use of the Oregon Dunes NRA by coastal marten 
is mostly within forested areas not used by recreational OHV 
enthusiasts, and we did not identify OHV activities as a threat to the 
coastal marten. Consequently, we find it unlikely that listing the 
coastal marten as threatened will significantly impact OHV use within 
the area. We will continue to work with our Federal and State partners 
regarding conservation of coastal marten and its habitat with the 
Oregon Dunes NRA.
Population Status
    Comment 46: Three commenters stated that additional coastal marten 
locations in southern Oregon, not considered in the SSA report or the 
proposed rule to list the coastal marten, suggest the possibility of 
increased redundancy and resiliency. One of these commenters stated 
that this suggests the coastal marten is not likely to become 
endangered in the foreseeable future. Specifically, two new locations 
were found in near-coastal forests, suggesting redundancy with the 
central coastal Oregon population, although there is no information on 
the number of individuals in this area. The commenters stated that 
between the southern coastal Oregon population and the Oregon-
California border population, two new coastal marten locations were 
found near detections from 1997 and 2001, suggesting increased 
connectivity between these two populations.
    Our Response: We have reviewed the occurrence information the 
commenter provided and incorporated this information as appropriate 
into our analysis of the status of the coastal marten. Although the new 
detections are encouraging, they do not lead us to believe that 
redundancy or resiliency has increased to the level that listing is not 
warranted. None of the detections meet our ruleset for delineating 
additional coastal marten population areas, nor are the detections 
close enough to existing population areas to be subsumed by them, again 
according to our ruleset (Service 2019, pp. 75, 82). It is difficult to 
determine whether the two coastal marten detections located between the 
southern coastal Oregon population and the Oregon-California border 
population suggest increased connectivity. Again, there are not enough 
locations within proximity of each other to derive a separate 
population; if there were, such a population area would provide for 
additional connectivity between populations and improve the overall 
resiliency of the coastal marten (Service 2019, pp. 94-95). However, 
there is not sufficient evidence to conclude whether these two 
detections represent: (1) Coastal marten connectivity between the two 
extant populations (either as individuals or over multiple 
generations); (2) coastal marten reestablishment in their historical 
range; or (3) remnant individuals from a once existing population. The 
best available data suggest that these detections do not represent a 
separate population, because the survey methodology, while it may have 
missed individual coastal martens, was unlikely to miss a sizable 
population (Moriarty et al. 2016, p. 77).
    Comment 47: Three commenters stated that their beliefs the number 
of individuals in the northern coastal California population is larger 
than estimated in the SSA report due to flawed survey methodology and 
analysis methods. The commenters believe the estimate does not reflect 
recent coastal marten captures of a third or more of the population 
size outside of the population area, which provide evidence that 
coastal martens occur outside of the area bounded in the SSA report and 
that there is a potential for a larger population size. The commenters 
also state that the population estimate does not reflect available 
coastal marten habitat and that coastal marten detections south of this 
population and within the DPS may also be Humboldt martens and that 
they should be included in the population estimate.

[[Page 63823]]

