[Federal Register Volume 80, Number 220 (Monday, November 16, 2015)]
[Rules and Regulations]
[Pages 70700-70717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28742]



Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R5-ES-2014-0021; FXES11130900000; 4500030113]
RIN 1018-AY83

Endangered and Threatened Wildlife and Plants; Removal of the 
Delmarva Peninsula Fox Squirrel From the List of Endangered and 
Threatened Wildlife

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: The best available scientific and commercial data indicate 
that the Delmarva Peninsula fox squirrel (Sciurus niger cinereus) has 
recovered. Therefore, under the authority of the Endangered Species Act 
of 1973, as amended (Act), we, the U.S. Fish and Wildlife Service 
(Service), remove the Delmarva Peninsula fox squirrel (commonly called 
the Delmarva fox squirrel) from the Federal List of Endangered and 
Threatened Wildlife (List). This determination is based on a thorough 
review of all available information, which indicates that the 
subspecies is now sufficiently abundant and well distributed to 
withstand foreseeable threats and no longer meets the definition of an 
endangered or threatened species under the Act.
    This rule removes the Delmarva fox squirrel from the List 
throughout its range, including the experimental population designated 
for Assawoman Wildlife Management Area in Delaware. It also announces 
the availability of a post-delisting monitoring plan for the 

DATES: This rule is effective December 16, 2015.

ADDRESSES: This final rule and the post-delisting monitoring plan are 
available on the Internet at http://www.regulations.gov under Docket 
No. FWS-R5-ES-2014-0021. Comments and materials received, as well as 
supporting documentation used in rule preparation, will be available 
for public inspection, by appointment, during normal business hours at: 
U.S. Fish and Wildlife Service, Chesapeake Bay Field Office, 177 
Admiral Cochrane Drive, Annapolis, MD 21401; and on the Chesapeake Bay 
Field Office Web site at: http://www.fws.gov/chesapeakebay/.

FOR FURTHER INFORMATION CONTACT: Field Office Supervisor, Genevieve 
LaRouche, by telephone at 410-573-4573; or Cherry Keller, Wildlife 
Biologist, at 410-573-4532, or by email

[[Page 70701]]

at cherry_keller@fws.gov. Written questions or requests for additional 
information may also be directed to: Delmarva fox squirrel QUESTIONS, 
at the street address listed under ADDRESSES. Individuals who are 
hearing-impaired or speech-impaired may call the Federal Relay Service 
at 1-800-877-8337 for TTY assistance.



Previous Federal Action

    On September 23, 2014, the Service published a proposed rule (79 FR 
56686) to remove the Delmarva Peninsula fox squirrel, commonly called 
and hereafter referred to as the Delmarva fox squirrel (DFS), from the 
List of Endangered and Threatened Wildlife (List). In the proposed 
rule, we solicited information and comments from the public and 
scientific experts for 60 days, ending November 24, 2014. Later in this 
document, we discuss comments we received. For more information on 
previous Federal actions concerning the Delmarva fox squirrel, refer to 
the proposed rule available at http://www.regulations.gov under Docket 
No. FWS-R5-ES-2014-0021.

Species Information

    The Delmarva fox squirrel (Sciurus niger cinereus), a subspecies of 
the eastern fox squirrel (Sciurus niger) found only on the Delmarva 
Peninsula, is located between the Chesapeake Bay and the Atlantic Ocean 
in portions of Maryland, Delaware, and Virginia. The DFS is a large, 
silver-gray tree squirrel with white underparts and a wide tail. It 
inhabits mature forests of mixed hardwoods and pines within the 
agricultural landscapes of the Delmarva Peninsula and is not typically 
found in suburban settings. The DFS is also associated with forests 
that have a relatively open understory (Dueser et al. 1988, entire; 
Dueser 2000, entire) or where understory shrubs are clumped, leaving 
other open spaces (Morris 2006, p. 37). While these squirrels need 
mature forest for both feeding and denning, they can travel and forage 
in other areas, including clearcuts, young forests, and agricultural 
    As a member of the Order Rodentia, the DFS has a life history with 
good potential for population increase. For example, females breed at 1 
year of age, litter sizes range from two to four young, some females 
have potential for two litters in 1 year, and lifespans can reach 6 to 
7 years in the wild. Den sites are frequently found in tree cavities, 
but leaf nests may also be used. Home ranges of the DFS vary 
considerably but are typically 12 to 16 hectares (ha) (30 to 40 acres 
(ac)), and individual home ranges overlap (Flyger and Smith 1980; 
entire, Paglione 1996; entire, Pednault-Willett 2002, p. 109). 
Densities range from 0.36 to 1.29 DFS per ha (0.15 to 0.5 DFS per ac), 
averaging 0.82 DFS per ha (0.33 DFS per ac) (Paglione 1996, p. 28; 
Pednault-Willett 2002, pp. 85-104).
    Historically, this subspecies had a patchy distribution throughout 
most of the Delmarva Peninsula and into southern Pennsylvania, but by 
the time of its listing in 1967 (32 FR 4001; March 11, 1967), remnant 
populations occurred in only four Maryland counties (Taylor 1976, 
entire); this range contraction was most likely caused by land use 
changes and hunting. When the subspecies was listed, its distribution 
had been reduced to only 10 percent of the Delmarva Peninsula. After 
listing, the hunting season for this subspecies was closed, and 
recovery efforts focused on expanding the squirrel's distribution 
through translocations. In addition, new populations have been 
discovered since the time of listing (particularly since more intensive 
search efforts were initiated), and there are now many more areas of 
forest known to be occupied by the DFS.
    The squirrel's current occupied range is defined as the area within 
4.8 kilometers (km) (3 miles (mi)) of credible DFS sightings. As of the 
2012 status review for the DFS, this covered 28 percent of the Delmarva 
Peninsula, including 10 of the 14 peninsular counties (8 counties in 
Maryland and 1 each in Delaware and Virginia) and 54,543 ha (134,778 
ac) of occupied forest (USFWS 2012, based on 2010 data). Since that 
time, new sightings have continued to occur and an updated overview of 
its range as of 2013 is provided below in Table 1. An additional 
population discovered in Worcester County, Maryland, is the first 
population found there that was not a result of a translocation. Figure 
1 shows range changes between the time of the 1993 recovery plan and 
the present decade.

                                                 Table 1--Known Occupied Range of the DFS, 1970 to 2013
        Occupied range         -------------------------------------------------------------------------------------------------------------------------
                                         ~ 1970                    1990                    2005                    2010                    2013
Number of counties in the       3......................  3......................  6.....................  6.....................  7.
 range (without
Number of counties in the       4......................  10.....................  10....................  10....................  10.
 range (with translocations).
Total acres of occupied forest  N/A....................  103,311................  128,434...............  134,778...............  137,363.
Percent of historical range     10.....................  .......................  27....................  28....................  28.
Source........................  Taylor and Flyger 1974.  USFWS 1993, recovery     USFWS 2007, 5-yr        USFWS 2012, 5-yr        USFWS 2013 data.
                                                          plan.                    review.                 review.


[[Page 70702]]



Summary of Changes From the Proposed Rule

    We have not made any substantive changes in this final rule based 
on the comments that we received during the public comment period on 
the September 23, 2014, proposed rule (79 FR 56686), but we have added 
or corrected text to clarify the information that was presented. This 
information and other clarifications have been incorporated into this 
final rule as discussed below in Summary of Comments and 

Summary of Comments and Recommendations

    In the proposed rule published on September 23, 2014 (79 FR 56686), 
we requested that all interested parties submit written comments on the 
proposal by November 24, 2014. We also solicited peer review of the 
scientific basis for the proposal (see Peer Review Comments, below), 
and 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 Baltimore Sun, placed on Service 
Web sites, and advertised by other online media outlets (e.g., http://

[[Page 70703]]

squirrel). We did not receive any requests for a public hearing.
    During the public comment period for the proposed rule, we received 
a total of 129 comment letters. Of these, 74 provided substantive 
comments that we address below, including one letter from the State of 
Maryland and comments from two peer reviewers. Both peer reviewers 
asked for additional detail on the life history of this subspecies, 
which we have provided in the supplemental documents that can be found 
at http://www.regulations.gov under Docket No. FWS-R5-ES-2014-0021. All 
substantive information provided during the review period either has 
been incorporated directly into this final determination or into the 
supplemental documents, or is addressed below.

Comments From States

    (1) Comment: The State of Maryland's Department of Natural 
Resources (DNR) was supportive of the proposed rule and concurred with 
our findings. The DNR added that it would continue to provide 
protection to the DFS under the authority of Maryland's Nongame and 
Endangered Species Conservation Act, although likely not at the 
endangered level. The DNR also stated that the post-delisting 
monitoring plan proposed by the Service was adequate to document 
expansion or contraction of the range of the DFS and that the agency 
would participate in the monitoring effort.
    Our Response: We are in agreement with the DNR and appreciate its 
commitment to continued conservation.

Public Comments

    (2) Comment: Several commenters expressed concern that the DFS 
would be hunted after delisting, and that populations would then 
decline and might require relisting.
    Our Response: As explained in the proposed rule and supplementary 
documents (see Post-delisting Monitoring Plan, appendices D through F), 
after delisting, the State of Maryland intends to keep the DFS on the 
State list of endangered and threatened species as a Species of 
Conservation Concern; this status does not allow a hunting season. This 
intention is reinforced by the State of Maryland's comment letter 
reiterating that the subspecies will remain State-listed as described 
    The State of Delaware also intends to keep this subspecies on its 
State list of endangered and threatened species, and no hunting of the 
DFS will be allowed after delisting. The State has written a management 
plan for the DFS (DNREC 2014) that calls for adding two additional DFS 
populations in the State, likely through translocations.
    In the State of Virginia, all DFSs are currently on the 
Chincoteague National Wildlife Refuge, where they will not be hunted. 
The State has evaluated locations for potential translocations of DFSs 
in the future, but any future translocated populations are not expected 
to be subject to hunting. Enhancement of DFS populations in Virginia 
would be primarily aimed at restoring the native fauna of Virginia.
    (3) Comment: Several commenters stated that the occupancy of 28 
percent of the historical range was insufficient to warrant delisting.
    Our Response: The Act is legislation intended to prevent extinction 
of native species and does not describe recovery in terms of the 
proportion of a historical range that is occupied by a species. We do 
take into account in our listing and delisting determinations the 
effects that loss of historical range may have on the current and 
future viability of a species. As explained in our significant portion 
of the range (SPR) final policy (79 FR 37578; July 1, 2014), we have 
concluded that this consideration is sufficient to account for the 
effects of loss of historical range when evaluating the current status 
of a species. The purposes of the Act, stated in section 2, are to 
provide a means to conserve the ecosystems upon which endangered 
species and threatened species depend and to provide a program for the 
conservation of endangered species and threatened species. The Act 
itself does not contain the phrase ``historical range,'' nor does it 
ever allude to restoration throughout the entire historical range as a 
conservation purpose.
    Some concerns about the current range of the DFS likely stem from a 
frequently quoted reason for listing, ``the species was listed because 
it declined to 10 percent of its historical range'' (USFWS 1993, p. 1). 
However, the substantial population decline as evidenced by that range 
decline is the actual reason for the listing. In 1944, the DFS was 
found in seven counties (Dozier and Hall 1944), but by 1967, it was 
known to occur in only four counties; thus, the decline would have been 
apparent and reasonably concerning to many biologists at the time of 
    (4) Comment: Several commenters stated that the total number of 
animals in the rangewide population did not appear to be large enough 
to warrant delisting and expressed a concern that the population would 
decline again after delisting.
    Our Response: As described in the proposed rule, the best estimate 
of the rangewide number of the DFS at the time of the 2012 status 
review was 22,368 (USFWS 2012, p. 20), which we can approximate as 
20,000. However, the critical question with regard to the listing 
status of the subspecies is not a specified number of individuals; 
rather, it is the level of extinction risk, indicating whether the 
subspecies meets the definition of endangered or threatened. To address 
this question, we conducted a population viability analysis (PVA) for 
the DFS (Hilderbrand et al. 2007, entire), which enabled us to evaluate 
how the foreseeable threats may affect the probability of extinction of 
DFS subpopulations (USFWS 2012, pp. 18-21, 23-44).
    The Hilderbrand et al. (2007) PVA model indicates that a population 
of 130 animals would have a 95 percent chance of persisting for 100 
years. This threshold, also called a minimum viable population (MVP), 
provides a useful benchmark of extinction risk. It should not be 
mistaken for a recovery goal but is, rather, a population size with an 
associated extinction risk based on the life history of the DFS before 
assessing additional threats. This PVA includes variations in adult and 
juvenile survival, the number of young produced per year, and 
variability in environmental effects.
    Using this model, we estimate that the known occupied forest within 
the range of the DFS contains a total population that is 171 times the 
MVP and that, even under the worst-case scenarios for threats, 
including inundation of areas up to 0.6 meters (m) (2 feet (ft)) above 
sea level due to sea level rise, we would still have a total population 
that is 145 times the MVP. Further, our analysis indicates that the 
rangewide population would comprise at least 15 subpopulations broadly 
distributed across the Delmarva Peninsula. After considering the 
conservation imperatives of habitat availability, habitat connectivity, 
population resiliency and redundancy, and genetic and/or ecological 
representation, we concluded that the risk of extinction is low, even 
under a worst-case scenario, and that the current population is 
sufficiently abundant and well distributed to withstand foreseeable 
    (5) Comment: Several commenters stated that sea level rise was a 
great concern, and that threats from climate change and sea level rise 
have not been eliminated.
    Our Response: We agree that climate change and sea level rise 
trends are continuing; nonetheless, the pertinent

