The NRC's current size standards are provided under part 2 of title 10 of the Code of Federal Regulations (10 CFR), “Agency Rules of Practice and Procedure,” in § 2.810, “NRC size standards.” These standards were established on December 9, 1985 (50 FR 50241), when the NRC implemented the requirements of the Regulatory Flexibility Act of 1980, as amended (RFA). The RFA requires agencies to consider the impact of rulemaking on small entities and, consistent with applicable statutes, study alternatives to minimize these impacts on applicable businesses, organizations, and government jurisdictions. The NRC's regulations in § 2.810 and 10 CFR part 171, “Annual Fees for Reactor Licenses and Fuel Cycle Licenses and Materials Licenses, Including Holders of Certificates of Compliance, Registrations, and Quality Assurance Program Approvals and Government Agencies Licensed by the NRC,” contain the criteria, in § 171.16(a) and (c), “Annual fees: Materials licensees, holders of certificates of compliance, holders of sealed source and device registrations, holders of quality assurance program approvals, and government agencies licensed by the NRC,” that certain licensees use to qualify as small entities for the purpose of reducing annual license fees. The NRC's current size standards under § 2.810 are based on the Small Business Administration's (SBA) receipts-based size standards for small businesses and small not-for-profit organizations, employee-based size standards for business concerns that are manufacturing and for small educational institutions that are not State or publicly supported entities, and population-based size standards for small governmental jurisdictions.

In establishing the fiscal year (FY) 1991 fee rule, the NRC determined that the annual fees would have a significant impact on a substantial number of small materials licensees. As a result, the NRC established a small entity fee tier in § 171.16(c), which resulted in a subsidy program whereby small entities would pay a reduced annual fee (56 FR 31507; July 10, 1991). In FY 1992, the NRC established a second tier in § 171.16(c) to benefit the licensees that were very small entities. Pursuant to § 171.16(c), if a licensee qualifies as a small entity and provides the Commission with the proper certification, the licensee may pay a reduced annual fee. As part of the certification process, a licensee that meets the NRC's size standards for a small entity must complete NRC Form 526, “Certification of Small Entity Status for the Purposes of Annual Fees,” certifying that it meets the NRC's size standards for a small entity.

The last revisions to the receipts-based size standards in §§ 2.810 and 171.16(c) to adjust for inflation were published in the Federal Register on July 3, 2012 (77 FR 39385), and in the FY 2013 final fee rule published in the Federal Register on July 1, 2013 (78 FR 39479), respectively. More recently, in FY 2020, the NRC surveyed its materials licensees to help determine whether to change the size standards in § 2.810 (85 FR 6225; February 4, 2020). With the exception of inflation-related increases and adjusting the methodology for calculating average gross-receipts to be consistent with the Small Business Runway Extension Act of 2018 (Runway Act) and SBA regulations, the survey results did not suggest that the NRC should change its small entity size standards.

The Runway Act amended section 3(a)(2)(C)(ii)(II) of the Small Business Act (15 U.S.C. 632(a)(2)(C)(ii)(II)), to modify the requirements for the small business size standards prescribed by an agency without separate statutory authority to issue size standards. Subsequently, on December 5, 2019, the SBA published a final rule modifying its method for calculating average annual receipts used to prescribe size standards for small businesses (84 FR 66561). As a result of adjustments for inflation described more fully in the “Discussion” section of this document, the NRC must revise its receipts-based size standards from a 3-year averaging period to a 5-year averaging period to comply with the Runway Act.

In order to amend § 2.810, the NRC must follow the procedures of the Small Business Act, and SBA's implementing regulations in 13 CFR 121.903, “How may an agency use size standards for its programs that are different than those established by SBA?” because the NRC does not have separate statutory authority to issue size standards. Accordingly, the NRC has sent this final rule to SBA for review and has received the approval of the SBA Administrator.

The NRC is amending § 2.810 to increase the receipts-based small entity size standard from $7.0 million to $8.0 million for small businesses and small, not-for-profit organizations. These amendments are to remain consistent with inflation adjustments made by the SBA to its size standard for nonmanufacturing concerns. Most recently, the SBA adjusted this standard for inflation on July 18, 2019 (84 FR 34261). In addition, the NRC is also amending the average gross-receipts calculation process to change from a 3-year averaging period to a 5-year averaging period, as required by SBA regulations and in response to the Runway Act.

Further, and analogous to the inflation adjustment in § 2.810, the NRC is amending § 171.16(c) to increase the upper-tier receipts-based small entity size standard from $7.0 million to $8.0 million for small businesses and small, not-for-profit organizations. Likewise, the NRC is increasing the lower-tier receipts-based size standard from $485,000 to $555,000, based upon the percent change in the upper tier.

The NRC published a proposed rule on July 26, 2021 (86 FR 39980), and requested public comment on its proposed revisions to 10 CFR parts 2 and 171. The comment period on the proposed rule closed on August 25, 2021. The NRC did not receive any public comments on the proposed rule.

Under the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission certifies that this final rule, if adopted, will not have a significant economic impact on a substantial number of small entities. This final rule is administrative in that this final rule will revise the criteria in 10 CFR parts 2 and 171 that the NRC uses to determine which of its licensees qualify as small entities for the purposes of compliance with the RFA. The amendments to the size standards conform to the SBA's revised standard and is expected to result in an increase in the number of NRC licensees that qualify as small entities.

The RFA requires agencies to consider the impact of rulemaking on small entities and, consistent with applicable statutes, study alternatives to minimize the impacts on applicable businesses, organizations, and government jurisdictions. In previous rulemakings to amend its size standards, the NRC has adjusted the criteria that the NRC uses to determine which of its licensees qualify as small entities for the purposes of compliance with the RFA.

For the NRC's size standards, rulemaking is required to amend the methodology for calculating average gross-receipts and the upper and lower tier receipts-based size standards to reflect adjustments for inflation. The NRC has not revised the receipts-based size standards in §§ 2.810 and 171.16(c) since 2012 and 2013, respectively; therefore, this final rule includes adjustments for inflation. This final rule amends §§ 2.810 and 171.16(c) to increase the NRC's upper-tier receipts-based size standard from $7.0 million to $8.0 million for small businesses and small not-for-profit organizations, in order to remain consistent with the adjustments for inflation made to the SBA's size standard for nonmanufacturing. In addition, this final rule amends § 171.16(c) to increase the lower-tier receipts-based size standard from $485,000 to $555,000, consistent with the percentage change in the upper-tier. Furthermore, for consistency with the Runway Act and SBA regulations, the NRC is amending its methodology for calculating the average gross-receipts from a 3-year averaging period to a 5-year averaging period.