    Our Response: We based our determination of population estimates on 
the best scientific and commercial information available and do not 
consider the survey methodology or analysis methods for population 
estimates to be flawed. The population estimates were not intended to 
reflect available marten habitat but instead to capture what we know 
about current population numbers and their distribution. Coastal marten 
suitable habitat was analyzed and is reflected in tables 4.2 and 4.3 of 
the SSA report under the number of available male and female home 
ranges. We are not aware of any verifiable marten detections south of 
the northern coastal California population and within the DPS other 
than a few detections in Prairie Creek Redwoods State Park (PCRSP). At 
the time of publication of the proposed rule (October 9, 2018), there 
were two detections in PCRSP, with three additional detections since 
that time. We decided to not include these detections within the 
northern coastal California population because they were separated from 
the extant populations by more than 5 kilometers and there were only 
two individuals at the time of publication of the proposed rule 
(October 9, 2018) (see section 4.2 of the SSA report for further 
explanation of extant population areas [EPAs]). We have determined that 
the increase in detections to five is still an insignificant number and 
thus we still do not include them in our analysis of the status of this 
population. The information in our SSA report was peer reviewed by 
knowledgeable species experts. These experts agreed with our 
characterizations of populations and distribution, and concurred with 
our determination of the species' DPS, which coincides with a 
subspecies determination for the taxon. The commenters did not provide 
any substantial information to support their comments regarding 
population size and distribution.
Predation and Competition
    Comment 48: Four commenters questioned our statement in the 
proposed rule (83 FR 50574, 50577, October 9, 2018) that predation of 
martens has increased due to changes in forest composition. In the 
absence of historical and empirical data indicating changes in 
predation rates, one commenter suggested this should be presented only 
as a potential hypothesis.
    Our Response: Data are lacking to definitively conclude that 
predation of coastal martens in the DPS has increased. Our statement 
was based on our observation that areas subject to timber harvest are 
usually more open and provide less cover from predators than areas with 
higher shrub density, downed logs, and standing snags. We have modified 
the language in our SSA report and this rule to state that the increase 
in predation may be linked to changes in forest composition but that 
this increase may be hypothetical.
    Comment 49: Three commenters questioned our conclusion in the 
proposed rule that viability risks to coastal martens, ``are primarily 
related to habitat loss and associated changes in habitat quality and 
distribution and include: (1) A decrease in connectivity between 
populations; and (2) habitat conversion from that suitable for martens 
to that suitable for generalist predators and competitors, thereby 
increasing potential interactions and subsequent marten injury, 
mortality, or predation. The factors are all influenced by vegetation 
management, wildfire, and changing climate'' (83 FR at 50577, October 
9, 2018). The commenters believe that we phrased these conclusions as 
factual when there is uncertainty around a decrease in connectivity, an 
increase in bobcats associated with changes in forest composition, 
whether bobcats are the predominant coastal marten predators across the 
coastal marten's range, whether bobcats prefer stands less than 30 
years old, and what constitutes coastal marten habitat. The commenters 
also stated that the Service should not rely on an inference drawn from 
mortality observations on a small coastal marten population without any 
control or historical point of reference to support a conclusion that 
vegetation management leads to predation that is a relatively worse 
threat to the coastal marten than would otherwise exist.
    Our Response: Regarding population connectivity, the commenters did 
not provide any information to support their statements on population 
connectivity for coastal martens. However, based on Zielinski et al. 
2001 (p. 486), we have concluded that the coastal martens' historical 
range has been reduced. This research indicates that the species has 
been extirpated from a significant part of its range and that coastal 
martens may be sensitive to forest fragmentation, given marten 
sensitivity elsewhere in North America. Based on this information, 
survey efforts, and habitat modeling, we conclude that connectivity 
between coastal marten populations has been reduced, especially between 
Oregon populations, limiting the species' overall resiliency.
    Regarding statements relating to predators and increased predation, 
some of the commenters provided technical information regarding the 
other uncertainties around the influence of vegetation management on 
predators, and their subsequent effect on coastal martens. Although the 
commenters raised concerns with the local, unpublished works that 
indicated bobcats are the primary coastal marten predator and are 
associated with younger forests, our suggestion that increased forest 
fragmentation or reduced canopy cover increases predation risk by 
coastal martens is consistent with marten research elsewhere in North 
America (as cited in Service 2019, pp. 43-44, or as provided by the 
commenter [e.g., Joyce 2018, p. 126]). Moreover, the commenters 
provided no information to the contrary. Regardless, we have revised 
our description regarding the certainty of predation and its potential 
increase within the SSA report and this final rule to clarify that it 
is difficult to determine at this time if the rate of predation on 
marten has increased compared to historical levels and that further 
information is needed to determine if predation is increasing and how 
predation rates correspond to habitat fragmentation.
Significant Portion of the Range
    Comment 50: One commenter stated the Service erred in failing to 
evaluate whether the coastal marten is endangered in a significant 
portion of its range. They postulated that by not doing this 
evaluation, the Service violated the Act and the decision to list as 
threatened is arbitrary and capricious. The commenter stated that the 
Service's position that a ``significant portion of the range'' analysis 
is not warranted because the coastal marten already qualified for 
listing contradicts the letter and intent of Congress and the Act. 
Hence, the commenter believes the Service must complete a significant 
portion of the range analysis.
    Our Response: 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. The court in Center for Biological Diversity v. 
Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020), vacated the aspect of 
the 2014 Significant Portion of its Range Policy that provided that the 
Services do not undertake an analysis of significant portions of a 
species' range if the species warrants listing as threatened throughout 
all of its range. Therefore, we evaluated whether the coastal marten is 
endangered in a significant portion of its range--that is, whether

[[Page 63824]]

there is any portion of the species' range for which both (1) the 
portion is significant; and, (2) the species is in danger of extinction 
in that portion. See Status Throughout a Significant Portion of Its 
Range.
    Comment 51: One commenter stated that Humboldt [coastal] martens 
are in danger of extinction in the central coastal Oregon population 
area, that this constitutes a significant portion of their range, and 
thus the species should be listed rangewide as endangered. They believe 
this population is significant, surviving in a unique ecological 
setting of shrubby shore pine habitat, and represents the northernmost 
extent of the species' range. They state that the species is at risk of 
extinction, threatened by trapping, vehicle mortality, small population 
size, population isolation, stochastic events, and impending habitat 
loss due to restoration activities in the Oregon Dunes NRA. The 
commenter states that researchers (Linnell et al. 2018) concluded that 
the population has as much as a 99 percent risk of extirpation within 
30 years with two to three annual human-caused mortalities. In 
addition, the commenter stated that the SSA report demonstrates the 
population is not only significant, but also gravely endangered, given 
that all three future scenarios result in the population remaining in a 
low resiliency condition. Hence, the commenter believe the coastal 
marten should be listed as endangered rangewide because it is 
endangered in a significant portion of its range in central coastal 
Oregon. The commenter went on to apply much of the same rationale for 
listing as endangered in the rest of Oregon and California citing 
additional loss from logging, wildfire, and rodenticides. Further, the 
commenter stated that the CDFW concluded that some of these similar 
threats were the basis for their determination listing the species as 
endangered in the State under CESA. As a result, the commenter 
concluded that the coastal marten should be listed as endangered 
rangewide.
    Our Response: The commenter does not present any new information 
regarding the timing or severity of threats facing the coastal marten 
which we have not already considered in our current threatened 
determination. We have carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats to the coastal marten. 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 ``which is likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range.'' A thorough analysis and discussion of the threats that may 
impact the coastal marten are included in the final SSA report (Service 
2019, entire) associated with this document, and we applied those 
threats to the statutory listing criteria to which they apply. We 
considered whether the coastal marten is presently in danger of 
extinction and determined that proposing endangered status is not 
appropriate. While threats are currently acting on the species and many 
of those threats are expected to continue into the future, we did not 
find that the species is currently in danger of extinction throughout 
all of its range. With four populations occurring across the range of 
the species, the current condition of the species still provides for 
enough resiliency, redundancy, and representation such that it is not 
currently in danger of extinction but may become so in the future. 
Furthermore, we considered whether the species was in danger of 
extinction throughout a significant portion of its range, and 
determined that it is not because the threats acting on the species 
were uniform and there were no concentration of threats leading us to 
believe that any one area may be endangered. See Comment 40, above, for 
additional response.
Species Status Assessment
    Comment 52: One Board of County Commissioner pointed out 
discrepancies between version 1.1 of the coastal marten SSA report and 
version 2.0 of the SSA report, stating that there was no reasoned 
explanation provided for the ``rushed amendments'' to the SSA report 
within the span of a month. They stated the SSA report process should 
be a much more open and public process. They considered the revisions 
and additions ``hasty'' and believed the changes were arbitrary and 
capricious.
    Our Response: Our SSA report is the biological document upon which 
our listing determination is based. Species status assessments are 
peer-reviewed, as well as reviewed by technical experts and our State, 
Federal, and Tribal partners. Changes between version 1.1 and version 
2.0 of the coastal marten SSA report were mainly reflective of 
substantive comments from our peer reviewers, technical experts, and 
government partner reviewers. We further solicited public comment on 
the SSA report when the proposed listing determination was published in 
the Federal Register (83 FR 50574; October 9, 2018), and we 
incorporated substantive comments in the 2019 version of the SSA report 
(Service 2019, entire).