[[Page 70704]]

question is whether these factors are likely to threaten the DFS with 
extinction or with endangerment in the foreseeable future. We analyzed 
the impact of sea level rise and associated habitat loss on the DFS 
using a worst-case scenario of 0.6 m (2 ft) of inundation within 40 
years. As stated in our response to Comment 4, we evaluated this factor 
along with a number of other factors with the potential to affect the 
long-term viability of DFS subpopulations (noting that various 
conditions can occur on the landscape and threaten some species and not 
others depending on the abundance, distribution, and life history of 
the species). After considering habitat availability and connectivity, 
as well as population resiliency, redundancy, and representation, we 
conclude that the risk of extinction is low even under the worst-case 
sea level rise scenario (see Summary of Factors Affecting the Species, 
Factor A), given projected population levels and distribution, and the 
ability of the DFS to colonize unoccupied habitat as described in the 
September 23, 2014, proposed rule (79 FR 56686) and 2012 status review 
(USFWS 2012).
    (6) Comment: One commenter expressed two concerns regarding DFS 
movements in response to sea-level rise: First, during sea level rise, 
individual animals would not be able to move inland because DFSs prefer 
moving on the ground and would be unable to move across habitat that 
became flooded. Second, with the occurrence of sea-level rise and the 
associated loss of habitat, populations would not be able to shift 
inland over time.
    Our Response: DFSs have always been abundant in southern Dorchester 
County, where forests are frequently flooded in the spring and are 
often exposed to high tidal surges. Further, DFSs have been observed 
moving across marshlands to other woodlands (L. Miranda 2010 and C. 
Keller pers. comm. 2009) and moving through flooded woodlands on logs 
and hummocks as well as through the trees (C. Bocetti pers. comm. 
2015). In these same areas, marked animals have been documented to move 
4 km (2.5 mi) and return within a season, despite intervening streams 
and associated marshlands 100 m (328 ft) wide or greater (C. Bocetti 
pers. comm. 2015). Typical home ranges are about 16.2 ha (40 ac) in 
size and generally include forested wetlands, indicating that DFSs 
already inhabit forests that experience periodic flooding.
    Sea level rise is likely to result in more frequent flooding and 
storm and tidal surges, with gradual deterioration of habitat at the 
shoreline edges. It is therefore likely that individual animals will 
need to shift their home range inland and that the overall population 
will shift inland as well. The ability of DFSs to shift their home 
ranges in response to habitat change has already been demonstrated as 
individual animals moved to new areas following clearcuts in portions 
of their home ranges (Paglione 1996); we note that clearcutting is a 
more rapid and dramatic habitat alteration than would be expected from 
flooding or storm surges.
    In terms of available habitat for the DFS to move into following 
storm events and/or sea level rise, we evaluated the rangewide 
availability and connectivity of forest patches in the 2012 status 
review (USFWS 2012) by mapping the connectivity of forest patches 
relative to dispersal of DFS subpopulations (USFWS 2012, figures 9 and 
10). After quantitative analysis of habitat that could be lost due to 
sea level rise and development (USFWS 2012, table 7), we concluded that 
even if all potentially affected habitat was lost immediately, 
remaining DFS populations would still be sufficiently abundant and well 
distributed to alleviate the risk of extinction.
    With regard to the connectivity needed to allow DFSs to move to 
more upland habitats, we recognize that sea-level rise can widen rivers 
and increase obstacles to DFS movement, especially from west to east in 
southern Dorchester County. However, even with maximum projected 
inundation, DFSs could disperse from southern Dorchester without 
crossing streams. In addition, southern Dorchester County would still 
contain about 2,400 to 3,200 ha (6,000 to 8,000 ac) of suitable 
occupied habitat, supporting at least six times the MVP. Given this, we 
predict long-term population viability in these areas of Dorchester 
    (7) Comment: One commenter stated that the DFS should not be 
delisted because it has not met all of the recovery criteria contained 
in the most recent DFS recovery plan (USFWS 1993). In particular, the 
commenter contended that our analysis of recovery criterion 6 does not 
adequately support our conclusion that this criterion has been met.
    Our Response: We will respond first to the issue of whether 
recovery criteria must be met in order to delist a species, and second 
to the issue of whether criterion 6 has been met.
    Notwithstanding our conclusion that the recovery criteria for the 
DFS, as required under section 4(f) of the Act, have been met, this is 
not the requisite analysis for determining the appropriate listing 
status of the species. Rather, listing determinations must be made in 
accordance with sections 4(a)(1) and 4(b) of the Act. Section 4(a)(1) 
requires that the Secretary determine whether a species is endangered 
or threatened because of one or more of five threat factors, while 
section 4(b) requires that the determination be made ``solely on the 
basis of the best scientific and commercial data available.'' Thus, any 
determination to delist a species must be based on the best information 
available at the time of the determination and the results of the five-
factor analysis, notwithstanding any information in the recovery plan.
    Although meeting recovery criteria is not essential for determining 
a species' listing status, our most recent status review (USFWS 2012) 
led us to the conclusion that all recovery criteria for the DFS, 
including criterion 6, have been met. Criterion 6 states that 
``mechanisms that ensure perpetuation of suitable habitat at a level 
sufficient to allow for desired distribution [must be] in place and 
implemented within all counties in which the species occurs.'' Our 
analysis showed that there are many State and Federal laws and land 
protection programs in place that actively protect land at the present 
time and will continue to do so into the future. A detailed table and 
map of the land protected by these programs in each county is provided 
for each county in the 2012 status review (USFWS 2012, table 5 and 
figure 7). These protective mechanisms are also presented in our 
analysis of Factor D (USFWS 2012, pp. 38-39), with a detailed 
description of each program provided in appendix D of the same 
document. These data clearly portray the adequacy of these regulatory 
    (8) Comment: One commenter stated we had not adequately addressed 
the future of the translocated population of the DFS at Chincoteague 
National Wildlife Refuge (NWR) due to the projections in sea level 
    Our Response: We agree with the commenter that this coastal 
population of the DFS, inhabiting Assateague Island, a barrier island, 
is vulnerable to reduced habitat and isolation from sea level rise, and 
we discussed this situation in the September 23, 2014, proposed rule 
(79 FR 56686). We also discuss it below, under Factor A: Loss of forest 
habitat from sea level rise, where we note that although the island's 
beaches, marshes, and shorelines are vulnerable to sea level rise, most 
of the forest habitat occupied by the DFS is above the 0.6 m (2 ft) 
inundation worst-case scenario. Even so, Refuge managers

[[Page 70705]]

are aware of the risks of sea level rise and are actively exploring 
management responses to this factor. As stated in the proposed rule: 
``Sea level rise is expected to cause severe losses to beach and tidal 
flat habitat but currently upland habitat would only be reduced by 4 to 
8 percent (National Wildlife Federation 2008, p. 69). [Chincoteague's] 
Comprehensive Conservation Plan [CCP] commits to continued forest 
management to maintain suitable habitat for Delmarva fox squirrels and 
continued monitoring of Delmarva fox squirrel populations.'' The draft 
CCP is available at: http://www.fws.gov/nwrs/threecolumn.aspx?id=2147550165.
    We consider it highly likely that a DFS population will persist on 
Chincoteague NWR for the foreseeable future, although there may be a 
shift in the habitats that are occupied. Nonetheless, even if the 
Chincoteague population were to be lost, this would not cause a 
rangewide risk of extinction (USFWS 2012, table 7).
    (9) Comment: One commenter stated, ``In its 2007 and 2012 status 
reviews, the Service concluded that these recovery criteria were not 
based on the best available science and did not represent the most up-
to-date information on the biology of the DFS. And the Service also 
concluded in these status reviews that the recovery criteria did not 
specifically address all of the five threat-based listing factors.''
    Our Response: The commenter may be referring to sections 
and of the referenced status reviews (USFWS 2007, p. 3; USFWS 
2012, p. 5):
    `` Do the recovery criteria reflect the best available and 
most up-to-date information on the biology of the species and its 
habitat? No. More recent information on the squirrel's distribution, 
subpopulation delineation, and population persistence is not reflected 
in the 1993 recovery criteria. Nonetheless, these criteria continue to 
act as generally appropriate measures of recovery. Are all of the relevant listing factors addressed in the 
recovery criteria? No. None of the recovery criteria specifically 
addresses any of the five listing factors, although habitat-related 
threats are alluded to. The criteria evaluate the biological status of 
the species.''
    These statements are intended to convey that although new 
information had become available since 1993, the recovery criteria were 
still considered adequate for assessing DFS recovery progress. With 
regard to criteria addressing the five listing factors, the lack of 
specific threats-based criteria is typical of recovery plans at that 
time and does not preclude a separate five-factor analysis (see Comment 
7, above). Significantly, since the two status reviews analyze both the 
recovery criteria and the five listing factors, each review constitutes 
a complete assessment of the status of the species (USFWS 2007; USFWS 
2012). Overall, the two status reviews and the September 23, 2014, 
proposed rule (79 FR 56686) are based on the best available information 
on the biology of the DFS and the threats to its long-term viability.
    (10) Comment: One commenter noted that the population data in the 
2012 status review were the same as those in the 2007 review and 
suggested that this showed there was no increase in the population or 
range between those two time periods. The commenter further suggested 
that there was a decrease in DFS-occupied forest between 2007 and 2012. 
The commenter stated that despite the information for the two status 
reviews being essentially the same, different conclusions were reached.
    Our Response: It is not clear how the commenter's interpretation of 
the data in the two reviews was made. Both the September 23, 2014, 
proposed rule (79 FR 56686 Table 1) and the 2012 status review (Chart 
2) clearly show an increase in the area of occupied forest from 51,975 
ha (128,434 ac) in 2005, to 54,543 ha (134,778 ac) by 2010; a map 
illustrating the changes in the range between the two reviews is also 
provided (USFWS 2012, figure 3). Since 2010, we have continued to 
document new areas of occupied forest and provide an updated number of 
55,589 ha (137,363 ac) as of 2013 (79 FR 56686, September 23, 2014, 
Table 1).
    The rangewide population estimates in the 2007 and 2012 reviews 
differ only slightly (19,265 versus 22,368 animals, respectively), but 
as described in the 2012 review, the two estimates were based on 
different survey methods. Light detection and ranging (LiDAR) data, 
which allow us to distinguish between mature forests and other forested 
areas, were not available for the 2007 status review. We were able to 
use a more refined and conservative approach in the 2012 review and 
estimated the rangewide population using only occupied mature forest. 
Both estimates are intended to provide a general measure of the 
rangewide population size (USFWS 2007, p. 8; USFWS 2012 p. 20).
    It should also be noted that in the 2007 review, we concluded that 
DFS recovery was imminent. We indicated that a final listing 
recommendation was pending while we obtained and analyzed LiDAR data, 
and that, if new information continued to support our finding that DFS 
habitat availability and connectivity were likely to persist over the 
foreseeable future, we would recommend initiation of delisting when the 
LiDAR analysis was completed (USFWS 2007, p. 27).
    (11) Comment: One commenter was concerned because 9 of 22 
subpopulations (40 percent) appear to be vulnerable to extirpation.
    Our Response: This concern does not take into account the relative 
size of these subpopulations. As described in the 2012 status review 
(USFWS 2012, p. 42, figure 5 and table 7), there is a higher 
vulnerability to extirpation for 9 smaller subpopulations, but the vast 
majority (95 percent) of DFSs occurs in 11 large, secure 
subpopulations. This provides a solid indication of continued 
persistence and growth of the rangewide population. Most of the smaller 
populations originated as translocations, which have become well 
established and have contributed to the expanded distribution of the 
subspecies. Further, as shown by the 2007 population viability analysis 
(Hilderbrand et. al 2007), if one or more small populations blink out, 
the rangewide population is still not vulnerable to extinction; even 
accounting for all projected losses from sea level rise and 
development, the rangewide population will still be 145 times the MVP, 
indicating long-term viability.

Peer Review Comments

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinion from five independent 
scientists with expertise that included familiarity with the DFS and 
its habitat, biological needs, and threats. We received responses from 
two of the peer reviewers.
    We reviewed comments received from the peer reviewers for 
substantive issues and new information regarding the status of the DFS. 
The peer reviewers generally concurred with our methods and conclusions 
and considered the scientific information to be correct and the 
analyses to be sound. However, both reviewers identified parts of the 
document that could be strengthened. Peer reviewer comments are 
addressed below and incorporated as appropriate into the final rule or 
supplemental documents, available at http://www.regulations.gov under 
Docket No. FWS-R5-ES-2014-0021.
    (12) Peer Review Comment: Both reviewers asked for more detail to 
be provided on life history of the subspecies.

[[Page 70706]]

    Our Response: We have added more life-history information in a 
supplemental document for the final rule, particularly life history 
related to reproduction, litter size, and survival. The supplemental 
document is available at http://www.regulations.gov under Docket No. 
    (13) Peer Review Comment: One reviewer asked for clarification on 
the length of time that agreements preventing development on private 
lands would continue.
    Our Response: The private lands we consider protected from 
development have easements that extend in perpetuity, and this has been 
added to the text of this rule.
    (14) Peer Review Comment: Both reviewers thought that the rate of 
future development might be underestimated and suggested possibly using 
zoning or projected road development as additional sources of 
    Our Response: We consider the analysis of future development 
conducted by the Maryland Department of Planning to be the best 
available source of information on development trends insofar as this 
office has both the responsibility for tracking such information and 
the requisite expertise to make trend projections. The September 23, 
2014, proposed rule (79 FR 56686) and 2012 status review (USFWS 2012) 
used data from Maryland's 2008 planning report (Maryland Department of 
Planning 2008a), as this was the most current information at the time; 
the same trends and areas of expected development are also mapped in a 
more recent planning document (Maryland Department of Planning 2011a). 
The data continue to show that the eastern shore of Maryland is far 
more rural, with less development and more protected lands, than 
elsewhere in Maryland. Thus, the most recent information continues to 
support the past and future trends used in our previous analysis.
    Consideration of zoning was not included in our analysis 
specifically because zoning restrictions can be changed, making 
projections based on this source of information less certain. Further, 
we took a cautious approach in considering future development by 
projecting complete loss of any DFS-occupied habitat within a ``Smart 
Growth'' area that was not otherwise protected. (``Smart Growth'' is a 
theory of land development that concentrates new development and 
redevelopment in areas that have existing or planned infrastructure to 
avoid sprawl.) Currently, DFSs inhabit blocks of forest within the 
Smart Growth areas of both Cambridge and Easton in Maryland. Although 
limited monitoring shows that DFSs have been persisting in these 
woodlands over many years and may be able to continue doing so in the 
future, our analysis assumes loss based on lack of ensured habitat 
    (15) Peer Review Comment: One peer review comment referred to the 
possibility of residential development causing problems because of the 
presence of free-ranging dogs that may pursue the DFS.
    Our Response: We agree that this can be a problem in some 
situations, and although all counties within the current range of the 
DFS have regulations that require dogs to be on a leash, at heel, or 
directly beside the owner, enforcing these regulations can be 
difficult. Further, as noted in the status review (USFWS 2012, p. 27), 
the presence of dogs may be one reason DFSs do not inhabit residential 
developments. Despite these concerns, we do not consider free-roaming 
dogs to be a threat that would result in population-level effects, 
either individually or in combination with other possible risks, to 
this subspecies, as effects are highly localized and regulations do 
exist to enable management of this issue.
    (16) Peer Review Comment: Both peer reviewers raised a concern 
regarding the commitment to monitoring of the DFS after delisting and 
questioned whether there would be long-term funds, time, and available 
personnel to carry out the monitoring work described in the post-
delisting monitoring plan.
    Our Response: We agree that sustaining monitoring efforts can be 
challenging and subject to competing priorities. Nonetheless, we have 
designed the post-delisting monitoring strategy to fit into current 
work plans and are seeking additional ways in which this effort can be 
incorporated into other monitoring work conducted by the States. For 
example, the hunt clubs leasing the Maryland State Chesapeake Forest 
lands are now asked to report sightings or camera shots which have 
already provided DFS records, and we are working with the States on 
other opportunities to invite hunters to report DFS sightings. We also 
anticipate that DFS-occupied sites managed by conservation groups will 
be monitored as part of their management efforts; sightings of DFSs are 
often reported by those who live or work on these properties. Overall, 
recording these sightings will enhance our ability to conduct 
widespread monitoring of the DFS.


    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. Recovery plans are not 
regulatory documents and are instead intended to establish goals for 
long-term conservation of a listed species; define criteria that are 
designed to indicate when the threats facing a species have been 
removed or reduced to such an extent that the species may no longer 
need the protections of the Act; and provide guidance to our Federal, 
State, and other governmental and nongovernmental partners on methods 
to minimize threats to listed species. There are many paths to 
accomplishing recovery of a species, and recovery may be achieved 
without all criteria being fully met. For example, one or more criteria 
may have been exceeded while other criteria may not have been 
accomplished, yet the Service may judge that, overall, the threats have 
been minimized sufficiently, and that the species is robust enough to 
reclassify or delist the species. In other cases, recovery 
opportunities may have been recognized that were not known at the time 
the recovery plan was finalized. These opportunities may be used 
instead of methods identified in the recovery plan.
    Likewise, information on the species that was not known at the time 
of the recovery plan may become available. The new information may 
change the extent that criteria need to be met for recognizing recovery 
of the species. Recovery of species is a dynamic process requiring 
adaptive management that may, or may not, fully follow the guidance 
provided in a recovery plan.
    Despite the guidance provided by recovery plans, determinations to 
remove species from the List must be made in accordance with sections 
4(a)(1) and 4(b) of the Act. Section 4(a)(1) requires that the 
Secretary determine if a species is endangered or threatened because of 
one or more of five threat factors. Section 4(b) of the Act requires 
that the determination be made ``solely on the basis of the best 
scientific and commercial data available.''
    Although recovery criteria, as mentioned above, help guide recovery 
efforts and should always be consulted when considering a change in the 
status of a listed species, the ultimate determination of whether to 
reclassify or delist a species must be made in accordance with 
statutory standards, and recovery criteria can neither substitute for 
nor pre-empt section 4(a)(1) requirements. Ultimately, a decision to 
remove a species from the

[[Page 70707]]

List is made when the best available data show that the species is no 
longer an endangered species or a threatened species, regardless of how 
closely this information conforms to the information and criteria in 
the recovery plan.
    The most recent DFS recovery plan was approved by the Service on 
June 8, 1993 (USFWS 1993, entire), and updated on October 31, 2003 
(USFWS 2003, entire). The plan states that ``the long-range objective 
of the DFS recovery program is to restore this endangered species to a 
secure status within its former range.'' The plan provides three 
criteria for reclassifying the DFS from endangered to threatened 
status. It then provides four additional criteria to be considered in 
conjunction with the first three for delisting the DFS.

Recovery Criteria

    A discussion of the extent to which each recovery criterion has 
been met is provided in the proposed rule (79 FR 56686; September 23, 
2014). This discussion is summarized below.
    Criterion 1: Ecological requirements and distribution within the 
remaining natural range are understood sufficiently to permit effective 
management. A considerable body of new information has been amassed 
regarding the DFS' distribution and ecological requirements, and we 
thus conclude that this recovery criterion has been met. The six key 
contributions to our understanding of the DFS are summarized below.
    (1) DFS range and distribution: The geographic information system 
(GIS) maintained for the DFS documents a significant increase in the 
area occupied by the DFS since the 1993 recovery plan was issued (see 
Figure 1, above). Records of DFS sightings by knowledgeable observers 
and, in particular, the use of trap and camera surveys have greatly 
improved our ability to determine which forest tracts are occupied by 
the DFS and monitor continued presence.
    (2) Population persistence: Persistence of DFS populations over the 
recovery period has been evaluated through comparison of occupancy over 
time, including a survey conducted in 1971 and repeated in 2001, and a 
second analysis comparing occupancy from 1990 through 2010 (Table 2). 
These studies are summarized in the proposed rule (79 FR 56686; 
September 23, 2014) and status review (USFWS 2012, pp. 15-17).