The NRC estimates that the final rule provides the following benefits and costs:

• This action will result in continued compliance with the RFA, since the final rule will reduce the impact of annual fees on small entities by increasing the receipts-based size standards in § 2.810 and the tiers in § 171.16(c) that licensees use to qualify as small entities.

• While it is not certain how many licensees would qualify as small entities under the receipts-based size standards that are being adjusted, the staff estimates that 95 additional licensees (a 12-percent increase) will potentially qualify as small entities and be eligible to pay a reduced annual fee.

• The licensees can have increased regulatory confidence that the NRC has amended the agency's receipts-based size standards to be consistent with the SBA's practices, and, as stated in SECY-20-0111, “Rulemaking Plan to Amend the Receipts-Based NRC Size Standards (NRC-2014-0264),” (ADAMS Accession No. ML20268B327), that the NRC will review the current size standards and determine whether proposed amendments are needed every 5 years or sooner based on the SBA's adjustments.

• The cost impact of changing the average gross-receipts from a 3-year averaging period to a 5-year averaging period is not known, as the average gross-receipts have been based on a 3-year averaging period since the NRC established its size standards in 1985. Every licensee will likely need to expend some effort to evaluate its gross-receipts and may need to provide additional information if questions arise during the staff's certification review. Modifying to a 5-year averaging period of gross-receipts may result in a negative impact in that some licensees that are close to the upper limit of their size standard could lose their small entity status, while others may newly qualify as small entities. Despite this cost, because the NRC is amending the receipts-based size standards to adjust for inflation, the NRC also is amending the average gross-receipts from a 3-year averaging period to a 5-year averaging period pursuant to the Runway Act.

• The expected increase in additional licensees qualifying as small entities could possibly increase the NRC's net budget authority as a result of additional licensees qualifying as small entities.

The results of the regulatory analysis are cost-justified because the final rule would result in an estimated 95 additional licensees (a 12-percent increase) who would qualify as small entities and be eligible to pay a reduced annual fee and the identified cost impacts are expected to be small and would not be passed onto other NRC's applicants and licensees. The NRC did not identify any other alternatives to amend the receipts-based size standards under § 2.810, which are consistent with the adjustments made by the SBA. In addition, the NRC did not identify any alternatives to rulemaking to amend the upper and lower tiers under § 171.16(c) to reflect adjustments for inflation.

The NRC has determined that the backfit rule, §§ 50.109, 70.76, 72.62, and 76.76 and the issue finality provisions in 10 CFR part 52 do not apply to this final rule and that an analysis is not required because these amendments do not require the modification of, or addition to, (1) systems, structures, components, or the design of a facility; (2) the design approval or manufacturing license for a facility; or (3) the procedures or organization required to design, construct, or operate a facility.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC wrote this document to be consistent with the Plain Writing Act, as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31885).

The NRC has determined that this final rule is the type of action described in § 51.22(c)(1). Therefore, neither an environmental impact statement nor environmental assessment has been prepared for this final rule.

This final rule does not contain a collection of information as defined in the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) and, therefore, is not subject to the requirements of the Act.

The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the document requesting or requiring the collection displays a currently valid OMB control number.

This final rule is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.

The National Technology Transfer and Advancement Act of 1995, Public Law 104-113, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this final rule, the action does not constitute the establishment of a standard that contains generally applicable requirements.

The NRC publishes a fee guidance document for small entities annually in conjunction with the NRC's annual rule to revise its fee schedules. The “Small Entity Compliance Guide” is designed to assist businesses, organizations, educational institutions, and governmental jurisdictions in determining whether they qualify as small entities by providing the qualifying factors that make up the NRC's definition of “small entity,” and the current small entity fees. The NRC will update the compliance guide each year when issuing the final fee rule and to align with the fee schedule of that year. As part of a future fee rule, the NRC will update the Small Entity Compliance Guide to reflect to changes in §§ 2.810 and 171.16(c). The FY 2021 Small Entity Compliance Guide is available as indicated in the “Availability of Documents,” section of this document.

Documents identified in the following table are available to interested persons through one or more of the following methods, as indicated.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is amending 10 CFR parts 2 and 171 as follows:

OSHRC published revisions to its rules of procedure in the Federal Register on April 10, 2019 (84 FR 14554), and published corrections on August 30, 2019 (84 FR 45654), October 4, 2019 (84 FR 53052), and October 15, 2020 (85 FR 65220). This document makes further technical amendments to the final rule.

Accordingly, 29 CFR part 2200 is amended by making the following technical amendments:

The Namekagon and St. Croix Rivers flow through some of the most scenic and least developed country in the Upper Midwest. The free-flowing character and exceptional water quality of these waterways serve as a unique ecological corridor in northwest Wisconsin and eastern Minnesota that sustains a diversity of aquatic and terrestrial wildlife and habitats.

In 1968, to preserve, protect, and enhance this unique national resource for the benefit and enjoyment of present and future generations, Congress established the St. Croix National Scenic Riverway, a 230-mile long protected area that includes the Namekagon River, as one of the original eight rivers protected under the national Wild and Scenic Rivers Act. In 1972, the Lower St. Croix National Scenic Riverway was added to the National Wild and Scenic Rivers System. Together, these areas form the Riverway.

Today, the rivers continue to flow unimpeded for considerable distances as they have for millennia, through the river corridor, growing and changing in character from their headwaters to the St. Croix's confluence with the Mississippi. The Riverway offers exceptional recreational opportunities for visitors to paddle, boat, camp, hike, fish, explore, and find solitude in a natural setting close to the major metropolitan area of Minneapolis-Saint Paul. The National Park Service (NPS) and state partners work with local communities to maintain the aquatic, cultural, recreational, riparian, scenic-aesthetic, and geologic values of the rivers for the benefit and enjoyment of more than 600,000 annual visitors.

In October 2021, the NPS began construction on a 0.25-mile connector trail through the Riverway near Cable, Wisconsin. The trail is designed for hiking, trail running, and bicycle and electric bicycle (e-bike) use, and silent sports in the winter such as fat-tire bicycling, snowshoeing, and cross-country skiing. Equestrian and other motorized use will not be allowed. It will be the first trail at the Riverway open to bicycle use. Construction of the trail responds to a specific opportunity identified by the NPS and local partners to create a link across public land to provide direct access to the Riverway and new recreational opportunities within the Riverway and on the Chequamegon Area Mountain Bike Association (CAMBA) trail network in Bayfield County, Wisconsin. The trail will be built from the end of a segment of CAMBA's Wild River Trail on a former railroad grade near the Town of Cable, connecting to Parker Road. The trail will provide a critical link to adjoining trails and would serve an important role providing connectivity for several local trail running and biking events that start or finish in the Cable area. The bare soil trail will be built using sustainable trail construction techniques to protect natural and cultural resources. The trail will utilize landforms and natural features exhibiting the natural beauty of the area and would feature a slight crown, shallow grades, open sight lines, and gentle turns to support user safety, provide adequate drainage to minimize braiding, seasonal muddiness, and erosion, and reduce the overall maintenance costs associated with more complex trail features. Signage will clearly indicate allowed uses on the trail.

On September 22, 2020, the NPS published the Cable Connector Trail Environmental Assessment (EA). The EA describes one action alternative (the preferred alternative) and the no-action alternative. Under the preferred alternative, the NPS would construct the 0.25 mile Cable Connector Trail to accommodate bicycle and e-bike use. The EA evaluates (1) the suitability of the Cable Connector Trail for bicycle and e-bike use; and (2) life cycle maintenance costs, safety considerations, methods to prevent or minimize user conflict, and methods to protect natural and cultural resources and mitigate impacts associated with bicycle and e-bike use on the trail. The EA contains a full description of the purpose and need for taking action, the alternatives considered, a map of the affected area, and the environmental impacts associated with the project. After a public review period, on February 1, 2021, the Regional Director for DOI Unified Regions 3, 4 and 5 (Great Lakes) signed a Finding of No Significant Impact (FONSI) that identified the preferred alternative in the EA as the selected alternative. On November 11, 2021, the Regional Director signed a Written Determination that bicycle use on the new trail is consistent with the protection of the Riverway's natural, scenic, and aesthetic values, safety considerations and management objectives, and that it will not disturb wildlife or park resources. The EA, FONSI, and Written Determination may be viewed on the Riverway's planning website at https://parkplanning.nps.gov/sacn by clicking the link entitled “Cable Connector Trail” and then clicking the link entitled “Document List.”

The NPS published a proposed rule in the Federal Register on July 16, 2021 (86 FR 37725). The NPS accepted public comments on the proposed rule for 60 days via the mail, hand delivery, and the Federal eRulemaking Portal at https://www.regulations.gov. Comments were accepted through September 14, 2021. The NPS received 55 comments on the proposed rule. All of the comments supported bicycle use on the new trail. Below is a summary of one pertinent issue that was raised by a commenter and the response from the NPS. After considering the public comments and after additional review, the NPS did not make any changes to the rule other than adding an affirmative statement that a violation of any condition, closure, limit, or restriction on bicycle use implemented by the superintendent is prohibited.

Comment: One commenter objected to the use of electric bicycles on the trail.

NPS Response: Similar to traditional bicycles, the NPS believes that, with proper management, the use of electric bicycles (e-bikes) may be an appropriate activity in some park areas. The EA considered the potential for benefits and adverse impacts to resources and visitors and the FONSI determined that impacts of the action, including the use of e-bikes on the new Cable Connector Trail, will not be significant. The FONSI concluded that environmental impacts that could occur will be limited in context and intensity, with general beneficial impacts to visitor use and experience, and possible minor effects on northern long-eared bat ( Myotis septentrionalis ). The FONSI concluded that there will be no unmitigated adverse impacts on these or other resources or values of the Riverway.

NPS regulations at 36 CFR 4.30(i) give superintendents the discretionary authority to allow e-bikes on park roads, parking areas, and administrative roads and trails that are otherwise open to bicycles. After the Cable Connector Trail is constructed and ready for bicycle use, the superintendent of the Riverway will designate the trail as open to bicycles by providing notice in accordance with 36 CFR 1.7. This includes a requirement to list the trail as open to bicycles in the park compendium, which is available on the park website at www.nps.gov/sacn. At that time, the superintendent also may designate the trail as open to e-bikes. If, in the future, the superintendent determines that e-bikes or certain classes of e-bikes should no longer be allowed on the trail, or that conditions for use should change, the superintendent can make such changes by updating the park compendium and providing adequate public notice under 36 CFR 1.7.

This rule implements the selected alternative in the FONSI and authorizes the superintendent to designate the new Cable Connector Trail for traditional bicycle use. This action complies with NPS regulations 36 CFR 4.30, which require a special regulation to designate new bicycle trails that require construction activities off park roads and outside of developed areas. This rule adds a new paragraph (g) to 36 CFR 7.9, which contains the special regulations for the Riverway. After the trail is constructed, the rule requires the superintendent to notify the public prior to designating the trail for bicycle use through one or more of the methods listed in 36 CFR 1.7, and identify the designation on maps available at Riverway visitor centers and posted on the Riverway's website ( www.nps.gov/sacn ). The rule also authorizes the superintendent to establish closures, conditions, or restrictions for bicycle use on the trail after considering public health and safety, resource protection, and other management activities and objectives.

Bicycle use will not be authorized by the superintendent until the NPS completes the process required by NPS regulations at 36 CFR 4.30, including the preparation of a written determination that bicycle use on the new trail is consistent with the protection of the park area's natural, scenic and aesthetic values, safety considerations and management objectives, and will not disturb wildlife or park resources. As explained in the response to comment above, when the superintendent opens the trail to traditional bicycles, the superintendent also may open the trail to e-bikes, or specific classes of e-bikes. This rule will not affect the use of any existing trails in the Riverway, all of which remain closed to bicycles and e-bikes.

The rule also revises the section heading from “St. Croix National Scenic Rivers” to “St. Croix National Scenic Riverway.” This change is consistent with the commonly used and official name of the Riverway.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rulemaking is not significant.

Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. The NPS has developed this rule in a manner consistent with these requirements.

This rulemaking would not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). This certification is based on information contained in the economic analyses found in the report entitled “Cost-Benefit and Regulatory Flexibility Threshold Analyses: Final Rule to Designate a New Trail Connection for Bicycle Use at St. Croix National Scenic Riverway.” The report may be viewed on the Riverway's planning website at https://parkplanning.nps.gov/sacn by clicking the link entitled “Cable Connector Trail” and then clicking the link entitled “Document List.”

This rulemaking is not a major rule under 5 U.S.C. 804(2). This rule:

(a) Does not have an annual effect on the economy of $100 million or more.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This rulemaking does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. It addresses public use of national park lands and imposes no requirements on other agencies or governments. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

This rulemaking does not effect a taking of private property or otherwise have takings implications under Executive Order 12630. A takings implication assessment is not required.

Under the criteria in section 1 of Executive Order 13132, the rulemaking does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. This rule only affects use of federally-administered lands and waters. It has no direct effects on other areas. A Federalism summary impact statement is not required.

