[Federal Register Volume 87, Number 33 (Thursday, February 17, 2022)]
[Rules and Regulations]
[Pages 8967-8981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03317]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2019-0113; FF09E22000 FXES11130900000 212]
RIN 1018-BE64


Endangered and Threatened Wildlife and Plants; Reclassification 
of Stephens' Kangaroo Rat From Endangered To Threatened 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), are 
reclassifying the Stephens' kangaroo rat (Dipodomys stephensi) from 
endangered to threatened under the Endangered Species Act of 1973, as 
amended (Act). This action is based on our evaluation of the best 
available scientific and commercial information, which indicates that 
the species' status has improved such that it is not currently in 
danger of extinction throughout all or a significant portion of its 
range, but that it is still likely to become so throughout all of its 
range in the foreseeable future. We also finalize a rule under section 
4(d) of the Act that provides for the conservation of the Stephens' 
kangaroo rat.

DATES: This rule is effective March 21, 2022.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov. Comments and materials we received, as well as 
supporting documentation we used in preparing this rule, are available 
for public inspection at https://www.regulations.gov at Docket No. FWS-
R8-ES-2019-0113.

FOR FURTHER INFORMATION CONTACT: Scott Sobiech, Field Supervisor, U.S. 
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 2177 Salk 
Avenue, Suite 250, Carlsbad, CA 92008; telephone 760-431-9440. 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 Act, a species may warrant 
reclassification from endangered to threatened if it no longer meets 
the definition of endangered (in danger of extinction). The Stephens' 
kangaroo rat was listed as endangered in 1988 (53 FR 38465, September 
30, 1988), and we are finalizing our proposed reclassification 
(downlisting) (85 FR 50991, August 19, 2020) of the Stephens' kangaroo 
rat as threatened because we have determined it is not currently in 
danger of extinction. Downlisting a species as a threatened species can 
be completed only by issuing a rule.
    What this document does. This rule reclassifies the Stephens' 
kangaroo rat from endangered to threatened, with a rule issued under 
section 4(d) of the Act (hereafter referred to as a ``4(d) rule'').
    The basis for our action. Under the Act, we may determine that a 
species is an endangered species or a 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 may reclassify a listed species 
if the best commercial and scientific data available indicate a change 
in status is appropriate. We have determined that the Stephens' 
kangaroo rat is no longer in danger of extinction, and therefore does 
not meet the definition of an endangered species, due to a reduction of 
threats since listing and the implementation of conservation actions. 
However, the species is still affected by the following threats to the 
extent that the species meets the definition of a threatened species 
under the Act:
     Habitat loss and degradation due to urbanization, 
agricultural activities, and nonnative vegetation; and
     Isolation of existing populations due to habitat 
fragmentation.
    The cumulative effects of climate change and wildfire, which could 
result in an increase in the extent of nonnative grasslands, represents 
a low-level stressor to the Stephens' kangaroo rat and its habitat, and 
based on climate change projections, is likely to remain at this level 
to the 2060s. Existing regulatory mechanisms and

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conservation efforts do not effectively address existing habitat 
fragmentation or the introduction and spread of nonnative plants or 
improve population connectivity and dispersal.
    We are promulgating a section 4(d) rule. This 4(d) rule prohibits 
all intentional take of the Stephens' kangaroo rat and specifically 
tailors the incidental take exceptions under section 9(a)(1) of the 
Act. This provides protective mechanisms to Federal, State, and Tribal 
partners and private landowners, so that they may continue with certain 
activities that benefit the species or its habitat or are not 
anticipated to cause direct injury or mortality to Stephens' kangaroo 
rat. We have determined that such measures will facilitate the 
conservation and recovery of the species.

Previous Federal Actions

    Please refer to the proposed rule to reclassify the Stephens' 
kangaroo rat published on August 19, 2020 (85 FR 50991), for a detailed 
description of previous Federal actions concerning this species.

Summary of Changes From the Proposed Rule

    Based upon our review of the Federal, State, peer review, and 
public comments and any new relevant information that became available, 
we reevaluated our proposed rule and made changes as appropriate in 
this final rule. Other than minor clarifications and incorporation of 
additional information on the species' biology and populations, this 
determination differs from the proposal in the following ways:
    (1) As discussed in the 2019 species report and 2020 proposed rule, 
we developed a habitat suitability model (HSM) based on available 
habitat mapping information, and the Conservation Biology Institute 
(CBI) was in the process of developing a more detailed range-wide HSM 
(Service 2019, pp. 14-15). Since that time, CBI completed that more 
comprehensive HSM for Stephens' kangaroo rat, which we are using to 
update the potential habitat projections for use as a proxy for the 
species' demographic information. This new model provides better 
resolution through use of spectral imagery and other environmental data 
layers. The new HSM uses a smaller patch size of 50 hectares (ha) (124 
acres (ac)) and dispersal distance of 200 meters, compared to what we 
used in our original model (100 ha (247 ac)) and a dispersal distance 
of 61.5 meters (202 ft) as a cutoff for fragmented patches. Therefore, 
we removed the habitat fragmentation calculations in the updated 
species report (Service 2021, entire) that were based on the 100-ha 
(247-ac) size and shorter dispersal distance.
    Incorporation of the more recent HSM also required us to revise the 
amount and ownership breakdown of modeled habitat for Stephens' 
kangaroo rat. The amount of modeled habitat in the original model, 
identified in the proposed rule, was 91,538 ac (37,044 ha), compared to 
the new model (184,367 ac (74,610 ha)). The amount of conserved lands 
also increased from 28,567 ac (11,561 ha) in the proposed rule, to 
68,701 ac (27,802 ha) in this final rule. This includes approximately 
1,287 ac (521 ha) of modeled habitat within the species' range in San 
Bernardino County, California.
    (2) We updated this final rule and the species report with all the 
above changes and with other suggested edits received during the open 
comment period. The revised species report is version 1.2 (Service 
2021, entire).
    (3) We revised the section 4(d) rule based on public comments 
regarding fire safety measures and have made the defensible space 
requirements more stringent than the State of California fire code as 
requested.

Supporting Documents

    A team of Service biologists prepared a species report for the 
Stephens' kangaroo rat (Service 2021, entire). The team was composed of 
Service biologists, in consultation with other species experts. The 
species 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.
    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 information 
contained in the Stephens' kangaroo rat species report. We sent the 
species report to four independent peer reviewers and received one 
response. Results of this structured peer review process can be found 
at https://www.regulations.gov. The status report was also submitted to 
our Federal and State partners for scientific review. We received 
review from two partners (Department of Defense (DoD) and California 
Department of Fish and Wildlife (CDFW)). We incorporated the results of 
these reviews, as appropriate, into the final status report, which is 
the foundation for this final rule.

Reclassification Determination

    The Stephens' kangaroo rat is a small, nocturnal mammal that has a 
dusky cinnamon buff overfur, pure white underfur, and a lateral white 
tail band. The tail is crested and bicolored (Service 1997, pp. 1, 2, 
25; Service 2021, chapter 2). Kangaroo rats possess a number of 
behavioral, morphological, and physiological adaptations that allow 
them to inhabit warm, arid environments (Service 2021, pp. 2, 24).
    Stephens' kangaroo rat habitat generally consists of open 
grasslands and sparsely vegetated scrub (Moore-Craig 1984, p. 6; 
O'Farrell and Uptain 1987, p. 44). The Stephens' kangaroo rat 
constructs and lives in underground burrow systems that are used as 
shelter, protection from predators, food storage (caching), and 
nesting. Areas of occupied (patchy) habitat consist of burrow entrances 
connected by a network of well-defined surface runways.
    Populations of the Stephens' kangaroo rat occur in three geographic 
regions of southern California: Western Riverside County, western San 
Diego County, and central San Diego County. At the time of listing in 
1988, the known geographic range of the species included 11 general 
areas in Riverside and San Diego Counties, California (Service 1988, 
entire; Service 2021, chapter 3). Currently the species is extant or 
presumed extant in 17 areas (11 areas in Riverside County and 6 areas 
in San Diego County) (Service 2021, table 1, p. 5). Based on our 
analysis of recent detections and observations, the Stephens' kangaroo 
rat continues to be found in a patchy distribution in suitable (e.g., 
grasslands, open areas with forbs) habitat in western-southwestern 
Riverside County and central-northwestern San Diego County. Exact 
population trends and density estimates for the Stephens' kangaroo rat 
are not determinable at this time, given incomplete survey information 
and difficulty in detecting the species during surveys (Brehme et al. 
2017, p. 8).
    Because population trends have not been determinable for Stephens' 
kangaroo rat, suitable habitat was modeled in conjunction with species 
occurrence information to provide an estimate of currently available 
habitat (Service 2021, table 4, p. 53). This potentially suitable 
modeled habitat is used in lieu of rangewide occupied habitat estimates 
or rangewide population estimates. This modeled habitat was used in 
conjunction with current and historical survey reports to provide 
estimates of population-level occupancy throughout the range

[[Page 8969]]

(Service 2021, table 1, pp. 5-6). Additional background information on 
the Stephens' kangaroo rat can be found in the draft recovery plan and 
species report (Service 1997, entire; Service 2021, entire).