Determination of Coastal Marten Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of ``endangered species'' or 
``threatened species.'' The Act defines an ``endangered species'' as a 
species that is ``in danger of extinction throughout all or a 
significant portion of its range,'' and a ``threatened species'' as a 
species that is ``likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range.'' The Act requires that we determine whether a species meets the 
definition of ``endangered species'' or ``threatened species'' because 
of any of the following factors: (A) The present or threatened 
destruction, modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence.
    In determining whether a species meets the definition of an 
endangered or threatened species, we must evaluate all identified 
threats by considering the expected response by the species, and the 
effects of the threats--in light of those actions and conditions that 
will ameliorate the threats--on an individual, population, and species 
level. We evaluate each threat and its expected effects on the species, 
then analyze the cumulative effect of all of the threats on the species 
as a whole. We also consider the cumulative effect of the threats in 
light of those actions and conditions that will have positive effects 
on the species, such as any existing regulatory mechanisms or 
conservation efforts.
    In conducting our status assessment of the coastal marten, we 
evaluated all identified threats under the section 4(a)(1) factors and 
assessed how the cumulative impact of all threats combined are acting 
on the viability of the coastal marten as a whole. We used the best 
available information as summarized in our Draft SSA and Final SSA 
reports, information received from peer review and comments on the 2018 
proposed listing rule (83 FR 50574), as well as our most recent 
analysis summarized herein to gauge the magnitude of each individual 
threat on the coastal marten. We then assessed how those effects 
combined and may be ameliorated by any existing regulatory

[[Page 63825]]

mechanisms or conservation efforts and how that will impact the coastal 
marten's future viability. This included effects from both habitat-
based and direct mortality-based threats and what those combined 
effects will mean to the future condition of the DPS. Depending on the 
scope and degree of each of the threats and how they cumulatively 
combine, these threats can be of particular concern where populations 
are small and isolated, as is the case for the coastal marten.
    The loss of habitat and habitat patch size in the future across the 
range of the coastal marten is exposing coastal martens to increased 
threats from direct mortality and decreased habitat availability and 
increased fragmentation, resulting in low resiliency and reduced 
viability for the coastal marten as a whole. Based on our analysis, we 
find the cumulative impact of all identified threats on the coastal 
marten, especially habitat loss and fragmentation due to high-severity 
wildfire (Factor A) and vegetation management (Factor A) (noting that 
the threats are exacerbated by changing climate conditions and thus 
also play a role under Factor E), will act upon the coastal marten to 
such a degree that the DPS is likely to become endangered in the 
foreseeable future. The existing regulatory mechanisms (Factor D) and 
current conservation efforts are not addressing these threats to the 
level that will likely preclude the coastal marten from becoming an 
endangered species in the foreseeable future.

Status Evaluation

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the coastal marten. A thorough analysis and discussion of the 
threats that are affecting the coastal marten are included in the final 
SSA report (Service 2019, entire) associated with this document.
    A large proportion of the area where coastal marten occurs is on 
Federal or State land that has various regulatory mechanisms in place 
to manage forested habitat (Factor D). However, coastal marten 
populations continue to be small and isolated, and habitat connecting 
populations is often degraded or fragmented despite regulatory 
mechanisms in place for forestry management practices in both 
California and Oregon. The current status of coastal marten habitat is, 
in part, an artifact of silvicultural practices and wildfires that 
reset the successional forest stage and structure favoring early 
successional habitat components which may lack the appropriate cover or 
structure preferred by the coastal marten for foraging, resting, or 
denning. The late-successional associated structures or habitat 
preferred by coastal martens will most likely require several decades 
of appropriate forest and species management to reduce habitat 
fragmentation, increase population numbers and distribution, and 
achieve the forest structure that will assist in restoring the natural 
ecology of this ecosystem for this species and connect the existing 
fragmented habitats. Although the coastal marten can use and cross 
areas of lesser habitat value (containing less cover and structure) 
within these fragmented habitats, the management prescriptions provided 
through the various regulatory mechanisms are, in some instances, not 
likely alleviating or addressing the future threat of continued habitat 
loss, habitat fragmentation, or disturbance from wildfire to coastal 
marten. Remedies to address such impacts are multi-decadal, are not 
logistically easy to implement, may be expensive to address, and may 
meet social resistance. Therefore, we have determined that, while 
existing regulatory mechanisms enable land managers within the DPS to 
ameliorate to some extent the identified threats to the coastal marten, 
the existing regulatory mechanisms, although being implemented as 
designed, do not completely address the identified threats to adversely 
impact habitat for the coastal marten. As a result, we do not consider 
that the regulatory mechanisms in place, in and of themselves, 
alleviate the need for listing the coastal marten as a threatened 
species.
    During the public comment period for the proposed rule (83 FR 
50574; October 9, 2018), we received comments from the public stating 
that the coastal marten should receive an endangered status 
determination, based on the timing and magnitude of threats facing the 
coastal marten. The DPS does not meet the Act's definition of an 
endangered species. The current conditions of the coastal marten, as 
assessed in the SSA report, show extant coastal marten populations in 
four areas (EPAs) across its range, including large areas of occupied 
habitat in Oregon and California. The best available data do not 
indicate a declining trend in abundance, and it is likely that the low 
abundance (and, therefore, low resiliency) indicated in our analysis is 
partly due to the species being difficult to detect. While threats are 
currently acting on the species and many of those threats are expected 
to continue into the future, with four populations occurring across the 
range of the species, the current condition of the coastal marten still 
provides for enough resiliency, redundancy, and representation such 
that it is not currently in danger of extinction. Therefore, we do not 
find that the species meets the definition of an endangered species 
under the Act. Our analysis and determination on whether the coastal 
marten meets the definition of a threatened species is outlined below. 
A threatened species is any species which is likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range.

Foreseeable Future

    In order to determine if the coastal marten is a threatened species 
under the Act, we must first determine what the foreseeable future 
timeframe is for the species. The term foreseeable future extends only 
so far into the future as we can reasonably determine that both the 
future threats and the marten's responses to those threats are likely 
according to 50 CFR 424.11(d). As stated above, the coastal marten 
faces a variety of threats including loss of habitat, wildfire, and 
increased predation risk (see Summary of Biological Status and 
Threats). These threats play a large role in the coastal marten's 
resiliency and future viability. Future conditions and future threat 
analysis is particularly challenging for the coastal marten, because 
one of the major threats facing the species and its habitat (wildfire) 
is unpredictable as to exactly when it may occur and to what extent it 
may impact the species. In addition, the timeframe of regeneration of 
habitat of the appropriate age class and structure needed for the 
coastal marten after a wildfire or habitat removal can be decadal in 
nature. In our SSA, we identified several timeframes based on the 
information available on threats and future habitat and environmental 
conditions for the species. Our future scenario analysis forecast the 
likely coastal marten viability over the next 15, 30, and 60 years, 
depending on the threat and information available about its future 
condition and impacts (see Future Condition, Service 2019, pp. 97-109). 
In cases where future trends in threats were not available, we looked 
to past frequency and severity of the threat and projected that into 
the future. As a result, based on the information available on 
potential future conditions, we selected the extent of the foreseeable 
future for the coastal marten to be approximately 60 years. This 
timeframe allows for multiple generations of coastal marten to occur 
and accounts for some development and reestablishment

[[Page 63826]]

of appropriate structural habitat conditions and takes into 
consideration wildfire return intervals. Looking out past this time 
period, the predictability of threats (especially wildfire) would lose 
their capacity to be meaningful.
    Estimates of future resiliency, redundancy, and representation for 
the coastal marten are low. As discussed in detail in the SSA report, 
the species faces a variety of threats including loss and fragmentation 
of habitat (Factor A) due to wildfire, timber harvest, and vegetation 
management. In addition, collisions with vehicles (Factor E) and 
rodenticides (Factor E) are all impacting coastal marten individuals, 
and the threat of disease (Factor C) carries the risk of further 
reducing populations. Changes in vegetation composition and 
distribution from large-scale wildfire and timber harvest activities 
may also make coastal martens more susceptible to predation (Factor C) 
from larger carnivores. These threats, which are expected to be 
exacerbated by the species' small and isolated populations (Factor E) 
and the effects of climate change (Factor E), were central to our 
assessment of the future viability of the coastal marten. In our 
analysis of the factors affecting this species, we found no evidence 
that the existing regulatory mechanisms (Factor D) are contributing to 
declines in the species' status, nor do they alleviate the need for 
listing.
    Given current and future decreases in resiliency, populations will 
become more vulnerable to extirpation from stochastic events, in turn, 
resulting in concurrent losses in representation and redundancy. All 
three scenarios presented in the SSA report as representative of 
plausible future scenarios create conditions where the coastal marten 
would not have enough resiliency, redundancy, or representation to 
sustain populations over time. While determining the probability of 
each scenario was not possible with the available data, the entire 
range of future risk revealed by the three plausible scenarios showed 
that the species would likely continue to lose resiliency, redundancy, 
and representation throughout its range in all scenarios.

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the section 4(a)(1) factors, we 
have found that the loss of habitat, threats to individuals, and lack 
of connectivity between populations will continue to impact the coastal 
marten despite conservation efforts. Further, the population and 
habitat factors used to determine the resiliency, representation, and 
redundancy for coastal marten will continue to decline into the future. 
Thus, after assessing the best available information, we conclude that 
the coastal marten is not currently in danger of extinction, but is 
likely to become in danger of extinction within the foreseeable future 
throughout all of its range.

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. The court in Center for Biological Diversity v. Everson, 
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Everson), vacated the aspect of 
the 2014 Significant Portion of its Range Policy that provided that the 
Services do not undertake an analysis of significant portions of a 
species' range if the species warrants listing as threatened throughout 
all of its range. Therefore, we proceed to evaluating whether the 
species is endangered in a significant portion of its range--that is, 
whether there is any portion of the species' range for which both (1) 
the portion is significant; and, (2) the species is in danger of 
extinction in that portion. Depending on the case, it might be more 
efficient for us to address the ``significance'' question or the 
``status'' question first. We can choose to address either question 
first. Regardless of which question we address first, if we reach a 
negative answer with respect to the first question that we address, we 
do not need to evaluate the other question for that portion of the 
species' range.
    Following the court's holding in Everson, we now consider whether 
there are any significant portions of the species' range where the 
species is in danger of extinction now (i.e., endangered). In 
undertaking this analysis for the coastal marten, we choose to address 
the status question first--we consider information pertaining to the 
geographic distribution of both the species and the threats that the 
species faces to identify any portions of the range where the species 
is endangered.
    For the coastal marten, we considered whether the threats are 
geographically concentrated in any portion of the species' range at a 
biologically meaningful scale. The threats, which are discussed further 
in the SSA report, include: Loss of habitat and modification due to 
wildfire, timber harvest, and vegetation management (Factor A); 
trapping (Factor B); disease and predation (Factor C); collisions with 
vehicles (Factor E); rodenticides (Factor E); and the effects of 
climate change (Factor E). These threats are expected to be exacerbated 
by the species' small and isolated populations (Factor E). These 
threats, including their cumulative effects, were central to our 
assessment of the future viability of the coastal marten. From the 
threats facing the coastal marten, we have determined that habitat loss 
and modification, predation, and the effects of climate change in the 
context of having small and isolated populations are the driving 
threats leading to the species' threatened status. These threats can 
have large impacts on habitat availability and condition and lead to 
direct or indirect impacts on the species. Distribution of these 
threats is, for the most part, uniform across the known populations. We 
found no concentration of threats in any portion of the coastal 
marten's range at a biologically meaningful scale. Thus, there are no 
portions of the species' range where the species has a different status 
from its rangewide status. Therefore, no portion of the species' range 
provides a basis for determining that the species is in danger of 
extinction in a significant portion of its range, and we determine that 
the species is likely to become in danger of extinction within the 
foreseeable future throughout all of its range. This is consistent with 
the courts' holdings in Desert Survivors v. Department of the Interior, 
No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and 
Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 
(D. Ariz. 2017).

Determination of Status

    Our review of the best scientific and commercial information 
available indicates that the coastal DPS of the Pacific marten meets 
the Act's definition of a threatened species. Therefore, we are listing 
the coastal DPS of the Pacific marten as a threatened species 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

[[Page 63827]]

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 consists of preparing draft and final recovery 
plans, beginning with the development of a recovery outline and making 
it available to the public within 30 days of a final listing 
determination. 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 criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from protected status (``delisting''), and methods for 
monitoring recovery progress. Recovery plans also establish a framework 
for agencies to coordinate their recovery efforts and provide estimates 
of the cost of implementing recovery tasks. 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).
    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.
    Following publication of this final rule, 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 States of California 
and Oregon will be eligible for Federal funds to implement management 
actions that promote the protection or recovery of the coastal marten. 
Information on our grant programs that are available to aid species 
recovery can be found at: http://www.fws.gov/grants.
    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, above).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is listed as an endangered or 
threatened species and with respect to its critical habitat, if any is 
designated. Regulations implementing this interagency cooperation 
provision of the Act are codified at 50 CFR part 402. Section 7(a)(2) 
of the Act requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of any endangered or threatened species or 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 consultation with the Service.
    Several Federal agency actions that occur within the species' 
habitat may require consultation as described in the preceding 
paragraph. These actions include management and any other landscape-
altering activities on lands administered by the Service and the 
Department of the Interior's Bureau of Indian Affairs, Bureau of Land 
Management, and National Park Service and the Department of 
Agriculture's U.S. Forest Service; issuance of section 404 Clean Water 
Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of 
Engineers; and construction and maintenance of roads or highways by the 
Department of Transportation's Federal Highway Administration or the 
California Department of Transportation or Oregon Department of 
Transportation.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable 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 a final listing 
on proposed and ongoing activities within the range of a listed 
species. The discussion below regarding protective regulations under 
section 4(d) of the Act complies with our policy.

II. Final Rule Issued Under Section 4(d) of the Act

Background

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the ``Secretary shall issue such regulations as he deems 
necessary and advisable to provide for the conservation'' of species 
listed as threatened. The U.S. Supreme Court has noted that statutory 
language like ``necessary and advisable'' demonstrates a large degree 
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)). 
Conservation is defined in the Act to mean ``the use of all methods and 
procedures which are necessary to bring any endangered species or 
threatened species to the point at which the measures provided pursuant 
to [the Act] are no longer necessary.'' Additionally, the second 
sentence of section 4(d) of the Act states that the Secretary ``may by 
regulation prohibit with respect to any threatened species any act 
prohibited under section 9(a)(1), in the case of fish or wildlife, or 
section 9(a)(2), in the case of plants.'' Thus, the combination of the 
two sentences of section 4(d) provides the Secretary with wide latitude 
of discretion to select and promulgate appropriate regulations tailored 
to the specific conservation needs of the threatened species. The 
second sentence grants particularly broad discretion to the Service 
when adopting the prohibitions under section 9.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have upheld rules 
developed under section 4(d) as a valid exercise of agency authority 
where they prohibited take of threatened wildlife, or include a limited 
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 
U.S.

[[Page 63828]]

Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council v. 
National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. 
Wash. 2002)). Courts have also upheld 4(d) rules that do not address 
all of the threats a species faces (see State of Louisiana v. Verity, 
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when 
the Act was initially enacted, ``once an animal is on the threatened 
list, the Secretary has an almost infinite number of options available 
to him with regard to the permitted activities for those species. He 
may, for example, permit taking, but not importation of such species, 
or he may choose to forbid both taking and importation but allow the 
transportation of such species'' (H.R. Rep. No. 412, 93rd Cong., 1st 
Sess. 1973).
    Exercising its authority under section 4(d), the Service has 
developed a rule that is designed to address the coastal marten's 
specific threats and conservation needs. Although the statute does not 
require the Service to make a ``necessary and advisable'' finding with 
respect to the adoption of specific prohibitions under section 9, we 
find that this rule as a whole satisfies the requirement in section 
4(d) of the Act to issue regulations deemed necessary and advisable to 
provide for the conservation of the coastal marten. As discussed above 
under Summary of Biological Status and Threats, the Service has 
concluded that the coastal marten is likely to become in danger of 
extinction within the foreseeable future primarily due to habitat loss 
(including fragmentation) and associated changes in habitat quality and 
distribution. Under this 4(d) rule for the coastal marten, except as 
described and explained below, all prohibitions and provisions that 
apply to endangered wildlife under section 9(a)(1) of the Act will 
apply to the coastal marten. Applying these section 9(a)(1) 
prohibitions will help minimize threats that could cause further 
declines in the status of the species. The provisions of this 4(d) rule 
will promote conservation of the coastal marten by encouraging 
management of the landscape in ways that meet both land management 
considerations and the conservation needs of the DPS. The provisions of 
this rule are one of many tools that the Service will use to promote 
the conservation of the coastal marten.

Provisions of the 4(d) Rule

    This 4(d) rule will provide for the conservation of the coastal 
marten by prohibiting the following activities, except as otherwise 
authorized or permitted: Import or export; take; possession and other 
acts with unlawfully taken specimens; delivery, receipt, 
transportation, or shipment in interstate or foreign commerce in the 
course of commercial activity; or sale or offer for sale in interstate 
or foreign commerce. These prohibitions mimic those prohibitions 
afforded to endangered species under section 9(a)(1) of the Act.
    In addition to the prohibited activities identified above, we also 
provide for exceptions to those prohibitions for certain activities as 
described below.
    We note that the long-term viability of the coastal marten, as with 
many wildlife species, is intimately tied to the condition of its 
habitat. As described in our analysis of the species' status, one of 
the primary driving threats to the coastal marten's continued viability 
is the destruction of its habitat from catastrophic wildfires. The 
potential for an increase in frequency and severity of these 
catastrophic wildfires from the effects of climate change subsequently 
increases the risk to the species posed by this threat. We have 
determined that actions taken by forest management entities in the 
range of the coastal marten for the purpose of reducing the risk or 
severity of catastrophic wildfires, even if these actions may result in 
some short-term or small level of localized negative effect to coastal 
martens, will further the goal of reducing the likelihood of the 
species from becoming an endangered species, and will also likely 
contribute to its conservation and long-term viability. Therefore, 
these actions are excepted from the section 9(a)(1) prohibitions.
    We also recognize that there are other actions undertaken by forest 
management entities, such as the CDFW under the authority of the CESA, 
where the intended purpose of the action is not the reduction of 
catastrophic wildfire risk, but to improve overall habitat conditions 
for coastal marten. We realize that these actions may also result in 
some short-term or small level of localized negative effects to coastal 
martens or their habitat. However, we acknowledge that these types of 
actions are often undertaken through inclusion in NCCPs or State SHAs, 
which are approved by the CDFW under the authority of the CESA, and 
that these plans and agreements address identified effects to the 
coastal marten (a CESA-listed species). We have determined that actions 
under such State approved plans or agreements will adequately reduce or 
offset any negative effects to the coastal marten so that they will not 
result in a further decline of the species; therefore, we are excepting 
them from the section 9(a)(1) prohibitions in the 4(d) rule.
    In addition, we note that there are activities undertaken by forest 
management entities that are consistent with the conservation needs of 
coastal marten and include activities consistent with finalized 
conservation plans, or strategies for the coastal marten and for which 
the Service has explicitly determined that meeting such plans or 
strategies, or portions thereof, would be consistent with the 
conservation needs of the coastal marten. While we recognize the 
potential that these types of actions may result in some small level of 
localized disturbance or temporary negative effects to coastal martens 
or their habitat, these conservation efforts will improve overall 
habitat conditions or contribute to the species' overall long-term 
viability and we have excepted them from section 9(a)(1) prohibitions 
in the 4(d) rule.
    Toxicants, especially anticoagulant rodenticides, are recognized as 
a threat to the closely related fisher, and have been detected in 
coastal martens and other non-target predators within the historical 
range of the coastal marten. Illegal cannabis cultivation sites are 
considered a likely source. When these sites are found, they often 
require reclamation (waste cleanup and removal of fertilizers, 
pesticides, and other chemicals that were left behind). Cleanup of 
these sites may involve activities that may cause localized, short-term 
disturbance to coastal martens (e.g., helicopters or off-road 
vehicles), as well as potential removal of some habitat structures 
valuable to coastal martens (e.g., removal of hazard trees that may be 
a suitable den site in order to allow helicopter access). However, the 
removal of known rodenticides and other chemicals that can have long-
term effects on coastal martens, their prey, and the surrounding 
environment is encouraged and is considered to have a long-term 
beneficial contribution to coastal marten resiliency. Hence, short-term 
disturbances or small-scale habitat loss associated with rodenticide 
removal are excepted from the section 9(a)(1) prohibitions in the 4(d) 
rule.
    We recognize the special and unique relationship with our State 
natural resource agency partners in contributing to conservation of 
listed species. State agencies often possess scientific data and 
valuable expertise on the status and distribution of endangered, 
threatened, and candidate species of wildlife and plants. State 
agencies, because of their authorities and their close working 
relationships with local governments and landowners, are in a unique 
position to assist the Services in