This rulemaking complies with the requirements of Executive Order 12988. This rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. The NPS has evaluated this rulemaking under the criteria in Executive Order 13175 and under the Department's tribal consultation policy and have determined that tribal consultation is not required because the rule will have no substantial direct effect on federally recognized Indian tribes. Nevertheless, in support of the Department of the Interior and NPS commitment for government-to-government consultation, during the EA process, the NPS shared information about the proposed action with 18 federally recognized American Indian Tribes and invited them to consult on the project. None of the 18 Tribes expressed interest in consultation.

This rulemaking does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act is not required. The NPS may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

The NPS has prepared the EA to determine whether this rule will have a significant impact on the quality of the human environment under the National Environmental Policy Act of 1969. This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the NEPA is not required because of the FONSI. A copy of the EA and FONSI can be found online at https://parkplanning.nps.gov/sacn by clicking the link entitled “Cable Connector Trail” and then clicking the link entitled “Document List.”

This rulemaking is not a significant energy action under the definition in Executive Order 13211; the rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy, and the rule has not otherwise been designated by the Administrator of OIRA as a significant energy action. A Statement of Energy Effects in not required.

In consideration of the foregoing, the National Park Service amends 36 CFR part 7 as set forth below:

Throughout this document, wherever “we,” “us,” or “our” is used, it means the EPA.

On December 6, 2021, we proposed to approve a SIP revision submitted by the State of Alaska, through the Alaska Department of Environment Conservation, on January 9, 2017 (86 FR 68960). In that proposal, we also proposed to determine that the SIP revision corrects the deficiency with respect to Alaska that we identified in our June 12, 2015 action entitled “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction” (“June 12, 2015 SIP call”) (80 FR 33839, June 12, 2015). The reasons for our proposed approval and determination are stated in the proposed action (86 FR 68960, January 9, 2017) and will not be restated here. The public comment period for our proposed approval and determination ended on January 5, 2022, and no comments were received. Therefore, we are finalizing our action as proposed.

EPA is approving Alaska's January 9, 2017 SIP submission requesting removal of 18 AAC 50.240 “Excess Emissions” from the Alaska SIP. EPA has also determined this SIP revision corrects the deficiency identified in the June 12, 2015 SIP call. Alaska is retaining 18 AAC 50.240 for state law purposes only, with revisions to clarify that (1) all excess emissions are violations and (2) the provision applies only to Alaska in exercising its enforcement authority and therefore does not preclude citizens or EPA from seeking injunctive relief or civil penalties for excess emissions (86 FR 68961).

In this document, EPA is finalizing removal of regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is removing the incorporation by reference of “18 AAC 50.240” in 40 CFR 52.70, as described in section II of this preamble. EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region 10 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Therefore, these materials have been approved by EPA for removal from the Alaska SIP, have been removed from incorporation by reference by EPA into that plan, are no longer federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rule of the EPA's approval, and incorporation by reference will be removed by the Director of the Federal Register in the next update to the SIP compilation. 1

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The Alaska SIP does not apply on any Indian reservation land in or in any other area where EPA or Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, this rulemaking does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 18, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Office of the Federal Register's e-CFR site at https://www.ecfr.gov/current/title-40 .

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2021-0840 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before April 18, 2022. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2021-0840, by one of the following methods.

• Federal eRulemaking Portal: https://www.regulations.gov . Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at https://www.epa.gov/dockets/contacts.html .

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at https://www.epa.gov/dockets .

In the Federal Register of December 21, 2021 (86 FR 72201) (FRL-8792-06), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the receipt of a pesticide petition (PP IN-11646) filed by Spring Regulatory Sciences (6620 Cypresswood Dr., Suite 250, Spring, TX 77379), on behalf of Stepan Company (22 W Frontage Rd., Northfield, IL 60093). The petition requested that 40 CFR 180.960 be amended by establishing an exemption from the requirement of a tolerance for residues of oxirane, 2-(phenoxymethyl)-, polymer with oxirane, ether with 2,2′,2″-nitrilotris[ethanol] (3:1), diblock (CAS Reg. No. 2307555-89-9). That document included a summary of the petition prepared by the petitioner and solicited comments on the petitioner's request. The Agency did not receive any substantive public comments.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and use in residential settings but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing an exemption from the requirement of a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . .” and specifies factors EPA is to consider in establishing an exemption.

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be shown that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. To determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers expected to present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b) and the exclusion criteria for identifying these low-risk polymers are described in 40 CFR 723.250(d). Oxirane, 2-(phenoxymethyl)-, polymer with oxirane, ether with 2,2′,2″-nitrilotris[ethanol] (3:1), diblock (CAS Reg. No. 2307555-89-9) conforms to the definition of a polymer given in 40 CFR 723.250(b) and meets the following criteria that are used to identify low-risk polymers.

1. The polymer is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment.

2. The polymer does contain as an integral part of its composition at least two of the atomic elements carbon, hydrogen, nitrogen, oxygen, silicon, and sulfur.

3. The polymer does not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii).

4. The polymer is neither designed nor can it be reasonably anticipated to substantially degrade, decompose, or depolymerize: An adequate biodegradation study (MRID 51712502) was submitted for oxirane, 2-(phenoxymethyl)-, polymer with oxirane, ether with 2,2′,2″-nitrilotris[ethanol] (3:1), diblock showing lack of biodegradation (10.6% at 28 days, 13% at 90 days).

5. The polymer is manufactured or imported from monomers and/or reactants that are already included on the Toxic Substances Control Act (TSCA) Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.

6. The polymer is not a water absorbing polymer with a number average molecular weight (MW) greater than or equal to 10,000 daltons.

7. The polymer does not contain certain perfluoroalkyl moieties consisting of a CF3- or longer chain length as listed in 40 CFR 723.250(d)(6).

Additionally, the polymer also meets as required the following exemption criteria specified in 40 CFR 723.250(e).

The polymer's number average molecular weight is greater than or equal to 1,000 daltons and less than 10,000 daltons (5483 daltons). Also, the polymer contains less than 2% oligomeric material below MW 500 (2.0%) and less than 5% oligomeric material below MW 1,000 (3.5%).

Thus, Oxirane, 2-(phenoxymethyl)-, polymer with oxirane, ether with 2,2′,2″-nitrilotris[ethanol] (3:1), diblock (CAS Reg. No. 2307555-89-9) meets the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the criteria in this unit, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to oxirane, 2-(phenoxymethyl)-, polymer with oxirane, ether with 2,2′,2″-nitrilotris[ethanol] (3:1), diblock.

For the purposes of assessing potential exposure under this exemption, EPA considered that oxirane, 2-(phenoxymethyl)-, polymer with oxirane, ether with 2,2′,2″-nitrilotris[ethanol] (3:1), diblock could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The minimum number average MW of oxirane, 2-(phenoxymethyl)-, polymer with oxirane, ether with 2,2′,2″-nitrilotris[ethanol] (3:1), diblock is 5,300 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since oxirane, 2-(phenoxymethyl)-, polymer with oxirane, ether with 2,2′,2″-nitrilotris[ethanol] (3:1), diblock conforms to the criteria that identify a low-risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health.

Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found oxirane, 2-(phenoxymethyl)-, polymer with oxirane, ether with 2,2′,2″-nitrilotris[ethanol] (3:1), diblock to share a common mechanism of toxicity with any other substances, and oxirane, 2-(phenoxymethyl)-, polymer with oxirane, ether with 2,2′,2″-nitrilotris[ethanol] (3:1), diblock does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that oxirane, 2-(phenoxymethyl)-, polymer with oxirane, ether with 2,2′,2″-nitrilotris[ethanol] (3:1), diblock does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at https://www.epa.gov/pesticides/cumulative.

Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of oxirane, 2-(phenoxymethyl)-, polymer with oxirane, ether with 2,2′,2″-nitrilotris[ethanol] (3:1), diblock, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.

Based on the conformance to the criteria used to identify a low-risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population, including infants and children, from aggregate exposure to residues of oxirane, 2-(phenoxymethyl)-, polymer with oxirane, ether with 2,2′,2″-nitrilotris[ethanol] (3:1), diblock.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established a MRL for oxirane, 2-(phenoxymethyl)-, polymer with oxirane, ether with 2,2′,2″-nitrilotris[ethanol] (3:1), diblock.

Accordingly, EPA finds that exempting residues of oxirane, 2-(phenoxymethyl)-, polymer with oxirane, ether with 2,2′,2″-nitrilotris[ethanol] (3:1), diblock from the requirement of a tolerance will be safe.

This action establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal Governments, on the relationship between the National Government and the States or Tribal Governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I as follows:

The NIH Loan Repayment Programs (LRPs) are administered by the Division of Loan Repayment (DLR) within NIH's Office of Extramural Research. DLR provides repayment of student loans for approved applicants to encourage outstanding health professionals to pursue careers in biomedical, behavioral, social, and clinical research. Research health professionals who owe qualified educational debt and who meet eligibility criteria may apply for student loan repayment. A peer review process recommends applicants for loan repayments. The peer review process is committee-based, with a peer review group comprised of individual reviewers, referees, or other recommenders (hereafter collectively referred to as Reviewers). Reviewers are primarily non-government experts qualified by training and experience in scientific or technical fields, or as authorities knowledgeable in disciplines and fields related to the areas under review. Reviewers give DLR expert recommendations and materials (such as ratings, summaries, and communications) about applicants' suitability, eligibility, or qualifications for student loan repayments under express promises that the Reviewers will not be identified as the sources of the information. DLR uses the information solely for the purpose of determining applicants' suitability, eligibility, or qualifications for Federal loan repayment. System of records 09-25-0165 covers records about health professionals who apply for student loan repayments and about other categories of individuals who are related to the applications. These records include material that could reveal the identity of the Reviewers either directly or indirectly.

Under the Privacy Act of 1974, as amended (Privacy Act, 5 U.S.C. 552a, or “Privacy Act”), individuals have a right of access to records about themselves in Federal agency systems of records, and other rights with respect to those records (such as notification, amendment, and an accounting of disclosures), but the Act permits certain types of systems of records (identified in section 552a(j) and (k)) to be exempted from certain requirements of the Act. Subsection (k)(5) permits the head of an agency to promulgate rules to exempt from the requirements in subsections (c)(3) and (d)(1) through (4) of the Act investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal contracts, to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Federal Government under an express promise that the identity of the source would be held in confidence.

In accordance with the Privacy Act, HHS/NIH proposed to exempt material that would identify a confidential source in system of records 09-25-0165 from the notification, access, and amendment requirements of the Act pursuant to subsection (k)(5) of the Act, as described in a notice of proposed rulemaking (NPRM) published in the Federal Register (86 FR 2633) for public comment on January 13, 2021. The agency also published a modified notice describing system of records 09-25-0165 (SORN) in the Federal Register (86 FR 2677) for public comment the same day. The 60-day public comment period provided for both the SORN and the NRPM expired March 15, 2021. Thirteen comments were received on the NPRM and no comments were received on the SORN. The comments received applauded NIH's efforts to exempt material that would identify Reviewers contained within the system of records as specified in the notice. Additionally, none of the commentors recommended any changes to the proposed exemptions or the SORN. Therefore, HHS/NIH has made no changes to the proposed exemptions in the NPRM or to the SORN.

NIH believes the exemptions are necessary to maintain the integrity of the NIH peer review and award processes. Protecting Reviewer identities as the sources of the information they provide protects them from harassment, intimidation, and other attempts to improperly influence award outcomes, and ensures that they are not reluctant to provide sensitive information or frank assessments. Case law has held that exemptions promulgated under subsection (k)(5) may protect source-identifying material even where the identity of the source is known. Therefore, NIH solicits Reviewers to assess applicants for loan repayment programs under an express promise of confidentiality.

The specific rationales that support the exemptions concerning each affected Privacy Act provision, are as follows:

• Subsection (c)(3). An exemption from the requirement to provide an accounting of disclosures to record subjects is needed to protect the identity of any Reviewer who is expressly promised confidentiality. Providing an accounting of disclosures to an applicant could identify specific Reviewers as sources of recommendations or evaluative input received, or to be received, on the application. Inappropriately revealing the Reviewers' identities in association with the nature and scope of their assessments or evaluations could lead them to alter or destroy their assessments or evaluations or subject them to harassment, intimidation, or other improper influence, which would impede or compromise the fairness and objectivity of the loan repayment application review process; constitute an unwarranted invasion of the personal privacy of the Reviewer; and violate the express promise of confidentiality made to the Reviewer.

• Subsection (d)(1). An exemption from the access requirement is needed both during and after an application review proceeding to avoid inappropriately revealing the identity of the Reviewers. Protecting the Reviewers' identities from access by record subjects is necessary to maintain the integrity of the review process. It ensures Reviewers provide candid assessments or evaluations to the Federal Government without fear that their identities as linked to a specific work product will be revealed inappropriately. Allowing an individual applicant who is the subject of an assessment or evaluation, or another record subject who has a relationship to the application, to access material that would reveal a Reviewer could lead Reviewers to alter or destroy their assessments or evaluations or subject them to harassment, intimidation, or other improper influence; interfere with or compromise the objectivity and fairness of award application review proceedings; constitute an unwarranted invasion of the personal privacy of the Reviewer; and violate the express promise of confidentiality made to the Reviewer.

• Subsection (d)(2) through (4). An exemption from the amendment and appeal provisions is necessary while one or more related application review proceedings are pending, but only if and to the extent that disclosure of material in the amendment request and appeal process would reveal inappropriately the identity of any Reviewer who was expressly promised confidentiality. The exemption will be limited to allowing the agency, when processing an amendment request or the review of a refusal to amend a record, to avoid disclosing the existence of the record sought to be amended and its contents, if doing so would reveal the identity of a Reviewer. Revealing the identity of a Reviewer to an individual applicant or other subject individual could lead them to alter or destroy their assessments or evaluations or subject them to harassment, intimidation, or other improper influence; interfere with or compromise the objectivity and fairness of award application review proceedings; interfere with the agency's application review process; constitute an unwarranted invasion of the personal privacy of the Reviewer; and violate the express promise of confidentiality made to the Reviewer.

Accordingly, pursuant to 5 U.S.C. 552a(k)(5), NIH is exempting records about LRP applicants in system of records 09-25-0165 NIH Division of Loan Repayment Record System from the access, amendment, and accounting of disclosures provisions of the Privacy Act (5 U.S.C. 552a(c)(3) and (d)(1) through (4)), to the extent necessary to protect material in the records furnished under an express promise that the identity of the source would be held in confidence, based on the specific rationales discussed above.

In the case of a request for access to, or amendment of, a record in the DLR Record System from an individual covered by the system of records, NIH will withhold only material that would inappropriately reveal the identities of Reviewers who provide recommendations and evaluative input to NIH about particular award applications under an express promise that their identities would be held in confidence. This includes only material that would reveal a particular Reviewer as the author of a specific work product ( e.g., reference or recommendation letters, reviewer critiques, preliminary or final individual overall scores, assignment of Reviewers to an application); and it includes not only a Reviewer's name but any content that could enable the Reviewer to be identified from context, such as the Reviewer's institutional affiliation, title, or specific comment that might allow an applicant to deduce the Reviewer's identity.

Notwithstanding the exemptions, NIH will consider any request for access or amendment that is addressed to the System Manger as provided in the SORN for system of records 09-25-0165, and NIH will consider any request for an accounting of disclosures.

The Federal Register notice containing the SORN proposed for new system of records 09-25-0165 (86 FR 2677), published January 13, 2021, provides for the SORN to be effective upon publication of this final rule. HHS/NIH made no changes to the SORN in response to public comments and, therefore, the SORN, as published at 86 FR 2677, is now effective.

The agency has reviewed this rule under Executive Orders 12866, Regulatory Planning and Review (58 FR 51735, September 30, 1993), and 13563, Improving Regulation and Regulatory Review (76 FR 3821, January 18, 2011), which direct agencies to assess costs and benefits of available regulatory alternatives and, if regulation is necessary, to maximize the net benefits. The agency believes that this rule is not a significant regulatory action under Executive Order 12866, because it will not (1) have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees or loan programs, or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866. This rule removes certain Privacy Act rights from the subjects of these records in accordance with criteria established in the Privacy Act at 5 U.S.C. 552a(k)(5). This decision is based on a showing that agency compliance with all the Privacy Act requirements with respect to those records would harm the effectiveness or integrity of the agency function or process for which the records are maintained (in this case, NIH research and development loan award processes). Thus, this agency believes that a regulatory impact analysis is not required.

The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant regulatory impacts of a rule on small entities. Because the rule imposes no duties or obligations on small entities, we have determined, and the Director certifies, that the rule will not have a significant economic impact on a substantial number of small entities.

Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $156 million, using the most current (2020) Implicit Price Deflator for the Gross Domestic Product. The agency does not expect that this final rule will result in any 1-year expenditure by state, local, and tribal governments that will meet or exceed this amount.

This rule does not contain any information collection requirements subject to the Paperwork Reduction Act.

This rule will not have any direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, the requirements of Executive Order 13132 are inapplicable.

For the reasons set out in the preamble, the Department amends part 5b of title 45 of the Code of Federal Regulations as follows:

This is a synopsis of the Commission's Order, adopted February 9, 2022 and released February 9, 2022. The full text of this Commission decision is available online at https://apps.fcc.gov/ecfs/. This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. The Commission will not send a copy of the Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A) because the Order is a ministerial action.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:

In FR Doc. 2022-02662 appearing on pages 7393-7395 in the issue of February 9, 2022, make the following correction:

On page 7395, in the second column, Instruction 4 is corrected to read:

4. Amend part 511 by adding Subpart 511.1—Selecting and Developing Requirements Documents, consisting of section 511.171 to read as follows:

The purpose of this direct final rule is to notify the public that we are revising the List of Endangered and Threatened Wildlife (List) in title 50 of the Code of Federal Regulations (CFR) at § 17.11(h) (50 CFR 17.11(h)) and/or other applicable regulations to reflect the scientifically accepted taxonomy and nomenclature of 13 freshwater mussel species, 2 snail species, and 1 reptile species listed under section 4 of the Act (16 U.S.C. 1531 et seq. ). These changes to the List and/or other applicable regulations reflect the most recently accepted scientific name in accordance with 50 CFR 17.11(c).

We are publishing this rule without a prior proposal because this is a noncontroversial action that is in the best interest of the public and should be undertaken in as timely a manner as possible. This rule will be effective, as published in this document, on the effective date specified in DATES , unless we receive significant adverse comments by the comment due date specified in DATES . Significant adverse comments are comments that provide strong justification as to why our rule should not be adopted or why it should be changed.

If we receive significant adverse comments regarding the taxonomic changes for any of these species, we will publish a document in the Federal Register withdrawing this rule for the appropriate species before the effective date, and we will publish a proposed rule to initiate promulgation of those changes to 50 CFR 17.11(h) and/or other applicable regulations.

You may submit your comments and materials regarding our direct final rule by one of the methods listed in ADDRESSES . Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.

If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this direct final rule, will be available for public inspection on http://www.regulations.gov.

Sections 17.11(c) and 17.12(b) of title 50 of the CFR direct us to use the most recently accepted scientific name of any species that we have determined to be an endangered or threatened species. Using the best available scientific information, this direct final rule documents taxonomic changes of the scientific names to 12 entries under “Clams,” 2 entries under “Snails,” and 1 entry under “Reptiles” on the List at 50 CFR 17.11(h). The basis for these taxonomic changes is supported by published studies in peer-reviewed journals. Accordingly, we revise the scientific names of these 15 species under section 4 of the Act (16 U.S.C. 1533) as follows:

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 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.

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.

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.

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.

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 (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).

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.

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.

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 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.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species is an “endangered species” or a “threatened species.” The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether any species is an endangered species or a threatened species because of any of the following factors:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects. We 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.

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.

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 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 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 ).

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.

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.

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 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.

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 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, 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.

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.

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 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.

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' 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).

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.

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 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.

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 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.

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)).

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.

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 ).

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.

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

In accordance with the Act (16 U.S.C. 1531 et seq. ) and Reorganization Plan No. 4 of 1970 (35 FR 15627; October 6, 1970), NMFS has jurisdiction over the marine taxa specified in this rule. Under section 4(a)(2) of the Act, NMFS must decide whether a species under its jurisdiction should be classified as an endangered species or a threatened species. Under section 4(a)(3)(A)(i) of the Act, NMFS must designate any habitat of endangered or threatened species which is then considered to be critical habitat. NMFS makes these determinations and critical habitat designations via its rulemaking process. We, the Service, are then responsible for publishing final rules to amend the List in title 50 of the Code of Federal Regulations (CFR) at 50 CFR 17.11(h).

On December 8, 2016, NMFS published a proposed rule to list the Gulf of Mexico Bryde's whale as an endangered species (81 FR 88639). NMFS solicited public comments on the proposed rule for 75 days (81 FR 88639, December 8, 2016; 81 FR 92760, December 20, 2016; 82 FR 9707, February 8, 2017) and accepted public comments during a public hearing on January 19, 2017. NMFS addressed all public comments received in response to the proposed rule in its April 15, 2019, final rule (84 FR 15446) to list the Gulf of Mexico Bryde's whale as an endangered species. NMFS determined that the Gulf of Mexico Bryde's whale is an unnamed subspecies of Bryde's whales ( Balaenoptera edeni ). The listing of the Gulf of Mexico Bryde's whale went into effect on May 15, 2019. We did not publish an administrative action at that time to add the Gulf of Mexico Bryde's whale to the List at 50 CFR 17.11(h).

On August 23, 2021, NMFS published a direct final rule (86 FR 47022) to revise the taxonomy and common name of Balaenoptera edeni ( unnamed subspecies; Bryde's Whale—Gulf of Mexico subspecies) to reflect the most recently accepted scientific name, in accordance with 50 CFR 224.101(e). Based on the best scientific data available at that time, NMFS determined that revising the entry at 50 CFR 224.101(h) was warranted as follows: Change the common name from Bryde's whale (Gulf of Mexico subspecies) to Rice's whale, change the scientific name from Balaenoptera edeni (unnamed subspecies) to Balaenoptera ricei, and change the description of the listed entity from Bryde's whales that breed and feed in the Gulf of Mexico to “wherever found.” NMFS provided an opportunity for the public to submit significant adverse comments in response to the direct final rule; they received none. The direct final rule went into effect on October 22, 2021. By publishing this final rule, we are taking the necessary administrative step to amend the List at 50 CFR 17.11(h) to include the Rice's whale.

We are also updating the entries on the List for the Central America, Mexico, and Western North Pacific DPSs of humpback whales to reflect the designation of critical habitat for these three DPSs. On October 9, 2019, NMFS published a proposed rule (84 FR 54354) identifying critical habitat for these three DPSs of humpback whales and solicited public comments on the proposed rule through January 31, 2020 (see 84 FR 65346, November 27, 2019). NMFS also solicited public comments at six public hearings (84 FR 55530, October 17, 2019; 84 FR 65346, November 27, 2019). NMFS addressed all public comments received in its April 21, 2021, final rule (86 FR 21082) designating critical habitat for these three DPSs.

The humpback whale critical habitat designations went into effect on May 21, 2021. By publishing this final rule, we are taking the necessary administrative step to codify these changes in the List at 50 CFR 17.11(h).

Because NMFS provided an opportunity for public comment on the proposed rules for these taxa, and because this action of the Service to amend the List in accordance with the determinations by NMFS is nondiscretionary, the Service finds good cause that the notice and public comment procedures of 5 U.S.C. 553(b) are unnecessary for this action. We also find good cause under 5 U.S.C. 553(d)(3) to make this rule effective immediately. The NMFS rules extended protection under the Act to these species by listing Rice's whale in 50 CFR part 224 and designating critical habitat for the Central America, Mexico, and Western North Pacific DPSs of humpback whales in 50 CFR part 226; this rule is an administrative action to add one species to, and update the entries of three species on, the List at 50 CFR 17.11(h). The public would not be served by delaying the effective date of this rulemaking action.

We have determined that an environmental assessment, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the CFR, as set forth below.

Atlantic HMS fisheries, including BFT fisheries, are managed under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq. ) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq. ). The 2006 Consolidated Atlantic HMS Fishery Management Plan (FMP) and its amendments are implemented by regulations at 50 CFR part 635. Section 635.27 divides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) and as implemented by the United States among the various domestic fishing categories, per the allocations established in the 2006 Consolidated HMS FMP and its amendments. NMFS is required under the Magnuson-Stevens Act to provide U.S. fishing vessels with a reasonable opportunity to harvest quotas under relevant international fishery agreements such as the ICCAT Convention, which is implemented domestically pursuant to ATCA.

Under § 635.28(a)(1), NMFS files a closure notice with the Office of the Federal Register for publication when a BFT quota (or subquota) is reached or is projected to be reached. Retaining, possessing, or landing BFT under that quota category is prohibited on and after the effective date and time of a closure notice for that category, for the remainder of the fishing year, until the opening of the subsequent quota period or until such date as specified.

The 2022 BFT fishing year, which is managed on a calendar-year basis and subject to an annual calendar-year quota, began January 1, 2022. The Angling category season opened January 1, 2022, and continues through December 31, 2022. The Angling category baseline quota is 232.4 metric tons (mt), of which 5.3 mt is allocated for the harvest of large medium and giant (trophy) BFT by vessels fishing under the Angling category quota, with 1.8 mt allocated for each of the following areas: North of 39°18′ N lat. (off Great Egg Inlet, NJ); south of 39°18′ N lat. and outside the Gulf of Mexico (the “southern area”); and in the Gulf of Mexico. Trophy BFT measure 73 inches (185 cm) curved fork length or greater.

Based on landings data from the NMFS Automated Catch Reporting System and the North Carolina Tagging Program, as well as average catch rates and anticipated fishing conditions, NMFS projects the Angling category southern area trophy BFT subquota of 1.8 mt will be reached shortly. Therefore, retaining, possessing, or landing large medium or giant ( i.e., measuring 73 inches (185 cm) curved fork length or greater) BFT south of 39°18′ N lat. and outside the Gulf of Mexico by persons aboard Angling category permitted vessels and Atlantic HMS Charter/Headboat permitted vessels (when fishing recreationally) must cease at 11:30 p.m. local time on February 12, 2022. This closure will remain effective through December 31, 2022. This action applies to Angling category permitted vessels and Atlantic HMS Charter/Headboat permitted vessels when fishing recreationally for BFT, and is taken consistent with the regulations at § 635.28(a)(1). This action is intended to prevent overharvest of the Angling category southern area trophy BFT subquota.

If needed, subsequent Angling category adjustments will be published in the Federal Register . Information regarding the Angling category fishery for Atlantic tunas, including daily retention limits for BFT measuring 27 inches (68.5 cm) to less than 73 inches (185 cm) and any further Angling category adjustments, is available at hmspermits.noaa.gov or by calling (978) 281-9260. HMS Angling and HMS Charter/Headboat permit holders may catch and release (or tag and release) BFT of all sizes, subject to the requirements of the catch-and-release and tag-and-release programs at § 635.26. Anglers are also reminded that all BFT that are released must be handled in a manner that will maximize survival, and without removing the fish from the water, consistent with requirements at § 635.21(a)(1). For additional information on safe handling, see the “Careful Catch and Release” brochure available at https://www.fisheries.noaa.gov/resource/outreach-and-education/careful-catch-and-release-brochure/.

HMS Charter/Headboat and Angling category vessel owners are required to report the catch of all BFT retained or discarded dead, within 24 hours of the landing(s) or end of each trip, by accessing hmspermits.noaa.gov, using the HMS Catch Reporting app, or calling (888) 872-8862 (Monday through Friday from 8 a.m. until 4:30 p.m.).

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act and regulations at 50 CFR part 635 and is exempt from review under Executive Order 12866.

The Assistant Administrator for NMFS finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:

The regulations implementing the 2006 Consolidated HMS FMP and its amendments provide for inseason adjustments and fishery closures to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. This fishery is currently underway and delaying this action could result in excessive trophy BFT landings that may result in future potential quota reductions for the Angling category, depending on the magnitude of a potential Angling category overharvest. NMFS must close the southern area trophy BFT fishery before additional landings of these sizes of BFT occur. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, there is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.

On July 28, 2021, we published a final rule approving Framework Adjustment 61 to the Northeast Multispecies Fishery Management Plan (FMP) (86 FR 40353), which set or adjusted 2021-2023 annual catch limits (ACL) for 17 of the 20 groundfish stocks, and 2021 ACLs for three shared U.S./Canada stocks. Framework 61 also approved and implemented the Universal Sector Exemption for Acadian Redfish (Redfish). This rule distributes unused sector quota carried over from fishing year 2020 and corrects a regulatory error which incorrectly defines the boundaries of the Redfish Exemption Area and Redfish Exemption Area Seasonal Closure II.

Carryover regulations at 50 CFR 648.87(b)(1)(i)(C) allow each groundfish sector to carry over an amount of unused Annual Catch Entitlement (ACE) equal to 10 percent of the sector's original ACE for each stock (except for Georges Bank [GB] yellowtail flounder) that is unused at the end of the fishing year into the following fishing year. We are required to adjust ACE carryover to ensure that the total unused ACE combined with the overall sub-ACL does not exceed the Acceptable Biological Catch (ABC) for the fishing year in which the carryover may be harvested. We have completed 2020 fishing year data reconciliation with sectors and determined final 2020 fishing year sector catch and the amount of allocation that sectors may carry over from the 2020 to the 2021 fishing year. Unused ACE from fishing year 2020 available to carry over to 2021 was reduced for the following stocks: Georges Bank (GB) cod; GB haddock; Gulf of Maine (GOM) haddock; Southern New England/Mid-Atlantic (SNE/MA) yellowtail flounder; Cape Cod/GOM yellowtail flounder; American plaice; witch flounder; GB winter flounder; GOM winter flounder; SNE/MA winter flounder; redfish; white hake; and pollock. Complete details on carryover reduction percentages can be found at: https://www.greateratlantic.fisheries.noaa.gov/ro/fso/reports/h/groundfish_catch_accounting.

Table 1 includes the maximum amount of allocation that sectors may carry over from the 2020 to the 2021 fishing year. Table 2 includes the de minimis amount of carryover for each sector for the 2021 fishing year. If the overall ACL for any allocated stock is exceeded for the 2021 fishing year, the allowed carryover harvested by a sector, minus the pounds in the sector's de minimis amount, will be counted against its allocation to determine whether an overage subject to an accountability measure occurred. Tables 3 and 4 list the final ACE available to sectors for the 2021 fishing year, including finalized carryover amounts for each sector, as adjusted down when necessary to equal each stock's ABC.

The Redfish Exemption Program defined at § 648.85(e)(1) allows sector vessels to target redfish using a 5.5-inch (14.0-centimeter (cm)) mesh codend within the Redfish Exemption Area, defined in the regulations at § 648.85(e)(1)(ii). Also included in the regulations for the Redfish Exemption Program are two seasonal closure areas in which no vessel may participate in the Redfish Exemption Program. These are the Redfish Exemption Area Cod Closure defined at § 648.85(e)(1)(ii)(A) and the Redfish Exemption Area Seasonal Closure II defined at § 648.85(e)(1)(ii)(B).

Portions of the boundaries for both the Redfish Exemption Area and the Redfish Exemption Area Seasonal Closure II follow the boundaries of the U.S. Exclusive Economic Zone (EEZ). The regulations that currently list the points delineating these areas state that the areas are defined by straight lines connecting the following points in the order stated. For both areas, when straight lines are drawn between points located on the U.S. EEZ and preceding or subsequent points, the boundaries of the areas that result do not follow the boundaries of the U.S. EEZ as intended. As a result, small portions of the Redfish Exemption Area and Redfish Exemption Area Seasonal Closure II currently extend past the boundary of the U.S. EEZ, into Canadian waters.

This rule corrects this error by revising the regulations at § 648.85(e)(1)(ii) and § 648.85(e)(1)(ii)(B) to correctly state that the lines connecting points located on the U.S. EEZ follow the boundary of the U.S. EEZ.

Though the erroneous definitions for the Redfish Exemption Area and Redfish Exemption Area Seasonal Closure II extended these areas past the U.S. EEZ into Canadian waters, they did not authorize vessels to fish in Canadian waters. The correction being implemented by this rule, as a result, does not change any operational aspect of the Redfish Exemption Program. Instead, it is an administrative change designed to ensure regulations are written accurately and to reduce confusion.