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must be submitted for inclusion in the establishment or modification of ACTION: Proposed rule. public docket. Information so marked regulations for residues of a pesticide will not be disclosed except in chemical in or on various food SUMMARY: We, the U.S. Fish and accordance with procedures set forth in commodities. Further information on Wildlife Service (Service or USFWS), 40 CFR part 2. the petition may be obtained through propose to remove San Benito evening- 2. Tips for preparing your comments. the petition summary referenced in this primrose (Camissonia benitensis) from When preparing and submitting your unit. the Federal List of Endangered and comments, see the commenting tips at PP 9F8780. Syngenta Crop Protection, Threatened Plants. This determination https://www.epa.gov/dockets/ LLC, 410 South Swing Rd., Greensboro, is based on a thorough review of the commenting-epa-dockets. NC 27409, requests to amend an best available scientific and commercial 3. Environmental justice. EPA seeks to exemption from the requirement of a information, which indicates that the achieve environmental justice, the fair tolerance in 40 CFR 180.1254 to include threats to the species have been reduced treatment and meaningful involvement residues of the fungicide Aspergillus or eliminated so that the plant no longer of any group, including minority and/or flavus strain NRRL 21882 in or on all meets the definition of an endangered or low-income populations, in the food and feed commodities of almond; threatened species under the development, implementation, and corn, field; corn, pop; corn, sweet; Endangered Species Act of 1973, as enforcement of environmental laws, peanut; and pistachio. The petitioner amended (Act). We are seeking regulations, and policies. To help believes no analytical method is needed information and comments from the address potential environmental justice because a petition for an amendment to public regarding this proposed rule and issues, EPA seeks information on any the currently existing exemption from the draft post-delisting monitoring plan groups or segments of the population tolerance for Aspergillus flavus strain for San Benito evening-primrose. who, as a result of their location, NRRL 21882 has been submitted. Note: DATES: We will accept comments cultural practices, or other factors, may In the Federal Register of February 10, received or postmarked on or before July have atypical or disproportionately high 2020 (85 FR 7499) (FRL–10004–54), 31, 2020. Comments submitted and adverse human health impacts or EPA announced the filing of this electronically using the Federal environmental effects from exposure to petition to amend an exemption from eRulemaking Portal (see ADDRESSES, the pesticide discussed in this the requirement of a tolerance for below) must be received by 11:59 p.m. document, compared to the general residues of Aspergillus flavus strain Eastern Time on the closing date. We population. NRRL 21882 to include residues in or must receive requests for public hearings, in writing, at the address II. What action is EPA taking? on almond and pistachio. Since that time, the petitioner provided a revised shown in FOR FURTHER INFORMATION EPA is announcing receipt of a petition requesting a revision to the CONTACT by July 16, 2020. pesticide petition filed under section existing tolerance exemption to include ADDRESSES: 408 of the Federal Food, Drug, and all food and feed commodities of Comment submission: You may Cosmetic Act (FFDCA), 21 U.S.C. 346a, almond; corn, field; corn, pop; corn, submit comments by one of the requesting the establishment or sweet; peanut; and pistachio. In order to following methods: modification of regulations in 40 CFR give the public an opportunity to (1) Electronically: Go to the Federal part 180 for residues of a pesticide comment on this new information, EPA eRulemaking Portal: http:// chemical in or on various food is republishing its receipt of this www.regulations.gov. In the Search box, commodities. EPA is taking public tolerance exemption petition filing with enter FWS–R8–ES–2019–0065, which is comment on the request before an updated and accurate description. the docket number for this rulemaking. responding to the petitioner. EPA is not Then click on the Search button. On the Authority: 21 U.S.C. 346a. proposing any particular action at this resulting page, in the Search panel on time. EPA has determined that the Dated: May 13, 2020. the left side of the screen, under the pesticide petition described in this Robert McNally, Document Type heading, click on the document contains data or information Director, Biopesticides and Pollution Proposed Rules link to locate this prescribed in FFDCA section 408(d)(2), Prevention Division, Office of Pesticide document. You may submit a comment 21 U.S.C. 346a(d)(2); however, EPA has Programs. by clicking on ‘‘Comment Now!’’ not fully evaluated the sufficiency of the [FR Doc. 2020–11574 Filed 5–29–20; 8:45 am] (2) By hard copy: Submit by U.S. mail submitted data at this time or whether BILLING CODE 6560–50–P to: Public Comments Processing, Attn: the data support granting of the FWS–R8–ES–2019–0065; U.S. Fish and pesticide petition. After considering the Wildlife Service, MS: JAO/1N; 5275 public comments, EPA intends to DEPARTMENT OF THE INTERIOR Leesburg Pike, Falls Church, VA 22041– evaluate whether and what action may 3803. be warranted. Additional data may be Fish and Wildlife Service We request that you send comments needed before EPA can make a final only by the methods described above. determination on this pesticide petition. 50 CFR Part 17 We will post all comments on http:// Pursuant to 40 CFR 180.7(f), a [Docket No. FWS–R8–ES–2019–0065; www.regulations.gov. This generally summary of the petition that is the 4500030113] means that we will post any personal subject of this document, prepared by information you provide us (see the petitioner, is included in a docket RIN 1018–BE11 Information Requested, below, for more EPA has created for this rulemaking. Endangered and Threatened Wildlife information). The docket for this petition is available and Plants; Removing San Benito Document availability: The recovery at http://www.regulations.gov. Evening-Primrose (Camissonia plan, 5-year review summary, and draft As specified in FFDCA section benitensis) From the Federal List of post-delisting monitoring plan 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is Endangered and Threatened Plants referenced in this document are publishing notice of the petition so that available at http://www.regulations.gov the public has an opportunity to AGENCY: Fish and Wildlife Service, under Docket No. FWS–R8–ES–2019– comment on this request for the Interior. 0065.

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FOR FURTHER INFORMATION CONTACT: has been reduced to levels that no assessment of the proposed rule and the Stephen P. Henry, Field Supervisor, longer pose a significant threat of specific assumptions and conclusions U.S. Fish and Wildlife Service, Ventura extinction to San Benito evening- regarding the proposed delisting. This Fish and Wildlife Office, 2493 Portola primrose or its habitat due to the closure assessment will be completed during Road, Suite B, Ventura, CA 93003; by of the Serpentine Area of Critical the public comment period. telephone 805–644–1766. If you use a Environmental Concern, and the Because we will consider all telecommunications device for the deaf restriction of off-highway vehicle use comments and information we receive (TDD), call the Federal Relay Service at within the Clear Creek Management during the comment period, our final 800–877–8339. Area. Most significantly, the species is determinations may differ from this SUPPLEMENTARY INFORMATION: much more wide-ranging and common proposal. Based on the new information than originally known and occurs across we receive (and any comments on that Executive Summary a broader range of habitat types (BLM new information), we may conclude that Why we need to publish a rule. Under 2018, p. 32). The number of known the species is still warranted for listing. the Act, a species may warrant removal occurrences has increased from nine to Such final decisions would be a logical (i.e., ‘‘delisting’’) from the Federal List 79 and the range of the species is now outgrowth of this proposal, as long as of Endangered and Threatened Plants if known from three watersheds and we: (1) Base the decisions on the best it no longer meets the definition of an occupied habitat covers 63.2 acres (25.6 scientific and commercial data available endangered species or a threatened ha). The species persists through after considering all of the relevant species. Delisting a species can only be periods of disturbance due to the factors; (2) do not rely on factors completed by issuing a rule. persistence of a robust and long lived Congress has not intended us to What this document does. We seedbank that facilitates consider; and (3) articulate a rational propose to remove San Benito evening- reestablishment, dispersal, and buffers connection between the facts found and primrose (Camissonia benitensis) from against stochastic events. Annual the conclusions made, including why the Federal List of Endangered and surveys of San Benito evening-primrose we changed our conclusion. Threatened Plants. have demonstrated a large amount of Information Requested The basis for our action. Under the interannual variation in numbers of Act, we may determine that a species is individuals observed. We conclude that We intend any final action resulting an endangered or threatened species the 27 occurrences that have been from this proposal will be based on the because of any of five factors: (A) The monitored since 1983 have remained best scientific and commercial data present or threatened destruction, relatively stable around a 5-year moving available and be as accurate and as modification, or curtailment of its average when the abnormally high effective as possible. Therefore, we habitat or range; (B) overutilization for count year (1988) is considered. request comments or information from commercial, recreational, scientific, or Furthermore, the significant increase in other governmental agencies, Native educational purposes; (C) disease or the number of occurrences detected by American tribes, the scientific predation; (D) the inadequacy of recent BLM surveys is not represented community, industry, or other existing regulatory mechanisms; or (E) in the analysis of the 27 occurrences interested parties concerning this other natural or manmade factors that were known at the time the proposed rule. We particularly seek affecting its continued existence. We comments concerning: have determined that the threats to the Recovery Plan was written. The existing regulatory mechanisms in place are (1) The extent of any current threats species have been reduced or eliminated to the species and its habitat. so that the plant no longer meets the adequate to ensure the continued persistence of San Benito evening- (2) The potential for shrub definition of an endangered or encroachment to reduce suitable habitat threatened species under the Act. We primrose occurrences and suitable potential habitat. Based on the best for the species. are seeking information and comments (3) The ability of previously degraded available information, the intent of the from the public regarding this proposed habitat to return to suitable habitat for recovery criteria and the recovery goal rule and the draft post-delisting colonization and/or reintroduction. identified in the Recovery Plan has been monitoring plan for the species. We will (4) The lasting effects of past off- met for the species. We, therefore, also seek peer review. highway vehicle (OHV) use and the conclude that San Benito evening- San Benito evening-primrose, a small level of natural restoration to those areas primrose is no longer a threatened annual plant with bright yellow flowers, of suitable habitat disturbed by OHV species throughout its range, nor is it is found in the central coast range in use. California’s San Benito, Monterey, and likely to become so within the (5) The potential for climate change to Fresno counties. The scientific foreseeable future. either positively or negatively affect the community’s understanding of the San Peer review. In accordance with our species. Benito evening-primrose’s ecology and joint policy on peer review published in (6) The climatic conditions under habitat has improved since time of the Federal Register on July 1, 1994 (59 which germination naturally occurs and listing due to the efforts of the Bureau FR 34270), and our August 22, 2016, by which seed set is initiated. of Land Management (BLM) to survey memorandum updating and clarifying (7) The monitoring guidelines and study the plant over the last three the role of peer review of listing actions proposed for the post-delisting decades. We listed San Benito evening- under the Act, we will seek the expert monitoring plan and whether they primrose as threatened in 1985 due to opinions of at least three appropriate appropriately characterize the extent of ongoing threats of motorized recreation specialists regarding this proposed rule. disturbance and can adequately identify activities and commercial mining The purpose of peer review is to ensure the thresholds at which San Benito operations. At the time of listing, the that our classification determinations evening-primrose can persist. San Benito evening-primrose was are based on scientifically sound data, Please include sufficient information documented in only nine locations in a assumptions, and analyses. The peer with your submission (such as scientific small area of only San Benito County. reviewers have expertise in the biology, journal articles or other publications) to Off-highway vehicle recreation, the habitat, and threats to the species. A allow us to verify any scientific or greatest persistent threat to the species, peer review panel will conduct an commercial information you include.

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Please note that submissions merely with our regulation at 50 CFR commercial data available concerning stating support for, or opposition to, the 424.16(c)(3). the status of the species, including the action under consideration without impacts of past, present, and future Previous Federal Actions providing supporting information, factors (both negative and beneficial) although noted, will not be considered On February 12, 1985, we listed San affecting the species. Where we have in making a determination, as section Benito evening-primrose as a threatened more recent information than was 4(b)(1)(A) of the Act directs that species (50 FR 5755–5759) based contained in the 5-year review, we have determinations as to whether any primarily on the threats from motorized incorporated it as appropriate into this species is an endangered or threatened recreation and active gravel mining. proposed rule. species must be made ‘‘solely on the Nine occurrences of the plant were I. Proposed Delisting Determination basis of the best scientific and known at the time, ranging from only 10 commercial data available.’’ to 100 individuals each (50 FR 5755). At Background the time of listing, we found that You may submit your comments and designation of critical habitat was not San Benito evening-primrose is a materials concerning this proposed rule prudent, and no further action regarding small, yellow-flowered, annual species by one of the methods listed in critical habitat has been taken (50 FR in the evening-primrose family ADDRESSES. We request that you send 5757–5759). Accordingly, we do not (Onagraceae). The plant is slender with comments only by the methods address critical habitat in this proposed narrowly elliptic leaves 0.3 inches (in) described in ADDRESSES. rule. (7–20 millimeters (mm)) in length and If you submit information via http:// A recovery plan for San Benito minutely serrate. The stem may be erect www.regulations.gov, your entire evening-primrose was published on or decumbent (lying on the ground with submission—including any personal September 19, 2006 (71 FR 54837– the extremity curving upward) and identifying information—will be posted 54838) (Recovery Plan). In the Recovery ranges in height from 1.2 to 7.9 in (3– on the website. If your submission is Plan, we noted the need to fully map the 20 centimeters (cm)) with branches made via a hardcopy that includes extent and range of the species, widely spreading. Petals are 0.1 to 0.2 personal identifying information, you acknowledging that additional in (3.5 to 4 mm) and may fade from may request at the top of your document occurrences had been found since yellow to reddish (Wagner 2012, pp. that we withhold this information from listing in 1985. We also noted that, 925–929). San Benito evening-primrose public review. However, we cannot during 20 years of monitoring known is autogamous (self-fertilizing) and guarantee that we will be able to do so. occurrences, only 2 of those years had produces seed that persists for long We will post all hardcopy submissions produced large numbers of individuals. periods of time, which creates well- on http://www.regulations.gov. This determination led recovery actions established seed banks where the Comments and materials we receive, to focus heavily on preserving suitable species occurs (Taylor 1990, pp. 7–8). habitat and the seed bank since target as well as supporting documentation we San Benito evening-primrose is numbers of individuals were unlikely to used in preparing this proposed rule, known only from the southeastern be reliable indicators of population will be available for public inspection portion of San Benito County, the on http://www.regulations.gov, or by health (USFWS 2006, p. 51). In 2009, the Service conducted a 5- western edge of Fresno County, and the appointment, during normal business northeastern edge of Monterey County, hours, at the U.S. Fish and Wildlife year review pursuant to 16 U.S.C. 1533(c)(2)(A) to evaluate whether the largely within the New Idria Service, Ventura Fish and Wildlife species’ status had changed since listing serpentinite mass (figure 1). Serpentine Office (see FOR FURTHER INFORMATION in 1985 and publication of the Recovery is a rock formed from ancient volcanic CONTACT). Plan in 2006 (USFWS 2009, entire). In activity that results in minerals with a Public Hearing the 5-year review, we reported an greenish and brownish appearance such increase in the number of known sub- as antigorite, lizardite, and chrysotile. Section 4(b)(5)(E) of the Act provides occurrences from 53 in 2006 at the time The New Idria serpentinite mass covers for one or more public hearings on this of the Recovery Plan to 69 in 2009 as approximately 13,000 hectares (32,124 proposal, if requested. We must receive well as changes in the management of acres) and is one of the largest requests for public hearings, in writing, OHV use. serpentine formations in the southern at the address shown in FOR FURTHER We published a notice announcing Coast Ranges of California (Rajakaruna INFORMATION CONTACT by the date shown the initiation of a 5-year review of the et al. 2011, p. 698). Average rainfall in in DATES. We will schedule a public status of San Benito evening-primrose areas occupied by San Benito evening- hearing on this proposal, if any are on June 18, 2018 (83 FR 28251–28254). primrose is 16–17 in (40–42 cm) requested, and announce the date, time, This proposed rule to remove San annually with temperatures ranging and place of those hearings, as well as Benito evening-primrose from the from lows of 21 to 34 degrees how to obtain reasonable Federal List of Endangered and Fahrenheit (F) (¥6.7 to ¥1.1 degrees accommodation, in the Federal Register Threatened Plants also serves as a status Celsius (C)) in the winter to highs of 90 at least 15 days before the first hearing. review for the species. to 100 degrees F (32.2 to 37.8 degrees C) For the immediate future, we will in the summer (USFWS 2009, p. 8). provide these public hearings using Supporting Documents Occupied habitat of San Benito evening- webinars that will be announced on the In 2009, a 5-year review was prepared primrose occurs primarily on land Service’s website, in addition to the for San Benito evening-primrose. At the managed by the Bureau of Land Federal Register. The use of these time, the review represented a Management (BLM) (36.5 acres), as well virtual public hearings is consistent compilation of the best scientific and as on private land (26.6 acres).

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San Benito evening-primrose occurs better developed than neighboring boundary between serpentine masses at elevations between 1,969 to 3,938 feet slopes, generally flat (<3 degrees slope), and non-serpentine rock (BLM 2014, pp. (ft) (600 and 1,200 meters (m)) on and contain less than 25 percent cover 110–112). Generally, alluvial habitat is alluvial terraces and upland geologic of chaparral or woody vegetation found closer to water and in association transition zones containing sandy to (Taylor 1990, pp. 69, 71–72, USFWS with Quercus durata (leather oak), gravelly serpentine derived soil, but 2006, p. 13). Geologic transition zone Arctostaphylos spp. (manzanita), Pinus may also be found on greywacke, chert, habitat is characterized by sandy soils jeffreyi (Jeffrey pine), P. sabiniana (bull and syenite derived soils (Raven 1969, within uplands on slopes between 15 pine), and P. coulteri (Coulter pine). pp. 332–333, Taylor 1990, pp. 24–36, degrees and 60 degrees as well as rock Geologic transition zone habitat is found 39–42, BLM 2018, pp. 17–19). Alluvial outcrops and talus (Dick et al. 2014, p. far from water and in association with terrace habitat is characterized by 167, BLM 2018, p. 18). The transition Q. douglassii (blue oak), Juniperus serpentine soils that are deeper and zone that the habitat type refers to is the californicus (California juniper), and Q.

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berberidifolia (scrub oak) (Dick et al. of sub-occurrences are located. The of public and private land, and potential 2014, p. 167). surveys conducted by the BLM have suitable habitat is currently estimated at The BLM first identified the geologic resulted in an increase in the 260 ac (105 ha) (BLM 2018, p. 31). The transition zone habitat type in 2009 understanding of the range of the findings of the BLM have been through surveys of potential habitat and species, habitat preferences, life history, documented in annual reports from known occurrences of San Benito and numbers (BLM 2018, entire). The 2009 to 2018 and are the source of the evening-primrose. The discovery of the monitoring has resulted in the most recent information regarding the new habitat type, and associated new identification of 658 point locations status of the occurrences of San Benito occurrences, increased the number of occurring within and outside of the evening-primrose. known point locations from 69 in 2009 boundary of the Clear Creek to 658 in 2018 (BLM 2018, p. 32). The Management Area (CCMA), including a This document presents data that was difference between geologic transition substantial number on private land (5 provided by the BLM within the 2018 zone habitat and alluvial terrace habitat known point locations in 2009 and 290 Annual Report (BLM 2018, entire) and suggested the possibility that there were known point locations in 2018). The from spatial data provided by the BLM two genetically distinct lineages of San species’ current known range is in 2018. Within this report a single Benito evening-primrose or that the bordered on the north by New Idria ‘‘occurrence’’ refers to areas where San species may be hybridizing with the Road near the confluence of Larious Benito evening-primrose has been close relatives plains evening primrose Creek and San Carlos Creek, to the mapped. Mapped areas within 0.25 mi (C. contorta) and sandysoil suncup (C. South at the Monterey County Line near (0.4 km) of each other, but strigulosa). However, it was determined Lewis Creek, to the west near the discontinuous, are considered a single that hybridization was not occurring Hernandez Reservoir, and to the east by occurrence consisting of multiple sub- and that watersheds and habitat type the eastern boundary of the serpentine occurrences. The BLM has recorded did not explain any genetic differences area of critical environmental concern point data, in addition to polygon sub- that were identified (Dick et al. 2014, (ACEC), an area of approximately 307 occurrences for San Benito evening- entire). The findings suggest that the square miles. The BLM’s ACEC primrose, which are referred to as point known occurrences of San Benito designations highlight areas where locations in this report. Point locations evening-primrose are all part of the special management attention is needed are mapped point features while sub- same genetic population (Dick et al. to protect important historical, cultural, occurrences are mapped polygon 2014, entire). and scenic values, or fish and wildlife features. In 2018, 79 occurrences, The BLM has been conducting or other natural resources. ACECs can consisting of 519 sub-occurrences, and surveys for San Benito evening-primrose also be designated to protect human life 658 point locations were mapped by the since 1980 within the Clear Creek and safety from natural hazards. The BLM (table 1) (BLM 2018, p. 32; BLM Management Area, where the majority known occurrences cover 64 ac (26 ha) 2018, spatial data).

TABLE 1—2018 BLM SURVEY RESULTS

Number of Number of Number of Acres occurrences sub-occurrences point locations (hectares)

2018 San Benito evening-primrose (Camissonia benitensis) survey results ...... 79 519 658 63.2 (25.6) Occurrences consist of sub-occurrences (mapped polygons) within 0.25 mile of each other. Point locations are reported in the 2018 Annual Report (BLM 2018 p. 32). Acreage data are derived from the spatial extent of the mapped occurrences.

The BLM compared historical species. Under section 4(f)(1)(B)(ii), would result in a determination that the occurrence data to their point location recovery plans must, to the maximum species is no longer an endangered counts in their annual reports, and extent practicable, include: ‘‘[O]bjective, species or threatened species. Service used those comparisons in the measurable criteria which, when met, Thus, while recovery plans provide Recovery Plan (USFWS 2006, entire) would result in a determination, in important guidance to the Service, and 5-Year Review (USFWS 2009, accordance with the provisions of States, and other partners on methods of entire). Here, we have chosen to update [section 4 of the Act], that the species minimizing threats to listed species and the occurrence organization because the be removed from the list.’’ However, measurable objectives against which to numbers of occurrences, sub- revisions to the list (adding, removing, measure progress towards recovery, they occurrences, and point locations have or reclassifying a species) must reflect are not regulatory documents and increased dramatically since 2009. determinations made in accordance cannot substitute for the determinations Table 1 illustrates the nested nature of with sections 4(a)(1) and 4(b) of the Act. and promulgation of regulations the way the data are presented. When Section 4(a)(1) requires that the required under section 4(a)(1) of the possible we use the same terminology as Secretary determine whether a species Act. A decision to revise the status of or previous reports. is an endangered species or threatened remove a species from the Federal List Recovery and Recovery Plan species (or not) because of one or more of Endangered and Threatened Plants Implementation of five threat factors. Section 4(b) of the (50 CFR 17.12) is ultimately based on an Act requires that the determination be analysis of the best scientific and Section 4(f) of the Act directs us to made ‘‘solely on the basis of the best commercial data then available to develop and implement recovery plans scientific and commercial data determine whether a species meets the for the conservation and survival of available.’’ Therefore, recovery criteria definition of an endangered species or a endangered and threatened species should help indicate when we would threatened species, regardless of unless we determine that such a plan anticipate that an analysis of the whether that information differs from will not promote the conservation of the species’ status under section 4(a)(1) the recovery plan. Below, we summarize

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the recovery plan goals and discuss (2) Known occurrences and sufficient occurrences. From 1990 through 2010, progress toward meeting the recovery additional suitable habitat within each San Benito evening-primrose was objectives and how they inform our watershed unit throughout its range are thought to be restricted to alluvial analysis of the species’ status and the protected from direct effects from OHV terrace habitat that was characterized by stressors affecting it. use and other recreational activities. relatively deep and well-developed, The Recovery Plan (USFWS2006, pp. Appropriate levels of compliance with serpentine-derived soils on flat ground 48–74) describes the recovery goal and use regulations by recreationists have (compared to nearby barren serpentine criteria that need to be achieved in order prevented adverse impacts to San slopes), association with ephemeral or to consider removing San Benito Benito evening-primrose occurrences intermittent streams, and open habitat evening-primrose from the Federal List and habitat. lacking woody vegetation (Taylor 1990, of Endangered and Threatened Plants. (3) Currently occupied and suitable pp. 39–40). In 2010, the BLM identified We summarize the goal and then habitat for the species has been restored a second type of habitat, termed the discuss progress toward meeting the and maintained over an appropriate ‘‘geologic transition zone,’’ that was recovery criteria in the following period of time, as informed by suitable for San Benito evening- sections. monitoring and research. Twenty years primrose (BLM 2010, pp. 8–16). The was estimated as ‘‘the appropriate geologic transition zone was Recovery Goal period of time’’ in the Recovery Plan characterized by relatively steeper In the Recovery Plan, the stated goal (USFWS 2006, p. 53). The Recovery slopes (0–∼60 degrees) of uplands on is to restore occurrences of San Benito Plan emphasizes maintaining suitable serpentine soils at the interface with evening-primrose so that they are self- habitat and more precisely defining the non-serpentine soils. Geologic transition sustaining and protected from future requirements of suitable habitat. zone habitat is not topographically threats (USFWS 2006, p. 51). This goal Additionally, disturbance and erosion constrained to the toe of slopes, whereas is broadly evaluated through trends in rates should not be elevated above alluvial stream terrace habitat is. From the observed numbers of individuals natural levels and the seed bank should the time of listing through 2018, the indicated by annual monitoring, the be evaluated for continued persistence, BLM conducted extensive surveys abundance and distribution of suitable as above-ground numbers of individuals within these habitat types, which led to habitat, evaluation of the seed bank, and are known to fluctuate widely from year the discovery and documentation of the effectiveness of protective measures to year. over 600 new point locations. The (4) Population sizes have been that have been implemented to reduce results indicated that the majority of maintained over a monitoring period threats from human activities such as both occupied and potential habitat is that includes multiple rainfall cycles mining, OHV use, and other recreational greatest within the geologic transition (successive periods of drought and wet activity (USFWS2006, pp. 51–52). In zone type (BLM 2018, p. 32). The new years). The Recovery Plan states that the order to evaluate threats to the species sub-occurrences identified within the trend of above-ground counts of species we must consider potential impacts geologic transition zone habitat are should be stable or increasing and within the foreseeable future. The relatively undisturbed in comparison to defines non-drought years as those with Recovery Plan (USFWS 2006, entire) the highly disturbed sites of the initial greater than 15 in (38 cm) of rainfall uses 20 years as the appropriate period locations known from alluvial stream from October through April at the Priest of time to evaluate population stability terraces (BLM 2010, p. 11). The majority Valley weather station. because the number of individuals of new point locations are found outside (5) A post-delisting monitoring plan fluctuates widely from year to year and of the historical areas used by OHVs and for San Benito evening-primrose has a longer monitoring time will better as a result have not been subjected to been developed. reflect changes in trends despite this the same levels of disturbance. variation (USFWS 2006, p. 51, 53). Achievement of Recovery Criteria Approximately one-third to half of the Given this and information on potential Criterion 1: Research has been currently known occurrences exist on threats into the future, in this proposed completed. private land outside of the Clear Creek rule we have adopted 20 to 30 years as Research to increase the Management Area (table 2, table 3) the foreseeable future to evaluate understanding of the extent of existing (BLM 2018, p. 33). potential threats and the species’ occurrences, the range of suitable Seed Bank Analysis. Our responses to those threats. habitat, the persistence of the seed bank, understanding of the role of the seed Recovery Criteria and analysis of the genetic variability bank in the life history of San Benito across watersheds and habitat types evening-primrose has similarly The Recovery Plan identified five have been undertaken since listing in increased due to research efforts. The criteria for removing San Benito 1985 (Taylor 1990, entire; BLM 2010, number of viable seeds within the seed evening-primrose from the Federal List entire; BLM 2014, entire; BLM 2015, bank was often many times greater than of Endangered and Threatened Plants entire; BLM 2018, entire; Dick et al. the above-ground expression in any (USFWS 2006, pp. 52–54): 2014, entire). given year—including those years in (1) Research has evaluated the Habitat Suitability. Research which there was a large above-ground possibility for restoration of suitable conducted in 1990 (Taylor 1990, entire) expression (Taylor 1990, p. 57). The size habitat and the natural rate of the provided the first comprehensive of the seed bank at existing locations replacement of suitable habitat (i.e., overview of the ecology of San Benito was reevaluated in 2010 by the BLM succession from open habitat to woody evening-primrose that established the (BLM 2011, pp. 36–42). The BLM found vegetation), the ecology of the seedbank, initial understanding for the that there were 519 times as many seeds and population viability modeling. The requirements of suitable habitat for the as emergent plants when averaged results of completed research, and any species, the species’ life history, across 67 sub-occurrences in 2010, other research that was conducted, including early examination of the seed emphasizing that the size of the should inform all other recovery criteria bank and germination characteristics, seedbank is much greater than the total suggested by the Recovery Plan and are and the known distribution of the number of observed individuals in a listed below. species as well as threats to the known given year. Maintaining a large amount

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of seed within the soil is a common and Lair 2005, p. 7, Groom et al. 2007, pp. 126–127). The reduction in mature strategy for short-lived annuals in pp. 130–131, Lovich and Bainbridge individuals led to a decrease in the habitats with frequent disturbance 1999, pp. 315–317, Switalski et al. 2017, amount of seeds produced and because the persistent seed bank buffers p. 88). Alluvial terrace habitat that was suggested that persistent impacts from against stochastic environmental events greater than 50 percent disturbed from OHVs over extended periods of time such as drought (Kalisz and McPeek OHV use was considered to be may result in the depletion of the 1993, pp. 319–320; Fischer and Matthies unsuitable for San Benito evening- existing seedbank (Groom et al. 2006, 1998, pp. 275–277; Adams et al. 2005, primrose (Taylor 1990, p. 71; USFWS pp. 131–132). We can use this p. 434). In species that develop large 2006, p. 13). Geologic transition zone information as an indicator of how San seed banks, it is not uncommon to see habitat was not considered here because Benito evening-primrose recolonization no above-ground expression one year it had not yet been recognized as may be similarly affected by OHV. and to see a large expression the suitable habitat, but tends to have less The Recovery Plan recommends target following year, and this pattern has OHV disturbance than alluvial terrace numbers of individuals for a sub-set (27) been well-documented with San Benito habitat. The seed bank of San Benito of the known occurrences of San Benito evening-primrose (BLM 2018, p. 11). evening-primrose is very large, and the evening-primrose (USFWS 2006, pp. Disturbance Ecology. Frost heaving amount of seed present is many times 56–58). These occurrences also (the expansion and contraction of water greater than the amount of individuals generally have the longest record of within the soil during freeze-thaw that germinate in any given year (Taylor survey data and include the initial cycles), small mammal soil disturbance 1990, p. 57, BLM 2011, pp. 33–42). occurrences described in Taylor (1990, (e.g., gopher burrowing), sediment Additionally, the BLM found that the entire). Data from the BLM indicate that, movement from adjacent slopes, and majority of the existing seed bank is despite cessation of OHV use in 2008, erosion from stream flows were found within the top 1 to 3 in (4 to 8 the number of individuals observed identified as the primary sources of cm) of soil (BLM 2013, pp. 19–34). As annually at these occurrences has not natural disturbance experienced by San a result, any damage to, or loss of, the increased and may be decreasing (figure Benito evening-primrose (Taylor 1990, top layer of soil has the potential to 2). The 5-year moving average indicates pp. 39–42, 57). Quantifiable measures of negatively affect the ability of the a decrease in the average number of erosion (natural or anthropogenic) and a species to persist through time. individuals from 1988 through 1993 scale to measure disturbance severity Recolonization. Natural rates of followed by stable to slightly increasing and persistence, as well as the recolonization of native flora in arid numbers of individuals. However, 1988 corresponding effect to San Benito environments following disturbance was an abnormal year, and the number evening-primrose and associated have been estimated to be between 65– of individuals counted during surveys species, have not been developed. While 76 years for a return to predisturbance was significantly greater than any other San Benito evening-primrose tolerates, cover of annuals and perennials, and recorded year. The abnormally high and is adapted to, disturbance from from 148–215 (and greater) years for a numbers of individuals identified that natural processes, anthropogenic return to predisturbance species year have a large effect on the observed disturbances from activities such as composition and cover (Abella 2010, pp. trend in annual number of individuals. mining, road and building construction, 1,258–1,260, Berry et al. 2015, pp. 149– These data are consistent with available and OHV use are much more severe and 150). Persistent OHV use reduced the literature that suggests that a return to may lead to loss of habitat through soil number of Astragalus magdalenae var. predisturbance conditions likely occurs removal, soil compaction, and increased peirsonii (Peirson’s milk-vetch) by 4–5 on time scales of greater than 65–76 rates of erosion (BLM 2010, p. 29, times the amount of comparable years and possibly even greater than 150 Snyder et al. 1976, pp. 29–30, Brooks undisturbed areas (Groom et al. 2006, years.

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Population Genetics. The occurrences distinct genetic clusters of San Benito the understanding of the extent of of San Benito evening-primrose that the evening-primrose found but none of the existing occurrences, the range of BLM began finding within geologic genetic clusters coincided with type of suitable habitat, the persistence of the transition zone habitat were at first habitat or watershed (Dick et al. 2014, seed bank, and analysis of the genetic thought to be genetically distinct from entire). Additionally, the same study variability across watersheds and occurrences within alluvial terrace found no evidence of hybridization habitat types have been undertaken habitat. The new occurrences were also between San Benito evening-primrose fulfilling recovery criterion 1. located within different watersheds and contorted primrose. Because the Criterion 2: Known occurrences and from the first known occurrences, and genetic diversity identified within the sufficient additional suitable habitat there was some question as to whether occurrences was widespread and within each watershed unit throughout or not the species may be hybridizing uncorrelated with habitat and its range are protected from direct with a close relative, Camissonia watershed, future out-planting efforts effects from OHV use and other strigulosa (contorted primrose). If the would not need to be restricted to recreational activities. occurrences were genetically distinct, genetic type. The study instead Wire fencing, steel pipe barriers, recovery actions, such as restoration of concluded that seed from different signage, and enforcement of trail degraded habitat and out-planting occurrences should be mixed to increase restrictions were used to protect San efforts, would need to be identified for diversity across the entire geographic Benito evening-primrose and suitable each habitat type. There were three range. In summary, research to increase habitat prior to the 2006 amendment to

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the Resource Management Plan. The emergency temporary closure of the surveys since 2008 and the initial 2006 amendment to the Resource CCMA (BLM 2008, p. 2). Although not closure of the Serpentine ACEC (table Management Plan closed to OHVs all the intent, the closure effectively 2). During this time non-compliance has areas not marked for limited or open temporarily protected all known remained relatively low with the use. This restricted the total OHV use occurrences of San Benito evening- number of point locations or potential area to 242 miles (390 km) of OHV trails primrose from OHV disturbance. The habitat being impacted by OHV ranging and directed OHV use away from areas temporary closure remained in place from 2 to 11 locations in a given year. that provided suitable habitat for, or until the 2014 amendment to the The amount of disturbance within each were occupied by, San Benito evening- Resource Management Plan was area has been observed to be low, and primrose (BLM 2006 p. 3–1). By 2009, adopted (BLM 2014, entire). The 2014 natural recovery was observed. Upper non-compliance with the 2006 Resource Resource Management Plan further Clear Creek, Larious Canyon, and San restricted OHV access to areas of Management Plan had declined (BLM Carlos Creek are areas of repeated non- suitable habitat and known sub- 2008, pp. 5–9; USFWS 2009, pp. 19–21). compliance despite annual repairing of occurrences of San Benito evening- In 2008, the EPA issued a report primrose by reducing the amount of fencing and barriers and issuance of concluding that exposure to naturally open trails and restricting access to the citations for violating the closures when occurring asbestos during recreational Serpentine Area of Critical users are caught (BLM 2013, p. 5, BLM activities, including OHV use, was Environmental Concern (ACEC) to 5 2015, p. 6). The intensity of non- higher than the acceptable risk range for days per year per recreationalist through compliance varied from heavy (greater causing cancer within the CCMA (EPA a permit system and a series of locked than 10 tracks observed) to moderate or 2008, p. 6–3). The level of exposure to gates (BLM 2014, pp. 1–18). low (less than 10 tracks observed). The asbestos varied with recreational The BLM has conducted OHV non- BLM assumes that non-compliant OHV activity and participant age, but was compliance monitoring as part of the use originates from private land significant enough to warrant an annual San Benito evening-primrose adjacent to the CCMA.

TABLE 2—SUMMARY OF OFF-HIGHWAY VEHICLE NON-COMPLIANCE WITHIN THE SERPENTINE AREA OF CRITICAL ENVIRONMENTAL CONCERN 2008 THROUGH 2016

Number of point locations Minimum number Max number of Average number Year * with observed of tracks tracks of tracks Reference non-compliance

2008 ...... 6 NA NA NA BLM 2008 pp. 8–9. 2009 ...... 3 NA NA NA BLM 2010 p. 5. 2010 ...... 2 2 10+ 2 BLM 2011 pp. 12–13. 2012 ...... 11 1 10+ 7 BLM 2012 p. 5. 2013 ...... 10 1 10+ 8 BLM 2013 p. 5. 2014 ...... 9 1 10+ 5 BLM 2015 p. 6. 2015 ...... 8 1 10+ 7 BLM 2017 pp. 6–7. 2016 ...... 6 1 10+ 8 BLM 2017 p. 8. * No data available for 2011, 2017, 2018. Minimum, maximum, and average number of tracks observed were not available for the 2008 and 2009 survey seasons.

By 2014, the number of known point sub-occurrences) are located within the subject to management by the BLM or locations of San Benito evening- Serpentine ACEC and are effectively other Federal agencies (table 3, table 4). primrose had grown to 500 with the protected from OHV use due to the 2014 When the recovery plan criteria were majority occurring within the geologic Resource Management Plan (BLM 2018, written, there were 27 known transition zone habitat. Approximately p. 33) (table 3). There are 36 occurrences occurrences. Twenty- three of those half of those locations were protected (260 sub-occurrences) within BLM- occurrences were on land managed by from OHV use due to the restrictions managed land outside of the Serpentine imposed by the 2014 Resource ACEC. OHV use within the CCMA, but the BLM, and four were on private Management Plan (BLM 2014, pp. 1–18; outside of the Serpentine ACEC, has property. Currently, there are 59 BLM 2015, pp. 7–16). By 2018, 658 been designated as ‘‘limited,’’ meaning occurrences on BLM-managed land and point locations of San Benito evening- that motorized use is restricted to 45 occurrences on private property. primrose had been mapped by the BLM highway-licensed vehicles and ATVs Although protections for the (BLM 2018, pp. 32–47). The 658 point and utility task vehicles on designated occurrences on private land cannot be locations correspond to 79 occurrences routes only (BLM 2014, pp. 1–13 guaranteed, the number of occurrences consisting of 519 sub-occurrences and through 1–14). Forty-five occurrences on land managed by the BLM has covering 63.2 acres (25.6 ha) (table 1, (178 sub-occurrences) are known to exceeded the goal of Recovery Criterion figure 1). Twenty-three occurrences (81 occur on private land that are not 2 through discovery of new occurrences.

TABLE 3—NUMBER OF OCCURRENCES, SUB-OCCURRENCES, AND ACREAGE OF MAPPED SAN BENITO EVENING-PRIMROSE (Camissonia benitensis) LOCATIONS BY LAND MANAGER (2018)

Number of Number of occurrences sub-occurrences Acres

BLM ...... 36 260 23.8 ACEC ...... 23 81 12.7

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TABLE 3—NUMBER OF OCCURRENCES, SUB-OCCURRENCES, AND ACREAGE OF MAPPED SAN BENITO EVENING-PRIMROSE (Camissonia benitensis) LOCATIONS BY LAND MANAGER (2018)—Continued

Number of Number of occurrences sub-occurrences Acres

Private ...... 45 178 26.6 Occurrences consist of sub-occurrences (mapped polygons) within 0.25 mile of each other. Point locations are reported in the 2018 Annual Report (BLM 2018 p. 32). Acreage data are derived from the spatial extent of the mapped occurrences. Note that occurrences that encompass multiple property owners may be counted twice because of how the mapped data are nested.

The majority of the known transition zone habitat are assumed to occurrences and sufficient additional occurrences and sub-occurrences occur be less likely to be affected by OHV suitable habitat within each watershed within the geologic transition zone recreation since OHV riders have unit throughout its range are protected identified by the BLM as habitat in 2010 historically preferred the terrain from direct effects from OHV use and (table 4). Occurrences of San Benito associated with alluvial terrace habitat other recreational activities, fulfilling evening-primrose within geologic (BLM 2010, p. 11). In summary, known recovery criterion 2.

TABLE 4—NUMBER OF KNOWN OCCURRENCES AND SUB-OCCURRENCES BY LAND MANAGER AND HABITAT TYPE

Alluvial terrace habitat Geologic transition zone habitat Number of Number of Number of Number of occurrences sub-occurrences Acres occurrences sub-occurrences Acres

BLM ...... 17 104 6.7 19 156 17.2 ACEC ...... 6 37 3.0 17 44 9.7 Private ...... 10 26 0.6 35 152 26.0

Total ...... 33 167 10.3 71 352 53.0 Occurrences consist of sub-occurrences (mapped polygons) within 0.25 mile of each other. Point locations are reported in the 2018 Annual Report (BLM 2018 p. 32). Acreage data are derived from the spatial extent of the mapped occurrences. Note that occurrences that encompass multiple property owners may be counted twice because of how the mapped data are nested.

Criterion 3: Currently occupied and disturbance from OHV use prior to the heavily degraded from OHV use and suitable habitat for the species has been temporary closure in 2008 and the mining (prior to 1939) was completed in restored and maintained over an permanent restrictions in 2014. 2010 (BLM 2011, pp. 4–10). The staging appropriate period of time, as informed Seed of San Benito evening-primrose areas were characterized by a mix of by monitoring and research. was introduced between 1990 and 1991 lack of vegetation, soil compaction, at six areas near existing point locations. In the Recovery Plan, 20 years was buried original soil surface, debris from At five of the reintroduction sites, identified as the appropriate period of facilities, and erosion on adjacent 30,000 seeds were broadcast into areas time to conduct and evaluate the hillslopes. A total of 2.01 ac (0.81 ha) of that were each 2,153 ft2 (200–300 m2) in success of restoration activities. Twenty San Benito evening-primrose habitat area. Sixty thousand seeds were was restored. Annual counts of San years was chosen to allow enough time broadcast into the sixth site (BLM 2013, for observations of natural and restored Benito evening-primrose at each of the Excel data, Taylor 1993, p. 14). Very few staging areas and associated sub- occurrences during non-drought years to plants, relative to the amount of seed be made in order to evaluate the occurrences have indicated that the reintroduced, were observed (between 3 number of individuals in any given year stability of San Benito evening-primrose and 147 plants) in the years occurrences (USFWS 2006, pp. 53–54). fluctuates greatly (BLM 2018, pp. 34– immediately following the seeding. It 47). Staging areas 1, 4, and 5 have Thirty-three years have passed since has been determined that San Benito San Benito evening-primrose was listed relatively stable annual counts, while evening-primrose establishment from staging areas 2 and 3 have had more by the Service as a threatened species. artificially sown seed is very low and Restoration began prior to listing by variable, and possibly slightly declining, that seeding introduction is not likely to annual counts. using fencing to discourage disturbance be a successful restoration tool (Taylor by OHVs (Taylor 1990, pp. 24–36, 71). 1993, p. 14). The areas where seed was The BLM has also undertaken efforts The BLM has continued to implement introduced have continued to have to improve watershed quality by passive restoration measures such as small numbers of individuals observed identifying the most appropriate species installation of additional wire fencing each year. Approximately 3,000 seeds and methods to restore streambanks and steel pipe barriers to reduce OHV were sown in 2008 and 2012 in areas (BLM 2011, pp. 10–12). While the trespass and signage to promote where San Benito evening-primrose had immediate stream banks are not suitable awareness of the natural resources (BLM not been observed but where potential habitat for San Benito evening-primrose, 2018 pp. 50–56). Photopoint monitoring habitat existed that could support new restoring natural hydrology and has demonstrated an increase in the occurrences. The number of individuals maintaining bank composition can amount of woody vegetation cover in at these areas have remained similarly reduce sedimentation and erosion in the previously open and disturbed areas. low ranging from 0 to 320 individuals watershed that indirectly supports the The increase in woody vegetation cover in a single year (BLM 2018, pp. 34–47). persistence of San Benito evening- suggests that fencing and other barriers Restoration of five staging areas primrose habitat. The BLM found that have been effective in reducing ground located on stream terraces that were revegetation of degraded streambanks

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using sod of Agrostis exarata (spike entirety of known point locations are in abundance or a substantial new threat bentgrass) was most effective. not available. arises, post-delisting monitoring may be Additionally, six vehicle routes were The target number of individuals has extended or modified and the status of closed and restored by removing access not been met for 23 of the 27 the species will be reevaluated. The and ripping the compacted soil (BLM occurrences with target criteria. Service is responsible for establishing a 2011 p. 10). In summary, currently However, the target numbers were final post-delisting monitoring plan. As occupied and suitable habitat for the estimates and the lack of a consistent the sole Federal entity that manages species has been restored and decline in mean annual counts suggest land where San Benito evening- maintained over an appropriate period that, while the occurrences are not primrose occurs, the BLM will of time, as informed by monitoring and increasing in abundance of San Benito contribute expertise for development research, fulfilling recovery criterion 3. evening-primrose, they are not and implementation of the final post- Criterion 4: Population sizes have threatened with extinction. The lack of delisting monitoring plan. The draft been maintained over a monitoring decline in number of individuals over a post-delisting monitoring plan can be period that includes multiple rainfall 27-year monitoring period and an found at http://www.regulations.gov in cycles (successive periods of drought increase in the number of known Docket No. FWS–R8–ES–2019–0065. and wet years). occurrences indicate that the criteria of The Service intends to work with the The Recovery Plan recommended a maintaining population numbers over BLM to finalize the post-delisting target average number of individuals for an appropriate period of time has been monitoring plan upon publication of 27 occurrences of San Benito evening- met. this proposed rule. primrose (USFWS 2006, pp. 54–58; Criterion 5: A post-delisting BLM 2018, pp. 34–35). The target counts monitoring plan for the species has been Summary of Recovery Criteria were based on past observations of the developed. Research and survey efforts have number of individuals observed during Section 4(g)(1) of the Act requires us, clarified the distribution, extent, and favorable years and were considered to in cooperation with the States, to habitat characteristics of San Benito be approximate. Four of the 27 locations implement a system to monitor evening-primrose. The seed bank has with a target number of individuals had effectively, for not less than 5 years, all been demonstrated to be prolific and an an average annual count that met or species that have been recovered and integral part of the species’ ecology in exceeded the target levels between 1983 delisted (50 CFR 17.11, 17.12). The responding to, and persisting through, and 2017 (USFWS 2006, pp. 56–58; purpose of this post-delisting negative stochastic events. A genetic BLM 2018, pp. 34–35; USFWS Review monitoring is to verify that a species evaluation of the newly identified sub- of BLM reporting data). Five of the 27 remains secure from risk of extinction occurrences have shown that there is no locations had an annual average count after it has been removed from the genetic distinction based upon habitat that met or exceeded the target number protections of the Act. The monitoring type or watershed among the different of individuals when only years with is designed to detect the failure of any sub-occurrences. Existing research has normal precipitation are considered. We delisted species to sustain itself without resulted in a better understanding of the consider the average number of the protective measures provided by the species’ ecology and has shown an individuals because the number of Act. If, at any time during the increase in the species’ range, suitable individuals at any given site fluctuate monitoring period, data indicate that habitat, and number of occurrences. greatly from year to year causing single protective status under the Act should With the currently completed research, year counts to be inaccurate measures of be reinstated, we can initiate listing the intent of the first recovery criteria the stability of the species (figure 2). procedures, including, if appropriate, has been met. The total annual number of emergency listing under section 4(b)(7) The second recovery criteria has been individuals for the same 27 sites has of the Act. Section 4(g) of the Act achieved through the 2014 Resource fluctuated around a mean of explicitly requires us to cooperate with Management Plan, which restricted approximately 9,600 individuals since the States in development and OHV access to areas of suitable habitat 1983 (Figure 2). Over time, a slight implementation of post-delisting and known sub-occurrences of San decrease in the species count is monitoring programs, but we remain Benito evening-primrose by reducing observable, but is small enough to be responsible for compliance with section the amount of open trails and restricting affected by a single year’s count. The 4(g) and, therefore, must remain actively access to the Serpentine ACEC to 5 days slight negative trend is due to a engaged in all phases of post-delisting per year per recreationalist through a significantly above-average year in 1988 monitoring. We also seek active permit system and a series of locked where the total number of individuals participation of other entities that are gates (BLM 2014, pp. 1–18). The observed was an order of magnitude expected to assume responsibilities for identification of a new habitat type, the greater than during any other annual the species’ conservation post delisting. geologic transition zone, and numerous count. The 5-year moving average Post-delisting Monitoring Guidelines. new point locations have increased the indicates a decrease in the average Post-delisting monitoring is designed to known range and amount of known number of individuals from 1988 verify that San Benito evening-primrose occupied habitat. The topography and through 1993, followed by stable to remains secure from risk of extinction composition of geologic transition zone slightly increasing numbers of after delisting by detecting changes in habitat is not typical of areas preferred individuals. We also recognize that only trend that indicate that the known by OHV users, and many of the new those occurrences that were known by occurrences have become unstable and/ occurrences of San Benito evening- 2006, and had suggested target numbers or are at risk of becoming once again primrose were not subject to OHV of individuals, are represented in the 27 threatened or endangered. The Act has disturbance. As a result, the majority of locations. This does not take into a minimum post-delisting monitoring the currently known occurrences of San consideration the majority of currently requirement of 5 years, but a longer Benito evening-primrose have not been known occurrences. Evaluating the period of time may be necessary to disturbed from OHV use. The existing trend of each of the 79 occurrences (658 account for fluctuations in counts from Resource Management Plan (BLM 2014, point locations, see table 1) is not year to year, potential changes in land entire) will continue to provide feasible because census data for the use, and climatic variability. If a decline protection for San Benito evening-

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primrose occurrences within the its range. Recovery criteria three and However, the mere identification of Serpentine ACEC and the CCMA four have been met through the closure any threat(s) does not necessarily mean through trail restrictions and a of the Serpentine ACEC, restoration of that the species meets the statutory permitting system. The Post-delisting degraded areas, and observed stability of definition of an ‘‘endangered species’’ or Monitoring Plan will provide guidelines 27 of the 79 occurrences over a period a ‘‘threatened species.’’ In determining for evaluating the species following that included 18 years of normal rainfall whether a species meets either delisting to detect substantial declines over a 27-year period. Recovery definition, we must evaluate all that may lead to consideration of criterion 5 has been met through the identified threats by considering the reclassification to threatened or development of a draft post-delisting expected response by the species, and endangered. Changes in land use will monitoring plan for the species, which the effects of the threats—in light of still be subject to State and Federal will be finalized in collaboration with those actions and conditions that will environmental review. the BLM. ameliorate the threats—on an Annual monitoring of 27 locations of San Benito evening-primrose listed in Regulatory and Analytical Framework individual, population, and species level. We evaluate each threat and its the Recovery Plan have shown that Regulatory Framework numbers of individuals at historically expected effects on the species, then Section 4 of the Act (16 U.S.C. 1533) analyze the cumulative effect of all of occupied habitat have remained and its implementing regulations (50 relatively stable. Active and passive the threats on the species as a whole. CFR part 424) set forth the procedures We also consider the cumulative effect restoration efforts undertaken by the for determining whether a species is an BLM, in conjunction with the closure of of the threats in light of those actions ‘‘endangered species’’ or a ‘‘threatened and conditions that will have positive the Serpentine ACEC to OHV use, have species.’’ The Act defines an effects on the species, such as any improved degraded areas into suitable endangered species as a species that is existing regulatory mechanisms or habitat for San Benito evening-primrose. ‘‘in danger of extinction throughout all The reduction in OHV use described in or a significant portion of its range,’’ and conservation efforts. The Secretary the 2014 Resource Management Plan a threatened species as a species that is determines whether the species meets provided protection of occupied habitat ‘‘likely to become an endangered the definition of an ‘‘endangered within the CCMA, and continued species within the foreseeable future species’’ or a ‘‘threatened species’’ only prohibition on OHV use will ensure that throughout all or a significant portion of after conducting this cumulative future degradation of occupied habitat its range.’’ The Act requires that we analysis and describing the expected will not occur within the CCMA. The determine whether any species is an effect on the species now and in the Recovery Plan suggested target numbers ‘‘endangered species’’ or a ‘‘threatened foreseeable future. of individuals that could be used as a species’’ because of any of the following The Act does not define the term point of reference to assess the stability factors: of San Benito evening-primrose. Those ‘‘foreseeable future,’’ which appears in (A) The present or threatened the statutory definition of ‘‘threatened goals have been met for four (five if only destruction, modification, or normal precipitation years are species.’’ Our implementing regulations curtailment of its habitat or range; at 50 CFR 424.11(d) set forth a considered) of the 27 locations that are (B) Overutilization for commercial, framework for evaluating the foreseeable listed in the Recovery Plan. Those recreational, scientific, or educational future on a case-by-case basis. The term values were considered an purposes; approximation, and it appears that the (C) Disease or predation; ‘‘foreseeable future’’ extends only so far 27 locations listed in the Recovery Plan (D) The inadequacy of existing into the future as the Services can have remained relatively stable around regulatory mechanisms; or reasonably determine that both the a 5-year moving average when the (E) Other natural or manmade factors future threats and the species’ responses abnormally high-count year (1988) is affecting its continued existence. to those threats are likely. In other considered (figure 2). Furthermore, the These factors represent broad words, the foreseeable future is the 27 locations are no longer representative categories of natural or human-caused period of time in which we can make of the entire range of San Benito actions or conditions that could have an reliable predictions. ‘‘Reliable’’ does not evening-primrose due to the discovery effect on a species’ continued existence. mean ‘‘certain’’; it means sufficient to of the geologic transition zone as In evaluating these actions and provide a reasonable degree of suitable habitat and the associated conditions, we look for those that may confidence in the prediction. Thus, a increase in the known total number of have a negative effect on individuals of prediction is reliable if it is reasonable individuals and occupied acreage. the species, as well as other actions or to depend on it when making decisions. Therefore, we conclude that based on conditions that may ameliorate any It is not always possible or necessary the best available information, the negative effects or may have positive to define foreseeable future as a recovery criteria in the Recovery Plan effects. have been achieved and the recovery We use the term ‘‘threat’’ to refer in particular number of years. Analysis of goal identified in the Recovery Plan has general to actions or conditions that are the foreseeable future uses the best been met for San Benito evening- known to or are reasonably likely to scientific and commercial data available primrose. Recovery criterion 1 has been negatively affect individuals of a and should consider the timeframes met with research to increase the species. The term ‘‘threat’’ includes applicable to the relevant threats and to understanding of the extent of existing actions or conditions that have a direct the species’ likely responses to those occurrences, the range of suitable impact on individuals (direct impacts), threats in view of its life-history habitat, the persistence of the seed bank, as well as those that affect individuals characteristics. Data that are typically and analysis of the genetic variability through alteration of their habitat or relevant to assessing the species’ across watersheds and habitat types. required resources (stressors). The term biological response include species- Recovery criterion 2 has been met with ‘‘threat’’ may encompass—either specific factors such as lifespan, protection of known occurrences and together or separately—the source of the reproductive rates or productivity, sufficient additional suitable habitat action or condition or the action or certain behaviors, and other within each watershed unit throughout condition itself. demographic factors.

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Analytical Framework compaction, and could result in the 2002 (BLM 2018, p. 66). The BLM has The 5-year review documents the physical removal of plants. Staging acquired surface rights to 208 ha (520 results of our comprehensive biological areas and camping associated with OHV ac) along the lower reaches of Clear status review for the species, including use had similar negative impacts to the Creek up to and including the an assessment of the potential threats to species and its habitat. Between 1985 confluence with the San Benito River. and 2010, the BLM implemented a This acquisition protects habitat and the species. The review provides the series of measures to reduce effects to occurrences of San Benito evening- scientific basis that informs our known habitat and occurrences of San primrose, but without having the regulatory decisions, which involve the Benito evening-primrose through mineral rights to the land, it cannot be further application of standards within fencing of sensitive areas, signage, considered fully under the control of the the Act and its implementing designation of specific open riding BLM (USFWS 2009, p. 13). The BLM regulations and policies. The 5-year areas, and enforcement and decided in the 2014 Resource review can be found at http:// management of designated OHV trails. Management Plan that no mineral www.regulations.gov under Docket In 2005, the BLM estimated 50,000 leasing or sales on public lands will FWS–R8–ES–2019–0065. Where visitor-use days per year occurred occur within the Serpentine ACEC and information in the 5-year review is out within the CCMA (USFWS 2006, p. 27). that mineral leasing and sales on public of date, we have provided updated OHV use decreased in 2008 following lands outside of the Serpentine ACEC information in this proposed rule. the release of an EPA report that found will have ‘‘no surface occupancy’’ Summary of Biological Status and high levels of naturally occurring stipulations where occupied special Threats asbestos that posed a significant health status species habitat occurs (BLM 2018, risk to visitors within the Serpentine pp. 1–36 through 1–37). With these Historical analyses and discussion of ACEC. requirements, and no active mining the threats to San Benito evening- To address the EPA findings, the BLM leases within suitable habitat and primrose are detailed in the Recovery issued new Management Plans and known occurrences, we conclude that Plan (USFWS 2006, pp. 26–36) and 5- associated Records of Decision in 2014, mining is no longer a significant threat Year Review (USFWS 2009, pp. 10–18). which restricted OHV access to areas of to San Benito evening-primrose and is An updated analysis and discussion suitable habitat and known sub- not likely to become a threat in the follows here. Primary threats to San occurrences of San Benito evening- foreseeable future Benito evening-primrose identified in primrose by reducing the amount of Rock hounding (hobby of collecting the listing rule included OHV use of open trails and restricting access to the rock and mineral specimens from the occupied and potential habitat and Serpentine ACEC to 5 days per year per natural environment) within the CCMA gravel mining. Uncertainty about the recreationalist through a permit system persists as a recreation activity, reproductive capacity of the species and and a series of locked gates (BLM 2014, although quantifying the amount and vandalism were also considered pp. 1–18). Currently, only highway- effect of rock hounding on San Benito additional threats at listing. Vandalism licensed vehicles are allowed within the evening-primrose is lacking. However, was considered a threat due to the small Serpentine ACEC on designated roads given the restricted vehicle access and population size and public resistance to and by permit, which is limited to five relatively low impact of an individual listing the species under the Act. The use-days per year per person. These user versus a commercial mining resistance came from the OHV restrictions on OHV use have effectively operation, we consider that effects to community perception that listing the removed OHV impacts to San Benito San Benito evening-primrose from rock species would inhibit their ability to evening-primrose. OHV non-compliance hounding are negligible and are not continue recreating. However, with fencing and trail restrictions has likely to become a threat in the vandalism was not believed to be been monitored within lands managed foreseeable future. significant with subsequent reviews of by the BLM. Findings of non- Soil Loss and Elevated Erosion Rates the species in the Recovery Plan and 5- compliance remain low compared to Year Review and is not considered levels of use prior to closure (table 2). Soil loss and erosion may occur further in this proposed rule. Since Occurrences located on private property naturally due to seasonal disturbances listing, the Recovery Plan and 5-Year are not protected from OHV use, and as would be expected by frost heaving, Review identified as additional threats: occurrences on BLM land near private overland sheet flow from precipitation, Soil loss and elevated erosion rates from land are at greater risk of disturbance unconsolidated soil, sparse vegetation, OHV trails and staging areas, camping, from OHV trespass. Under the current and flood events. These natural facilities construction and maintenance, Resource Management Plan (BLM 2014, disturbances promote areas relatively habitat alteration due to invasive entire), because of its implementation of free of dense vegetation, increase water species and/or natural vegetation closures and restrictions, we do not infiltration, and may aid in dispersal of community succession, climate change consider OHV use will become a threat the San Benito evening-primrose and the local effect on precipitation to occurrences on BLM land in the downstream or downslope from existing patterns and temperature, and stochastic foreseeable future. While BLM occurrences. Many of the threats events. The following sections provide a restrictions do not provide protection to presented under Factor A may be summary of the past, current, and occurrences on private land, the best considered a ‘‘disturbance’’ to the potential future threats relating to San available data on historical and current habitat of the species, but this does not Benito evening-primrose. recreation levels do not indicate that the mean that they are beneficial. For example, the effects to soil from frost Off-Highway Vehicle Use level of OHV use on private land will increase from current levels to levels heaving and overland sheet flow are Off-highway vehicle use of open that would threaten the persistence of very different from those resulting from serpentine barrens and alluvial terraces the species in the foreseeable future. repeated use of OHVs. The BLM was considered the primary threat to attempted to quantify the differences San Benito evening-primrose when it Mining between the natural, or background, was listed in 1985. Soil disturbance The last commercial mining in the rates of soil loss and erosion, and those from OHVs use increased soil loss, soil CCMA ceased extraction activities in that result from OHV and highway

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vehicle use. The mean background soil impacts resulting from the original increased canopy cover (potentially loss in the Clear Creek Watershed was disturbance remain (BLM 2018, p. 66). shading out San Benito evening- 8 yards3 (yd3)/ac-year (11 tons/ac-year) The old Section 8 Administrative Site is primrose) and increased competition for and that soil loss resulting from OHV infrequently used and, at current levels resources (lessening the success of open riding resulted in soil loss of 12 of use, does not present a threat to the establishment and survival) (Taylor yd3/ac-year (16 tons/ac-year) (PTI persistence of San Benito evening- 1990, p. 66). Photopoints initiated by Environmental 1993, pp. 36–39). The primrose due to the discovery of new the BLM in 1980 suggest that open erosion rate from roads was estimated at sub-occurrences and potential habitat serpentine barrens are less susceptible 59 yd3/ac-year (80 tons/ac-year). throughout the CCMA (BLM 2018 p. 66). to encroachment by woody shrubs Increased erosion and elevated soil No new facilities and construction (typically chaparral species such as loss are indicative of loss of suitable projects are planned, and it is not likely manzanita (Arctostaphylos spp.)) than habitat. The seed bank may be lost as that new projects in occupied or alluvial terrace habitat. This is soil erodes and the remaining soil may potential habitat will be proposed in the presumably due to the greater become compacted, decreasing foreseeable future. concentration of serpentine soils on the germination potential as well as water open barrens compared to the more retention. Trails that form from repeated Habitat Alteration Due to Invasive Species organic rich soils of the alluvial terraces. use on open slopes or terraces may Continued evidence of encroachment collect and funnel water, creating The serpentine-derived soils inhibit into areas occupied by San Benito runnels, which in turn increase erosion invasion from nonnative plant species evening-primrose has been observed at while drawing water away from where San Benito evening-primrose established photomonitoring points adjacent areas (Brooks and Lair 2005, p. occurs. However, the habitat may still (BLM 2018, pp. 56–57). be degraded if invasion by nonnative 7; Ouren et al. 2007, pp. 5–16). The The immediate effect of encroachment species is allowed to occur on adjacent BLM has recognized this issue and has by woody vegetation would be to land. High densities of nonnative attempted to enact minimization reduce, or possibly eliminate, known species may negatively influence measures for soil loss and erosion. In occurrences and potential habitat of San existing or potential habitat for San the most recent Resource Management Benito evening-primrose through Benito evening-primrose by providing a Plan, the BLM includes guidelines that competition and alteration of habitat persistent threat of colonization. Yellow call for road closures during extreme structure. It is possible that the seed star thistle (Centaurea solstitialis) and wet weather, prioritizing closed roads bank, once established, is long lived for restoration and reclamation, and tocalote (C. melitensis) have been enough that it may persist through establishing automated weather stations actively controlled near occurrences of cycles of vegetation community shifts to monitor precipitation and soil San Benito evening-primrose within the due to natural events such as fires. moisture and requires approved erosion CCMA since 2005 (BLM 2018, p. 62). However, the species has not been control strategies to be evaluated for any The BLM has identified prescribed fire studied for sufficient time to observe the soil-disturbing activities on slopes of followed by broadcast application of effects of vegetation succession. The 20–40 percent (BLM 2014, p. 1–30). clopyralid, a broadleaf specific BLM has estimated that seed may Presently, the threat of soil loss and herbicide, as the most effective means of remain viable for 107 years in the erosion is limited to natural cycles, reducing the cover of invasive species presence of common co-occurring remnant effects of past land use, and threatening San Benito evening- roads (for which the above primrose. The cover of yellow star shrubs (BLM 2015, pp. 16–28). minimization measures apply). thistle has been reduced by 95 percent San Benito evening-primrose has not Considering that additional sub- in the Clear Creek drainage, and San been observed in the geologic transition occurrences of San Benito evening- Benito evening-primrose has expanded zone habitat for as long a period of time primrose continue to be identified and into the improved habitat (BLM 2018, p. as either alluvial terrace habitat or the persist within habitat that is more prone 62). The natural buffer that the open serpentine barrens. As a result, the to erosion (upland slopes of the geologic serpentine-derived soils provide, rate of succession to woody vegetation transition zone habitat type), it is coupled with BLM’s management of is not as well understood. It is likely unlikely that natural rates of soil loss invasive species and the expansion of that the rate of succession to woody and erosion present a threat to the known sub-occurrences and potential habitat is less within geologic transition continued existence of the species and habitat, make it unlikely that invasive zone habitat than alluvial terrace, but is not likely to do so in the foreseeable species present a significant threat greater than the rate of succession future. either now or into the future to the compared to open serpentine barrens. persistence of San Benito evening- Succession of plant communities is a Facilities Construction and primrose. The abundance of invasive natural process and may result in loss Maintenance species will be monitored as part of the of current or potential habitat. However, The construction of the BLM Section Post-delisting Monitoring Plan. The the amount of new sub-occurrences that 8 Administrative Site in 1988 and Post-delisting Monitoring Plan will have been identified lessen the associated structures resulted in direct suggest thresholds that will determine immediate risk to the existence of the loss of San Benito evening-primrose and the necessary control efforts on federally species; therefore, succession to woody its habitat, although the species still managed land. shrub community is not currently a occurs in the vicinity of the disturbance species-level threat. No occurrences of (USFWS 2009, pp. 12–13, BLM 2018, p. Succession to Woody Shrub Community San Benito evening-primrose have been 34). The Section 8 Administrative Site San Benito evening-primrose habitat extirpated due to succession of woody was decommissioned in 2010 and is typically open and relatively free of vegetation since monitoring began in replaced by the Clear Creek high amounts of woody vegetation and 1980, and, because San Benito evening- Administrative Site. The new canopy cover. Succession to a woody primrose grows on serpentine soils, administrative site was not constructed shrub community in habitat that threats to the species from succession to on occupied or potential habitat for San presently or historically supported San woody vegetation is also unlikely to be Benito evening-primrose, although the Benito evening-primrose could result in a threat in the foreseeable future.

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Stochastic Events of the BLM within the CCMA have of these changes to San Benito evening- At the time of listing, only nine promoted preserving and restoring San primrose and its habitat are not known, occurrences of San Benito evening- Benito evening-primrose habitat and the but we may reasonably infer potential primrose were known within a natural soil processes and hydrology of effects from the globally anticipated relatively restricted range. The small the watersheds it occurs within as well. changes. The State of California number of occurrences increased the Stochastic events are unlikely to assessment on climate change provides susceptibility of the species to threaten the species in the foreseeable a better estimate for the effects of extinction from a stochastic event, such future due to the current range of San climate change to areas occupied by San as a fire, flood, drought, or other Benito evening-primrose and number of Benito evening-primrose. unpredictable event, because a single known occurrences. California released its fourth climate event had the capability to negatively Climate Change change assessment in 2018 (Langridge impact all known occurrences at the 2018, entire). The California assessment same time. The threat from stochastic The terms ‘‘climate’’ and ‘‘climate differs from the IPCC assessments in events due to a small number of change’’ are defined by the that it is localized to the State and has occurrences has decreased as the Intergovernmental Panel on Climate specific analyses for nine regions within number of known occurrences has Change. The term ‘‘climate change’’ thus the State. California’s Fourth Climate increased to 79 occurrences (519 sub- refers to a change in the mean or Change Assessment uses downscaled occurrences or 658 point locations) variability of one or more measures of versions of the global climate models occurring across multiple watersheds, climate (for example, temperature or used by IPCC to create localized and into a new habitat type (the geologic precipitation) that persists for an predictions based on future emissions transition zone). The species’ current extended period, whether the change is scenarios in order to provide relevant known range is bordered on the north due to natural variability or human predictions for management and by New Idria Road near the confluence activity (IPCC 2014a, pp. 119–120). The planning. The range of San Benito of Larious Creek and San Carlos Creek, effects of climate change are wide evening-primrose falls within the to the south at the Monterey County line ranging but include alteration of Central Coast region of California’s near Lewis Creek, to the west near the historical climate patterns including fourth climate change assessment. In Hernandez Reservoir, and to the east by storm frequency and severity, seasonal general, the region is expected to the eastern boundary of the Serpentine shifts in temperatures, and changing experience increasing minimum and ACEC, an area of approximately 307 precipitation patterns. Globally, these maximum temperatures and slight square miles. effects may be positive, neutral, or increases in precipitation with Within this broad range, negative for any given species, significant increases in variability approximately 260 ac (105 ha) is ecosystem, land use, or resource, and (Langridge 2018, p. 6). These expected considered potential habitat (BLM 2018, they may change over time (IPCC 2014b, trends are slightly variable across the p. 31) and 63.2 ac (25.6 ha) are known pp. 49–54; IPCC 2018, pp. 9–12). three watersheds within which San to be occupied. Despite the occupied Potential effects derived from climate Benito evening-primrose occurs area being relatively small, it is spread change have consequences for the (hydrologic unit code (HUC) 10): Upper over a large geographic area across biological environment and may result San Benito River, Los Gatos Creek, and multiple habitat types and many in changes to the suitability of currently Larious Creek–Silver Creek. The occurrences, suggesting a low occupied habitat through increased predicted increases in minimum possibility of extinction from a single drought stress, shortened growing temperature, maximum temperature, stochastic event. The presence of a long- seasons, and alteration of the historical and precipitation are similar for both lived and well-established seed bank soil and hydrologic cycles. The high (representative concentration further insulates San Benito evening- synthesis report that was issued by IPCC pathway (RCP) 8.5) and low (RCP 4.5) primrose from the possibility of is conclusive that future climate emissions scenarios and across model extinction due to a single stochastic conditions will be dissimilar from variations (Cal-adapt 2018, p. NA; table event. The land management practices current climate conditions. The effects 5).

TABLE 5—CHANGES IN PRECIPITATION, MINIMUM AVERAGE TEMPERATURE, AND MAXIMUM AVERAGE TEMPERATURE FOR LOW AND HIGH EMISSION SCENARIOS COMPARED TO HISTORICAL AVERAGES FOR THE THREE WATERSHEDS WITHIN WHICH SAN BENITO EVENING-PRIMROSE OCCURS

Precipitation Min avg. temp. Max avg. temp. (inches) (degrees F) (degrees F) Watershed Historical RCP 4.5 Historical RCP 4.5 Historical RCP 4.5 average (RCP 8.5) average (RCP 8.5) average (RCP 8.5)

Upper San Benito River ...... 17.8 20.4 (19.7) 38.9 41.7 (42.3) 71.0 73.9 (74.4) Los Gatos Creek ...... 14.4 16.8 (15.3) 44.7 47.5 (48.1) 74.8 77.6 (78.1) Larious Creek–Silver Creek ...... 15.1 17.4 (16.6) 42.3 45.3 (45.9) 72.3 75.3 (75.8) Watersheds are based on the HUC 10 resolution. Reported values for the modeled futures are based on the average of the HadGEM2–ES (warmer and drier), CNRM–CM5 (cooler and wetter), and CanESM2 (average) models. The RCP 4.5 scenario refers to a future scenario where emissions peak near 2040 and then decline, while RCP 8.5 refers to a scenario where emissions continue to rise strongly through 2050 and pla- teau near 2100. The historical average is based on the years 1950–2005 as reported by cal-adapt.org. The modeled values are estimates from the years 2020–2050.

Based on the state of California uncertainties with climate change occurrences of San Benito evening- assessment of climate change, the IPCC projection, the effects of the predicted primrose are varied. A slight increase in data, taking into account known changes due to climate change to precipitation may provide additional

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water during the growing season, but long-term suitability of currently undeveloped land exists along dispersal the variability between seasons may occupied and potential habitat for San pathways. result in long periods of drought Benito evening-primrose. All California San Benito evening-primrose occurs followed by high-volume precipitation macrogroups of vegetation are expected within three macrogroups within San that may cause erosion. Increasing to have moderate to high risk of Benito and Fresno Counties: California minimum temperatures may reduce the vulnerability to climate change (Thorne foothill and valley forests and amount of days with frost, thereby et al. 2016, p. 1). This means that all altering the physical cues for vegetation communities are susceptible woodlands, chaparral, and California germination, and increasing maximum to portions of their current range annual and perennial grassland. temperatures could result in increased becoming unsuitable. It is also possible California foothill and valley forests and stress for flowering individuals. that previously unsuitable areas for a woodlands and chaparral are both Conversely, increased amounts of rain given macrogroup will become suitable ranked at moderate risk of vulnerability, may promote increased germination and as physical parameters that were and California annual and perennial seedling success. In order to precisely previously unfavorable become grassland is ranked as moderate to high understand the effects of climate favorable. Vegetation communities risk of vulnerability (Thorne et al. 2016, change, location-specific data on migrating higher in elevation along p. 3; table 6). Estimates of the percent temperature, precipitation, San Benito temperature gradients or moving upland of existing habitat that will become evening-primrose germination, seedling as sea levels rise along hydrological unsuitable, have no change, or become success, and seed bank cycling over gradients are typical examples of this newly suitable based on low and high multiple years would be needed. scenario. However, the ability of a emissions scenarios are shown in table Shifts in community composition are vegetation macrogroup to migrate 6 based on data within Thorne et al. likely to occur as a result of changes in assumes that natural seed dispersal (2016, pp. 33–41; 114–122; 132–140). California’s climate and may impact the pathways are available and that

TABLE 6—RESULTS OF SENSITIVITY AND ADAPTIVE CAPACITY MODELING AND THE RESULTING CHANGE IN SUITABILITY OF EXISTING HABITAT FOR THREE VEGETATION MACROGROUPS WITHIN WHICH SAN BENITO EVENING-PRIMROSE OCCURS

Mean Unsuitable No change Newly suitable Vegetation macrogroup vulnerability Low High Low High Low High rank (%) (%) (%) (%) (%) (%)

California foothill and valley forests Moderate ...... 24 59 41 76 11 34 and woodlands. Chaparral ...... Moderate ...... 8 54 46 92 17 47 California annual and perennial grass- Mid-High ...... 16 48 52 84 10 52 land. Data from Thorne et al. 2016 pp. 3; 33–41; 114–122; 132–140.

Under both high and low emissions endangered due to those changes in the Public Lands. This guiding document scenarios, currently suitable habitat for foreseeable future. ensures consistent and positive San Benito evening-primrose is lost due Existing Regulatory Mechanisms management of environmentally to changes in climate. Conversely, the responsible motorized OHV use on species that compose the vegetation State Protections public lands. Detailed regulations are communities that are associated with San Benito evening-primrose is not a established in BLM’s 2014 Resource San Benito evening-primrose are State-listed taxon under the California Management Plan for the CCMA that expected to have the capability to Endangered Species Act. The species is provides for protections of San Benito migrate into newly suitable habitat. The listed by the California Native Plant evening-primrose. BLM’s 2014 Resource primary concern, in regard to San Society (CNPS) as 1B.1, indicating that Management Plan for the CCMA is in Benito evening-primrose habitat, is the the taxon is rare throughout its range place until superseded. The restriction threat of an increase in woody and is generally endemic to California of OHV use within the CCMA and the vegetation as a response to climate as well as having been reduced Serpentine ACEC is based on concerns change. However, San Benito evening- throughout its historical range. Species of health risks and will be unaffected by primrose is found in serpentine and listed by CNPS as 1B.1 meet the the delisting of San Benito evening- serpentine-derived soils that are not definition of threatened in the California primrose. Currently, only highway- likely to be affected by climate change Endangered Species Act as described in licensed vehicles are allowed within the in the foreseeable future. The edaphic the California Fish and Game Code Serpentine ACEC on designated roads (soil) conditions may restrain woody (CNPS 2018 Rare Plant Inventory and by permit, which is limited to five vegetation migration into areas currently website) and must therefore be use-days per year per person, and occupied. While the soil type may considered during environmental within the CCMA trail riding is mitigate habitat loss due to habitat analysis for California Environmental restricted to designated areas near conversion, it may also restrain the Quality Act (CEQA) documentation Condon Peak (BLM 2014, p. 1–18). The species from dispersing to areas where (CEQA 2018 Guidelines Section 15380). Post-delisting Monitoring Plan will provide for continued evaluation of the climatic conditions are more favorable Federal Protections for survival. The currently predicted status of occurrences to prevent the changes in precipitation and climate do In 2001, the BLM published the species from again becoming warranted not suggest that the species may become National Management Strategy for for listing under the Federal Endangered Motorized Off-Highway Vehicle Use on Species Act.

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The BLM has regulations and policies As San Benito evening-primrose is a species. The effects of climate change on that guide the management of natural listed species under the Act, the BLM is the species are predicted changes in resources on the public lands they required to consult with the Service on temperature and rainfall by 2050, and manage. In particular, Congress passed any activities it funds, authorizes, or do not suggest species-level threats to the Federal Land Policy and carries out that may affect San Benito survival. Management Act of 1976 to provide evening-primrose. There are no Federal When individual threats that policy for ‘‘the management, protection, prohibitions under the Act for influence reproductive output, development, and enhancement’’ of negatively impacting listed plants on germination, and survival occur public lands managed by the BLM. This non-Federal lands, unless a person together, one threat may add to, or law directs the BLM to ‘‘take any action damages or destroys federally listed exacerbate, the effects of another, necessary to prevent unnecessary or plants while in violation of a State law resulting in a disproportionate increase undue degradation of the lands’’ during or a criminal trespass law. Where the in threat to the species. When this mining operations (43 U.S.C. 1732(b)). species occurs on private lands, occurs, we call the interactive effects Mining operations that exceed 5 acres protections afforded by section 7(a)(2) of synergistic or cumulative. The lack of (2.02 ha), and certain other defined the Act are triggered only if there is a current threats to San Benito evening- operations, require a plan of operations Federal nexus (i.e., an action funded, primrose reduce the possibility of approved by the BLM (43 CFR 3809.1– permitted, or carried out by a Federal synergistic or cumulative effects 4, 1–6). agency). If the species is delisted, the occurring, and, given the current range BLM may enact special rules to protections afforded by the Act would of the species, number of known protect soil, vegetation, wildlife, no longer apply. Even in the absence of occurrences, and likelihood of new threatened or endangered species, the protections of the Act, adequate occurrences to become known, wilderness suitability, and other regulatory mechanisms are in place, synergistic and cumulative effects do resources by immediately closing such as the Federal Land Policy and not pose a significant population-level affected areas to off-road vehicles that Management Act of 1976, E.O. 11644 impact to San Benito evening-primrose are causing resource damage until the and E.O. 11989, to ensure the continued at this time nor do we anticipate that adverse effects are eliminated and persistence of San Benito evening- they will in the future. measures are implemented to prevent primroses occurrences and suitable recurrence (43 FR 8340–8364). potential habitat. Determination of San Benito Evening- Two Executive Orders (E.O.) apply Primrose Status specifically to off-road vehicles on Summary of Threats Analysis public lands: E.O. 11644 directs A very limited range, small number of Section 4 of the Act (16 U.S.C. 1533) agencies to designate zones of off-road occurrences, and direct and indirect and its implementing regulations (50 use that are based on protecting natural threats from OHV use and mining and CFR part 424) set forth the procedures resources, the safety of all users, and associated facilities and road for determining whether a species meets minimizing conflicts among various maintenance were the primary threats to the definition of ‘‘endangered species’’ land uses. The BLM and other agencies San Benito evening-primrose at the time or ