Federal Register / Vol. 87, No. 33 / Thursday, February 17, 2022 / Rules and Regulations 8967 

(Medionidus penicillatus), Ochlockonee 

moccasinshell (Medionidus 

simpsonianus), oval pigtoe (Pleurobema 

pyriforme), shinyrayed pocketbook 

(Hamiota subangulata), Chipola 

slabshell (Elliptio chipolaensis), and fat 

threeridge (Amblema neislerii) 

* * * * * 

(2) The primary constituent elements 

of critical habitat for the purple 

bankclimber (Elliptoideus sloatianus), 

Gulf moccasinshell (Medionidus 

penicillatus), Ochlockonee 

moccasinshell (Medionidus 

simpsonianus), oval pigtoe (Pleurobema 

pyriforme), shinyrayed pocketbook 

(Hamiota subangulata), Chipola 

slabshell (Elliptio chipolaensis), and fat 

threeridge (Amblema neislerii) are: 

* * * * * 

(6) * * * 

Species Critical habitat units States 

*******

Shinyrayed pocketbook (Hamiota 

subangulata).

Units 2, 3, 4, 5, 6, 7, 9 ........................................................................... AL, FL, GA. 

* * * * * * * 

* * * * * 

Eight mussel species in four northeast 

Gulf of Mexico drainages: Choctaw bean 

(Obovaria choctawensis), round 

ebonyshell (Reginaia rotulata), southern 

kidneyshell (Ptychobranchus jonesi), 

Alabama pearlshell (Margaritifera 

marrianae), fuzzy pigtoe (Pleurobema 

strodeanum), narrow pigtoe (Fusconaia 

escambia), tapered pigtoe (Fusconaia 

burkei), and southern sandshell 

(Hamiota australis) 

* * * * * 

Fluted Kidneyshell (Ptychobranchus 

subtentus) 

* * * * * 

Martha Williams, 

Principal Deputy Director, Exercising the 

Delegated Authority of the Director, U.S. Fish 

and Wildlife Service. 

[FR Doc. 2022–03115 Filed 2–16–22; 8:45 am] 

BILLING CODE 4333–15–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R8–ES–2019–0113; 

FF09E22000 FXES11130900000 212] 

RIN 1018–BE64 

Endangered and Threatened Wildlife 

and Plants; Reclassification of 

Stephens’ Kangaroo Rat From 

Endangered To Threatened With a 

Section 4(d) Rule 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), are 

reclassifying the Stephens’ kangaroo rat 

(Dipodomys stephensi) from endangered 

to threatened under the Endangered 

Species Act of 1973, as amended (Act). 

This action is based on our evaluation 

of the best available scientific and 

commercial information, which 

indicates that the species’ status has 

improved such that it is not currently in 

danger of extinction throughout all or a 

significant portion of its range, but that 

it is still likely to become so throughout 

all of its range in the foreseeable future. 

We also finalize a rule under section 

4(d) of the Act that provides for the 

conservation of the Stephens’ kangaroo 

rat. 

DATES: This rule is effective March 21, 

2022. 

ADDRESSES: This final rule is available 

on the internet at https://

www.regulations.gov. Comments and 

materials we received, as well as 

supporting documentation we used in 

preparing this rule, are available for 

public inspection at https://

www.regulations.gov at Docket No. 

FWS–R8–ES–2019–0113. 

FOR FURTHER INFORMATION CONTACT: 

Scott Sobiech, Field Supervisor, U.S. 

Fish and Wildlife Service, Carlsbad Fish 

and Wildlife Office, 2177 Salk Avenue, 

Suite 250, Carlsbad, CA 92008; 

telephone 760–431–9440. Persons who 

use a telecommunications device for the 

deaf (TDD) may call the Federal Relay 

Service at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Why we need to publish a rule. Under 

the Act, a species may warrant 

reclassification from endangered to 

threatened if it no longer meets the 

definition of endangered (in danger of 

extinction). The Stephens’ kangaroo rat 

was listed as endangered in 1988 (53 FR 

38465, September 30, 1988), and we are 

finalizing our proposed reclassification 

(downlisting) (85 FR 50991, August 19, 

2020) of the Stephens’ kangaroo rat as 

threatened because we have determined 

it is not currently in danger of 

extinction. Downlisting a species as a 

threatened species can be completed 

only by issuing a rule. 

What this document does. This rule 

reclassifies the Stephens’ kangaroo rat 

from endangered to threatened, with a 

rule issued under section 4(d) of the Act 

(hereafter referred to as a ‘‘4(d) rule’’). 

The basis for our action. Under the 

Act, we may determine that a species is 

an endangered species or a threatened 

species because of any of five factors: 

(A) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; (B) 

overutilization for commercial, 

recreational, scientific, or educational 

purposes; (C) disease or predation; (D) 

the inadequacy of existing regulatory 

mechanisms; or (E) other natural or 

manmade factors affecting its continued 

existence. We may reclassify a listed 

species if the best commercial and 

scientific data available indicate a 

change in status is appropriate. We have 

determined that the Stephens’ kangaroo 

rat is no longer in danger of extinction, 

and therefore does not meet the 

definition of an endangered species, due 

to a reduction of threats since listing 

and the implementation of conservation 

actions. However, the species is still 

affected by the following threats to the 

extent that the species meets the 

definition of a threatened species under 

the Act: 

• Habitat loss and degradation due to 

urbanization, agricultural activities, and 

nonnative vegetation; and 

• Isolation of existing populations 

due to habitat fragmentation. 

The cumulative effects of climate 

change and wildfire, which could result 

in an increase in the extent of nonnative 

grasslands, represents a low-level 

stressor to the Stephens’ kangaroo rat 

and its habitat, and based on climate 

change projections, is likely to remain at 

this level to the 2060s. Existing 

regulatory mechanisms and 


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conservation efforts do not effectively 

address existing habitat fragmentation 

or the introduction and spread of 

nonnative plants or improve population 

connectivity and dispersal. 

We are promulgating a section 4(d) 

rule. This 4(d) rule prohibits all 

intentional take of the Stephens’ 

kangaroo rat and specifically tailors the 

incidental take exceptions under section 

9(a)(1) of the Act. This provides 

protective mechanisms to Federal, State, 

and Tribal partners and private 

landowners, so that they may continue 

with certain activities that benefit the 

species or its habitat or are not 

anticipated to cause direct injury or 

mortality to Stephens’ kangaroo rat. We 

have determined that such measures 

will facilitate the conservation and 

recovery of the species. 

Previous Federal Actions 

Please refer to the proposed rule to 

reclassify the Stephens’ kangaroo rat 

published on August 19, 2020 (85 FR 

50991), for a detailed description of 

previous Federal actions concerning this 

species. 

Summary of Changes From the 

Proposed Rule 

Based upon our review of the Federal, 

State, peer review, and public 

comments and any new relevant 

information that became available, we 

reevaluated our proposed rule and made 

changes as appropriate in this final rule. 

Other than minor clarifications and 

incorporation of additional information 

on the species’ biology and populations, 

this determination differs from the 

proposal in the following ways: 

(1) As discussed in the 2019 species 

report and 2020 proposed rule, we 

developed a habitat suitability model 

(HSM) based on available habitat 

mapping information, and the 

Conservation Biology Institute (CBI) was 

in the process of developing a more 

detailed range-wide HSM (Service 2019, 

pp. 14–15). Since that time, CBI 

completed that more comprehensive 

HSM for Stephens’ kangaroo rat, which 

we are using to update the potential 

habitat projections for use as a proxy for 

the species’ demographic information. 

This new model provides better 

resolution through use of spectral 

imagery and other environmental data 

layers. The new HSM uses a smaller 

patch size of 50 hectares (ha) (124 acres 

(ac)) and dispersal distance of 200 

meters, compared to what we used in 

our original model (100 ha (247 ac)) and 

a dispersal distance of 61.5 meters (202 

ft) as a cutoff for fragmented patches. 

Therefore, we removed the habitat 

fragmentation calculations in the 

updated species report (Service 2021, 

entire) that were based on the 100-ha 

(247-ac) size and shorter dispersal 

distance. 

Incorporation of the more recent HSM 

also required us to revise the amount 

and ownership breakdown of modeled 

habitat for Stephens’ kangaroo rat. The 

amount of modeled habitat in the 

original model, identified in the 

proposed rule, was 91,538 ac (37,044 

ha), compared to the new model 

(184,367 ac (74,610 ha)). The amount of 

conserved lands also increased from 

28,567 ac (11,561 ha) in the proposed 

rule, to 68,701 ac (27,802 ha) in this 

final rule. This includes approximately 

1,287 ac (521 ha) of modeled habitat 

within the species’ range in San 

Bernardino County, California. 

(2) We updated this final rule and the 

species report with all the above 

changes and with other suggested edits 

received during the open comment 

period. The revised species report is 

version 1.2 (Service 2021, entire). 

(3) We revised the section 4(d) rule 

based on public comments regarding 

fire safety measures and have made the 

defensible space requirements more 

stringent than the State of California fire 

code as requested. 

Supporting Documents 

A team of Service biologists prepared 

a species report for the Stephens’ 

kangaroo rat (Service 2021, entire). The 

team was composed of Service 

biologists, in consultation with other 

species experts. The species report 

represents a compilation of the best 

scientific and commercial data available 

concerning the status of the species, 

including the impacts of past, present, 

and future factors (both negative and 

beneficial) affecting the species. 

In accordance with our joint policy on 

peer review published in the Federal 

Register on July 1, 1994 (59 FR 34270), 

and our August 22, 2016, memorandum 

updating and clarifying the role of peer 

review of listing actions under the Act, 

we sought peer review of the 

information contained in the Stephens’ 

kangaroo rat species report. We sent the 

species report to four independent peer 

reviewers and received one response. 