   Table 2--DFS Occupancy of 275 Forested Tracts (41,733 ha or 103,125 ac) in Maryland, 1990 Compared to 2010
                                                                                                 Percent of the
                                                                                                original 41,733
     Occupancy change from 1990 to 2010              Area of forest          Number of forest   ha (103,125 ac)
                                                                                  tracts       in each occupancy
Persistence................................  38,130 ha (94,221 ac)........                181                 91
Extirpations...............................  499 ha (1,233 ac)............                  7                  1
Uncertain..................................  3,104 ha (7,671 ac)..........                 87                  8
Discoveries or colonizations...............  13,042 ha (32,227 ac)........                250  .................

    As indicated in Table 2, DFSs continued to persist in the vast 
majority of woodlots where they were known to occur in 1990, and their 
presence was newly documented in an additional 13,042 ha (32,227 ac) in 
all three States through 2010 (USFWS 2012, p. 8). Although some of 
these discoveries are likely to be occurrences that were previously 
present but undetected, anecdotal information indicates that several 
new localities represent true range expansion (see, for example, USFWS 
2012, figure 4). Using the 2010 figures for occupied forest in all 
three States, as well as maps of mature forest and density estimates of 
the DFS available from various studies, we estimate that the total 
population of the DFS is now about 20,000 animals across an expanded 
range (USFWS 2012, p. 21).
    (3) Population viability: A DFS population viability analysis (PVA) 
developed by Hilderbrand et al. (2007, entire) modeled the extinction 
probabilities of different-sized populations and determined that a 
population with 65 females, or 130 animals total, had a 95 percent 
chance of persisting for 100 years. This value, also called a minimum 
viable population (MVP), was used to gauge extinction risk by 
projecting how many populations of this size are likely to remain 
present in a given portion of the current DFS range (USFWS 2012, pp. 
18-20; also see Public Comments, above).
    The PVA also estimated that 75 percent of a given DFS population 
would have the ability to disperse to areas within 4 km (2.5 mi) 
(Hilderbrand et al. 2007, p. 73), and thus animals in forested tracts 
within this distance would be likely to interbreed; these interbreeding 
groups are defined as subpopulations. The analysis indicated that 
approximately 85 percent of DFSs are found in four large, narrowly 
separated subpopulations that could expand to become even more 
connected. Each of these subpopulations contains populations estimated 
to be several times the MVP minimum and have a high likelihood of 
population persistence. Overall, the rangewide population, estimated at 
between 17,000 and 20,000 animals, contains more than 100 times the 
    (4) Effects of timber harvest: Two major studies of the effects of 
timber harvest on the DFS (Paglione 1996, entire; Bocetti and Pattee 
2003, entire) suggest that the subspecies is fairly tolerant of timber 
harvest, although specific impacts depend on the size, location, and 
landscape context of the harvest. Small clearcuts within a surrounding 
forest showed relatively little impact on the DFS, with individual 
squirrels shifting their home ranges into adjacent habitat, whereas 
harvest of more isolated forest peninsulas forced DFSs to move greater 
distances (Paglione 1996). Findings from the long-term Bocetti and 
Pattee (2003) study lead to the general conclusion that the DFS can 
tolerate timber harvests and can continue to occupy forested mosaics of 
mature and regenerating stands. In addition, both studies suggest that 
the DFS has high site fidelity and tends to shift home ranges rather 
than abandon a site in response to disturbance.
    (5) Habitat availability: An analysis of LiDAR data provided by the 
State of Maryland enabled an inventory of mature forest suitable for 
the DFS throughout most of the squirrel's range (USFWS 2012, Appendix 
E). As of 2004, LiDAR mapping had identified 175,656

[[Page 70708]]

ha (434,056 ac) of mature forest in the eight Maryland counties 
occupied by DFSs (55 percent of all forest was considered mature), with 
17 percent currently occupied and thus over 80 percent of mature forest 
available for expansion (USFWS 2012, table 4).
    Although the amount and location of mature forest will change over 
time with timber harvest and forest growth, these data provide good 
baseline information about the availability and distribution of 
suitable habitat. Mature forest is often found in riparian zones (USFWS 
2012, figure 8) that can provide connected habitat for DFS dispersal 
and colonization of new areas. LiDAR mapping also showed large tracts 
of mature forest distributed in upland areas throughout the Maryland 
portion of the subspecies' range. Given that most DFS populations occur 
in Maryland and, further, that unoccupied but suitable habitat is found 
both along the coast and inland elsewhere on the Delmarva Peninsula, we 
can infer from this habitat inventory that there is ample unoccupied 
mature forest to enable further expansion of the DFS' rangewide 
    (6) Habitat connectivity: Lookingbill et al. (2010, entire) 
conducted a GIS analysis of the connectivity between 400-ha (175-ac) 
forest patches on the Delmarva Peninsula (although the DFS is not a 
forest interior obligate and does not require forest blocks this 
large). Study results show high connectivity of forest blocks in the 
southern Maryland portion of the squirrel's range, indicating few 
obstacles to DFS dispersal throughout this area. Two major forest 
corridors were identified for DFS dispersal out of Dorchester County, 
Maryland, one of which is already occupied by the DFS (a third 
dispersal corridor not identified by the model is also DFS-occupied). 
Observations of DFS movement through a wide range of habitats, in 
conjunction with the results of this connectivity model and the map of 
LiDAR-defined mature forests, indicate that there is sufficient habitat 
availability and connectivity for further DFS range expansion.
    Criterion 2: Benchmark populations are shown to be stable or 
expanding based on at least 5 years of data. Criterion 2 was intended 
to measure overall DFS population trends using monitoring data from 
seven benchmark populations. Although a slightly different set of eight 
benchmark sites was ultimately monitored, analysis of the resulting 
data (Dueser 1999, entire) showed that the benchmark sites were stable 
over a 5- to 7-year period, and benchmark monitoring was concluded.
    We also have collected data to better understand rangewide 
population trends. The distribution data that document an expanded 
range and population persistence within that range as described under 
criterion 1, above, are much better indicators of DFS recovery. 
Although DFS populations in isolated areas (such as on small islands) 
are vulnerable to extirpation, all available population data for the 
DFS indicate that the range has expanded and populations are persisting 
within the range, and that this recovery criterion has been met.
    Criterion 3: Ten translocated colonies are successfully established 
throughout the historical range. This criterion requires that at least 
10 new DFS colonies must show evidence of presence for at least 5 to 8 
years after release, demonstrating the ability of the DFS to colonize 
new sites, whether naturally or through management.
    Post-release trapping results (Therres and Willey 2002, entire), 
along with more recent trapping and camera surveys, indicate continued 
presence of 11 of 16 translocated colonies (69 percent) for more than 
20 years (USFWS 2012, table 1, p. 83). Further, in several of these 
areas, DFSs have dispersed well beyond the initial release site.
    This success rate is higher than is typically found for similar 
translocation efforts for other endangered species (see Fischer and 
Lindenmayer 2000, p. 5), although the success rate is generally higher 
for mammals and wild source populations (Wolf et al. 1996, p. 1146). 
Further, despite some initial concerns about the genetic diversity of 
the translocated populations, subsequent analysis indicated that their 
genetic diversity was comparable to that of their source populations 
(Lance et al. 2003, entire). These data indicate that this criterion 
has been met.
    Criterion 4: Five additional (post-1990) colonies are established 
outside of the remaining natural range. Criterion 4 requires discovery 
or establishment of colonies outside the range known at the time of the 
1993 recovery plan, thus addressing the threat of range contraction and 
providing for additional population redundancy as one component of 
long-term species viability.
    By 2007, eight new populations had been identified that did not 
result from translocations (USFWS 2007, figure 2), expanding the range 
toward the east. Notably, a colony discovered in Sussex County, 
Delaware, represents the first population found in that State since the 
time of listing that was not a result of a translocation. Since 2007, 
additional occupied forest has been discovered between some of these 
new populations, thus improving their long-term likelihood of survival 
(USFWS 2012, figure 3). We therefore conclude that this recovery 
criterion has been met.
    Criterion 5: Periodic monitoring shows that translocated 
populations have persisted over the recovery period. Criterion 5 
requires the continued presence of at least 80 percent of translocated 
populations, with at least 75 percent of these populations shown to be 
stable or improving. All successfully established translocated 
populations have persisted over the full period of recovery and have 
either become more abundant on their release sites or have expanded or 
shifted into new areas, as shown by trapping efforts (Therres and 
Willey 2002, entire), and, more recently, both trapping and/or camera 
surveys (USFWS 2012, table 1). Overall, the continued presence and 
growth of DFS populations at translocation sites show that this 
recovery criterion has been met.
    Criterion 6: Mechanisms that ensure perpetuation of suitable 
habitat at a level sufficient to allow for desired distribution are in 
place and implemented within all counties in which the species occurs. 
Several well-established programs protect DFS habitat from development 
in perpetuity (Rural Legacy, Maryland Environmental Trust, Maryland 
Agricultural Programs, etc.). These programs, along with State and 
Federal ownership, protect an estimated 15,994 ha (39,524 ac; 29 
percent) of DFS-occupied forest throughout the subspecies' current 
range (USFWS 2012, table 3). In addition, several State laws and 
regulatory programs will continue to protect forest habitat (USFWS 
2012, appendix D). In Delaware and Virginia, the DFS occurs primarily 
on Federal and State land; the sole Virginia population was established 
on Chincoteague NWR and is completely protected from residential 
development or commercial timber harvest. Overall, we conclude that 
this recovery criterion has been met.
    Criterion 7: Mechanisms are in place and implemented to ensure 
protection of new populations, to allow for expansion, and to provide 
inter-population corridors to permit gene flow among populations. As 
discussed under recovery criterion 1, LiDAR data indicate that mature 
forest blocks connected by riparian corridors are scattered throughout 
the Delmarva Peninsula. Further, Lookingbill et al. (2010, entire) 
indicate that these connected blocks constitute a good network of 
forest to allow for dispersing DFSs. Given ample opportunities for

[[Page 70709]]

dispersal, and the fact that many of these corridors are protected by 
State regulatory mechanisms (as discussed under The Inadequacy of 
Existing Regulatory Mechanisms, below), we conclude this recovery 
criterion has been met.

Summary of Factors Affecting the Species


    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for listing species, reclassifying 
species, or removing species from listed status. ``Species'' is defined 
in section 3 of the Act as any species or subspecies of fish or 
wildlife or plants, and any distinct vertebrate population segment of 
fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). A 
species may be determined to be an endangered or threatened species 
based on one or more factors described in section 4(a)(1) of the Act: 
(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 must consider these same factors in delisting a species, and we 
must show that the best available scientific and commercial data 
indicate that the species is neither endangered nor threatened because: 
(1) It is extinct; (2) it has recovered and is no longer endangered or 
threatened (as is the case with the DFS); and/or (3) the original 
scientific data used at the time of listing classification were in 
error (50 CFR 424.11(d)). Determining whether a species is recovered 
requires evaluation of both the threats currently facing the species 
and the threats that are reasonably likely to affect the species in the 
foreseeable future following delisting and removal or reduction of the 
Act's protections.
    A species is endangered for purposes of the Act if it is in danger 
of extinction throughout all or a significant portion of its range 
(SPR) and is threatened if it is likely to become endangered within the 
foreseeable future throughout all or a significant portion of its 
range. The word ``range'' in these definitions refers to the range in 
which the species currently exists. Although the term ``foreseeable 
future'' is left undefined, for the purposes of this rule, we regard 
foreseeable future as the extent to which, given available data, we can 
reasonably anticipate events or effects, or extrapolate threat trends, 
such that reliable predictions can be made concerning the future status 
of the DFS. In conducting this analysis, our general approach was to 
review past threat trends and the DFS' response, followed by a 
prediction of future trends. With some exceptions, we used a time frame 
of approximately 40 years for both past and future trend analyses; this 
time period also allowed use of available data to make more reliable 
projections despite the inherent uncertainties attached to predicting 
the future.
    In the following five-factor analysis, we evaluate the status of 
the DFS throughout its entire range. We then address the question of 
whether the DFS is endangered or threatened in any significant portion 
of its range. Note that information discussed in detail in the 
September 23, 2014, proposed rule (79 FR 56686) and/or the 2012 status 
review (USFWS 2012, pp. 26-44) is summarized for each factor below.

Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of Its Habitat or Range

    Here we considered habitat changes caused by residential 
development, sea level rise, and commercial timber harvest, as well as 
the habitat-related effects on DFS population and rangewide viability, 
with the exception of development or timber harvest effects on the 
population on Chincoteague NWR, as it is completely protected from 
these activities; we did, however, address the impact of sea level rise 
on this population.
Habitat Loss Due to Development
    The Delmarva Peninsula is basically a rural landscape, but the 
human population has increased since the DFS was listed, as shown by 
Maryland Department of Planning data discussed in the September 23, 
2014, proposed rule (79 FR 56686) (see Maryland Department of Planning 
2008a, 2008b, and 2011b). Despite the past--and continuing--growth, the 
majority of the Delmarva Peninsula's land base remains rural, with 
approximately 47 percent agricultural land, 36 percent forest, 9 
percent wetlands, and only 7 percent developed land (USFWS 2012, table 
    Further, since listing, a variety of State laws and programs have 
been put in place to counteract the rate of development across the 
State (USFWS 2012, appendix D), including the Maryland Forest 
Conservation Act and Maryland Critical Area Law. In addition, the 
Maryland Environmental Trust, Maryland Agricultural Land Protection 
Fund, and Maryland Rural Legacy Program used easements to permanently 
protect about 3,642 ha per year (9,000 ac per year) of private lands 
between 2000 and 2008, enhancing protection of DFS habitat (USFWS 2012, 
chart 4).
    Overall, approximately 30 percent of DFS-occupied forest lands, 
widely distributed across the subspecies' range, is protected from 
development (USFWS 2012, table 5). Additional acres of protected forest 
outside the current range of the DFS provide areas for further 
expansion (USFWS 2012, figure 7). Overall, the 15,995 ha (39,524 ac) of 
occupied forest protected from development could support a DFS 
population 45 times the MVP (based on Hilderbrand et al. 2007, entire). 
However, because 70 percent of DFS-occupied forest occurs on private 
land that remains legally unprotected from development, future losses 
from development are likely.
    We assessed the potential threat of DFS habitat loss stemming from 
future development by overlaying the acres of existing occupied forest 
with areas projected to be lost to development, including: (1) Smart 
Growth areas (excluding the acres that are protected by easement), (2) 
areas where development projects are already planned, and (3) areas 
that are projected to be lost by 2030 if Smart Growth policies are not 
implemented (USFWS 2012, figure 11). Overall, 3 percent (2,283 ha or 
5,643 ac) of the forest area currently occupied by the DFS is 
anticipated to be lost to development by 2030. This relatively low rate 
of projected loss can be attributed to the likelihood that most future 
development on the Delmarva Peninsula will occur outside the current 
range of the DFS. Future development within the current range is 
expected to primarily affect two small, isolated DFS subpopulations 
where extirpation is already probable. Together these subpopulations 
constitute less than 0.5 percent of the total viable population; thus, 
their loss would have a negligible effect on the rangewide extinction 
risk for the DFS. Although information on development projections past 
2030 is not available at this time, we consider it likely that 
development on the Delmarva Peninsula will continue to be concentrated 
near large towns outside the range of the DFS, with some scattered 
development within the subspecies' range.
    Conversely, we also anticipate continued expansion of DFS 
populations, including expansion onto Chesapeake Forest lands (which 
are now owned and managed by the State of Maryland), noting that some 
occupancy on these lands has already

[[Page 70710]]

occurred. The anticipated discovery of additional occupied forest areas 
may further offset projected loss of occupied forest due to 
development, resulting in little change to the overall area of the 
distribution. Discovery of additional occupied forest has occurred at 
the rate of 763 ha per year (1,887 ac per year) over the past 10 years. 
Even if we discover new occupied forest at half that rate, the 
anticipated net loss of occupied habitat from development would be 
offset by known occupied habitat in 6 years. With the continued 
protection of forest lands provided by State laws and programs, we do 
not expect habitat loss from development to substantially elevate the 
risk of the DFS' extinction.
Loss of Forest Habitat From Sea Level Rise
    The Delmarva Peninsula is a low-lying landform, and sea level rise 
in the Chesapeake Bay can flood and kill shoreline forests that provide 
habitat for the DFS. However, the DFS does not occur exclusively in 
coastal habitats, which moderates its vulnerability to this threat, and 
GIS analysis indicates that over 80 percent of the current range would 
remain even after a projected inundation of coastal areas by 0.61 m (2 
ft); see the discussion below.
    Regarding sea level rise in the past, the forces of land subsidence 
and sea level rise have resulted in a long history of island loss and 
formation in the Chesapeake Bay. In the last century, these forces 
combined to produce a relative sea level rise in the Chesapeake Bay 
region of approximately 0.3 m (1 ft) per 100 years (National Wildlife 
Federation 2008, p. 2).
    Loss of some forest areas in southern Dorchester County, Maryland, 
is already apparent at the lowest elevations where trees have been 
killed by saltwater intrusion from recent hurricanes. Although we 
cannot precisely estimate how much occupied habitat has been lost in 
the past 40 years, LiDAR analysis of forest height and canopy cover has 
identified at least 68 ha (170 ac) at the edge of coastal marshes that 
are now standing dead trees.
    Hurricanes contribute to forest loss as sea levels rise, with 
saltwater moving farther into forested areas during associated storm 
surges. However, hurricanes and intense storms have always been part of 
the weather in this region, and there is no evidence that they pose a 
problem per se for the DFS. For instance, in October 2012, cameras 
placed in woods to monitor DFSs near the Atlantic coast recorded DFSs 
onsite after superstorm Sandy passed through, indicating survival 
through the storm. Although direct loss of trees used by the DFS may 
have occurred in the past, the major effect of hurricanes has been the 
additional push of saltwater into more upland areas, killing coastal 
forest trees.
    In terms of future effects of sea level rise and climate change, 
sea level rise in the Chesapeake Bay is certain to continue, and the 
rate of change is likely to be even higher than in the past (National 
Wildlife Federation 2008, pp. 16-17; Sallenger et al. 2012, entire; 
Boesch et al. 2013, entire). To determine the extent of DFS-occupied 
forest that may be lost through the combined effects of sea level rise 
and subsidence (i.e., relative sea level rise), we used a 0.61-m (2-ft) 
inundation scenario. A rise in sea level of this magnitude is predicted 
to occur by about 2050 under a worst-case scenario (Boesch et al. 2013, 
p. 15).
    Our GIS analysis, in which we overlaid this inundation scenario 
with DFS-occupied forest, indicated that the most severe effects of sea 
level rise on the DFS by 2050 will be seen in the southwestern portion 
of Dorchester County, Maryland (USFWS 2012, figure 12). Here, 9,332 ha 
(23,060 ac) of currently occupied forest would either be lost or remain 
only on isolated islands (USFWS 2012, figure 12). In addition, 4,409 ha 
(10,897 ac) of habitat along the remaining southern edge of the county 
would eventually deteriorate, causing DFSs to move inland. The ability 
of DFSs to move into connected habitat likely reduces the effects on 
this subspecies due to forest losses at the coastal marsh fringe; we 
nonetheless recognize this as habitat loss. Other projected forest 
losses include scattered patches throughout the range, including some 
losses in the range of the Chincoteague population (USFWS 2012, figure 
    Even if the predicted habitat losses from sea level rise in 
southwestern Dorchester County were to occur immediately, the area's 
remaining 23,632 ha (58,398 ac) of occupied habitat would continue to 
support a highly abundant DFS population with a negligible risk of 
extinction. Moreover, the habitat in the northeastern portion of this 
area is connected to existing occupied forest farther inland (USFWS 
2012, figure 9) into which DFSs could move. In particular, a large 
tract of State-owned forest that will soon become sufficiently mature 
to allow for DFS expansion connects the Dorchester DFS subpopulation to 
forest tracts in Caroline and Sussex Counties (USFWS 2012, figure 10). 
Although sea level rise may cause streams and rivers to widen and pose 
more of a barrier in the future, forested corridors will still be 
available to provide DFSs with access to habitat in the inland portions 
of Dorchester County.
    Given our current understanding of DFS habitat use, dispersal, and 
population dynamics, the expected DFS response to deterioration of 
coastal woodlands from sea level rise is the gradual movement of some 
DFSs to more inland areas. The DFS is known to travel across areas of 
marsh and can move at least 40 to 50 m (131 to 164 ft) between forested 
islands and may also move across frozen marsh in the winter. We 
acknowledge that despite the squirrel's ability to move, isolation and 
loss of some individuals is likely to occur. Nonetheless, we conclude 
that habitat loss due to sea level rise will not be a limiting factor 
to the future viability of this subspecies.
    The 0.61-m (2-ft) inundation scenario does not play out the same in 
parts of the range outside southwestern Dorchester County. In the 
series of small peninsulas in northwestern Dorchester County called the 
``neck region,'' this scenario results in shrinkage of available 
habitat but does not create islands, and leaves habitat for the DFS to 
move into (USFWS 2012, figure 12). This is also the case in other 
portions of the squirrel's range near the Chesapeake Bay and the 
Atlantic Coast. Some additional small areas of occupied habitat may be 
lost, but the gradual loss can be accommodated by shifts in DFS home 
ranges to adjacent but currently unoccupied habitat.
    The most coastal population of the DFS is a translocated population 
introduced in 1968 to Chincoteague NWR, a barrier island in Virginia 
that could be severely affected by sea level rise (National Wildlife 
Federation 2008, p. 69). The refuge's draft Comprehensive Conservation 
Plan (available at http://www.fws.gov/nwrs/threecolumn.aspx?id=2147550165) addresses this issue, and the refuge 
may consider future land acquisitions on the Delmarva Peninsula 
mainland. Chincoteague NWR will continue to manage for the DFS into the 
future whether or not the subspecies remains listed. In addition, 
translocations of DFSs to areas outside refuge boundaries at some point 
in the future are possible.
    It is not clear how climate change effects may alter the nature of 
the forests of the Delmarva Peninsula. However, as the DFS occurs in 
pine, hardwood, and mixed hardwood forests, with a preference for mixed 
forests with diverse tree species, any effects on the species 
composition of these forests are unlikely to become a significant 
threat for the squirrel.
    Overall, DFS distribution has increased in the past 40 years even 

[[Page 70711]]

some sea level rise occurring. In the next 40 years under a worst-case 
scenario, we predict some deterioration of forests in certain areas 
along the Chesapeake Bay and the Atlantic Coast (USFWS 2012, figure 
12), but we also anticipate population expansion and shifts in DFS home 
ranges into suitable but currently unoccupied habitat available in the 
interior of the Delmarva Peninsula. Although some concern has been 
expressed about the likelihood of such expansion (e.g., by the Center 
for Biological Diversity 2013), the analysis of habitat suitability, 
connectivity, and the range expansion documented in the last 15 years 
provides a rational basis for this expectation. Thus, available data 
indicate that loss of habitat due to climate change and sea level rise 
does not pose an extinction risk to the DFS.
Combined Effects of Development and Sea Level Rise
    Having determined that neither development nor sea level alone 
threatens the DFS with rangewide extinction, we conducted a spatial 
analysis to examine how these most pervasive stressors might interact 
(USFWS 2012, figure 5 and table 7).
    As of 2010, 54,429 ha (134,496 ac) of habitat supported 22 DFS 
subpopulations, (USFWS 2012, table 7), and 95 percent of the occupied 
forest contains the 11 largest subpopulations, which are highly likely 
to remain demographically viable. Even with projected losses from both 
development and sea level rise, and not accounting for potential 
discovery of additional occupied habitat, over 95 percent of the DFS-
occupied forest would continue to support these most viable 
subpopulations. Thus, the combined effects of these threats do not pose 
an extinction risk to the DFS.
Loss of Mature Forest From Timber Harvest
    Unlike development and sea level rise, timber harvest does not 
result in permanent loss of habitat. Further, as noted under Recovery 
Criteria, above, DFSs are resilient to timber harvests when there is 
adjacent habitat into which they can move. Thus, the major habitat 
concerns related to timber harvests are (1) the prevalence of short-
rotation timber harvests, where trees are harvested before they mature 
enough to become DFS habitat; and (2) harvest rates that exceed growth 
rates and result in a continual decline of mature forest.
    Short-rotation pine forestry involves harvesting stands at 
approximately 25 years of age for pulp and other fiber products, 
precluding their suitability as DFS habitat. In the past, two large 
corporations managed for short-rotation pine on the Delmarva Peninsula; 
however, these industries have effectively left the Peninsula. In 1999, 
the State of Maryland acquired 23,471 ha (58,000 ac) of these lands, 
collectively administered as the Chesapeake Forest Lands and comprising 
scattered parcels throughout the southern four Maryland counties (USFWS 
2012, figure 13). Another 4,202 ha (10,384 ac) of forest land 
previously owned and managed for short-rotation pine are now owned by 
the State of Delaware. All these lands will now be protected from 
development and managed for sustainable sawtimber harvest and wildlife 
habitat objectives. Moreover, DFS management has been integrated into 
the Sustainable Forest Management Plan for Chesapeake Forest Lands 
prepared by Maryland's Department of Natural Resources (Maryland DNR 
2013, pp. 92-96), which identifies a total of 17,618 ha (43,535 ac) as 
DFS Core Areas and DFS Future Core Areas. Overall, these land 
acquisitions represent a future of protected forest areas managed for 
sawtimber where the DFS can survive and grow in numbers, substantially 
removing the threat posed by short-rotation pine management on the 
lower Delmarva Peninsula.
    Harvest rate estimates for both the 2007 and 2012 status review 
(USFWS 2007, pp. 17-20; USFWS 2012, table 6) indicated that harvests in 
more recent years have been substantially less than in previous years 
(generally prior to 2005) (USFWS 2012, table 6). For instance, in the 
four southern Maryland counties, the average annual harvest dropped 
from approximately 1,050 ha (2,594 ac) prior to 2005, to approximately 
303 ha (749 ac) since then. The average size of harvested stands in 
these counties has also decreased, from an average of 22 ha (54 ac) to 
an average of 15 ha (36 ac). This is also the case in Delaware; in 
Sussex County, the annual harvest rate in the last 4 years was half of 
what was generally harvested between 1998 and 2005, with the same 
holding true for the size of individual harvest areas.
    Among other reasons for these reductions, economic pressures have 
resulted in the closure of several sawmills on the Delmarva Peninsula. 
The market for timber has declined dramatically, with low prices acting 
as a disincentive to harvesting. As discussed below, reduced harvest 
levels are likely to continue in the future.
    Although it is very difficult to predict future market forces, 
trends in fragmentation and parcelization in the Chesapeake Bay region 
(Sprague et al. 2006, pp. 22-24) suggest that future timber harvests 
might remain smaller in size and occur less frequently. Parcelization 
is the subdivision of large blocks of land into multiple ownerships, 
with a consequent tendency to shift from forest management to 
management for aesthetics and wildlife values. In Maryland, 45 percent 
of woodland owners own less than 20 ha (50 ac) of woods (U.S. 
Department of Agriculture, 2012). Given general sizes of timber 
harvests, these woodlands may be too small for future harvests and are 
more likely to be managed for aesthetics and wildlife.
    This ownership pattern also reflects the gentrification of the 
eastern shore of Maryland, with landowners becoming less likely to be 
farmers or foresters and more likely to be commuters or retirees who do 
not use their properties for income. This trend is expected to continue 
into the future (see http://www.mdp.state.md.us/msdc/S3_Projection.shtml), with a concomitant reduction in total acres 
    Overall, the forest land transfers in Maryland and Delaware, in 
conjunction with available data on harvest rates across the range of 
the squirrel, suggest that timber harvest does not pose an extinction 
risk for the DFS.
Factor A Summary
    The current range of the DFS spans coastal and interior areas of 
the Delmarva Peninsula where DFSs inhabit diverse wetland and upland 
forest types, suggesting that DFS populations will continue to remain 
resilient to a variety of habitat-related effects. Further, the 
distribution of these habitats provides for redundancy of populations, 
which reduces the risk of catastrophic loss. We recognize that habitat 
losses may occur in some areas, primarily from residential development 
and sea level rise, but we expect the DFS population to remain at or 
above recovered levels, and, moreover, we do not expect such habitat 
losses to prevent overall expansion of the range in the future.

Factor B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Overhunting has been posited as a factor in the original decline of 
this subspecies. Squirrel hunting was common in the early and middle 
decades of the 20th century, and hunting of the DFS in small, isolated 
woodlots or narrow riparian corridors could have resulted in local 
extirpations. Taylor (1976, p. 51) noted that the DFS remained present 
on large agricultural estates where hunting was not allowed, suggesting 
that these areas

[[Page 70712]]

may have provided a network of refugia for the DFS.
    By 1972, hunting of DFS was banned through state regulations. 
Removal of hunting pressure may have been one factor in the renewed 
population growth and expansion of the squirrel's range to its current 
extent. Coincidentally, squirrel hunting has declined in popularity in 
recent decades; nationwide, squirrel hunting declined by about 40 
percent between 1991 and 2001, and by an additional 20% between 2001 
and 2011 (DOI 1991 p. 70; DOI 2001, p. 57; DOI 2011, p. 60). Recent 
records of squirrel hunters specifically are not available for Maryland 
but the number of small game hunters in Maryland (pursuing squirrels, 
rabbits and/or quail) declined from 64,000 to 35,000 between 1991 and 
2011 (DOI 1991, p. 113; DOI 2011, p. 102). Hunting gray squirrels will 
continue to some extent, and though some hunters may mistake DFS for 
gray squirrels, this is likely a rare situation that has not prevented 
the DFS from expanding over the last 40 years.
    Regarding hunting in the future, discussions with our State 
partners indicate that DFS management after delisting would be 
conducted very cautiously and that a hunting season would not be 
initiated in the immediate future. We recognize that a restricted hunt 
could be conducted at sites where DFSs are abundant without causing a 
population decline, and that State management agencies have the 
capability to implement careful hunting restrictions and population 
management; the reopening of the black bear (Ursus americanus) hunt in 
Maryland is a good example of a carefully and successfully managed hunt 
(Maryland Department of Natural Resources 2012, entire).
    We nonetheless foresee only limited individual interest in 
reinitiating a DFS hunt, coupled with strong public attitudes against 
hunting DFSs and, more generally, recreational hunting (Duda and Jones 
2008, p. 183). Given public sentiment, the declining interest in 
squirrel hunting, and the restrictions that we expect would be imposed 
on a renewed hunting program, hunting is highly unlikely to pose an 
extinction risk to the DFS in the foreseeable future.

Factor C. Disease or Predation

    Each of these types of threat is summarized below.
    Reports of disease in the DFS are uncommon. Although other 
subspecies of eastern fox squirrels are known to carry diseases such as 
mange and rabies, there is no documentation of these diseases in the 
DFS, and there is no evidence or suspicion of disease-related declines 
in any local population (USFWS 2012, pp. 37-38).
    Although the advent of white-nose syndrome affecting bats (Blehert 
et al. 2009, entire) and chytrid fungus affecting amphibians (Daszak et 
al. 1999, entire) demonstrates the uncertainty surrounding novel 
disease events, the life-history traits of the DFS tend to make them 
less susceptible to these types of epizootics. Delmarva fox squirrels 
do not congregate in large numbers where disease can easily spread 
through a population. Further, the DFS is patchily distributed across 
its range, which makes it more difficult for disease to spread across 
populations, and DFSs are not migratory and do not inhabit the types of 
environment (as with aquatic species) where pathogens can readily 
    Overall, there currently is no evidence of disease-related declines 
or any indication that DFSs are particularly susceptible to disease 
outbreaks, and we conclude that disease is neither a current nor a 
future extinction risk for this subspecies.
    Predators of the DFS include the red fox (Vulpes vulpes), gray fox 
(Urocyon cinereoargenteus), red-tailed hawk (Buteo jamaicensis), bald 
eagle (Haliaeetus leucocephalus), and possibly domestic pets and feral 
    Changes in numbers of certain predators may cause some fluctuations 
in DFS numbers at a site (for instance, a DFS population may decline 
when red fox numbers increase), but these types of events are sporadic 
and localized. Conversely, although bald eagle numbers have 
dramatically increased in the Chesapeake Bay region over the past 40 
years and eagles have been known to take DFSs, they still prey 
primarily on fish. And while feral dogs and cats may occasionally take 
DFSs, such predation is not a rangewide threat. The DFS population has 
increased over the last 40 years despite ongoing predation, and we 
conclude that predation at these levels is not a current or future 
extinction risk for this subspecies.

Factor D. The Inadequacy of Existing Regulatory Mechanisms

    Several laws established in Maryland over the past 40 years provide 
substantial protections for DFS habitat (USFWS 2012, appendix D). The 
Maryland Critical Areas Act of 1984 designates all areas within 304.8 m 
(1,000 ft) of high tide as Critical Areas and, as amended, prohibits 
development and forest clearing within 60.96 m (200 ft) of streams and 
the Chesapeake Bay. These areas serve as both breeding habitat and 
dispersal corridors for DFSs. The Maryland Forest Conservation Act of 
1991 requires that when a forested area is cleared and converted to 
other land uses, other forest areas must be protected in perpetuity or, 
alternatively, replanted to offset these losses. Additionally, the 
State-implemented portions of the Clean Water Act (33 U.S.C. 1251 et 
seq.) provide rangewide protection to the many forested wetlands where 
DFSs occur.
    Several State programs in Maryland, including its Agricultural Land 
Protection Fund, Environmental Trust, and Rural Legacy Program, 
encourage voluntary conservation easements that protect lands from 
development. Collectively, these programs now protect 79,066 ha 
(195,377 ac) of private lands within the DFS' range. Similar programs 
in Delaware protect an additional 12,677 ha (31,327 ac) in Sussex 
County (USFWS 2012, table 3).
    Although in Delaware and Virginia the DFS occurs primarily on 
Federal and State lands, regulatory protections affecting private lands 
allow for continued DFS range expansion. For example, Delaware's 
Agricultural Land Protection Program and Forest Legacy Program now 
protect more than 12,677 ha (31,327 ac) in Sussex County, much of which 
is or could be occupied by the DFS. The Virginia DFS population is 
completely protected on Chincoteague NWR. If needed, State-owned lands 
or private lands, or both, protected by land trusts would provide 
suitable habitat for future translocations.
    Overall, many State laws and programs that protect the DFS and its 
habitat have been enacted or strengthened in the last 40 years, and it 
is likely that this State protection will continue. Currently, these 
regulatory mechanisms, together with other factors that address 
population and habitat trends, have substantially reduced threats to 
the DFS. We thus conclude that existing regulatory mechanisms are 
adequate in terms of reducing extinction risks for the DFS.

Factor E. Other Natural or Manmade Factors Affecting Its Continued 

    The level of risk posed by each of the following factors is 
assessed below.
Forest Pest Infestations
    Forest pest infestations can affect forest health and its ability 
to provide suitable habitat for the DFS. Gypsy moth

[[Page 70713]]

(Lymantria dispar) outbreaks can decimate mature forest stands, 
although the affected stands will eventually regenerate. Monitoring 
outbreaks and spraying for gypsy moth control appear to have reduced 
this threat within the current range of the DFS, as infestations in the 
last several years have diminished in acreage (Maryland Department of 
Agriculture Forest Health Highlights 2007, 2008, 2009; entire).
    Southern pine bark beetle (Dendroctonus frontalis) infestations can 
also decimate mature forest stands within the range of the DFS. 
Although beetle outbreaks necessitated salvage cuts for a total of 809 
ha (2,000 ac) scattered across the southern counties in Maryland in the 
early 1990s, monitoring and control efforts appear to have reduced this 
threat as well.
    Overall, an analysis of forest pests in the Chesapeake Bay 
watershed found that most areas on the Eastern Shore where DFSs occur 
have a relatively low likelihood of insect infestations, with 3.8 to 10 
percent of this area considered to be at risk (Sprague et al. 2006, p. 
87). Although emergence of new forest pests is to be expected, 
Maryland's Forest Health Monitoring Program conducts surveys to map and 
report forest pest problems (Maryland Department of Agriculture, Forest 
Pest Management, 2012, entire). Forest pest outbreaks are likely to 
recur and may increase if the climate warms as projected; however, this 
threat appears to be localized and sporadic and, with existing programs 
to monitor and treat forest pest outbreaks, we conclude that this is 
not an extinction risk factor for the DFS.
Vehicle Strikes
    Vehicle strikes are a relatively common source of DFS mortality. 
Similarly to other species, the probability of DFSs being hit by 
vehicles is dependent on the DFS' density and proximity of roads to 
habitat. Vehicle strikes of DFSs tend to be reported more frequently in 
areas where DFSs are abundant, even if traffic levels are relatively 
low (e.g., Dorchester County). The conscientious reporting and 
collecting of DFSs killed on roads at the Blackwater and Chincoteague 
NWRs, where the DFS is very abundant, likely results in a more complete 
count of vehicle strikes than elsewhere. Vehicle strikes occur 
regularly at both refuges, yet DFSs remain abundant in both places and 
have expanded their occupancy at Chincoteague NWR.
    Overall, most DFS populations across the subspecies' range continue 
to remain stable or are increasing in numbers despite these localized 
events, and we conclude that vehicle strikes alone are not a pervasive 
threat or extinction factor for this subspecies.

Overall Summary of Factors A Through E

    A summary of the five-factor analysis discussed above is provided 
in Table 3. Based on our analysis, we conclude that no single factor or 
combination of factors poses a risk of extinction to the DFS now or in 
the foreseeable future.

                         Table 3--Summary of Five-Factor Analysis Under the Act for DFS
                                                                                            Does factor pose an
              Factor                        Past trends             Foreseeable trends        extinction risk?
Habitat loss from development.....  In the past 40 years,       Development is projected   No.
                                     development increased       to increase to 14
                                     from 3 to 8 percent of      percent of the land area
                                     the land area in the        in the Maryland and
                                     Maryland range of the       Delaware portions of
                                     DFS; development also       DFS' range. Although
                                     increased in Sussex         most development will
                                     County, Delaware. Some      occur near urban areas
                                     habitat has been lost,      where DFSs do not occur,
                                     but most development        3 to 4 percent of total
                                     occurs near existing        DFS occupied habitat is
                                     towns where DFSs are not    expected to be affected.
                                     as prevalent, and           While these losses may
                                     development often occurs    cause some small
                                     on agricultural rather      subpopulations to
                                     than forest land.           disappear, most occupied
                                                                 habitat will remain
                                                                 available. Despite the
                                                                 projected development,
                                                                 DFS distribution is
                                                                 expected to continue to
Habitat loss from sea level rise..  In the past, loss of        Under an extreme scenario  No.
                                     occupied habitat due to     of 0.61-m (2-ft)
                                     inundation and saltwater    inundation in 40 years,
                                     intrusion has occurred in   considerable acreage
                                     southern Dorchester         will be lost or isolated
                                     County, although the        in southwestern
                                     acreage is not known. Sea   Dorchester County.
                                     level rise has occurred     However, even if this
                                     in the past at the rate     loss were to occur
                                     of 3.5 millimeters (mm)     immediately, the
                                     per year (about 1 ft per    Dorchester County
                                     100 years).                 subpopulation would
                                                                 remain over 70 times
                                                                 larger than the MVP. It
                                                                 would thus continue to
                                                                 be the largest
                                                                 subpopulation, and given
                                                                 a 40-year time frame for
                                                                 reaching this level of
                                                                 inundation, is very
                                                                 likely to remain viable
                                                                 over the long term.
Habitat loss from timber harvest..  Sawtimber harvest has       Recent declines in timber  No.
                                     occurred throughout the     harvests, along with
                                     Delmarva Peninsula. Past    mill closings, may
                                     harvest rates appear to     reduce the harvest rate
                                     have been sustainable, as   for some time.
                                     DFSs have remained          Increasing parcelization
                                     present across the range.   of land will further
                                                                 reduce opportunities for
                                                                 large-scale timber
                                                                 Gentrification of the
                                                                 Eastern Shore is
                                                                 shifting public values
                                                                 for forest management
                                                                 from timber production
                                                                 to management for
                                                                 aesthetics and wildlife.
                                                                 Thus, future timber
                                                                 harvest rates are not
                                                                 expected to exceed past
                                                                 harvest rates.

[[Page 70714]]

Habitat loss from short-rotation    In the past, short-         Since 1999, these lands    No.
 pine management.                    rotation pine harvests      have been acquired by
                                     occurred on approximately   the States of Maryland
                                     68,000 ac of the forest     and Delaware and are now
                                     lands in the Maryland and   managed for sawtimber,
                                     Delaware portions of the    which will provide
                                     DFS' range. These acres     suitable DFS habitat.
                                     were typically harvested    Thus, 58,000 ac of land
                                     before they were mature     in Maryland and 10,000
                                     enough to become DFS        ac in Delaware are
                                     habitat.                    protected from
                                                                 development and managed
                                                                 for sawtimber, enabling
                                                                 future use by the DFS
                                                                 that was previously
Overutilization...................  Hunting seasons have been   Hunting seasons are        No.
                                     closed since 1972.          likely to remain closed
                                                                 into the foreseeable
                                                                 future. If opened, DFS
                                                                 hunts would be limited
                                                                 and carefully managed.
                                                                 Interest in squirrel
                                                                 hunting has declined
                                                                 significantly, and
                                                                 public attitudes toward
                                                                 hunting have changed to
                                                                 primarily support
                                                                 hunting of those species
                                                                 viewed as needing
                                                                 population management,
                                                                 such as deer.
Disease or predation..............  Disease and predation have  These threats are not      No.
                                     not been significant        expected to increase,
                                     threats for this            and the expanding
                                     subspecies in the past 40   distribution of the DFS
                                     years.                      lessens the potential
                                                                 impacts that disease and
                                                                 predation could have on
                                                                 this subspecies.
Inadequacy of regulatory            Several new Maryland laws   In the next 40 years,      No.
 mechanisms.                         have appeared in the last   forest conservation
                                     40 years to help conserve   measures are expected to
                                     forest areas that support   continue, and the
                                     the DFS. DFS occurrences    programs that have begun
                                     in Delaware and Virginia    in Maryland are expected
                                     are almost exclusively on   to continue or increase
                                     protected lands.            as they have in the
                                                                 past. Easement programs
                                                                 that protect private
                                                                 lands from development
                                                                 have begun in Delaware
                                                                 and Virginia and are
                                                                 expected to increase in
                                                                 the future as well.
Other natural or manmade factors..  Forest pests and vehicle    Forest pests and vehicle   No.
                                     strikes have occurred in    strikes are likely to
                                     the past 40 years to some   continue to some extent,
                                     extent but have not         but neither factor has
                                     limited the expansion of    limited growth of the
                                     the DFS' distribution.      subpopulations in the
                                                                 past, nor are they
                                                                 expected to do so in the
                                                                 future. As DFS
                                                                 populations increase in
                                                                 density, vehicle strikes
                                                                 could increase, as the
                                                                 probability of a strike
                                                                 is primarily a function
                                                                 of animal abundance.


    We have carefully assessed the best scientific and commercial 
information available regarding past, present, and future threats to 
the long-term viability of the DFS. The current range of the DFS spans 
the northern and southern portions of the Delmarva Peninsula, 
comprising all three States, and extends from coastal areas to the 
interior of the Delmarva Peninsula. The DFS inhabits a variety of 
forest types, from hardwood-dominated to pine-dominated forests and 
from wetland to upland forests, indicating an underlying genetic 
variability or behavioral plasticity that should enhance the 
subspecies' ability to adapt to changing environmental conditions. Its 
relatively wide distribution also provides redundancy of occupied 
forest across the landscape, which further reduces extinction risk, and 
its continued occupancy of woodlots over the past 20 to 30 years and 
the success of translocation efforts indicate considerable resilience 
to stochastic events. We thus expect the rangewide population of the 
DFS not only to remain at recovery levels but to grow and continue to 
occupy the full complement of landscapes and forest types on the 
Delmarva Peninsula.
    The Act defines ``endangered species'' as any species that is ``in 
danger of extinction throughout all or a significant portion of its 
range,'' and ``threatened species'' as any species that is ``likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range.'' The term ``species'' 
includes ``any subspecies of fish or wildlife or plants, and any 
distinct population segment [DPS] of any species of vertebrate fish or 
wildlife which interbreeds when mature.'' As a subspecies, the DFS has 
both met the recovery criteria we consider for delisting, and the 
analysis of existing and potential risks shows that the range and 
distribution of the subspecies is sufficient to withstand all 
foreseeable threats to its long-term viability. Thus, after assessing 
the best available information, we have determined that the DFS is no 
longer in danger of extinction throughout all of its range, nor is it 
likely to become threatened with endangerment in the foreseeable 

Significant Portion of the Range Analysis


    Having determined the status of the DFS throughout all of its 
range, we next examine whether the subspecies is in danger of 
extinction in 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 throughout all or a 
significant portion of its range, as stated above. We published a final 
policy interpreting the phrase ``significant portion of its range'' (79 
FR 37578; July 1, 2014). This policy states that: (1) If a species is 
found to be endangered or threatened throughout a significant portion 
of its range, the entire species is listed as an endangered species or 
a threatened species,