Current Conservation Efforts

    Two large-scale habitat conservation planning efforts have been 
implemented in Riverside County. Since listing, the Stephens' Kangaroo 
Rat Habitat Conservation Plan (SKR HCP) has been implemented by the 
Riverside County Habitat Conservation Agency (RCHCA) (RCHCA 1996, 
entire), and the Western Riverside County Multi-Species Habitat 
Conservation Plan (Western Riverside MSHCP) has been implemented by the 
Regional Conservation Authority (Dudek and Associates 2003, entire)). 
The implementation of these conservation plans has helped to offset 
potential losses of habitat from urban and agricultural development. 
Ongoing management for Stephens' kangaroo rat and implementation of 
recovery actions by these agencies has helped reduce impacts throughout 
much of the species' range in Riverside County.
    Three military installations also occur within the range of the 
species in western San Diego County. These DoD facilities (Marine Corps 
Base Camp Pendleton (Camp Pendleton); Naval Base Coronado Remote 
Training Site Warner Springs (Warner Springs); and Naval Weapons 
Station Seal Beach Detachment Fallbrook (Detachment Fallbrook) have 
developed, in coordination with the Service, integrated natural 
resources management plans (INRMPs) and are committed to actively 
managing their activities and habitat for the conservation of the 
Stephens' kangaroo rat. The INRMPs are based, to the maximum extent 
practicable, on ecosystem management principles and provide for the 
management of Stephens' kangaroo rat and its habitat while sustaining 
necessary military land uses. These three DoD facilities have 
implemented numerous actions to manage and conserve areas occupied by 
Stephens' kangaroo rat that aid in species recovery.
    Implementation of these conservation efforts has greatly reduced 
the impact of loss and degradation of habitat for the species on the 
lands conserved under the two HCPs and managed at the three military 
installations. See Draft Recovery Plan Implementation and Status 
Criteria below, for how these efforts are assisting conservation and 
reducing threats for the species.

Draft Recovery Plan Implementation and Status Criteria

    Section 4(f) of the Act directs us to develop and implement 
recovery plans for the conservation and survival of endangered and 
threatened species unless we determine that such a plan will not 
promote the conservation of the species. Under section 4(f)(1)(B)(ii), 
recovery plans must, to the maximum extent practicable, include 
objective, measurable criteria which, when met, would result in a 
determination, in accordance with the provisions of section 4 of the 
Act, that the species be removed from the List.
    Recovery plans provide a roadmap for us and our partners on methods 
of enhancing conservation and minimizing threats to listed species, as 
well as measurable criteria against which to evaluate progress towards 
recovery and assess the species' likely future condition. However, they 
are not regulatory documents and do not substitute for the 
determinations and promulgation of regulations required under section 
4(a)(1) of the Act. A decision to revise the status of a species, or to 
delist a species, is ultimately based on an analysis of the best 
scientific and commercial data available to determine whether a species 
is no longer an endangered species or a threatened species, regardless 
of whether that information differs from the recovery plan.
    There are many paths to accomplishing recovery of a species, and 
recovery may be achieved without all of the criteria in a recovery plan 
being fully met. For example, one or more criteria may be exceeded 
while other criteria may not yet be accomplished. In that instance, we 
may determine that the threats are minimized sufficiently and that the 
species is robust enough that it no longer meets the definition of an 
endangered species or a threatened species. In other cases, we may 
discover new recovery opportunities after having finalized the recovery 
plan. Parties seeking to conserve the species may use these 
opportunities instead of methods identified in the recovery plan. 
Likewise, we may learn new information about the species after we 
finalize the recovery plan. The new information may change the extent 
to which existing criteria are appropriate for identifying recovery of 
the species. The recovery of a species is a dynamic process requiring 
adaptive management that may, or may not, follow all of the guidance 
provided in a recovery plan.

Draft Recovery Plan Information

    A draft recovery plan for the Stephens' kangaroo rat was developed 
in 1997 (Service 1997, entire). Although it was never finalized, the 
draft recovery plan is part of the public record on the Service's views 
on recovery for the species at that time. The objective of the draft 
recovery plan is to protect and maintain sufficient populations of 
Stephens' kangaroo rat and its habitat. The plan states this objective 
can be accomplished by: (a) Establishing ecosystem-based conservation 
units; (b) preventing destruction and degradation of habitat; (c) 
managing use of rodenticides and other pesticides; (d) reducing 
nonnative predators such as domestic cats; (e) establishing research 
programs to examine the species' biological and ecological needs; and 
(f) developing and implementing a proactive outreach program for the 
public and landowners.
    The draft plan also identifies several downlisting and delisting 
criteria (Service 1997, pp. 52-60) for the species. The downlisting 
criteria include: (1) Establishment of four reserves, which encompass 
at least 15,000 ac (6,070 ha) of occupied habitat and are permanently 
protected, funded, and managed, in western Riverside County (inside or 
outside any habitat conservation planning area) (Service 1997, pp. 39-
40); and (2) establishment of one ecosystem-based reserve in either 
western or central San Diego County that is permanently protected, 
funded, and managed. Ecosystem-based reserves are anticipated to retain 
their biological diversity and are associated with large areas of 
suitable habitat (Service 1997, p. 49). Non-ecosystem reserves are 
biologically more isolated and are expected to require more intensive 
management. Both ecosystem and non-ecosystem reserves are needed to 
retain genetic and phenotypic diversity and provide redundancy to 
provide protection for species' viability from losses resulting from 
catastrophic events.
    The delisting criteria for the Stephens' kangaroo rat identified in 
the draft recovery plan (Service 1997, pp. 53-60) are: (1) Establish a 
minimum of five reserves in western Riverside County, of which one is 
ecosystem-based, and that encompass at least 16,500 ac (6,675 ha) of 
occupied habitat that is permanently protected, funded, and managed; 
and (2) establish two ecosystem-based reserves in San Diego County. One 
of these San Diego County reserves needs to be established in the 
Western Conservation Planning Area, and one reserve needs to be 
established in the Central

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Conservation Planning Area. These reserves are to be permanently 
protected, funded, and managed.
    While the criteria in the draft recovery plan appropriately 
indicate the need for habitat protection and management of reserves, 
the criteria do not reflect the species' current conservation status 
and no longer adequately identify the current threats to the species. 
At the time the draft recovery plan was developed, habitat loss was the 
major concern for the species. Due to the implementation of land 
conservation and management actions (see Current Conservation Efforts), 
other threats may now need greater attention and be a focus for 
recovery actions (see Summary of Biological Condition and Threats). As 
a result, the downlisting and delisting criteria in the draft recovery 
plan may not reflect the only means to achieving recovery for the 
species. However, we still agree with the conservation objectives 
outlined in the draft recovery plan regarding ecosystem-based reserves.
    Currently, under the SKR HCP and Western Riverside MSHCP, eight 
reserves have been established for Stephens' kangaroo rat in Riverside 
County. This number exceeds the four reserves identified by criterion 1 
of the draft recovery plan (Service 1997, p. 52). Criterion 1 of the 
draft recovery plan also identifies that the reserve lands should total 
approximately 15,000 ac (6,070 ha). We estimate that, of the 331,343 ac 
(53,153 ha) of modeled potentially suitable habitat for Stephens' 
kangaroo rat in Riverside County, approximately 36,465 ac (14,757 ha) 
of the modeled habitat is considered within conserved lands (including 
reserves) in Riverside County. The majority of these lands are 
conserved in eight core reserves [19,378 ac (7,842 ha)] under the SKR 
HCP and Western Riverside MSHCP; however, 17,087 ac (6,915 ha) outside 
these reserves are also protected as Federal, State, local, and private 
lands (Service 2021, appendix D). The draft recovery plan also 
instructs that the 15,000 ac ((6,070 ha) of conserved lands should be 
in just four reserves. The number of acres conserved in the four 
largest reserves (17,118 ac (6,927 ha)) currently exceeds this value 
with four additional reserves, although smaller, that still provide 
conservation value for the Stephens' kangaroo rat. In addition, three 
of the four smaller reserves have the opportunity for expansion due to 
the surrounding lands not being developed or in agricultural use 
(Service 2021, appendix E). Thus, we conclude that this criterion has 
been exceeded.
    Criterion 2 for downlisting states that one ecosystem-based reserve 
be established in either western or central San Diego County, though no 
measure of acreage was indicated in the Recovery Plan. We estimate that 
approximately 51,737 ac (20,937 ha) of modeled suitable habitat occurs 
in San Diego County (Service 2021, appendix D). Approximately 62 
percent (32,207 ac (13,034 ha)) of this area is located on lands that 
have been either conserved, are in conservation easement, or are 
located on public or DoD lands. Current efforts are also underway to 
develop an HCP for San Diego County that would benefit Stephens' 
kangaroo rat and other listed species. Though surveys are being 
conducted in a reserve near Ramona Grassland, the HCP for San Diego 
County is not yet finalized, and no ecosystem-based reserve has been 
established on private lands in San Diego County. However, we have also 
identified lands on DoD facilities in San Diego County that are 
important for the long-term persistence of Stephens' kangaroo rat 
throughout its range. In coordination with the Service, INRMPs for the 
species have been developed and implemented at three military 
installations (Camp Pendleton, Detachment Fallbrook, and Warner 
Springs) (U.S. Navy 2016, entire; U.S. Marine Corps 2018, entire). 
These INRMPs provide for ongoing management and include actions that 
assist in the long-term conservation of Stephens' kangaroo rat on DoD 
lands.
    The total modeled habitat within DoD lands with INRMPs is 11,957 ac 
(4,839 ha). The amount of modeled habitat at each installation is 
approximately 7,619 ac (3,083 ha) for Camp Pendleton, 2,663 ac (1,078 
ha) for Detachment Fallbrook, and 1,675 ac (678 ha) for Warner Springs. 
The INRMPs are based, to the maximum extent practicable, on ecosystem 
management principles and provide for the management of Stephens' 
kangaroo rat and its habitat while sustaining necessary military land 
uses (Service 2021, pp. 39-43). Therefore, the INRMPs effectively meet 
the intent of the draft recovery plan's criterion 2 for downlisting by 
providing long-term management for the conservation of Stephens' 
kangaroo rat with one ecosystem-based reserve in western San Diego 
County at Camp Pendleton and Detachment Fallbrook.
    We conclude that the number and amount of reserved lands being 
protected, funded, and managed in Riverside and San Diego Counties 
provide conservation benefits to Stephens' kangaroo rat and exceed the 
downlisting criteria in the draft recovery plan.
    The delisting criteria for the Stephens' kangaroo rat includes: (1) 
Establishment of a minimum of five reserves in western Riverside 
County, of which one is ecosystem-based, and that encompass at least 
16,500 ac (6,675 ha) of occupied habitat that is permanently protected, 
funded, and managed; and (2) establishment of two ecosystem-based 
reserves in San Diego County.
    In Riverside County a total of 36,465 ac (14,757 ha) has been 
conserved, including 19,378 ac (7,842 ha) in eight Stephens' kangaroo 
rat core reserves, meeting the delisting criteria for the number of 
reserves needed. However, one ecosystem-based reserve is still needed 
in Riverside County. We expect additional lands will be conserved 
through further implementation of the two HCPs. In San Diego County, 
the number of ecosystem-based reserves (currently one at Camp Pendleton 
and Detachment Fallbrook) does not meet the criteria identified in the 
draft recovery plan for delisting for having two ecosystem-based 
reserves, with one in central San Diego County and one in western San 
Diego County. Therefore, we will not meet all of the delisting criteria 
in the draft recovery plan until there is: (1) At least one ecosystem-
based reserve that is occupied, permanently protected, funded, and 
managed is established in Riverside County; and (2) at least one 
additional ecosystem-based reserve that is occupied, permanently 
protected, funded, and managed is established in central San Diego 
County.

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;

[[Page 8971]]

    (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 consider these same five 
factors in downlisting a species from endangered to threatened (50 CFR 
424.11(c)-(e)).
    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. The term ``threat'' may 
encompass--either together or separately--the source of the 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 species' expected response 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 we 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.

Analytical Framework

    The species report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to, and conservation measures for, the species and its habitat. 
The species report does not represent our decision on whether the 
species should be reclassified as a 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 
species report; the full species report (Service 2021, entire) can be 
found at Docket No. FWS-R8-ES-2019-0113 on https://www.regulations.gov.
    To assess Stephens' kangaroo rat's current and future viability and 
demographic risks, we consider the concepts of resilience, 
representation, and redundancy (Shaffer and Stein 2000, pp. 301-302; 
Wolf et al. 2015, entire). Briefly, resiliency supports the ability of 
the species to withstand environmental and demographic stochasticity 
(e.g., wet or dry, warm or cold years), redundancy supports the ability 
of the species to withstand catastrophic events (e.g., long-term 
droughts, severe wildfire), and representation supports the ability of 
the species to adapt over time to long-term changes to environmental 
conditions or habitat (e.g., climate changes, successional changes to 
habitat). 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.

Summary of Biological Condition and Threats

    In this section, we summarize 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. For a complete discussion 
and additional information on the biological condition of the species, 
see the species report (Service 2021, entire).
    The Stephens' kangaroo rat is currently found in a patchy 
distribution in Riverside and San Diego Counties, California. The 
distribution and density of populations of the Stephens' kangaroo rat 
can vary temporally, within and between years, and spatially, depending 
on natural changes in habitat conditions and succession of plant 
communities. There has been no formal assessment of the population 
structure for the Stephens' kangaroo rat such as the minimum habitat 
patch size or an estimate of the minimum number of interconnected 
patches needed to support a stable population. Researchers believe that 
the species' population structure in southern California follows a 
metapopulation dynamic in which the availability of suitable habitat 
patches is both spatially and temporally dynamic and is based on the 
equilibrium between colonization and extirpation of local populations 
(Brehme et al. 2006, p. 6). We conclude that the Stephens' kangaroo rat 
continues to occur in suitable habitat in seemingly stable populations 
across its range.
    We evaluated all potential threats related to the Stephens' 
kangaroo rat from: (1) Habitat loss, fragmentation, modification, 
degradation, or other habitat changes due to urban and agricultural 
development, invasive plants, wildfire, or prescribed burns; (2) 
overutilization of the species for commercial, recreational, 
scientific, or educational purposes; (3) disease or predation; (4) use 
of rodenticides; and (5) the effects of climate change (resulting in 
increased effects from

[[Page 8972]]

drought, higher temperatures, precipitation changes, and wildfire). We 
identified the main threats to the species to be the threats identified 
in (1) above.
    The timeframe for analysis of the threats facing the Stephens' 
kangaroo rat varies. However, the major threat driving the overall 
status of Stephens' kangaroo rat is from the effects of past habitat 
fragmentation. Based on biological and environmental factors and how 
those are influenced by the driving threats acting on the species, we 
consider 25-30 years to be the foreseeable future within which we can 
reasonably determine that the future threat, and Stephens' kangaroo 
rat's response to the threat, of habitat fragmentation is likely. This 
time period includes multiple generations of the species and allows 
adequate time for existing conservation efforts (such as current land 
management or additional land protections implemented through existing 
management plans) to be implemented or changes in threats to be 
indicated through population responses.
    Much of the loss of suitable Stephens' kangaroo rat habitat 
occurred due to urban and agricultural development in the early to 
middle 20th century. This loss resulted in fragmentation of the 
species' range, which currently impacts the species' ability to 
colonize, recolonize, disperse, and maintain a functioning 
metapopulation structure within these areas. Current conservation 
efforts have helped to preserve and manage a significant amount of 
habitat for Stephens' kangaroo rat across its range. However, some of 
these lands are not connected, making fragmentation an issue even for 
some preserved lands and the overall species population dynamics in the 
future. Because of fragmentation, mechanisms such as colonization and 
recolonization or population enhancement through dispersal will be 
unable to function in portions of the species' range. Small scale 
habitat loss is still occurring outside of conserved areas, causing an 
increase in population isolation and habitat disconnectivity. In order 
to counteract these impacts, additional conservation of lands and 
management actions will continue to be necessary for the species. 
Although we have not currently identified any population losses as a 
result of the current level of habitat fragmentation, we have 
determined habitat fragmentation to be the main driver of future 
species' viability and for this to be a moderate-level threat for 
Stephens' kangaroo rat populations in both western Riverside and San 
Diego Counties.
    Based on the best scientific data available for our analysis, we 
found the current major stressor to Stephens' kangaroo rat is the 
latent effects of large-scale habitat loss which has resulted in 
habitat fragmentation for the species. Currently, populations of the 
species persist throughout its historical range and likely maintain 
subsequent genetic makeup and adaptive capabilities. The species 
currently has a sufficient number of managed populations distributed 
throughout its historical range (across two counties), providing a 
margin of safety to withstand catastrophic events. There are also 
several populations that are presently managed over a large area that 
could withstand stochastic events. Based on this analysis, Stephens' 
kangaroo rat is currently maintaining its representation, redundancy, 
and resiliency. In the future, the impacts from habitat fragmentation 
may continue to affect Stephens' kangaroo rat populations, and if not 
addressed could impact their overall fitness by reducing representation 
(reducing genetic heterozygosity, increased inbreeding), resiliency 
(impacts from stochastic events), and redundancy (fewer healthy 
populations, fewer populations overall). This suggests that restoration 
of connectivity or translocation efforts may be needed to maintain 
sufficient populations in the future.
    Other potential habitat destruction or modification-related threats 
evaluated in the species report include habitat impacts from nonnative 
ungulates, off-highway vehicle activity, and the effects of fire 
suppression or prevention activities. We determined that these were 
either not a threat (nonnative ungulates) or represented a low-level 
threat to the species' habitat. Disease or overutilization for 
commercial, recreational, scientific, or educational purposes are not 
presently threats to the species and are not expected to change in the 
future. Predation is not a threat to the species beyond impacts to a 
few individuals, now or into the future. We determined that the risk of 
mortality or injury as a result of the use of rodenticides represents a 
low-level risk at the individual level both currently and in the future 
due to the current restrictions for general public use of rodenticides 
and the conduct of these activities in a manner consistent with Federal 
and applicable State laws, including Environmental Protection Agency 
label restrictions for pesticide application. Wildfire is both a 
natural and human-caused event in the currently occupied range of the 
Stephens' kangaroo rat. In general, studies have found that wildland or 
controlled fire management actions represent a beneficial effect to the 
species. At present, core reserves and other areas in Riverside County 
are currently being managed for conversion of habitat due to the recent 
establishment of a nonnative invasive plant, Oncosiphon piluliferum 
(stinknet), which represents a low-level, but not yet rangewide, threat 
to Stephens' kangaroo rat habitat.
    We also assessed the effects of climate change on Stephens' 
kangaroo rat and its habitat. The best available downscaled regional 
data using representative concentration pathways for moderate (RCP4.5) 
and high (RCP8.5) emission concentrations on current and potential 
future trends related to climate change within locations occupied by 
the Stephens' kangaroo rat indicate that the areas occupied by the 
species will be subject to increased temperatures and extreme 
precipitation events with extended periods of drought. Based on model 
projections, we can reliably predict this will continue until at least 
the mid- to late-21st century (2060 to 2100). The effects to the 
habitat occupied by the Stephens' kangaroo rat from climate change from 
precipitation changes appear to be minimal. Temperature increases for 
the area may have an effect on the species' habitat by increasing the 
potential for wildfires due to drier fuel loads. However, drought 
conditions appear to provide favorable conditions to the species by 
reducing cover and creating open spaces. Food resources (seeds) will 
likely remain stable. The cumulative effects of climate change and 
wildfire, which could result in an increase in the extent of nonnative 
grasslands, represents a low-level threat to the Stephens' kangaroo rat 
and its habitat, and, based on climate change projections, is likely to 
remain at this level to the 2060s.
    We note that, in determining the threats facing the species, we 
have not only analyzed individual effects on the species, but we have 
also analyzed their potential cumulative effects and incorporated the 
cumulative effects into the species report for the species. To assess 
the current and future condition of the species, we undertake an 
iterative analysis that encompasses and incorporates the threats 
individually and then accumulates and evaluates the effects of all the 
factors that may be influencing the species, including threats and 
conservation efforts. Because we consider not just the presence of the 
factors, but to what degree they collectively influence risk to the 
entire species, our assessment

[[Page 8973]]

integrates the cumulative effects of the factors and replaces a 
standalone cumulative effects analysis.
    Currently implemented and ongoing conservation measures including 
Federal and State mechanisms provide protections to the Stephens' 
kangaroo rat and its habitat. These include HCPs and INRMPs that 
benefit Stephens' kangaroo rat and its habitat by implementing 
management actions that contribute to species' conservation and long-
term viability. The Act also provides protections through section 7 and 
the consultation process and through section 10 using incidental take 
permits on non-Federal lands (see Current Conservation Efforts).

Summary of Comments and Recommendations

    In the proposed rule published on August 19, 2020 (85 FR 50991), we 
requested that all interested parties submit written comments on the 
proposal by October 19, 2020. We also contacted appropriate Federal and 
State agencies, scientific experts and organizations, and other 
interested parties and invited them to comment on the proposal. 
Newspaper notices inviting general public comment were published in The 
Press-Enterprise and San Diego Union-Tribune. We did not receive any 
requests for a public hearing. All substantive information received 
during the comment period has either been incorporated directly into 
this final determination or addressed below.

Peer Reviewer Comments

    As discussed in Supporting Documents above, we received comments 
from one peer reviewer. We reviewed all comments we received from the 
peer reviewer for substantive issues and new information regarding the 
information contained in the species report. The peer reviewer 
generally concurred with our methods and conclusions, and provided 
additional information, clarifications, and suggestions to improve the 
final species report. Peer reviewer comments are addressed in the 
following summary and were incorporated into the final species report 
as appropriate (Service 2021, entire).
    Comments from peer review were generally in support of our findings 
and analysis. The main concern was how we developed our internal 
spatial model, which was used to estimate Stephens' kangaroo rat 
habitat. This model has since been replaced by a more robust model 
created by CBI (Spencer et al. 2021, entire). The RCHCA, who implements 
the SKR HCP, supported the development of this finer scale model for 
Stephens' kangaroo rat, which uses Sentinel-2 satellite imagery that 
can be more readily updated in the future to look at changes in habitat 
quality (Spencer et al. 2021, p. 25). As a result, the species report 
and this final rule have been updated with new information using the 
new habitat suitability model.
    The reviewer also commented on the relatively low genetic diversity 
for the species, compared to the high genetic diversity typical of 
other Dipodomys species. In the species report, we discuss that the 
Stephens' kangaroo rat genetic diversity is the highest in the northern 
part of the range and decreases in the southern part of the range. 
Results from a genetic study indicate that the entire range was 
historically connected and functioning as one continuous population. 
However, there is evidence that recent habitat fragmentation has caused 
occurrences within the population to become increasingly isolated, 
creating a metapopulation-like structure across the range. As described 
in the Summary of Biological Condition and Threats, we consider habitat 
fragmentation and isolation a threat to the species and potentially the 
major cause of the species' lower genetic diversity.

Partner Reviewer Comments

    We received comments from the CDFW and from the DoD facilities 
identified above regarding the proposed rule. Overall, the commenters 
supported the finding and provided information to improve the document. 
One commenter had questions about the original habitat model we used, 
which has since been replaced with a more robust model. Another 
commenter provided information about the effects of climate change that 
has been incorporated into the updated species report (Service 2021). 
Another comment asked that we clarify whether ``conserved lands'' on 
DoD installations is based on management via INRMPs. When discussing 
conserved lands, we are including modeled habitat that occurs on DoD 
facilities that are managed by INRMPs and are important for the long-
term persistence of Stephens' kangaroo rat throughout its range. 
Modeled habitat on DoD lands were included as conserved lands in the 
species report and in our analysis because they are not likely to be 
impacted by urban and agricultural development and provide for 
conservation of the species. The INRMPs implemented on military lands, 
are expected to continue to provide protections to the species and its 
habitat. Therefore, we anticipate that current levels of military 
activity are expected to continue into the foreseeable future, allowing 
Stephens' kangaroo rat to continue coexisting on military lands.
    We also received comments and questions specific to the 4(d) rule 
from three DoD installations about how a 4(d) rule would affect 
consultation. Nothing in the 4(d) rule for Stephens' kangaroo rat 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 Stephens' kangaroo rat. However, 
interagency cooperation may be further streamlined through planned 
programmatic consultations for the species between us and other Federal 
agencies, where appropriate. Comments 1-5 below are some additional 
questions from military installations and our responses regarding the 
4(d) rule:
    Comment 1: Several commenters asked whether other activities not 
specified in the 4(d) rule could be exempted. They stated that under 
special conditions actions may not be done specifically for Stephens' 
kangaroo rat but may have a net benefit for the species and they 
wondered if those activities might also apply to the 4(d) rule. 
Commenters provided examples of the types of activities they wanted us 
to consider exempting under the 4(d) rule (i.e., ripping of soil, chain 
dragging, mechanical scraping, pre-suppression fire activities, 
additional wildfire suppression activities, and other activities 
associated with grazing, such as erecting a fence).
    Response: The specific activities associated with ripping of soil, 
chain dragging, mechanical scraping or other non-specific wildfire 
suppression activities are not included in the 4(d) rule as exceptions 
from the general section 9 take prohibitions identified under the Act. 
We included exceptions that are incidental to activities conducted 
within the range of the Stephens' kangaroo rat for the purpose of 
reducing the risk or severity of habitat modification resulting from 
wildfire and designed to maintain or restore open habitat for Stephens' 
kangaroo rat, even if these actions may result in some short-term or 
small level of localized negative effect to Stephens' kangaroo rats. 
Therefore, activities conducted under plans developed in coordination 
with the Service that are for the purpose of maintaining, enhancing, or 
restoring open areas and are beneficial for providing the habitat needs 
of Stephens' kangaroo rat will be exceptions from

[[Page 8974]]

section 9(a)(1) of the Act as discussed above. Activities that are not 
conducted for the purpose of Stephens' kangaroo rat habitat enhancement 
are not covered under the 4(d) rule and should be discussed further 
through consultation and coordination under applicable sections of the 
Act.
    Comment 2: A few commenters asked whether the 4(d) rule exempts 
incidental take for plans that were not developed in coordination with 
the Service.
    Response: We did not provide exceptions from section 9(a)(1) of the 
Act for plans that are not developed in coordination with the Service. 
Specific activities and their impacts will need to be identified and 
coordinated with the Service. Activities identified in the 4(d) rule 
could be exempted if they are under a plan developed in coordination 
with the Service and conducted for the purpose of providing benefits to 
the species or maintaining or restoring habitat for Stephens' kangaroo 
rat. Note, Federal agencies that fund, permit, or carry out the 
activities described in Comment 1 will still need to ensure, in 
consultation with the Service, that the activities are not likely to 
jeopardize the continued existence of the species.
    Comment 3: A few commenters asked whether specific activities in 
their INRMP could be covered by the 4(d) rule and whether these 
activities still required coverage under a biological opinion or a 
section 10(a)(1)(A) permit. Could activities be covered by the 4(d) 
rule rather than modifying a biological opinion?
    Response: The 4(d) rule for Stephens' kangaroo rat will not change 
in any way the consultation requirements under section 7 of the Act, or 
our ability to enter into partnerships for the management and 
protection of the Stephens' kangaroo rat. Regardless of the provisions 
of a 4(d) rule, Federal agencies are still required to consult with the 
Service for actions that may affect a listed species. However, if 
activities are exempted under the 4(d) rule, the Federal action agency 
will not need take coverage through a biological opinion or a section 
10(a)(1)(A) permit. Therefore, the consultation process may be 
streamlined. However, Federal agencies that fund, permit, or carry out 
the activities described in this rule will still need to ensure, in 
consultation with the Service, that the activities are not likely to 
jeopardize the continued existence of the species.
    Comment 4: A commenter asked how interagency cooperation may be 
further streamlined through planned programmatic consultations for the 
species between Federal agencies and the Service.
    Response: Programmatic consultations can streamline consultation 
workload for both the Service and our Federal partners. Forms can be 
developed to help the Service, Federal agencies, and the regulated 
public easily understand whether a given action complies with the 4(d) 
rule and programmatic consultation or not. While work is required up 
front to complete this kind of consultation, significant streamlining 
should result once the consultation is completed.
    Comment 5: A commenter requested that the Service consider 
additional exemptions from section 9 prohibitions for certain military 
training activities on military installations with a completed INRMP. 
The commenter is requesting exemption language for specific activities 
that the Service has previously determined are ``not likely to 
adversely affect'' the Stephens' kangaroo rat through prior section 7 
consultations.
    Response: We included certain activities in the 4(d) rule that we 
determined have minimal impacts on the species or its habitat or that 
will be beneficial for the species' conservation. Including previous 
actions would not be appropriate, even if they were previously 
determined as ``not likely to adversely affect'', impacts of actions 
may vary or conditions for the species may have changed. Activities 
within plans that are developed in coordination with the Service and 
that are conducted for the purpose of maintaining, enhancing, or 
restoring open areas and are beneficial for providing the habitat needs 
of Stephens' kangaroo rat will be exempted under section 9(a)(1) of the 
Act as discussed in the Provisions of the 4(d) Rule, below. Other 
activities that are not conducted for the purpose of Stephens' kangaroo 
rat habitat enhancement are not covered under the 4(d) rule and should 
be discussed further through consultation with the Service.

Public Comments

    We received public comments from 22 members of the public. The 
majority of individual commenters did not agree that the species should 
be downlisted to threatened status, although most did not provide 
substantive information. Commenters expressed concerns about: (1) A 
lack of conserved habitat due to increased development, (2) the effects 
from climate change, (3) a lack of information about population trends, 
and (4) the potential inadequacy of DoD lands to conserve the species 
or qualify as ecosystem-based reserves.
    Comment 6: One commenter pointed out that the Service produced 24 
no-jeopardy biological opinions since 2014 and indicated that 
understanding the cumulative impacts to the Stephens' kangaroo rat over 
the years is a metric that must be included in evaluating the proposal 
to downlist because it provides data on how much habitat is no longer 
available for recovery.
    Response: We considered the best available information when 
assessing the status of the Stephens' kangaroo rat. In our evaluation 
of the amount of potentially available suitable habitat for the 
species, we considered impacts from current and future threats as well 
as their cumulative effects in our status evaluation including any 
activities associated with Service-issued biological opinions.
    Comment 7: Four commenters expressed concern over the effects from 
climate change and the negative impacts to Stephens' kangaroo rat, 
including flooding, changes in food availability, precipitation, and 
temperature. The commenters believe these threats are more deleterious 
than the Service's determination in the species report and that the 
species should not be downlisted. One commenter indicated that future 
impacts cannot be mitigated by management actions, and another 
commenter believes findings from researchers (Wilkening et al. 2019, 
entire) run counter to the Service's determination that climate change 
is a low to moderate threat.
    Response: We considered the best available information when 
assessing the status of the Stephens' kangaroo rat. This included an 
evaluation of threats, including projected impacts from climate change. 
Climate change at the levels projected in models could impact Stephens' 
kangaroo rat habitat in the future. That said, the effects of climate 
change may also benefit the Stephens' kangaroo rat by drying of the 
habitat, which would most likely reduce vegetation and thatch buildup, 
which in turn could create more open habitat conditions that benefit 
Stephens' kangaroo rat. The availability of food resources (primarily 
grass seeds) is not expected to be greatly impacted from environmental 
changes with annual grasses favoring wet years and perennial grasses 
favoring dry years. Some shifts from perennial grasses to nonnative 
annual grasses may occur, but southern California grasslands have a 
moderate resistance and recovery potential from such climatic changes 
(EcoAdapt 2017, entire). The research cited by the commenter (Wilkening 
et al. 2019, p. 8) states that Stephens' kangaroo rat appears to be 
resilient to direct impacts

[[Page 8975]]

of climate change, and that management strategies, including 
translocations, can be used to offset potential indirect impacts from 
climate change. Based on our assessment, we do not find that the 
current threats associated with climate change facing Stephens' 
kangaroo rat are to such an extent and magnitude that the species meets 
the definition of an endangered species.
    Comment 8: Six commenters expressed concern of future development 
increases and the resulting decline in habitat quantity and quality 
available to Stephens' kangaroo rat.
    Response: We considered the best available information when 
assessing the status of the Stephens' kangaroo rat, including an 
evaluation of impacts from future development and areas protected and 
managed for the species. We acknowledge that development within the 
range of Stephens' kangaroo rat will continue to occur in the future. 
However, the rate, extent, and magnitude of development has been 
greatly curtailed due to conservation measures currently in place to 
conserve habitat for the species. Although future development will 
continue to be an ongoing threat, large areas of conserved habitat are 
managed by the SKR HCP and Western Riverside MSHCP to help recover 
Stephens' kangaroo rat and account for the majority of conserved lands 
in Riverside County (35,888 ac (14,524 ha)). In San Diego County, 
32,207 ac (13,034 ha) are considered conserved. DoD installations 
manage for Stephens' kangaroo rat through implementation of INRMPs on 
approximately 11,957 ac (4,839 ha). Implementation of management 
actions for the species through HCPs in Riverside County and INRMPs in 
San Diego County help to prevent further habitat loss. We expect that 
additional lands will be conserved in the future through the two 
existing HCPs as part of their permit agreements. Therefore, we do not 
consider future development to be a driving force for determining the 
status of the species into the foreseeable future based on the level of 
threats associated with future development.
    Comment 9: Two commenters expressed concern with defining DoD lands 
as ``conserved'' and do not believe these lands adequately protect 
Stephens' kangaroo rat. They argue that additional habitat needs to be 
conserved before we downlist the species and that DoD lands are not 
adequate to conserve the species or qualify as ecosystem-based 
reserves.
    Response: When analyzing the threat to the Stephens' kangaroo rat 
from development, we considered lands conserved if they were not likely 
to be impacted by urban and agricultural development. Modeled habitat 
within conserved lands for both Riverside and San Diego Counties 
included conservation easements, conserved lands, and public/quasi-
public, Federal, State, and DoD lands that are not likely to be 
impacted by urban and agricultural development. DoD lands were included 
because of the commitment military installations are making to manage 
for Stephens' kangaroo rat through implementation of their INRMPs. The 
development of the INRMPs was in coordination with both the Service and 
CDFW, and these plans include specific measures for habitat protection 
and conservation for the Stephens' kangaroo rat. Based on prior survey 
reports, occurrences of Stephens' kangaroo rat are doing well under 
current management and the Service has no reason to conclude that the 
military's management approaches will change in the future. Therefore, 
we have determined it appropriate to consider DoD lands being managed 
under INRMPs to be conserved for the purposes of restricting 
development as well as managing other threats to the species.
    Ecosystem-based reserves are anticipated to retain their biological 
diversity and are associated with large areas of suitable habitat. 
Current implementation of actions by the installations through their 
INRMPs effectively meets the intent of the draft recovery plan's second 
criterion for downlisting by providing long-term management for the 
conservation of Stephens' kangaroo rat with one ecosystem-based reserve 
in western San Diego County at Camp Pendleton and Detachment Fallbrook.
    Comment 10: Two commenters expressed concerns over habitat 
fragmentation, with one commenter stating that fragmented and isolated 
populations are continuing to be impacted by development, fire, and 
off-road activities, notably in San Diego County. In the commenters' 
view, until all fragmented populations are showing a strong and steady 
increase, Stephens' kangaroo rat should not be downlisted from 
endangered to threatened.
    Response: Due in part to the threats that the commenters cited, the 
Stephens' kangaroo rat will continue to receive the Act's protections 
as a threatened species. Past rapid habitat loss from development was 
one of the reasons for initially listing the Stephens' kangaroo rat 
with an endangered status. Implementation of conservation efforts for 
protecting and managing habitat has curtailed large-scale habitat 
losses, and those measures along with other actions have largely met 
the intent of the criteria in the draft recovery plan for downlisting 
the species to threatened. Based on the best available data, we have 
determined that habitat fragmentation remains a moderate-level stressor 
to the Stephens' kangaroo rat and its habitat, and we can reliably 
predict that these habitat conditions are likely to remain into the 
foreseeable future. Translocations could potentially be used in the 
future, if necessary, to reintroduce the species back into suitable 
areas and help restore connectivity. Ongoing genetics work will help 
inform if and where translocations are needed. These efforts and 
habitat restoration efforts would help to better connect occupied areas 
and mitigate the impacts of fragmentation.
    Comment 11: One commenter stated that habitat is constantly 
changing and that it may become less suitable for Stephens' kangaroo 
rat through lack of management, inappropriate management, or other 
competing management priorities. Even in situations where land has been 
protected for conservation purposes (as opposed to the simple 
restriction of conversion to other land uses), Stephens' kangaroo rat 
may not be the priority for management, and other conservation uses may 
compete for management resources and priorities.
    Response: Activities to help protect Stephens' kangaroo rat and its 
habitat are being implemented through existing management and 
conservation plans. These actions that provide a benefit to the 
Stephens' kangaroo rat as identified in these plans (HCPs, INRMPs) will 
continue to be implemented after the species is downlisted in 
coordination with the Service. A rangewide management and monitoring 
plan has also recently been completed for the species to help 
coordinate recovery efforts with partners and facilitate Stephens' 
kangaroo rat management throughout its range (Spencer et al. 2021, 
entire).
    Comment 12: Several commenters raised concerns with downlisting 
Stephens' kangaroo rats based on the lack of current population or 
density estimates and lack of recent and consistent rangewide 
monitoring for the species. One commenter also indicated that the use 
of modeled suitable habitat does not capture the status and trends of 
population size and density in a manner sufficient to decide the actual 
health of the Stephens' kangaroo rat population.
    Response: The habitat suitability model used in the species report 
is used to further understand the species status,

[[Page 8976]]

as population estimates are unknown and fluctuate greatly. Although 
population data is incomplete, habitat models and near term population 
trends show sufficient resiliency that Stephens' kangaroo rat is not in 
danger of extinction now, and therefore does not meet the definition of 
an endangered species. The modeling provides an estimate of how much 
suitable habitat is available in each of the five ecoregions described. 
Based on the new habitat suitability model, 184,367 ac (74,610 ha) of 
modeled habitat was identified for the Stephens' kangaroo rat, with 
approximately 131,343 ac (53,153 ha) located in Riverside County and 
51,737 ac (20,937 ha) in San Diego County. Until additional, 
standardized population monitoring information becomes available across 
the entire range of the species and robust statistical models are 
developed, we consider the results from the CBI spatial analyses to be 
based on the best available information and support sufficient 
resiliency for the species across its range.
    Comment 13: One commenter stated that conservation requirements 
described in the draft recovery plan have yet to be achieved--
specifically, the need for 15,000 ac (6,070 ha) over four reserves 
(instead of eight as indicated in the species report) in Riverside 
County and the need for one ecosystem-based reserve in San Diego 
County. The Service's reasoning that the requirements need not be met 
to achieve species recovery is flawed.
    Response: We assessed the status of the Stephens' kangaroo rat and 
determined that the species meets the definition of threatened. The 
draft recovery plan identified establishment of four reserves, which 
encompass at least 15,000 ac (6,070 ha) in western Riverside County. To 
date approximately 35,888 ac (14,524 ha) have been conserved through 
HCPs in western Riverside County, including 19,378 ac (7,842 ha) that 
have been conserved in the eight managed core reserves. A total of 
17,118 ac (6,927 ha) have been conserved in the four largest reserves. 
Therefore, the current total reserve number and acreages exceed that 
identified in the draft recovery plan.
    The draft recovery plan also identified that one ecosystem-based 
reserve be established in San Diego County. In San Diego County, 32,207 
ac (13,034 ha) are conserved with 11,957 ac (4,839 ha) of modeled 
habitat among the three DoD installations. The installations are 
actively managing for the species through implementation of their 
INRMPs, and we find that DoD will continue to manage these areas in the 
future. The INRMPs are based, to the maximum extent practicable, on 
ecosystem management principles and provide for the management of 
Stephens' kangaroo rat and its habitat while sustaining necessary 
military land uses. The DoD has a close working relationship with the 
Service and CDFW and has shown a commitment through their actions in 
protecting sensitive species and their habitat including Stephens' 
kangaroo rat. Based on the latest survey reports, occupancy is stable 
or increasing on military lands and Stephens' kangaroo rats do not 
appear to be negatively impacted from the military activities that have 
been occurring for many years. Furthermore, we have determined that 
existing conservation actions, such as those implemented in the INRMPs, 
are expected to continue to provide protections for the species and its 
habitat; therefore, we do not predict a change in these trends in the 
future. We have determined that the conservation activities occurring 
at DoD facilities in San Diego County meet the intent of the recovery 
criterion 2 to downlist. Therefore, the number and amount of reserved 
lands being protected, funded, and managed in Riverside and San Diego 
Counties provide conservation benefits to Stephens' kangaroo rat and 
meet the intent of the downlisting criteria.
    Comment 14: One commenter indicated the species should not be 
downlisted because the Service would protect Stephens' kangaroo rats 
more if they were listed as endangered.
    Response: We do not consider whether a species is more or less 
protected as either endangered or threatened in our determination of 
whether a species warrants reclassification. In this downlisting 
determination, the Stephens' kangaroo rat will continue to have all the 
section 9 take prohibitions as an endangered species except for certain 
activities identified under section 4(d) for the species. We have 
determined that these exceptions will not significantly impact the 
species' status and provide for incentives to landowners to further 
work toward and provide conservation for the species. In addition, 
section 7 of the Act requires consultation for both endangered and 
threatened species to ensure Federal actions do not jeopardize the 
continued existence of the species.
    Comment 15: The San Diego County Fire Authority requested that the 
proposed 4(d) rule account for local jurisdictions that have more 
stringent defensible space requirements than the State of California 
fire code.
    Response: We have amended the 4(d) language in the final rule to 
include local fire codes/ordinances using the additional language 
recommended by the commenter.

Determination of Stephens' Kangaroo Rat 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 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. For a more 
detailed discussion on the factors considered when determining whether 
a species meets the definition of an endangered species or a threatened 
species and our analysis on how we determine the foreseeable future in 
making these decisions, please see Regulatory and Analytical Framework.

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 
find that the current viability of the Stephens' kangaroo rat is higher 
now than at the time of listing due to a reduction of threats, 
discovery of additional areas occupied by the species, and 
implementation of extensive conservation actions and management by 
partnering agencies throughout the species' range.
    In particular, the Stephens' kangaroo rat was listed as endangered 
in 1988, mostly due to the direct and indirect effects of rapid loss, 
degradation, and fragmentation of habitat for the species. Since the 
time of listing, numerous searches and surveys have resulted in the 
discovery of additional areas where Stephens' kangaroo rat occurs. 
Currently, 18 areas (12 areas in Riverside County and 6 areas in San 
Diego County) have been identified, 7 more than what was known at the 
time of listing. Although not considered a population expansion since 
listing, the discovery of additional occupied areas has reduced the 
level of threat for the species as a whole and increased the redundancy 
for the species making it more able to recover from catastrophic 
events. While we do not have specific quantified information on the 
status and trends for populations of the species, no significant 
population declines or

[[Page 8977]]

extirpations have been observed since listing.
    Also, since the time of listing, several large-scale habitat 
conservation efforts (SKR HCP, Western Riverside MSHCP) have been 
implemented by the RCHCA and Regional Conservation Authority, 
respectively. These two conservation efforts have established a total 
of eight adaptively managed reserves for Stephens' kangaroo rat in 
Riverside County. In addition, the DoD developed INRMPs for conserving 
the species and its habitat on three military facilities in San Diego 
County. DoD works with the Service in development and implementation of 
the plans to consider and conserve threatened and endangered species 
and their habitat. Ongoing monitoring studies and conservation actions 
implemented under the Sikes Act authority at these three DoD 
installations in San Diego County provide important conservation 
benefits to the Stephens' kangaroo rat, as summarized above and in the 
species report (Service 2021, pp. 75-79).
    Together, these conservation efforts in Riverside and San Diego 
Counties have conserved approximately 68,701 ac (27,802 ha) of modeled 
Stephens' kangaroo rat habitat throughout the species' range. These 
conservation measures have met the intent of the downlisting criteria 
identified in our draft recovery plan.
    Thus, after assessing the best available information, we conclude 
that the Stephens' kangaroo rat no longer meets the Act's definition of 
an endangered species. We therefore proceed with determining whether 
the Stephens' kangaroo rat is likely to become endangered within the 
foreseeable future throughout all of its range.
    Although current conservation efforts have preserved and managed 
lands occupied by the species, in some instances these preserved areas 
are not connected. In addition, we recognize that localized small-scale 
habitat loss is still occurring and the ongoing impacts from past and 
future habitat fragmentation will continue to affect the species' 
population dynamics. Stephens' kangaroo rat population mechanisms such 
as colonization and recolonization or population enhancement through 
dispersal will be unable to function in portions of the species' range. 
In addition, some areas where the species is found are not located in 
preserved or managed lands and the habitat within these areas may be 
degraded and not fully provide for the needs of the species causing 
additional fragmentation. These threats will result in increasing 
population isolation and habitat disconnectivity, and we expect that 
additional conservation of lands and management actions will continue 
to be necessary for the species.
    In consideration of these various impact issues and after assessing 
the best scientific and commercial information available, we conclude 
that the Stephens' kangaroo rat is not currently in danger of 
extinction but is likely to become in danger of extinction in 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) (Center for Biological 
Diversity), vacated the aspect of the Final Policy on Interpretation of 
the Phrase ``Significant Portion of Its Range'' in the Endangered 
Species Act's Definitions of ``Endangered Species'' and ``Threatened 
Species'' (79 FR 37578; July 1, 2014) that provided that the Service 
does not undertake an analysis of significant portions of a species' 
range if the species warrants listing as threatened throughout all of 
its range (79 FR 37578, July 1, 2014). 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 Center for Biological Diversity, 
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 Stephens' kangaroo rat, 
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.
    The statutory difference between an endangered species and a 
threatened species is the time horizon in which the species becomes in 
danger of extinction: An endangered species is in danger of extinction 
now, while a threatened species is not in danger of extinction now but 
is likely to become so in the foreseeable future. Thus, we considered 
the time horizon for the threats that are driving the Stephens' 
kangaroo rat to warrant listing as a threatened species throughout all 
of its range. As stated above, the effects of habitat fragmentation 
(limiting dispersal and recolonization, reducing genetic exchange, 
isolating populations) is the greatest future threat to the species. 
These effects are expected to occur in the future throughout its range 
in both western Riverside and San Diego Counties as genetic structuring 
continues increase throughout the range. As further explained below, 
however, based on limited known current population sizes, distribution, 
and trends, it appears that the species currently has a relatively 
stable status.
    The Service recognizes that fragmentation driven by continuing 
development is expected to impact the species into the future, and that 
existing conserved and managed lands in both western Riverside and San 
Diego Counties have slowed or limited the negative impacts created from 
such fragmentation. These land conservation and management efforts are 
currently benefiting the species to the level that the species is not 
now endangered. The Service further recognizes, however, that because 
development and loss of habitat were so extensive and severe in the 
past, work will be needed in the future to reconnect populations in 
conserved areas currently being managed as ecosystem reserves and areas 
outside those considered as ecosystem reserves, such as central San 
Diego County.
    The impacts from future habitat fragmentation will continue to 
isolate populations. This is especially true if land conservation 
efforts are not able to conserve areas between populations for 
connectivity. In addition, currently occupied lands, both conserved and 
not conserved, will require ongoing management such as prescribed fire 
or other measures to reduce vegetation buildup ensuring habitat 
suitability and persistence of the species. We expect vegetation 
control will be an ongoing habitat management concern and the species 
will continue to be reliant to some degree on habitat or species 
management into the future.
    To review these threats in the context of a potential portion of 
the Stephens'

[[Page 8978]]

kangaroo rat range that may be endangered, it must be considered that 
the Stephens' kangaroo rat's population structure follows a 
metapopulation dynamic and is based on the equilibrium between 
colonization and extirpation of local populations. And although 
estimates have been made on habitat patch size and its availability, 
there has been no rangewide systematic assessment of the population 
structure for the Stephens' kangaroo rat to determine the specific 
requirements or characteristics of stable populations or estimate the 
minimum number of interconnected patches needed to support a potential 
metapopulation. Without these forms of information, the current and 
best available information on habitat conditions, species persistence 
within occupied areas, and species distribution indicates that the 
current populations appear stable.
    The Service understands the importance of habitat and population 
connectivity is emphasized for a species that exists through an 
equilibrium of colonization and extirpation of local populations. And 
as a result of the largescale habitat loss in the past, our analysis 
and modeling of the existing suitable habitat available to the 
Stephens' kangaroo rat shows the species faces some level of habitat 
isolation in both western Riverside and San Diego Counties. The 
challenges to the species from this isolation, however, although 
currently impacting the species, will most likely manifest themselves 
to a greater extent in future generations as the timeframe of genetic 
isolation increases and may reach a point where the metapopulation 
dynamics of the populations will become further stressed or decline and 
not allow for normal bolstering of populations or recolonization. These 
analyses indicate that restoring connectivity and/or conducting 
translocation efforts may be needed to address the increased difficulty 
of the species to recolonize areas in the future and to maintain 
populations that may otherwise become extirpated.
    The best scientific and commercial data available do not otherwise 
indicate that any of the threats to the species and the species' 
responses to those threats discussed above are more prevalent or 
immediate in any portion(s) of the species' range.
    Given this assessment and recognizing that the current amount and 
type of reserves for Stephens' kangaroo rat does not meet the draft 
recovery plan requirements for delisting, we still conclude that the 
best scientific and commercial data available indicate that the time 
horizon of threats to the species and the species' responses to those 
threats, is similar throughout its range and likely to occur in the 
foreseeable future. Therefore, we determine that the Stephens' kangaroo 
rat is not in danger of extinction now in any portion of its range, but 
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 data available 
indicates that the Stephens' kangaroo rat meets the definition of a 
threatened species. Therefore, we are downlisting the Stephens' 
kangaroo rat as a threatened species in accordance with sections 3(20) 
and 4(a)(1) of the Act.
    In addition, 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 listing on proposed and ongoing activities within the range of the 
listed species. Because we are listing this species as a threatened 
species, the prohibitions in section 9 will not apply directly. We are 
therefore putting into place a set of regulations to provide for the 
conservation of the species in accordance with section 4(d), which also 
authorizes us to apply any of the prohibitions in section 9 to a 
threatened species. The 4(d) rule, which includes a description of the 
kinds of activities that will or will not constitute a violation, 
complies with this policy.

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

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as [s]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 us 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. 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 this authority under section 4(d), we have developed a 
rule that is designed to address the Stephens' kangaroo rat's specific 
threats and conservation needs. Although the statute does not require 
us 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 Stephens' kangaroo rat. As discussed under Summary 
of Biological Condition and Threats, we have concluded that the 
Stephens' kangaroo rat is likely to become in danger of extinction 
within the

[[Page 8979]]

foreseeable future primarily due to the population effects from habitat 
loss and degradation and fragmentation due to isolation of existing 
populations.
    Because the Stephens' kangaroo rat's population structure follows a 
metapopulation dynamic and is based on the equilibrium between 
colonization and extirpation of local populations, the importance of 
habitat and population connectivity is emphasized. The fragmented 
habitat currently limits the species' ability to colonize, recolonize, 
disperse, and maintain a functioning metapopulation structure. Habitat 
degradation has led to areas being overgrown and not being able to 
provide the habitat needs of the species. Because habitat fragmentation 
and degradation affects so many aspects of the species' life history 
and population dynamics, we have determined that it is appropriate to 
apply all the prohibitions and provisions for endangered wildlife under 
section 9(a)(1) of the Act for the Stephens' kangaroo rat except as 
described and explained below. 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 Stephens' kangaroo rat by encouraging 
management of the landscape in ways that meet both land management 
considerations and the conservation needs of the species. The 
provisions of this rule are one of many tools that we will use to 
promote the conservation of the Stephens' kangaroo rat.

Provisions of the 4(d) Rule

    This 4(d) rule will provide for the conservation of the Stephens' 
kangaroo rat by prohibiting the following activities, except as 
otherwise authorized or permitted: Importing or exporting; take; 
possession and other acts with unlawfully taken specimens; delivering, 
receiving, transporting, or shipping in interstate or foreign commerce 
in the course of commercial activity; or selling or offering for sale 
in interstate or foreign commerce.
    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. Regulating 
incidental and/or intentional take will help preserve the species' 
remaining populations, slow their rate of decline, and decrease 
cumulative, negative effects from other threats.
    As described in our analysis of the species' status, the primary 
driver of the Stephens' kangaroo rat's continued viability is the 
effects from habitat loss and degradation and habitat fragmentation. 
These threats reduce habitat availability and suitability due to a lack 
of connectivity between areas and buildup of dense vegetation resulting 
from a lack of disturbance. The Stephens' kangaroo rat prefers open, 
annual grasslands and open intermediate-seral-stage (secondary 
succession) plant communities that are maintained by disturbance. Areas 
with dense vegetation (grasses or shrubs) are avoided and are not 
suitable habitat. Therefore, activities that are conducted for the 
purpose of maintaining, enhancing, or restoring open areas are 
beneficial for providing the habitat needs of the species because such 
activities contribute to species conservation and long-term species 
viability. Such activities may include, but are not limited to: 
Nonnative or invasive plant removal, grazing activities for the purpose 
of vegetation management, prescribed burns, wildfire suppression 
activities, mowing, activities designed to promote native annual forbs 
and maintain or restore open habitat for the species, or other actions 
related to habitat restoration or species recovery efforts.
    More specifically, nonnative, invasive, or noxious plant removal 
includes noxious weed control in the course of habitat management and 
restoration to benefit Stephens' kangaroo rat or other sensitive 
species in the grassland habitat. Livestock grazing includes those 
grazing activities conducted as part of habitat management and 
restoration to benefit Stephens' kangaroo rat or other native species 
in the grassland habitat as described in plans developed in 
coordination with the Service. Fire and wildfire management and 
suppression includes activities such as prescribed burns, fuel 
reduction activities, maintenance of fuel breaks by mowing, defensible 
space maintenance actions, and firefighting activities associated with 
actively burning fires to reduce risk to life or property. Discing or 
blading areas to maintain fuel breaks, unless being conducted for 
suppression of active wildfires, should be avoided in areas occupied by 
the species unless otherwise approved by the Service.
    We find that actions taken by management entities in the range of 
the Stephens' kangaroo rat for the purpose of reducing the risk or 
severity of habitat degradation and designed to promote native annual 
forbs and maintain or restore open habitat for Stephens' kangaroo rat, 
even if these actions may result in some short-term or small level of 
localized negative effect to Stephens' kangaroo rats, will further the 
goal of reducing the likelihood of the species becoming an endangered 
species, and will also continue to contribute to its conservation and 
long-term viability.
    We recognize that the types of actions identified above are often 
undertaken by land management entities or private landowners through 
inclusion in land management plans, strategies, or cooperative 
agreements that are approved by the Service, and that these plans, 
strategies, and agreements address identified negative effects to 
Stephens' kangaroo rat conservation. We find that such approved plans, 
strategies, or agreements, developed in coordination with the Service, 
will adequately reduce or offset any negative effects to Stephens' 
kangaroo rat so that they will not result in a further decline of the 
species. Likewise, actions undertaken by management entities included 
in formal land management conservation plans developed in coordination 
with the Service (such as INRMPs), where the intended purpose is 
consistent with the conservation needs of the Stephens' kangaroo rat, 
also provide an overall conservation benefit that contributes to long-
term species viability and reduces the likelihood of the species 
becoming endangered in the future.
    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: 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. The statute also contains 
certain exemptions from the prohibitions, which are found in sections 9 
and 10 of the Act.
    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

[[Page 8980]]

position to assist us in implementing all aspects of the Act. In this 
regard, section 6 of the Act provides that we 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 us 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 Stephens' kangaroo rat that may result 
in otherwise prohibited take without additional authorization.
    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 our ability to enter into 
partnerships for the management and protection of the Stephens' 
kangaroo rat. However, interagency cooperation may be further 
streamlined through planned programmatic consultations for the species 
between us and other Federal agencies, where appropriate.

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 determining a species' listing status 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). This position was upheld by the U.S. Court of Appeals for 
the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 
1995), cert. denied 516 U.S. 1042 (1996)).

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.
    We informed all Tribes within the Carlsbad Fish and Wildlife Office 
boundary about the proposed downlisting of Stephens' kangaroo rat, 
including the 4(d) rule, and species report. We conveyed that a 4(d) 
rule will provide additional management flexibility for landowners 
within the species' range to conduct weed and fire management 
activities and other beneficial actions that are outlined in approved 
management plans. We also excluded modeled habitat on Tribal lands from 
our viability analysis, including lands owned by the Morongo Band of 
Mission Indians, Soboba Band of Luiseno Indians, Cahuilla Band of 
Mission Indians, Pechanga Band of Luiseno Mission Indians, Rincon Band 
of Luiseno Mission Indians, San Pasqual Band of Diegueno Mission 
Indians, Iipay Nation of Santa Ysabel, and Mesa Grande Band of Diegueno 
Mission Indians (a small 10-15 acre parcel classified as a Public 
Domain Allotment was also excluded in San Diego County). This exclusion 
means that we find that actions such as management and habitat 
conservation are not required on Tribal lands to achieve species 
recovery.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov and upon request from 
the Carlsbad 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 and the Carlsbad 
Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

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; and 4201-4245, unless 
otherwise noted.


0
2. Amend Sec.  17.11, in paragraph (h), by revising the entry for 
``Kangaroo rat, Stephens' '' under Mammals in the List of Endangered 
and Threatened Wildlife to read as follows:


Sec.  17.11   Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
            Common name                  Scientific name          Where listed              Status            Listing citations and applicable rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Mammals
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Kangaroo rat, Stephens'............  Dipodomys stephensi     Wherever found........  T..................  53 FR 38465, 9/30/1988;
                                      (incl. D. cascus).                                                  87 FR [Insert Federal Register page where the
                                                                                                           document begins];
                                                                                                          2/17/2022;
                                                                                                          50 CFR 17.40(t).\4d\
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


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


Sec.  17.40  Special rules--mammals.

* * * * *
    (t) Stephens' kangaroo rat (Dipodomys stephensi).

[[Page 8981]]

    (1) Prohibitions. The following prohibitions that apply to 
endangered wildlife also apply to Stephens' kangaroo rat. Except as 
provided under paragraph (t)(2) of this section and Sec. Sec.  17.4 and 
17.5, it is unlawful for any person subject to the jurisdiction of the 
United States to commit, to attempt to commit, to solicit another to 
commit, or cause to be committed, any of the following acts in regard 
to this species:
    (i) Import or export, as set forth at Sec.  17.21(b) for endangered 
wildlife.
    (ii) Take, as set forth at Sec.  17.21(c)(1) for endangered 
wildlife.
    (iii) Possession and other acts with unlawfully taken specimens, as 
set forth at Sec.  17.21(d)(1) for endangered wildlife.
    (iv) Interstate or foreign commerce in the course of commercial 
activity, as set forth at Sec.  17.21(e) for endangered wildlife.
    (v) Sale or offer for sale, as set forth at Sec.  17.21(f) for 
endangered wildlife.
    (2) Exceptions from prohibitions. In regard to Stephens' kangaroo 
rat, 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 (4) for 
endangered wildlife.
    (iii) Take, as set forth at Sec.  17.31(b).
    (iv) Possess and engage in other acts with unlawfully taken 
wildlife, as set forth at Sec.  17.21(d)(2) for endangered wildlife.
    (v) Implement livestock grazing in the course of habitat management 
and restoration to benefit Stephens' kangaroo rat or other native 
species in the grassland habitat as approved by the Service.
    (vi) Conduct the following wildfire suppression activities:
    (A) Activities necessary to maintain the minimum clearance 
(defensible space) requirement from any occupied dwelling, occupied 
structure, or to the property line, whichever is nearer, to provide 
reasonable fire safety and to reduce wildfire risks consistent with the 
State of California fire codes or local fire codes/ordinances.
    (B) Fire management actions (e.g., prescribed burns, hazardous fuel 
reduction activities) on protected/preserve lands to maintain, protect, 
or enhance habitat occupied by Stephens' kangaroo rat. These activities 
are to be coordinated with and reported to the Service in writing and 
approved the first time an individual or agency undertakes them.
    (C) Maintenance of existing fuel breaks.
    (D) Firefighting activities associated with actively burning 
wildfires to reduce risk to life or property.
    (vii) Remove nonnative, invasive, or noxious plants for the purpose 
of Stephens' kangaroo rat conservation as approved by the Service. This 
includes noxious weed control and other vegetation reduction in the 
course of habitat management and restoration to benefit Stephens' 
kangaroo rat, including mechanical and chemical control, provided that 
these activities are conducted in a manner consistent with Federal and 
applicable State laws, including Environmental Protection Agency label 
restrictions for herbicide application.
    (viii) Implement activities conducted as part of a plan developed 
in coordination with the Service or the California Department of Fish 
and Wildlife that are for the purpose of Stephens' kangaroo rat 
conservation.

Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the 
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-03317 Filed 2-16-22; 8:45 am]
BILLING CODE 4333-15-P