Results of this structured peer review 

process can be found at https://

www.regulations.gov. The status report 

was also submitted to our Federal and 

State partners for scientific review. We 

received review from two partners 

(Department of Defense (DoD) and 

California Department of Fish and 

Wildlife (CDFW)). We incorporated the 

results of these reviews, as appropriate, 

into the final status report, which is the 

foundation for this final rule. 

Reclassification Determination 

The Stephens’ kangaroo rat is a small, 

nocturnal mammal that has a dusky 

cinnamon buff overfur, pure white 

underfur, and a lateral white tail band. 

The tail is crested and bicolored 

(Service 1997, pp. 1, 2, 25; Service 2021, 

chapter 2). Kangaroo rats possess a 

number of behavioral, morphological, 

and physiological adaptations that allow 

them to inhabit warm, arid 

environments (Service 2021, pp. 2, 24). 

Stephens’ kangaroo rat habitat 

generally consists of open grasslands 

and sparsely vegetated scrub (MooreCraig 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 westernsouthwestern 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 


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(Service 2021, table 1, pp. 5–6). 

Additional background information on 

the Stephens’ kangaroo rat can be found 

in the draft recovery plan and species 

report (Service 1997, entire; Service 

2021, entire). 

Current Conservation Efforts 

Two large-scale habitat conservation 

planning efforts have been implemented 

in Riverside County. Since listing, the 

Stephens’ Kangaroo Rat Habitat 

Conservation Plan (SKR HCP) has been 

implemented by the Riverside County 

Habitat Conservation Agency (RCHCA) 

(RCHCA 1996, entire), and the Western 

Riverside County Multi-Species Habitat 

Conservation Plan (Western Riverside 

MSHCP) has been implemented by the 

Regional Conservation Authority 

(Dudek and Associates 2003, entire)). 

The implementation of these 

conservation plans has helped to offset 

potential losses of habitat from urban 

and agricultural development. Ongoing 

management for Stephens’ kangaroo rat 

and implementation of recovery actions 

by these agencies has helped reduce 

impacts throughout much of the species’ 

range in Riverside County. 

Three military installations also occur 

within the range of the species in 

western San Diego County. These DoD 

facilities (Marine Corps Base Camp 

Pendleton (Camp Pendleton); Naval 

Base Coronado Remote Training Site 

Warner Springs (Warner Springs); and 

Naval Weapons Station Seal Beach 

Detachment Fallbrook (Detachment 

Fallbrook) have developed, in 

coordination with the Service, 

integrated natural resources 

management plans (INRMPs) and are 

committed to actively managing their 

activities and habitat for the 

conservation of the Stephens’ kangaroo 

rat. The INRMPs are based, to the 

maximum extent practicable, on 

ecosystem management principles and 

provide for the management of 

Stephens’ kangaroo rat and its habitat 

while sustaining necessary military land 

uses. These three DoD facilities have 

implemented numerous actions to 

manage and conserve areas occupied by 

Stephens’ kangaroo rat that aid in 

species recovery. 

Implementation of these conservation 

efforts has greatly reduced the impact of 

loss and degradation of habitat for the 

species on the lands conserved under 

the two HCPs and managed at the three 

military installations. See Draft 

Recovery Plan Implementation and 

Status Criteria below, for how these 

efforts are assisting conservation and 

reducing threats for the species. 

Draft Recovery Plan Implementation 

and Status Criteria 

Section 4(f) of the Act directs us to 

develop and implement recovery plans 

for the conservation and survival of 

endangered and threatened species 

unless we determine that such a plan 

will not promote the conservation of the 

species. Under section 4(f)(1)(B)(ii), 

recovery plans must, to the maximum 

extent practicable, include objective, 

measurable criteria which, when met, 

would result in a determination, in 

accordance with the provisions of 

section 4 of the Act, that the species be 

removed from the List. 

Recovery plans provide a roadmap for 

us and our partners on methods of 

enhancing conservation and minimizing 

threats to listed species, as well as 

measurable criteria against which to 

evaluate progress towards recovery and 

assess the species’ likely future 

condition. However, they are not 

regulatory documents and do not 

substitute for the determinations and 

promulgation of regulations required 

under section 4(a)(1) of the Act. A 

decision to revise the status of a species, 

or to delist a species, is ultimately based 

on an analysis of the best scientific and 

commercial data available to determine 

whether a species is no longer an 

endangered species or a threatened 

species, regardless of whether that 

information differs from the recovery 

plan. 

There are many paths to 

accomplishing recovery of a species, 

and recovery may be achieved without 

all of the criteria in a recovery plan 

being fully met. For example, one or 

more criteria may be exceeded while 

other criteria may not yet be 

accomplished. In that instance, we may 

determine that the threats are 

minimized sufficiently and that the 

species is robust enough that it no 

longer meets the definition of an 

endangered species or a threatened 

species. In other cases, we may discover 

new recovery opportunities after having 

finalized the recovery plan. Parties 

seeking to conserve the species may use 

these opportunities instead of methods 

identified in the recovery plan. 

Likewise, we may learn new 

information about the species after we 

finalize the recovery plan. The new 

information may change the extent to 

which existing criteria are appropriate 

for identifying recovery of the species. 

The recovery of a species is a dynamic 

process requiring adaptive management 

that may, or may not, follow all of the 

guidance provided in a recovery plan. 

Draft Recovery Plan Information 

A draft recovery plan for the 

Stephens’ kangaroo rat was developed 

in 1997 (Service 1997, entire). Although 

it was never finalized, the draft recovery 

plan is part of the public record on the 

Service’s views on recovery for the 

species at that time. The objective of the 

draft recovery plan is to protect and 

maintain sufficient populations of 

Stephens’ kangaroo rat and its habitat. 

The plan states this objective can be 

accomplished by: (a) Establishing 

ecosystem-based conservation units; (b) 

preventing destruction and degradation 

of habitat; (c) managing use of 

rodenticides and other pesticides; (d) 

reducing nonnative predators such as 

domestic cats; (e) establishing research 

programs to examine the species’ 

biological and ecological needs; and (f) 

developing and implementing a 

proactive outreach program for the 

public and landowners. 

The draft plan also identifies several 

downlisting and delisting criteria 

(Service 1997, pp. 52–60) for the 

species. The downlisting criteria 

include: (1) Establishment of four 

reserves, which encompass at least 

15,000 ac (6,070 ha) of occupied habitat 

and are permanently protected, funded, 

and managed, in western Riverside 

County (inside or outside any habitat 

conservation planning area) (Service 

1997, pp. 39–40); and (2) establishment 

of one ecosystem-based reserve in either 

western or central San Diego County 

that is permanently protected, funded, 

and managed. Ecosystem-based reserves 

are anticipated to retain their biological 

diversity and are associated with large 

areas of suitable habitat (Service 1997, 

p. 49). Non-ecosystem reserves are 

biologically more isolated and are 

expected to require more intensive 

management. Both ecosystem and nonecosystem reserves are needed to retain 

genetic and phenotypic diversity and 

provide redundancy to provide 

protection for species’ viability from 

losses resulting from catastrophic 

events. 

The delisting criteria for the Stephens’ 

kangaroo rat identified in the draft 

recovery plan (Service 1997, pp. 53–60) 

are: (1) Establish a minimum of five 

reserves in western Riverside County, of 

which one is ecosystem-based, and that 

encompass at least 16,500 ac (6,675 ha) 

of occupied habitat that is permanently 

protected, funded, and managed; and (2) 

establish two ecosystem-based reserves 

in San Diego County. One of these San 

Diego County reserves needs to be 

established in the Western Conservation 

Planning Area, and one reserve needs to 

be established in the Central 


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Conservation Planning Area. These 

reserves are to be permanently 

protected, funded, and managed. 

While the criteria in the draft recovery 

plan appropriately indicate the need for 

habitat protection and management of 

reserves, the criteria do not reflect the 

species’ current conservation status and 

no longer adequately identify the 

current threats to the species. At the 

time the draft recovery plan was 

developed, habitat loss was the major 

concern for the species. Due to the 

implementation of land conservation 

and management actions (see Current 

Conservation Efforts), other threats may 

now need greater attention and be a 

focus for recovery actions (see Summary 

of Biological Condition and Threats). As 

a result, the downlisting and delisting 

criteria in the draft recovery plan may 

not reflect the only means to achieving 

recovery for the species. However, we 

still agree with the conservation 

objectives outlined in the draft recovery 

plan regarding ecosystem-based 

reserves. 

Currently, under the SKR HCP and 

Western Riverside MSHCP, eight 

reserves have been established for 

Stephens’ kangaroo rat in Riverside 

County. This number exceeds the four 

reserves identified by criterion 1 of the 

draft recovery plan (Service 1997, p. 52). 

Criterion 1 of the draft recovery plan 

also identifies that the reserve lands 

should total approximately 15,000 ac 

(6,070 ha). We estimate that, of the 

331,343 ac (53,153 ha) of modeled 

potentially suitable habitat for Stephens’ 

kangaroo rat in Riverside County, 

approximately 36,465 ac (14,757 ha) of 

the modeled habitat is considered 

within conserved lands (including 

reserves) in Riverside County. The 

majority of these lands are conserved in 

eight core reserves [19,378 ac (7,842 ha)] 

under the SKR HCP and Western 

Riverside MSHCP; however, 17,087 ac 

(6,915 ha) outside these reserves are also 

protected as Federal, State, local, and 

private lands (Service 2021, appendix 

D). The draft recovery plan also 

instructs that the 15,000 ac ((6,070 ha) 

of conserved lands should be in just 

four reserves. The number of acres 

conserved in the four largest reserves 

(17,118 ac (6,927 ha)) currently exceeds 

this value with four additional reserves, 

although smaller, that still provide 

conservation value for the Stephens’ 

kangaroo rat. In addition, three of the 

four smaller reserves have the 

opportunity for expansion due to the 

surrounding lands not being developed 

or in agricultural use (Service 2021, 

appendix E). Thus, we conclude that 

this criterion has been exceeded. 

Criterion 2 for downlisting states that 

one ecosystem-based reserve be 

established in either western or central 

San Diego County, though no measure 

of acreage was indicated in the Recovery 

Plan. We estimate that approximately 

51,737 ac (20,937 ha) of modeled 

suitable habitat occurs in San Diego 

County (Service 2021, appendix D). 

Approximately 62 percent (32,207 ac 

(13,034 ha)) of this area is located on 

lands that have been either conserved, 

are in conservation easement, or are 

located on public or DoD lands. Current 

efforts are also underway to develop an 

HCP for San Diego County that would 

benefit Stephens’ kangaroo rat and other 

listed species. Though surveys are being 

conducted in a reserve near Ramona 

Grassland, the HCP for San Diego 

County is not yet finalized, and no 

ecosystem-based reserve has been 

established on private lands in San 

Diego County. However, we have also 

identified lands on DoD facilities in San 

Diego County that are important for the 

long-term persistence of Stephens’ 

kangaroo rat throughout its range. In 

coordination with the Service, INRMPs 

for the species have been developed and 

implemented at three military 

installations (Camp Pendleton, 

Detachment Fallbrook, and Warner 

Springs) (U.S. Navy 2016, entire; U.S. 

Marine Corps 2018, entire). These 

INRMPs provide for ongoing 

management and include actions that 

assist in the long-term conservation of 

Stephens’ kangaroo rat on DoD lands. 

The total modeled habitat within DoD 

lands with INRMPs is 11,957 ac (4,839 

ha). The amount of modeled habitat at 

each installation is approximately 7,619 

ac (3,083 ha) for Camp Pendleton, 2,663 

ac (1,078 ha) for Detachment Fallbrook, 

and 1,675 ac (678 ha) for Warner 

Springs. The INRMPs are based, to the 

maximum extent practicable, on 

ecosystem management principles and 

provide for the management of 

Stephens’ kangaroo rat and its habitat 

while sustaining necessary military land 

uses (Service 2021, pp. 39–43). 

Therefore, the INRMPs effectively meet 

the intent of the draft recovery plan’s 

criterion 2 for downlisting by providing 

long-term management for the 

conservation of Stephens’ kangaroo rat 

with one ecosystem-based reserve in 

western San Diego County at Camp 

Pendleton and Detachment Fallbrook. 

We conclude that the number and 

amount of reserved lands being 

protected, funded, and managed in 

Riverside and San Diego Counties 

provide conservation benefits to 

Stephens’ kangaroo rat and exceed the 

downlisting criteria in the draft recovery 

plan. 

The delisting criteria for the Stephens’ 

kangaroo rat includes: (1) Establishment 

of a minimum of five reserves in 

western Riverside County, of which one 

is ecosystem-based, and that encompass 

at least 16,500 ac (6,675 ha) of occupied 

habitat that is permanently protected, 

funded, and managed; and (2) 

establishment of two ecosystem-based 

reserves in San Diego County. 

In Riverside County a total of 36,465 

ac (14,757 ha) has been conserved, 

including 19,378 ac (7,842 ha) in eight 

Stephens’ kangaroo rat core reserves, 

meeting the delisting criteria for the 

number of reserves needed. However, 

one ecosystem-based reserve is still 

needed in Riverside County. We expect 

additional lands will be conserved 

through further implementation of the 

two HCPs. In San Diego County, the 

number of ecosystem-based reserves 

(currently one at Camp Pendleton and 

Detachment Fallbrook) does not meet 

the criteria identified in the draft 

recovery plan for delisting for having 

two ecosystem-based reserves, with one 

in central San Diego County and one in 

western San Diego County. Therefore, 

we will not meet all of the delisting 

criteria in the draft recovery plan until 

there is: (1) At least one ecosystembased reserve that is occupied, 

permanently protected, funded, and 

managed is established in Riverside 

County; and (2) at least one additional 

ecosystem-based reserve that is 

occupied, permanently protected, 

funded, and managed is established in 

central San Diego County. 

Regulatory and Analytical Framework 

Regulatory Framework 

Section 4 of the Act (16 U.S.C. 1533) 

and its implementing regulations (50 

CFR part 424) set forth the procedures 

for determining whether a species is an 

‘‘endangered species’’ or a ‘‘threatened 

species.’’ The Act defines an 

‘‘endangered species’’ as a species that 

is in danger of extinction throughout all 

or a significant portion of its range and 

a ‘‘threatened species’’ as a species that 

is likely to become an endangered 

species within the foreseeable future 

throughout all or a significant portion of 

its range. The Act requires that we 

determine whether any species is an 

endangered species or a threatened 

species because of any of the following 

factors: 

(A) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; 

(B) Overutilization for commercial, 

recreational, scientific, or educational 

purposes; 

(C) Disease or predation; 


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Federal Register / Vol. 87, No. 33 / Thursday, February 17, 2022 / Rules and Regulations 8971 

(D) The inadequacy of existing 

regulatory mechanisms; or 

(E) Other natural or manmade factors 

affecting its continued existence. 

These factors represent broad 

categories of natural or human-caused 

actions or conditions that could have an 

effect on a species’ continued existence. 

In evaluating these actions and 

conditions, we look for those that may 

have a negative effect on individuals of 

the species, as well as other actions or 

conditions that may ameliorate any 

negative effects or may have positive 

effects. We consider these same five 

factors in downlisting a species from 

endangered to threatened (50 CFR 

424.11(c)–(e)). 

We use the term ‘‘threat’’ to refer in 

general to actions or conditions that are 

known to or are reasonably likely to 

negatively affect individuals of a 

species. The term ‘‘threat’’ includes 

actions or conditions that have a direct 

impact on individuals (direct impacts), 

as well as those that affect individuals 

through alteration of their habitat or 

required resources. The term ‘‘threat’’ 

may encompass—either together or 

separately—the source of the action or 

condition or the action or condition 

itself. 

However, the mere identification of 

any threat(s) does not necessarily mean 

that the species meets the statutory 

definition of an ‘‘endangered species’’ or 

a ‘‘threatened species.’’ In determining 

whether a species meets either 

definition, we must evaluate all 

identified threats by considering the 

species’ expected response and the 

effects of the threats—in light of those 

actions and conditions that will 

ameliorate the threats—on an 

individual, population, and species 

level. We evaluate each threat and its 

expected effects on the species, then 

analyze the cumulative effect of all of 

the threats on the species as a whole. 

We also consider the cumulative effect 

of the threats in light of those actions 

and conditions that will have positive 

effects on the species—such as any 

existing regulatory mechanisms or 

conservation efforts. The Secretary 

determines whether the species meets 

the definition of an ‘‘endangered 

species’’ or a ‘‘threatened species’’ only 

after conducting this cumulative 

analysis and describing the expected 

effect on the species now and in the 

foreseeable future. 

The Act does not define the term 

‘‘foreseeable future,’’ which appears in 

the statutory definition of ‘‘threatened 

species.’’ Our implementing regulations 

at 50 CFR 424.11(d) set forth a 

framework for evaluating the foreseeable 

future on a case-by-case basis. The term 

foreseeable future extends only so far 

into the future as we can reasonably 

determine that both the future threats 

and the species’ responses to those 

threats are likely. In other words, the 

foreseeable future is the period of time 

in which we can make reliable 

predictions. ‘‘Reliable’’ does not mean 

‘‘certain’’; it means sufficient to provide 

a reasonable degree of confidence in the 

prediction. Thus, a prediction is reliable 

if it is reasonable to depend on it when 

making decisions. 

It is not always possible or necessary 

to define foreseeable future as a 

particular number of years. Analysis of 

the foreseeable future uses the best 

scientific and commercial data available 

and should consider the timeframes 

applicable to the relevant threats and to 

the species’ likely responses to those 

threats in view of its life-history 

characteristics. Data that are typically 

relevant to assessing the species’ 

biological response include speciesspecific factors such as lifespan, 

reproductive rates or productivity, 

certain behaviors, and other 

demographic factors. 

Analytical Framework 

The species report documents the 

results of our comprehensive biological 

review of the best scientific and 

commercial data regarding the status of 

the species, including an assessment of 

the potential threats to, and 

conservation measures for, the species 

and its habitat. The species report does 

not represent our decision on whether 

the species should be reclassified as a 

threatened species under the Act. It 

does, however, provide the scientific 

basis that informs our regulatory 

decisions, which involve the further 

application of standards within the Act 

and its implementing regulations and 

policies. The following is a summary of 

the key results and conclusions from the 

species report; the full species report 

(Service 2021, entire) can be found at 

Docket No. FWS–R8–ES–2019–0113 on 

https://www.regulations.gov. 

To assess Stephens’ kangaroo rat’s 

current and future viability and 

demographic risks, we consider the 

concepts of resilience, representation, 

and redundancy (Shaffer and Stein 

2000, pp. 301–302; Wolf et al. 2015, 

entire). Briefly, resiliency supports the 

ability of the species to withstand 

environmental and demographic 

stochasticity (e.g., wet or dry, warm or 

cold years), redundancy supports the 

ability of the species to withstand 

catastrophic events (e.g., long-term 

droughts, severe wildfire), and 

representation supports the ability of 

the species to adapt over time to longterm changes to environmental 

conditions or habitat (e.g., climate 

changes, successional changes to 

habitat). In general, the more resilient 

and redundant a species is and the more 

representation it has, the more likely it 

is to sustain populations over time, even 

under changing environmental 

conditions. Using these principles, we 

identified the species’ ecological 

requirements for survival and 

reproduction at the individual, 

population, and species levels, and 

described the beneficial and risk factors 

influencing the species’ viability. 

Summary of Biological Condition and 

Threats 

In this section, we summarize the 

biological condition of the species and 

its resources, and the threats that 

influence the species’ current and future 

condition, in order to assess the species’ 

overall viability and the risks to that 

viability. For a complete discussion and 

additional information on the biological 

condition of the species, see the species 

report (Service 2021, entire). 

The Stephens’ kangaroo rat is 

currently found in a patchy distribution 

in Riverside and San Diego Counties, 

California. The distribution and density 

of populations of the Stephens’ 

kangaroo rat can vary temporally, 

within and between years, and spatially, 

depending on natural changes in habitat 

conditions and succession of plant 

communities. There has been no formal 

assessment of the population structure 

for the Stephens’ kangaroo rat such as 

the minimum habitat patch size or an 

estimate of the minimum number of 

interconnected patches needed to 

support a stable population. Researchers 

believe that the species’ population 

structure in southern California follows 

a metapopulation dynamic in which the 

availability of suitable habitat patches is 

both spatially and temporally dynamic 

and is based on the equilibrium between 

colonization and extirpation of local 

populations (Brehme et al. 2006, p. 6). 

We conclude that the Stephens’ 

kangaroo rat continues to occur in 

suitable habitat in seemingly stable 

populations across its range. 

We evaluated all potential threats 

related to the Stephens’ kangaroo rat 

from: (1) Habitat loss, fragmentation, 

modification, degradation, or other 

habitat changes due to urban and 

agricultural development, invasive 

plants, wildfire, or prescribed burns; (2) 

overutilization of the species for 

commercial, recreational, scientific, or 

educational purposes; (3) disease or 

predation; (4) use of rodenticides; and 

(5) the effects of climate change 

(resulting in increased effects from 


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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 largescale 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, offhighway 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 


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integrates the cumulative effects of the 

factors and replaces a standalone 

cumulative effects analysis. 

Currently implemented and ongoing 

conservation measures including 

Federal and State mechanisms provide 

protections to the Stephens’ kangaroo 

rat and its habitat. These include HCPs 

and INRMPs that benefit Stephens’ 

kangaroo rat and its habitat by 

implementing management actions that 

contribute to species’ conservation and 

long-term viability. The Act also 

provides protections through section 7 

and the consultation process and 

through section 10 using incidental take 

permits on non-Federal lands (see 

Current Conservation Efforts). 

Summary of Comments and 

Recommendations 

In the proposed rule published on 

August 19, 2020 (85 FR 50991), we 

requested that all interested parties 

submit written comments on the 

proposal by October 19, 2020. We also 

contacted appropriate Federal and State 

agencies, scientific experts and 

organizations, and other interested 

parties and invited them to comment on 

the proposal. Newspaper notices 

inviting general public comment were 

published in The Press-Enterprise and 

San Diego Union-Tribune. We did not 

receive any requests for a public 

hearing. All substantive information 

received during the comment period has 

either been incorporated directly into 

this final determination or addressed 

below. 

Peer Reviewer Comments 

As discussed in Supporting 

Documents above, we received 

comments from one peer reviewer. We 

reviewed all comments we received 

from the peer reviewer for substantive 

issues and new information regarding 

the information contained in the species 

report. The peer reviewer generally 

concurred with our methods and 

conclusions, and provided additional 

information, clarifications, and 

suggestions to improve the final species 

report. Peer reviewer comments are 

addressed in the following summary 

and were incorporated into the final 

species report as appropriate (Service 

2021, entire). 

Comments from peer review were 

generally in support of our findings and 

analysis. The main concern was how we 

developed our internal spatial model, 

which was used to estimate Stephens’ 

kangaroo rat habitat. This model has 

since been replaced by a more robust 

model created by CBI (Spencer et al. 

2021, entire). The RCHCA, who 

implements the SKR HCP, supported 

the development of this finer scale 

model for Stephens’ kangaroo rat, which 

uses Sentinel-2 satellite imagery that 

can be more readily updated in the 

future to look at changes in habitat 

quality (Spencer et al. 2021, p. 25). As 

a result, the species report and this final 

rule have been updated with new 

information using the new habitat 

suitability model. 

The reviewer also commented on the 

relatively low genetic diversity for the 

species, compared to the high genetic 

diversity typical of other Dipodomys 

species. In the species report, we 

discuss that the Stephens’ kangaroo rat 

genetic diversity is the highest in the 

northern part of the range and decreases 

in the southern part of the range. Results 

from a genetic study indicate that the 

entire range was historically connected 

and functioning as one continuous 

population. However, there is evidence 

that recent habitat fragmentation has 

caused occurrences within the 

population to become increasingly 

isolated, creating a metapopulation-like 

structure across the range. As described 

in the Summary of Biological Condition 

and Threats, we consider habitat 

fragmentation and isolation a threat to 

the species and potentially the major 

cause of the species’ lower genetic 

diversity. 

Partner Reviewer Comments 

We received comments from the 

CDFW and from the DoD facilities 

identified above regarding the proposed 

rule. Overall, the commenters supported 

the finding and provided information to 

improve the document. One commenter 

had questions about the original habitat 

model we used, which has since been 

replaced with a more robust model. 

Another commenter provided 

information about the effects of climate 

change that has been incorporated into 

the updated species report (Service 

2021). Another comment asked that we 

clarify whether ‘‘conserved lands’’ on 

DoD installations is based on 

management via INRMPs. When 

discussing conserved lands, we are 

including modeled habitat that occurs 

on DoD facilities that are managed by 

INRMPs and are important for the longterm 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 


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section 9(a)(1) of the Act as discussed 

above. Activities that are not conducted 

for the purpose of Stephens’ kangaroo 

rat habitat enhancement are not covered 

under the 4(d) rule and should be 

discussed further through consultation 

and coordination under applicable 

sections of the Act. 

Comment 2: A few commenters asked 

whether the 4(d) rule exempts 

incidental take for plans that were not 

developed in coordination with the 

Service. 

Response: We did not provide 

exceptions from section 9(a)(1) of the 

Act for plans that are not developed in 

coordination with the Service. Specific 

activities and their impacts will need to 

be identified and coordinated with the 

Service. Activities identified in the 4(d) 

rule could be exempted if they are 

under a plan developed in coordination 

with the Service and conducted for the 

purpose of providing benefits to the 

species or maintaining or restoring 

habitat for Stephens’ kangaroo rat. Note, 

Federal agencies that fund, permit, or 

carry out the activities described in 

Comment 1 will still need to ensure, in 

consultation with the Service, that the 

activities are not likely to jeopardize the 

continued existence of the species. 

Comment 3: A few commenters asked 

whether specific activities in their 

INRMP could be covered by the 4(d) 

rule and whether these activities still 

required coverage under a biological 

opinion or a section 10(a)(1)(A) permit. 

Could activities be covered by the 4(d) 

rule rather than modifying a biological 

opinion? 

Response: The 4(d) rule for Stephens’ 

kangaroo rat will not change in any way 

the consultation requirements under 

section 7 of the Act, or our ability to 

enter into partnerships for the 

management and protection of the 

Stephens’ kangaroo rat. Regardless of 

the provisions of a 4(d) rule, Federal 

agencies are still required to consult 

with the Service for actions that may 

affect a listed species. However, if 

activities are exempted under the 4(d) 

rule, the Federal action agency will not 

need take coverage through a biological 

opinion or a section 10(a)(1)(A) permit. 

Therefore, the consultation process may 

be streamlined. However, Federal 

agencies that fund, permit, or carry out 

the activities described in this rule will 

still need to ensure, in consultation with 

the Service, that the activities are not 

likely to jeopardize the continued 

existence of the species. 

Comment 4: A commenter asked how 

interagency cooperation may be further 

streamlined through planned 

programmatic consultations for the 

species between Federal agencies and 

the Service. 

Response: Programmatic 

consultations can streamline 

consultation workload for both the 

Service and our Federal partners. Forms 

can be developed to help the Service, 

Federal agencies, and the regulated 

public easily understand whether a 

given action complies with the 4(d) rule 

and programmatic consultation or not. 

While work is required up front to 

complete this kind of consultation, 

significant streamlining should result 

once the consultation is completed. 

Comment 5: A commenter requested 

that the Service consider additional 

exemptions from section 9 prohibitions 

for certain military training activities on 

military installations with a completed 

INRMP. The commenter is requesting 

exemption language for specific 

activities that the Service has previously 

determined are ‘‘not likely to adversely 

affect’’ the Stephens’ kangaroo rat 

through prior section 7 consultations. 

Response: We included certain 

activities in the 4(d) rule that we 

determined have minimal impacts on 

the species or its habitat or that will be 

beneficial for the species’ conservation. 

Including previous actions would not be 

appropriate, even if they were 

previously determined as ‘‘not likely to 

adversely affect’’, impacts of actions 

may vary or conditions for the species 

may have changed. Activities within 

plans that are developed in coordination 

with the Service and that are conducted 

for the purpose of maintaining, 

enhancing, or restoring open areas and 

are beneficial for providing the habitat 

needs of Stephens’ kangaroo rat will be 

exempted under section 9(a)(1) of the 

Act as discussed in the Provisions of the 

4(d) Rule, below. Other activities that 

are not conducted for the purpose of 

Stephens’ kangaroo rat habitat 

enhancement are not covered under the 

4(d) rule and should be discussed 

further through consultation with the 

Service. 

Public Comments 

We received public comments from 

22 members of the public. The majority 

of individual commenters did not agree 

that the species should be downlisted to 

threatened status, although most did not 

provide substantive information. 