[[Page 63829]]

implementing all aspects of the Act. In this regard, section 6 of the 
Act provides that the Services shall cooperate to the maximum extent 
practicable with the States in carrying out programs authorized by the 
Act. Therefore, any qualified employee or agent of a State conservation 
agency that is a party to a cooperative agreement with the Service in 
accordance with section 6(c) of the Act, who is designated by his or 
her agency for such purposes, will be able to conduct activities 
designed to conserve the coastal marten that may result in otherwise 
prohibited take without additional authorization.
    Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct. Some of these provisions have been further defined in 
regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by 
direct and indirect impacts, intentionally or incidentally.
    We may issue permits to carry out otherwise prohibited activities, 
including those described above, involving threatened wildlife under 
certain circumstances. Regulations governing permits are codified at 50 
CFR 17.32. With regard to threatened wildlife, a permit may be issued 
for the following purposes: For scientific purposes, to enhance 
propagation or survival, for economic hardship, for zoological 
exhibition, for educational purposes, for incidental taking, or for 
special purposes consistent with the purposes of the Act. There are 
also certain statutory exemptions from the prohibitions, which are 
found in sections 9 and 10 of the Act.
    Therefore, as explained above, we are issuing protective 
regulations under section 4(d) of the Act, in which all the 
prohibitions and provisions that apply to endangered wildlife under 
section 9(a)(1) of the Act, with the exceptions outlined below, apply 
to the coastal marten:
    (1) Activities which are conducted in accordance with a permit 
issued by the Service under 50 CFR 17.32. These include actions for one 
of the following purposes: Scientific purposes, or the enhancement of 
propagation or survival, or economic hardship, or zoological 
exhibition, or educational purposes, or incidental taking, or special 
purposes consistent with the purposes of the Act. Such permits may 
authorize a single transaction, a series of transactions, or a number 
of activities over a specific period of time.
    (2) Forest management activities for the purposes of reducing the 
risk or severity of wildfire. These activities may include fuels 
reduction projects, firebreaks, and wildfire firefighting activities. 
Fuels reduction projects include forest management practices such as 
those that treat vertical and horizontal (ladder) fuels in an effort to 
reduce continuity between understory and the overstory vegetation and 
the potential for crown fires, removal of fuels within 150 feet of 
legally permitted structures and within 300 feet of habitable 
structures, or implementation of Fuelbreak/Defensible Space 
Prescriptions which allow for removal of trees or other vegetation to 
create a shaded fuelbreak along roads or other natural features, or 
create defensible space.
    (3) Forestry management activities included in a plan or agreement 
for lands covered by a Natural Communities Conservation Plan or State 
Safe Harbor Agreement that addresses and authorizes State take of 
coastal marten as a covered species and is approved by the California 
Department of Fish and Wildlife under the authority of the California 
Endangered Species Act.
    (4) Forestry management activities, approved by the Service, under 
finalized conservation plans or strategies, that are consistent with 
the conservation needs of the coastal marten (includes activities that 
promote, retain, or restore suitable coastal marten habitat, increase 
percent canopy cover, increase percent ericaceous shrub cover, and 
denning and resting structures). These activities must be consistent 
with conservation plans or strategies which identify coastal marten 
conservation prescriptions or compliance and for which the Service has 
determined that meeting such plans or strategies, or portions thereof, 
would be consistent with conservation of the coastal marten.
    (5) Activities to remove toxicants and other chemicals consistent 
with conservation strategies for coastal marten. Such activities 
include management or cleanup activities that remove toxicants and 
other chemicals from forested areas, for which the Service has 
determined that such activities to remove toxicants and other chemicals 
would be consistent with conservation strategies for coastal marten. 
Cleanup of these sites may involve activities that may cause localized, 
short-term disturbance to coastal martens, as well as require limited 
removal of some habitat structures valuable to coastal martens (e.g., 
hazard trees that may be a suitable den site).
    (6) Activities conducted by any qualified employee or agent of a 
State conservation agency which is a party to a cooperative agreement 
with the Service in accordance with section 6(c) of the Act, who is 
designated by his or her agency for such purposes, and who will be able 
to conduct activities designed to conserve the coastal marten that may 
result in otherwise prohibited take for wildlife without additional 
authorization.
    While we are providing these exceptions to the prohibitions and 
provisions of section 9(a)(1), we clarify that all Federal agencies 
(including the Service) that fund, permit, or carry out the activities 
described above will still need to ensure, in consultation with the 
Service (including intra-Service consultation when appropriate), that 
the activities are not likely to jeopardize the continued existence of 
the species. Private entities who undertake any actions other than 
those described in the exceptions above that may result in adverse 
effects to the coastal marten, when there is no associated Federal 
nexus to the action, may wish to seek an incidental take permit from 
the Service before proceeding with the activity.
    Nothing in this 4(d) rule will change in any way the recovery 
planning provisions of section 4(f) of the Act, the consultation 
requirements under section 7 of the Act, or the ability of the Service 
to enter into partnerships for the management and protection of the 
coastal marten. However, interagency cooperation may be further 
streamlined through planned programmatic consultations for the species 
between Federal agencies and the Service.

III. Critical Habitat Prudency and Determinability

    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. In this final rule, we affirm the determinations we 
made in our October 9, 2018, proposed rule (83 FR 50574) concerning the 
prudency and determinability of critical habitat for the coastal 
marten. In our proposed rule, we found that designating critical 
habitat for the coastal marten may be prudent, but that a designation 
was not determinable at that time because information sufficient to 
perform a required analysis of the impacts of the designation was 
lacking. We continue to develop a careful assessment of the economic 
impacts that may occur due to a critical habitat designation and to 
work with the States and other partners in acquiring the complex 
information

[[Page 63830]]

needed to perform that assessment. At this time, however, the 
information sufficient to perform a required analysis is incomplete, 
and, therefore, we find designation of critical habitat for the coastal 
marten to be not determinable at this time. When we have completed our 
assessment, we will publish in the Federal Register a proposed rule to 
designate critical habitat for the coastal marten and solicit public 
comments on that proposal.

Required Determinations

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

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), 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).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes. In development of the SSA report, we 
sent letters noting our intent to conduct a status review and requested 
information from all tribal entities within the historical range of the 
coastal marten, as well as providing a draft SSA report to the tribes 
for review. The tribes within the range of the coastal marten include 
the Yurok Tribe; the Confederated Tribes of Coos, Lower Umpqua and 
Siuslaw Indians; the Coquille Indian Tribe; the Cow Creek Band of 
Umpqua Tribe of Indians; the Confederated Tribes of Grand Ronde; and 
the Confederated Tribes of Siletz Indians. As discussed earlier in this 
rule, we did not receive comments on the October 9, 2018, proposed rule 
(83 FR 50574) from any tribal entities. As such, we believe we have 
fulfilled our relevant responsibilities.

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 
Arcata Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this final rule are the staff members of the 
Fish and Wildlife Service's Species Assessment Team, the Arcata Fish 
and Wildlife Office, and the Oregon Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, we 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 in paragraph (h) by adding an entry for ``Marten, 
Pacific [Coastal DPS]'' to the List of Endangered and Threatened 
Wildlife in alphabetical order under MAMMALS to read as set forth 
below:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
             Mammals
 
                                                  * * * * * * *
Marten, Pacific [Coastal DPS]...  Martes caurina....  U.S.A. (CA          T              85 FR [Insert Federal
                                                       (northwestern),                    Register page where
                                                       OR                                 the document begins],
                                                       (southwestern)).                   10/8/2020; 50 CFR
                                                                                          17.40(s).\4d\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.40 by adding a paragraph (s) to read as follows:


Sec.  17.40  Special rules--mammals.

* * * * *
    (s) Pacific marten (Martes caurina), Coastal DPS.
    (1) Prohibitions. Except as provided in paragraph (s)(2) of this 
section, all prohibitions and provisions of section 9(a)(1) of the Act 
apply to the Coastal DPS of the Pacific marten.
    (2) Exceptions from prohibitions. In regard to the Coastal DPS of 
the Pacific marten (``coastal marten''), you may:
    (i) Conduct activities as authorized by a permit under Sec.  17.32.
    (ii) Take as set forth at Sec.  17.21(c)(2) through (c)(4) for 
endangered wildlife.
    (iii) Take as set forth at Sec.  17.31(b).
    (iv) Conduct forest management activities for the purposes of 
reducing the risk or severity of wildfire, which include fuels 
reduction projects, firebreaks, and wildfire firefighting activities. 
More specifically, forest management practices such as those that treat 
vertical and horizontal (ladder) fuels in an effort to reduce 
continuity between understory and the overstory vegetation and the 
potential for crown fires, remove fuels within 150 feet of legally 
permitted structures and within 300 feet of habitable structures, or 
implement Fuelbreak/Defensible Space Prescriptions that allow for 
removal of trees or other vegetation to create a shaded fuelbreak along 
roads or other natural features, or create defensible space.

[[Page 63831]]

    (v) Conduct forestry management activities included in a plan or 
agreement for lands covered by a Natural Communities Conservation Plan 
or State Safe Harbor Agreement that addresses and authorizes State take 
of coastal marten as a covered species and is approved by the 
California Department of Fish and Wildlife under the authority of the 
California Endangered Species Act.
    (vi) Conduct forestry management activities consistent with the 
conservation needs of the coastal marten (e.g., activities that 
promote, retain, or restore suitable coastal marten habitat that 
increase percent canopy cover, percent ericaceous shrub cover, and 
denning and resting structures). These include activities consistent 
with finalized conservation plans or strategies, such as plans and 
documents that include coastal marten conservation prescriptions or 
compliance, and for which the Service has determined that meeting such 
plans or strategies, or portions thereof, would be consistent with 
conservation strategies for coastal marten.
    (vii) Conduct activities to remove toxicants and other chemicals 
consistent with conservation strategies for coastal marten. Such 
activities include management or cleanup activities that remove 
toxicants and other chemicals from forested areas, for which the 
Service has determined that such activities to remove toxicants and 
other chemicals would be consistent with conservation strategies for 
coastal marten. Cleanup of these sites may involve activities that may 
cause localized, short-term disturbance to coastal martens, as well as 
require limited removal of some habitat structures valuable to coastal 
martens (e.g., hazard trees that may be a suitable den site).

Aurelia Skipwith,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2020-19136 Filed 10-7-20; 8:45 am]
BILLING CODE 4333-15-P