[[Page 70715]]

respectively, and the Act's protections apply to all individuals of the 
species wherever found; (2) a portion of the range of a species is 
``significant'' if the species is not currently endangered or 
threatened throughout all of its range, but the portion's contribution 
to the viability of the species is so important that, without the 
members in that portion, the species would be in danger of extinction 
or likely to become so in the foreseeable future throughout all of its 
range; (3) the range of a species is considered to be the general 
geographical area within which that species can be found at the time we 
make any particular status determination; and (4) if a vertebrate 
species is endangered or threatened throughout an SPR, and if it can 
also be shown the population in that significant portion is a valid 
DPS, we will list the DPS rather than the entire taxonomic species or 
    The SPR policy is applied to all status determinations, including 
analyses for the purposes of making listing, delisting, and 
reclassification determinations. The procedure for analyzing whether 
any portion is an SPR is similar, regardless of the type of status 
determination we are making. The first step in our analysis of the 
status of a species is to determine its status throughout all of its 
range. If we determine that the species is in danger of extinction, or 
likely to become so in the foreseeable future, throughout all of its 
range, we list the species as an endangered (or threatened) species and 
no SPR analysis will be required. If the species is neither in danger 
of extinction, nor likely to become so, throughout all of its range, we 
determine whether the species is in danger of extinction or likely to 
become so throughout a significant portion of its range. If it is, we 
list the species as an endangered species or a threatened species, 
respectively; if it is not, we conclude that listing of the species is 
not warranted.
    When we conduct an SPR analysis, we first identify any portions of 
the species' range that warrant further consideration. The range of a 
species can theoretically be divided into portions in an infinite 
number of ways. However, there is no purpose to analyzing portions of 
the range that are not reasonably likely to be both significant and 
endangered or threatened. To identify only those portions that warrant 
further consideration, we determine whether there is substantial 
information indicating that (1) the portions may be significant and (2) 
the species may be in danger of extinction in those portions or likely 
to become so within the foreseeable future. We emphasize that answering 
these questions in the affirmative is not a determination that the 
species is endangered or threatened throughout a significant portion of 
its range--rather, it is a step in determining whether a more detailed 
analysis of the issue is required. In practice, a key part of this 
analysis is whether the threats are geographically concentrated in some 
way. If the threats to the species are affecting it uniformly 
throughout its range, no portion is likely to warrant further 
consideration. Moreover, if any concentration of threats apply only to 
portions of the range that clearly do not meet the biologically based 
definition of ``significant'' (i.e., the loss of that portion clearly 
would not be expected to increase the vulnerability to extinction of 
the entire species), those portions will not warrant further 
    If we identify any portions that may be both (1) significant and 
(2) endangered or threatened, we engage in a more detailed analysis to 
determine whether these standards are indeed met. The identification of 
an SPR does not create a presumption, prejudgment, or other 
determination as to whether the species in that identified SPR is 
endangered or threatened. We must go through a separate analysis to 
determine whether the species is endangered or threatened in the SPR. 
To determine whether a species is endangered or threatened throughout 
an SPR, we will use the same standards and methodology that we use to 
determine if a species is endangered or threatened throughout its 
    Depending on the biology of the species, its range, and the threats 
it faces, it may be more efficient to address the ``significant'' 
question first, or the status question first. Thus, if we determine 
that a portion of the range is not ``significant,'' we do not need to 
determine whether the species is endangered or threatened there. 
Conversely, if we determine that the species is not endangered or 
threatened in a portion of its range, we do not need to determine if 
that portion is ``significant.''

SPR Analysis for DFS

    Having determined that the DFS does not meet the definition of 
endangered or threatened throughout its range, we considered whether 
there are any significant portions of its range in which it is in 
danger of extinction or likely to become so. The full discussion 
regarding this analysis, summarized here, is provided in the September 
23, 2014, proposed rule (79 FR 56686).
    Applying the process described above, we evaluated the range of the 
DFS to determine if any area could be considered a significant portion 
of its range. Based on examination of the relevant information on the 
biology and life history of the DFS, we determined that there are no 
separate areas of the range that are significantly different from 
others or that are likely to be of greater biological or conservation 
importance than any other areas. We next examined whether any threats 
are geographically concentrated in some way that would indicate the 
subspecies could be in danger of extinction, or likely to become so, in 
that area. Through our review of threats to the subspecies, we 
identified some areas where DFSs are likely to be extirpated, including 
areas in Queen Anne's County, Maryland, where DFS distribution is 
scattered and relatively isolated by roads and water, and where future 
development is anticipated. We thus considered whether this area in the 
northern portion of the range may warrant further consideration as a 
significant portion of its range.
    The forest area currently occupied by DFSs that is projected to be 
lost to development by 2030 would affect two small populations in Queen 
Anne's County that together constitute less than 0.5 percent of the 
rangewide population; however, five large DFS subpopulations are 
expected to remain viable across the northern portion of the current 
range. Additionally, Queen Anne's County's landscape does not represent 
a unique habitat type or ecological setting for the subspecies. Thus, 
the areas expected to be lost due to development would not appreciably 
reduce the long-term viability of the subpopulation in the northern 
portion of the range, much less imperil the DFS in the remainder of its 
range. Therefore, we have determined that this portion of the DFS' 
range does not meet the definition of SPR under the 2014 policy.
    We also anticipate loss of DFS-occupied forests from sea level rise 
in Dorchester County, Maryland, on the southwestern periphery of the 
habitat supporting the largest subpopulation of DFS. However, these 
losses do not threaten either the subpopulation or the subspecies with 
a risk of extinction, as there is ample unoccupied and sufficiently 
connected habitat for displaced squirrels to colonize; this is 
bolstered by their ability to readily colonize new areas evidenced by 
successful expansion of DFS translocations. In addition, we anticipate 
the continued presence of mixed pine/hardwood forests adjacent to marsh 
and open water in Dorchester

[[Page 70716]]

County and do not anticipate losses of any unique habitats. Therefore, 
losses due to sea level rise in this portion of the range would not 
appreciably reduce the long-term viability of the subpopulation, much 
less cause the subspecies in the remainder of its range to be in danger 
of extinction or likely to become so. We thus conclude the portion of 
the range that is expected to be lost from sea level rise does not meet 
the policy's definition of an SPR.
    These are the only two portions of the range that we identified as 
meriting analysis as to their significance and level of endangerment in 
conformance with the 2014 SPR policy. Finding that the potential losses 
in small areas of Queen Anne's County would not cause cascading 
vulnerability and do not constitute unique areas that are not 
represented elsewhere in the subspecies' range, and finding that loss 
of areas in Dorchester County to sea level rise would not diminish the 
continued viability of the Dorchester subpopulation or cause the 
remainder of the subspecies to be in danger of extinction or likely to 
become so, we do not consider this subspecies to be endangered or 
threatened in any significant portion of its range. Further, having not 
found the basis for an SPR determination on grounds of either 
significance or threat, we also find that a DPS analysis is not 


    The subspecies' current and projected resiliency, redundancy, and 
representation should enable it to remain at recovered population 
levels throughout all of its range, and even expand its range, over the 
foreseeable future. Having assessed the best scientific and commercial 
data available and determined that the DFS is no longer endangered or 
threatened throughout all or a significant portion of its range and is 
not it likely to become so in the foreseeable future, we are removing 
this subspecies from the List under the Act.

Future Conservation Measures

    Section 4(g)(1) of the Act requires us, in cooperation with the 
States, to implement a monitoring program for not less than 5 years for 
all species that have been recovered and delisted. The purpose of post-
delisting monitoring (PDM) is to verify that a species remains secure 
from risk of extinction after the protections of the Act are removed by 
developing a program that detects the failure of any delisted species 
to sustain itself. If, at any time during the monitoring period, data 
indicate that protective status under the Act should be reinstated, we 
can initiate listing procedures, including, if appropriate, emergency 
listing under section 4(b)(7) of the Act.
    This rule announces availability of the final PDM plan for the DFS. 
Public and peer review comments on the draft PDM plan have been 
addressed in the body of the plan and are summarized in the plan's 
appendix. The plan can be accessed at: http://www.regulations.gov under 
Docket No. FWS-R5-ES-2014-0021. It is also posted on the Service's 
national Web site (http://endangered.fws.gov) and the Chesapeake Bay 
Field Office's Web site (http://www.fws.gov/chesapeakebay). A summary 
of the PDM plan is provided below.

Post-Delisting Monitoring Plan Overview

    The PDM plan for the DFS builds upon and continues the research 
conducted while the DFS was listed. In general, the plan directs the 
Service and State natural resource agencies to (1) continue to map all 
DFS sightings and occupied forest to delineate the distribution and 
range, and (2) assess the occupancy of DFS in a sample of forest tracts 
to estimate the relative persistence of DFS populations versus 
extirpations across the range.
    The PDM plan identifies measurable management thresholds and 
responses for detecting and reacting to significant changes in the 
DFS's protected habitat, distribution, and ability to remain at 
recovered population levels. If declines are detected equaling or 
exceeding these thresholds, the Service, along with other post-
delisting monitoring participants, will investigate causes, including 
consideration of habitat changes, stochastic events, or any other 
significant evidence. Results will be used to determine if the DFS 
warrants expanded monitoring, additional research, additional habitat 
protection, or resumption of Federal protection under the Act.

Effects of This Rule

    This final rule revises 50 CFR 17.11(h) to remove the Delmarva 
Peninsula fox squirrel from the List of Endangered and Threatened 
Wildlife (List). It also revises 50 CFR 17.11(h) and 50 CFR 17.84(a) to 
remove the listing and regulations, respectively, for the nonessential 
experimental population of Delmarva Peninsula fox squirrels at 
Assawoman Wildlife Management Area in Sussex County, Delaware. The 
prohibitions and conservation measures provided by the Act, 
particularly through sections 7 and 9, no longer apply to this 
subspecies. Federal agencies are no longer required to consult with the 
Service under section 7 of the Act in the event that activities they 
authorize, fund, or carry out may affect the DFS. The take exceptions 
identified in 50 CFR 17.84(a)(2) for the experimental population of the 
DFS are also removed. There is no critical habitat designated for the 

Required Determinations

National Environmental Policy Act

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be 
prepared in connection with regulations pursuant to section 4(a) of the 
Act. We published a notice outlining our reasons for this determination 
in the Federal Register on October 25, 1983 (48 FR 49244).

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, and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our tribal 
trust responsibilities. We have determined that there are no tribal 
lands affected by this rule.

References Cited

    A complete list of all references cited in this final rule is 
available at http://www.regulations.gov, or upon request from the 
Chesapeake Bay Field Office (see ADDRESSES).


    The primary authors of this final rule are staff members of the 
Chesapeake Bay Field Office (see ADDRESSES).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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


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

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

[[Page 70717]]

Sec.  17.11--[Amended]  

2. Amend Sec.  17.11(h) by removing both entries for ``Squirrel, 
Delmarva Peninsula fox'' under MAMMALS from the List of Endangered and 
Threatened Wildlife.

Sec.  17.84--[Amended]  

3. Amend Sec.  17.84 by removing and reserving paragraph (a).

    Dated: October 23, 2015.
 James W. Kurth,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2015-28742 Filed 11-13-15; 8:45 am]