Commenters expressed concerns about: 

(1) A lack of conserved habitat due to 

increased development, (2) the effects 

from climate change, (3) a lack of 

information about population trends, 

and (4) the potential inadequacy of DoD 

lands to conserve the species or qualify 

as ecosystem-based reserves. 

Comment 6: One commenter pointed 

out that the Service produced 24 nojeopardy 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 


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Federal Register / Vol. 87, No. 33 / Thursday, February 17, 2022 / Rules and Regulations 8975 

of climate change, and that management 

strategies, including translocations, can 

be used to offset potential indirect 

impacts from climate change. Based on 

our assessment, we do not find that the 

current threats associated with climate 

change facing Stephens’ kangaroo rat are 

to such an extent and magnitude that 

the species meets the definition of an 

endangered species. 

Comment 8: Six commenters 

expressed concern of future 

development increases and the resulting 

decline in habitat quantity and quality 

available to Stephens’ kangaroo rat. 

Response: We considered the best 

available information when assessing 

the status of the Stephens’ kangaroo rat, 

including an evaluation of impacts from 

future development and areas protected 

and managed for the species. We 

acknowledge that development within 

the range of Stephens’ kangaroo rat will 

continue to occur in the future. 

However, the rate, extent, and 

magnitude of development has been 

greatly curtailed due to conservation 

measures currently in place to conserve 

habitat for the species. Although future 

development will continue to be an 

ongoing threat, large areas of conserved 

habitat are managed by the SKR HCP 

and Western Riverside MSHCP to help 

recover Stephens’ kangaroo rat and 

account for the majority of conserved 

lands in Riverside County (35,888 ac 

(14,524 ha)). In San Diego County, 

32,207 ac (13,034 ha) are considered 

conserved. DoD installations manage for 

Stephens’ kangaroo rat through 

implementation of INRMPs on 

approximately 11,957 ac (4,839 ha). 

Implementation of management actions 

for the species through HCPs in 

Riverside County and INRMPs in San 

Diego County help to prevent further 

habitat loss. We expect that additional 

lands will be conserved in the future 

through the two existing HCPs as part of 

their permit agreements. Therefore, we 

do not consider future development to 

be a driving force for determining the 

status of the species into the foreseeable 

future based on the level of threats 

associated with future development. 

Comment 9: Two commenters 

expressed concern with defining DoD 

lands as ‘‘conserved’’ and do not believe 

these lands adequately protect 

Stephens’ kangaroo rat. They argue that 

additional habitat needs to be conserved 

before we downlist the species and that 

DoD lands are not adequate to conserve 

the species or qualify as ecosystembased 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 offroad 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, 


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as population estimates are unknown 

and fluctuate greatly. Although 

population data is incomplete, habitat 

models and near term population trends 

show sufficient resiliency that Stephens’ 

kangaroo rat is not in danger of 

extinction now, and therefore does not 

meet the definition of an endangered 

species. The modeling provides an 

estimate of how much suitable habitat is 

available in each of the five ecoregions 

described. Based on the new habitat 

suitability model, 184,367 ac (74,610 ha) 

of modeled habitat was identified for 

the Stephens’ kangaroo rat, with 

approximately 131,343 ac (53,153 ha) 

located in Riverside County and 51,737 

ac (20,937 ha) in San Diego County. 

Until additional, standardized 

population monitoring information 

becomes available across the entire 

range of the species and robust 

statistical models are developed, we 

consider the results from the CBI spatial 

analyses to be based on the best 

available information and support 

sufficient resiliency for the species 

across its range. 

Comment 13: One commenter stated 

that conservation requirements 

described in the draft recovery plan 

have yet to be achieved—specifically, 

the need for 15,000 ac (6,070 ha) over 

four reserves (instead of eight as 

indicated in the species report) in 

Riverside County and the need for one 

ecosystem-based reserve in San Diego 

County. The Service’s reasoning that the 

requirements need not be met to achieve 

species recovery is flawed. 

Response: We assessed the status of 

the Stephens’ kangaroo rat and 

determined that the species meets the 

definition of threatened. The draft 

recovery plan identified establishment 

of four reserves, which encompass at 

least 15,000 ac (6,070 ha) in western 

Riverside County. To date 

approximately 35,888 ac (14,524 ha) 

have been conserved through HCPs in 

western Riverside County, including 

19,378 ac (7,842 ha) that have been 

conserved in the eight managed core 

reserves. A total of 17,118 ac (6,927 ha) 

have been conserved in the four largest 

reserves. Therefore, the current total 

reserve number and acreages exceed 

that identified in the draft recovery 

plan. 

The draft recovery plan also identified 

that one ecosystem-based reserve be 

established in San Diego County. In San 

Diego County, 32,207 ac (13,034 ha) are 

conserved with 11,957 ac (4,839 ha) of 

modeled habitat among the three DoD 

installations. The installations are 

actively managing for the species 

through implementation of their 

INRMPs, and we find that DoD will 

continue to manage these areas in the 

future. The INRMPs are based, to the 

maximum extent practicable, on 

ecosystem management principles and 

provide for the management of 

Stephens’ kangaroo rat and its habitat 

while sustaining necessary military land 

uses. The DoD has a close working 

relationship with the Service and CDFW 

and has shown a commitment through 

their actions in protecting sensitive 

species and their habitat including 

Stephens’ kangaroo rat. Based on the 

latest survey reports, occupancy is 

stable or increasing on military lands 

and Stephens’ kangaroo rats do not 

appear to be negatively impacted from 

the military activities that have been 

occurring for many years. Furthermore, 

we have determined that existing 

conservation actions, such as those 

implemented in the INRMPs, are 

expected to continue to provide 

protections for the species and its 

habitat; therefore, we do not predict a 

change in these trends in the future. We 

have determined that the conservation 

activities occurring at DoD facilities in 

San Diego County meet the intent of the 

recovery criterion 2 to downlist. 

Therefore, the number and amount of 

reserved lands being protected, funded, 

and managed in Riverside and San 

Diego Counties provide conservation 

benefits to Stephens’ kangaroo rat and 

meet the intent of the downlisting 

criteria. 

Comment 14: One commenter 

indicated the species should not be 

downlisted because the Service would 

protect Stephens’ kangaroo rats more if 

they were listed as endangered. 

Response: We do not consider 

whether a species is more or less 

protected as either endangered or 

threatened in our determination of 

whether a species warrants 

reclassification. In this downlisting 

determination, the Stephens’ kangaroo 

rat will continue to have all the section 

9 take prohibitions as an endangered 

species except for certain activities 

identified under section 4(d) for the 

species. We have determined that these 

exceptions will not significantly impact 

the species’ status and provide for 

incentives to landowners to further 

work toward and provide conservation 

for the species. In addition, section 7 of 

the Act requires consultation for both 

endangered and threatened species to 

ensure Federal actions do not jeopardize 

the continued existence of the species. 

Comment 15: The San Diego County 

Fire Authority requested that the 

proposed 4(d) rule account for local 

jurisdictions that have more stringent 

defensible space requirements than the 

State of California fire code. 

Response: We have amended the 4(d) 

language in the final rule to include 

local fire codes/ordinances using the 

additional language recommended by 

the commenter. 

Determination of Stephens’ Kangaroo 

Rat Status 

Section 4 of the Act (16 U.S.C. 1533) 

and its implementing regulations (50 

CFR part 424) set forth the procedures 

for determining whether a species meets 

the definition of an endangered species 

or a threatened species. The Act defines 

an ‘‘endangered species’’ as a species 

that is in danger of extinction 

throughout all or a significant portion of 

its range and a ‘‘threatened species’’ as 

a species that is likely to become an 

endangered species within the 

foreseeable future throughout all or a 

significant portion of its range. For a 

more detailed discussion on the factors 

considered when determining whether a 

species meets the definition of an 

endangered species or a threatened 

species and our analysis on how we 

determine the foreseeable future in 

making these decisions, please see 

Regulatory and Analytical Framework. 

Status Throughout All of Its Range 

After evaluating threats to the species 

and assessing the cumulative effect of 

the threats under the section 4(a)(1) 

factors, we find that the current viability 

of the Stephens’ kangaroo rat is higher 

now than at the time of listing due to 

a reduction of threats, discovery of 

additional areas occupied by the 

species, and implementation of 

extensive conservation actions and 

management by partnering agencies 

throughout the species’ range. 

In particular, the Stephens’ kangaroo 

rat was listed as endangered in 1988, 

mostly due to the direct and indirect 

effects of rapid loss, degradation, and 

fragmentation of habitat for the species. 

Since the time of listing, numerous 

searches and surveys have resulted in 

the discovery of additional areas where 

Stephens’ kangaroo rat occurs. 

Currently, 18 areas (12 areas in 

Riverside County and 6 areas in San 

Diego County) have been identified, 7 

more than what was known at the time 

of listing. Although not considered a 

population expansion since listing, the 

discovery of additional occupied areas 

has reduced the level of threat for the 

species as a whole and increased the 

redundancy for the species making it 

more able to recover from catastrophic 

events. While we do not have specific 

quantified information on the status and 

trends for populations of the species, no 

significant population declines or 


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extirpations have been observed since 

listing. 

Also, since the time of listing, several 

large-scale habitat conservation efforts 

(SKR HCP, Western Riverside MSHCP) 

have been implemented by the RCHCA 

and Regional Conservation Authority, 

respectively. These two conservation 

efforts have established a total of eight 

adaptively managed reserves for 

Stephens’ kangaroo rat in Riverside 

County. In addition, the DoD developed 

INRMPs for conserving the species and 

its habitat on three military facilities in 

San Diego County. DoD works with the 

Service in development and 

implementation of the plans to consider 

and conserve threatened and 

endangered species and their habitat. 

Ongoing monitoring studies and 

conservation actions implemented 

under the Sikes Act authority at these 

three DoD installations in San Diego 

County provide important conservation 

benefits to the Stephens’ kangaroo rat, 

as summarized above and in the species 

report (Service 2021, pp. 75–79). 

Together, these conservation efforts in 

Riverside and San Diego Counties have 

conserved approximately 68,701 ac 

(27,802 ha) of modeled Stephens’ 

kangaroo rat habitat throughout the 

species’ range. These conservation 

measures have met the intent of the 

downlisting criteria identified in our 

draft recovery plan. 

Thus, after assessing the best available 

information, we conclude that the 

Stephens’ kangaroo rat no longer meets 

the Act’s definition of an endangered 

species. We therefore proceed with 

determining whether the Stephens’ 

kangaroo rat is likely to become 

endangered within the foreseeable 

future throughout all of its range. 

Although current conservation efforts 

have preserved and managed lands 

occupied by the species, in some 

instances these preserved areas are not 

connected. In addition, we recognize 

that localized small-scale habitat loss is 

still occurring and the ongoing impacts 

from past and future habitat 

fragmentation will continue to affect the 

species’ population dynamics. 

Stephens’ kangaroo rat population 

mechanisms such as colonization and 

recolonization or population 

enhancement through dispersal will be 

unable to function in portions of the 

species’ range. In addition, some areas 

where the species is found are not 

located in preserved or managed lands 

and the habitat within these areas may 

be degraded and not fully provide for 

the needs of the species causing 

additional fragmentation. These threats 

will result in increasing population 

isolation and habitat disconnectivity, 

and we expect that additional 

conservation of lands and management 

actions will continue to be necessary for 

the species. 

In consideration of these various 

impact issues and after assessing the 

best scientific and commercial 

information available, we conclude that 

the Stephens’ kangaroo rat is not 

currently in danger of extinction but is 

likely to become in danger of extinction 

in the foreseeable future throughout all 

of its range. 

Status Throughout a Significant Portion 

of Its Range 

Under the Act and our implementing 

regulations, a species may warrant 

listing if it is in danger of extinction or 

likely to become so in the foreseeable 

future throughout all or a significant 

portion of its range. The court in Center 

for Biological Diversity v. Everson, 2020 

WL 437289 (D.D.C. Jan. 28, 2020) 

(Center for Biological Diversity), vacated 

the aspect of the Final Policy on 

Interpretation of the Phrase ‘‘Significant 

Portion of Its Range’’ in the Endangered 

Species Act’s Definitions of 

‘‘Endangered Species’’ and ‘‘Threatened 

Species’’ (79 FR 37578; July 1, 2014) 

that provided that the Service does not 

undertake an analysis of significant 

portions of a species’ range if the 

species warrants listing as threatened 

throughout all of its range (79 FR 37578, 

July 1, 2014). Therefore, we proceed to 

evaluating whether the species is 

endangered in a significant portion of its 

range—that is, whether there is any 

portion of the species’ range for which 

both (1) the portion is significant, and 

(2) the species is in danger of extinction 

in that portion. Depending on the case, 

it might be more efficient for us to 

address the ‘‘significance’’ question or 

the ‘‘status’’ question first. We can 

choose to address either question first. 

Regardless of which question we 

address first, if we reach a negative 

answer with respect to the first question 

that we address, we do not need to 

evaluate the other question for that 

portion of the species’ range. 

Following the court’s holding in 

Center for Biological Diversity, we now 

consider whether there are any 

significant portions of the species’ range 

where the species is in danger of 

extinction now (i.e., endangered). In 

undertaking this analysis for Stephens’ 

kangaroo rat, we choose to address the 

status question first—we consider 

information pertaining to the geographic 

distribution of both the species and the 

threats that the species faces to identify 

any portions of the range where the 

species is endangered. 

The statutory difference between an 

endangered species and a threatened 

species is the time horizon in which the 

species becomes in danger of extinction: 

An endangered species is in danger of 

extinction now, while a threatened 

species is not in danger of extinction 

now but is likely to become so in the 

foreseeable future. Thus, we considered 

the time horizon for the threats that are 

driving the Stephens’ kangaroo rat to 

warrant listing as a threatened species 

throughout all of its range. As stated 

above, the effects of habitat 

fragmentation (limiting dispersal and 

recolonization, reducing genetic 

exchange, isolating populations) is the 

greatest future threat to the species. 

These effects are expected to occur in 

the future throughout its range in both 

western Riverside and San Diego 

Counties as genetic structuring 

continues increase throughout the 

range. As further explained below, 

however, based on limited known 

current population sizes, distribution, 

and trends, it appears that the species 

currently has a relatively stable status. 

The Service recognizes that 

fragmentation driven by continuing 

development is expected to impact the 

species into the future, and that existing 

conserved and managed lands in both 

western Riverside and San Diego 

Counties have slowed or limited the 

negative impacts created from such 

fragmentation. These land conservation 

and management efforts are currently 

benefiting the species to the level that 

the species is not now endangered. The 

Service further recognizes, however, 

that because development and loss of 

habitat were so extensive and severe in 

the past, work will be needed in the 

future to reconnect populations in 

conserved areas currently being 

managed as ecosystem reserves and 

areas outside those considered as 

ecosystem reserves, such as central San 

Diego County. 

The impacts from future habitat 

fragmentation will continue to isolate 

populations. This is especially true if 

land conservation efforts are not able to 

conserve areas between populations for 

connectivity. In addition, currently 

occupied lands, both conserved and not 

conserved, will require ongoing 

management such as prescribed fire or 

other measures to reduce vegetation 

buildup ensuring habitat suitability and 

persistence of the species. We expect 

vegetation control will be an ongoing 

habitat management concern and the 

species will continue to be reliant to 

some degree on habitat or species 

management into the future. 

To review these threats in the context 

of a potential portion of the Stephens’ 


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kangaroo rat range that may be 

endangered, it must be considered that 

the Stephens’ kangaroo rat’s population 

structure follows a metapopulation 

dynamic and is based on the 

equilibrium between colonization and 

extirpation of local populations. And 

although estimates have been made on 

habitat patch size and its availability, 

there has been no rangewide systematic 

assessment of the population structure 

for the Stephens’ kangaroo rat to 

determine the specific requirements or 

characteristics of stable populations or 

estimate the minimum number of 

interconnected patches needed to 

support a potential metapopulation. 

Without these forms of information, the 

current and best available information 

on habitat conditions, species 

persistence within occupied areas, and 

species distribution indicates that the 

current populations appear stable. 

The Service understands the 

importance of habitat and population 

connectivity is emphasized for a species 

that exists through an equilibrium of 

colonization and extirpation of local 

populations. And as a result of the 

largescale habitat loss in the past, our 

analysis and modeling of the existing 

suitable habitat available to the 

Stephens’ kangaroo rat shows the 

species faces some level of habitat 

isolation in both western Riverside and 

San Diego Counties. The challenges to 

the species from this isolation, however, 

although currently impacting the 

species, will most likely manifest 

themselves to a greater extent in future 

generations as the timeframe of genetic 

isolation increases and may reach a 

point where the metapopulation 

dynamics of the populations will 

become further stressed or decline and 

not allow for normal bolstering of 

populations or recolonization. These 

analyses indicate that restoring 

connectivity and/or conducting 

translocation efforts may be needed to 

address the increased difficulty of the 

species to recolonize areas in the future 

and to maintain populations that may 

otherwise become extirpated. 

The best scientific and commercial 

data available do not otherwise indicate 

that any of the threats to the species and 

the species’ responses to those threats 

discussed above are more prevalent or 

immediate in any portion(s) of the 

species’ range. 

Given this assessment and 

recognizing that the current amount and 

type of reserves for Stephens’ kangaroo 

rat does not meet the draft recovery plan 

requirements for delisting, we still 

conclude that the best scientific and 

commercial data available indicate that 

the time horizon of threats to the species 

and the species’ responses to those 

threats, is similar throughout its range 

and likely to occur in the foreseeable 

future. Therefore, we determine that the 

Stephens’ kangaroo rat is not in danger 

of extinction now in any portion of its 

range, but that the species is likely to 

become in danger of extinction within 

the foreseeable future throughout all of 

its range. This is consistent with the 

courts’ holdings in Desert Survivors v. 

Department of the Interior, No. 16–cv– 

01165–JCS, 2018 WL 4053447 (N.D. Cal. 

Aug. 24, 2018), and Center for Biological 

Diversity v. Jewell, 248 F. Supp. 3d, 946, 

959 (D. Ariz. 2017). 

Determination of Status 

Our review of the best scientific and 

commercial data available indicates that 

the Stephens’ kangaroo rat meets the 

definition of a threatened species. 

Therefore, we are downlisting the 

Stephens’ kangaroo rat as a threatened 

species in accordance with sections 

3(20) and 4(a)(1) of the Act. 

In addition, it is our policy, as 

published in the Federal Register on 

July 1, 1994 (59 FR 34272), to identify 

to the maximum extent practicable at 

the time a species is listed, those 

activities that would or would not 

constitute a violation of section 9 of the 

Act. The intent of this policy is to 

increase public awareness of the effect 

of a listing on proposed and ongoing 

activities within the range of the listed 

species. Because we are listing this 

species as a threatened species, the 

prohibitions in section 9 will not apply 

directly. We are therefore putting into 

place a set of regulations to provide for 

the conservation of the species in 

accordance with section 4(d), which 

also authorizes us to apply any of the 

prohibitions in section 9 to a threatened 

species. The 4(d) rule, which includes a 

description of the kinds of activities that 

will or will not constitute a violation, 

complies with this policy. 

Final Rule Issued Under Section 4(d) of 

the Act 

Section 4(d) of the Act contains two 

sentences. The first sentence states that 

the Secretary shall issue such 

regulations as [s]he deems necessary 

and advisable to provide for the 

conservation of species listed as 

threatened. The U.S. Supreme Court has 

noted that statutory language like 

‘‘necessary and advisable’’ demonstrates 

a large degree of deference to the agency 

(see Webster v. Doe, 486 U.S. 592 

(1988)). Conservation is defined in the 

Act to mean the use of all methods and 

procedures which are necessary to bring 

any endangered species or threatened 

species to the point at which the 

measures provided pursuant to the Act 

are no longer necessary. Additionally, 

the second sentence of section 4(d) of 

the Act states that the Secretary may by 

regulation prohibit with respect to any 

threatened species any act prohibited 

under section 9(a)(1), in the case of fish 

or wildlife, or section 9(a)(2), in the case 

of plants. Thus, the combination of the 

two sentences of section 4(d) provides 

the Secretary with wide latitude of 

discretion to select and promulgate 

appropriate regulations tailored to the 

specific conservation needs of the 

threatened species. The second sentence 

grants particularly broad discretion to 

us when adopting the prohibitions 

under section 9. 

The courts have recognized the extent 

of the Secretary’s discretion under this 

standard to develop rules that are 

appropriate for the conservation of a 

species. For example, courts have 

upheld rules developed under section 

4(d) as a valid exercise of agency 

authority where they prohibited take of 

threatened wildlife, or include a limited 

taking prohibition (see Alsea Valley 

Alliance v. Lautenbacher, 2007 U.S. 

Dist. Lexis 60203 (D. Or. 2007); 

Washington Environmental Council v. 

National Marine Fisheries Service, 2002 

U.S. Dist. Lexis 5432 (W.D. Wash. 

2002)). Courts have also upheld 4(d) 

rules that do not address all of the 

threats a species faces (see State of 

Louisiana v. Verity, 853 F.2d 322 (5th 

Cir. 1988)). As noted in the legislative 

history when the Act was initially 

enacted, ‘‘once an animal is on the 

threatened list, the Secretary has an 

almost infinite number of options 

available to him with regard to the 

permitted activities for those species. He 

may, for example, permit taking, but not 

importation of such species, or he may 

choose to forbid both taking and 

importation but allow the transportation 

of such species’’ (H.R. Rep. No. 412, 

93rd Cong., 1st Sess. 1973). 

Exercising this authority under 

section 4(d), we have developed a rule 

that is designed to address the Stephens’ 

kangaroo rat’s specific threats and 

conservation needs. Although the 

statute does not require us to make a 

‘‘necessary and advisable’’ finding with 

respect to the adoption of specific 

prohibitions under section 9, we find 

that this rule as a whole satisfies the 

requirement in section 4(d) of the Act to 

issue regulations deemed necessary and 

advisable to provide for the 

conservation of the Stephens’ kangaroo 

rat. As discussed under Summary of 

Biological Condition and Threats, we 

have concluded that the Stephens’ 

kangaroo rat is likely to become in 

danger of extinction within the 


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foreseeable future primarily due to the 

population effects from habitat loss and 

degradation and fragmentation due to 

isolation of existing populations. 

Because the Stephens’ kangaroo rat’s 

population structure follows a 

metapopulation dynamic and is based 

on the equilibrium between 

colonization and extirpation of local 

populations, the importance of habitat 

and population connectivity is 

emphasized. The fragmented habitat 

currently limits the species’ ability to 

colonize, recolonize, disperse, and 

maintain a functioning metapopulation 

structure. Habitat degradation has led to 

areas being overgrown and not being 

able to provide the habitat needs of the 

species. Because habitat fragmentation 

and degradation affects so many aspects 

of the species’ life history and 

population dynamics, we have 

determined that it is appropriate to 

apply all the prohibitions and 

provisions for endangered wildlife 

under section 9(a)(1) of the Act for the 

Stephens’ kangaroo rat except as 

described and explained below. 

Applying these section 9(a)(1) 

prohibitions will help minimize threats 

that could cause further declines in the 

status of the species. The provisions of 

this 4(d) rule will promote conservation 

of the Stephens’ kangaroo rat by 

encouraging management of the 

landscape in ways that meet both land 

management considerations and the 

conservation needs of the species. The 

provisions of this rule are one of many 

tools that we will use to promote the 

conservation of the Stephens’ kangaroo 

rat. 

Provisions of the 4(d) Rule 

This 4(d) rule will provide for the 

conservation of the Stephens’ kangaroo 

rat by prohibiting the following 

activities, except as otherwise 

authorized or permitted: Importing or 

exporting; take; possession and other 

acts with unlawfully taken specimens; 

delivering, receiving, transporting, or 

shipping in interstate or foreign 

commerce in the course of commercial 

activity; or selling or offering for sale in 

interstate or foreign commerce. 

Under the Act, ‘‘take’’ means to 

harass, harm, pursue, hunt, shoot, 

wound, kill, trap, capture, or collect, or 

to attempt to engage in any such 

conduct. Some of these provisions have 

been further defined in regulation at 50 

CFR 17.3. Take can result knowingly or 

otherwise, by direct and indirect 

impacts, intentionally or incidentally. 

Regulating incidental and/or intentional 

take will help preserve the species’ 

remaining populations, slow their rate 

of decline, and decrease cumulative, 

negative effects from other threats. 

As described in our analysis of the 

species’ status, the primary driver of the 

Stephens’ kangaroo rat’s continued 

viability is the effects from habitat loss 

and degradation and habitat 

fragmentation. These threats reduce 

habitat availability and suitability due 

to a lack of connectivity between areas 

and buildup of dense vegetation 

resulting from a lack of disturbance. The 

Stephens’ kangaroo rat prefers open, 

annual grasslands and open 

intermediate-seral-stage (secondary 

succession) plant communities that are 

maintained by disturbance. Areas with 

dense vegetation (grasses or shrubs) are 

avoided and are not suitable habitat. 

Therefore, activities that are conducted 

for the purpose of maintaining, 

enhancing, or restoring open areas are 

beneficial for providing the habitat 

needs of the species because such 

activities contribute to species 

conservation and long-term species 

viability. Such activities may include, 

but are not limited to: Nonnative or 

invasive plant removal, grazing 

activities for the purpose of vegetation 

management, prescribed burns, wildfire 

suppression activities, mowing, 

activities designed to promote native 

annual forbs and maintain or restore 

open habitat for the species, or other 

actions related to habitat restoration or 

species recovery efforts. 

More specifically, nonnative, 

invasive, or noxious plant removal 

includes noxious weed control in the 

course of habitat management and 

restoration to benefit Stephens’ 

kangaroo rat or other sensitive species 

in the grassland habitat. Livestock 

grazing includes those grazing activities 

conducted as part of habitat 

management and restoration to benefit 

Stephens’ kangaroo rat or other native 

species in the grassland habitat as 

described in plans developed in 

coordination with the Service. Fire and 

wildfire management and suppression 

includes activities such as prescribed 

burns, fuel reduction activities, 

maintenance of fuel breaks by mowing, 

defensible space maintenance actions, 

and firefighting activities associated 

with actively burning fires to reduce 

risk to life or property. Discing or 

blading areas to maintain fuel breaks, 

unless being conducted for suppression 

of active wildfires, should be avoided in 

areas occupied by the species unless 

otherwise approved by the Service. 

We find that actions taken by 

management entities in the range of the 

Stephens’ kangaroo rat for the purpose 

of reducing the risk or severity of habitat 

degradation and designed to promote 

native annual forbs and maintain or 

restore open habitat for Stephens’ 

kangaroo rat, even if these actions may 

result in some short-term or small level 

of localized negative effect to Stephens’ 

kangaroo rats, will further the goal of 

reducing the likelihood of the species 

becoming an endangered species, and 

will also continue to contribute to its 

conservation and long-term viability. 

We recognize that the types of actions 

identified above are often undertaken by 

land management entities or private 

landowners through inclusion in land 

management plans, strategies, or 

cooperative agreements that are 

approved by the Service, and that these 

plans, strategies, and agreements 

address identified negative effects to 

Stephens’ kangaroo rat conservation. We 

find that such approved plans, 

strategies, or agreements, developed in 

coordination with the Service, will 

adequately reduce or offset any negative 

effects to Stephens’ kangaroo rat so that 

they will not result in a further decline 

of the species. Likewise, actions 

undertaken by management entities 

included in formal land management 

conservation plans developed in 

coordination with the Service (such as 

INRMPs), where the intended purpose is 

consistent with the conservation needs 

of the Stephens’ kangaroo rat, also 

provide an overall conservation benefit 

that contributes to long-term species 

viability and reduces the likelihood of 

the species becoming endangered in the 

future. 

We may issue permits to carry out 

otherwise prohibited activities, 

including those described above, 

involving threatened wildlife under 

certain circumstances. Regulations 

governing permits are codified at 50 

CFR 17.32. With regard to threatened 

wildlife, a permit may be issued for the 

following purposes: Scientific purposes, 

to enhance propagation or survival, for 

economic hardship, for zoological 

exhibition, for educational purposes, for 

incidental taking, or for special 

purposes consistent with the purposes 

of the Act. The statute also contains 

certain exemptions from the 

prohibitions, which are found in 

sections 9 and 10 of the Act. 

We recognize the special and unique 

relationship with our State natural 

resource agency partners in contributing 

to conservation of listed species. State 

agencies often possess scientific data 

and valuable expertise on the status and 

distribution of endangered, threatened, 

and candidate species of wildlife and 

plants. State agencies, because of their 

authorities and their close working 

relationships with local governments 

and landowners, are in a unique 


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8980 Federal Register / Vol. 87, No. 33 / Thursday, February 17, 2022 / Rules and Regulations 

position to assist us in implementing all 

aspects of the Act. In this regard, section 

6 of the Act provides that we shall 

cooperate to the maximum extent 

practicable with the States in carrying 

out programs authorized by the Act. 

Therefore, any qualified employee or 

agent of a State conservation agency that 

is a party to a cooperative agreement 

with us in accordance with section 6(c) 

of the Act, who is designated by his or 

her agency for such purposes, will be 

able to conduct activities designed to 

conserve Stephens’ kangaroo rat that 

may result in otherwise prohibited take 

without additional authorization. 

Nothing in this 4(d) rule will change 

in any way the recovery planning 

provisions of section 4(f) of the Act, the 

consultation requirements under section 

7 of the Act, or our ability to enter into 

partnerships for the management and 

protection of the Stephens’ kangaroo rat. 

However, interagency cooperation may 

be further streamlined through planned 

programmatic consultations for the 

species between us and other Federal 

agencies, where appropriate. 

Required Determinations 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.) 

We have determined that 

environmental assessments and 

environmental impact statements, as 

defined under the authority of the 

National Environmental Policy Act 

(NEPA; 42 U.S.C. 4321 et seq.), need not 

be prepared in connection with 

determining a species’ listing status 

under the Endangered Species Act. We 

published a notice outlining our reasons 

for this determination in the Federal 

Register on October 25, 1983 (48 FR 

49244). This position was upheld by the 

U.S. Court of Appeals for the Ninth 

Circuit (Douglas County v. Babbitt, 48 

F.3d 1495 (9th Cir. 1995), cert. denied 

516 U.S. 1042 (1996)). 

Government-To-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994 

(Government-to-Government Relations 

with Native American Tribal 

Governments; 59 FR 22951), Executive 

Order 13175 (Consultation and 

Coordination with Indian Tribal 

Governments), and the Department of 

the Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. In 

accordance with Secretarial Order 3206 

of June 5, 1997 (American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act), we readily acknowledge 

our responsibilities to work directly 

with Tribes in developing programs for 

healthy ecosystems, to acknowledge that 

Tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to Tribes. 

We informed all Tribes within the 

Carlsbad Fish and Wildlife Office 

boundary about the proposed 

downlisting of Stephens’ kangaroo rat, 

including the 4(d) rule, and species 

report. We conveyed that a 4(d) rule will 

provide additional management 

flexibility for landowners within the 

species’ range to conduct weed and fire 

management activities and other 

beneficial actions that are outlined in 

approved management plans. We also 

excluded modeled habitat on Tribal 

lands from our viability analysis, 

including lands owned by the Morongo 

Band of Mission Indians, Soboba Band 

of Luiseno Indians, Cahuilla Band of 

Mission Indians, Pechanga Band of 

Luiseno Mission Indians, Rincon Band 

of Luiseno Mission Indians, San Pasqual 

Band of Diegueno Mission Indians, 

Iipay Nation of Santa Ysabel, and Mesa 

Grande Band of Diegueno Mission 

Indians (a small 10–15 acre parcel 

classified as a Public Domain Allotment 

was also excluded in San Diego 

County). This exclusion means that we 

find that actions such as management 

and habitat conservation are not 

required on Tribal lands to achieve 

species recovery. 

References Cited 

A complete list of references cited in 

this rulemaking is available on the 

internet at https://www.regulations.gov 

and upon request from the Carlsbad 

Fish and Wildlife Office (see FOR

FURTHER INFORMATION CONTACT). 

Authors 

The primary authors of this final rule 

are the staff members of the Fish and 

Wildlife Service’s Species Assessment 

Team and the Carlsbad Fish and 

Wildlife Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Plants, Reporting and 

recordkeeping requirements, 

Transportation, Wildlife. 

Regulation Promulgation 

Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—ENDANGERED AND 

THREATENED WILDLIFE AND PLANTS 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 1531– 

1544; and 4201–4245, unless otherwise 

noted. 

■ 2. Amend § 17.11, in paragraph (h), by 

revising the entry for ‘‘Kangaroo rat, 

Stephens’ ’’ under Mammals in the List 

of Endangered and Threatened Wildlife 

to read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Common name Scientific name Where listed Status Listing citations and applicable rules 

Mammals 

*******

Kangaroo rat, Stephens’.Dipodomys 

stephensi (incl. 

D. cascus).

Wherever found T .............. 53 FR 38465, 9/30/1988; 

87 FR [Insert Federal Register page where the document begins]; 

2/17/2022; 

50 CFR 17.40(t).4d

* * * * * * * 

■ 3. Amend § 17.40 by adding paragraph 

(t) to read as follows: 

§ 17.40 Special rules—mammals. 

* * * * * 

(t) Stephens’ kangaroo rat (Dipodomys 

stephensi). 


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Federal Register / Vol. 87, No. 33 / Thursday, February 17, 2022 / Rules and Regulations 8981 

(1) Prohibitions. The following 

prohibitions that apply to endangered 

wildlife also apply to Stephens’ 

kangaroo rat. Except as provided under 

paragraph (t)(2) of this section and 

§§ 17.4 and 17.5, it is unlawful for any 

person subject to the jurisdiction of the 

United States to commit, to attempt to 

commit, to solicit another to commit, or 

cause to be committed, any of the 

following acts in regard to this species: 

(i) Import or export, as set forth at 

§ 17.21(b) for endangered wildlife. 

(ii) Take, as set forth at § 17.21(c)(1) 

for endangered wildlife. 

(iii) Possession and other acts with 

unlawfully taken specimens, as set forth 

at § 17.21(d)(1) for endangered wildlife. 

(iv) Interstate or foreign commerce in 

the course of commercial activity, as set 

forth at § 17.21(e) for endangered 

wildlife. 

(v) Sale or offer for sale, as set forth 

at § 17.21(f) for endangered wildlife. 

(2) Exceptions from prohibitions. In 

regard to Stephens’ kangaroo rat, you 

may: 

(i) Conduct activities as authorized by 

a permit under § 17.32. 

(ii) Take, as set forth at § 17.21(c)(2) 

through (4) for endangered wildlife. 

(iii) Take, as set forth at § 17.31(b). 

(iv) Possess and engage in other acts 

with unlawfully taken wildlife, as set 

forth at § 17.21(d)(2) for endangered 

wildlife. 

(v) Implement livestock grazing in the 

course of habitat management and 

restoration to benefit Stephens’ 

kangaroo rat or other native species in 

the grassland habitat as approved by the 

Service. 

(vi) Conduct the following wildfire 

suppression activities: 

(A) Activities necessary to maintain 

the minimum clearance (defensible 

space) requirement from any occupied 

dwelling, occupied structure, or to the 

property line, whichever is nearer, to 

provide reasonable fire safety and to 

reduce wildfire risks consistent with the 

State of California fire codes or local fire 

codes/ordinances. 

(B) Fire management actions (e.g., 

prescribed burns, hazardous fuel 

reduction activities) on protected/ 

preserve lands to maintain, protect, or 

enhance habitat occupied by Stephens’ 

kangaroo rat. These activities are to be 

coordinated with and reported to the 

Service in writing and approved the first 

time an individual or agency undertakes 

them. 

(C) Maintenance of existing fuel 

breaks. 

(D) Firefighting activities associated 

with actively burning wildfires to 

reduce risk to life or property. 

(vii) Remove nonnative, invasive, or 

noxious plants for the purpose of 

Stephens’ kangaroo rat conservation as 

approved by the Service. This includes 

noxious weed control and other 

vegetation reduction in the course of 

habitat management and restoration to 

benefit Stephens’ kangaroo rat, 

including mechanical and chemical 

control, provided that these activities 

are conducted in a manner consistent 

with Federal and applicable State laws, 

including Environmental Protection 

Agency label restrictions for herbicide 

application. 

(viii) Implement activities conducted 

as part of a plan developed in 

coordination with the Service or the 

California Department of Fish and 

Wildlife that are for the purpose of 

Stephens’ kangaroo rat conservation. 

Martha Williams, 

Principal Deputy Director, Exercising the 

Delegated Authority of the Director, U.S. Fish 

and Wildlife Service. 

[FR Doc. 2022–03317 Filed 2–16–22; 8:45 am] 

BILLING CODE 4333–15–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–HQ–ES–2021–0138; 

FF09E21000 FXES1111090FEDR 223] 

RIN 1018–BG58 

Endangered and Threatened Wildlife 

and Plants; Adding Rice’s Whale to 

and Updating Three Humpback Whale 

Entries on the List of Endangered and 

Threatened Wildlife 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), in 

accordance with the Endangered 

Species Act of 1973, as amended (Act), 

are amending the List of Endangered 

and Threatened Wildlife (List) by 

adding Rice’s whale (Balaenoptera 

ricei). We are also updating the entries 

for the Central America, Mexico, and 

Western North Pacific distinct 

population segments (DPSs) of 

humpback whales (Megaptera 

novaeangliae) to reflect the designation 

of critical habitat for these DPSs. These 

amendments are based on previously 

published determinations by the 

National Marine Fisheries Service 

(NMFS) of the National Oceanic and 

Atmospheric Administration, 

Department of Commerce, which has 

jurisdiction for these species. 

DATES: 

Effective date: This rule is effective 

February 17, 2022. 

Applicability date: The Rice’s whale 

listing was applicable as of October 22, 

2021. The humpback whale critical 

habitat designations were applicable as 

of May 21, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Caitlin Snyder, Chief, Branch of 

Domestic Listing, U.S. Fish and Wildlife 

Service, MS: ES, 5275 Leesburg Pike, 

Falls Church, VA 22041–3803; 

telephone 703–358–2171. 

SUPPLEMENTARY INFORMATION: 

Background 

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 


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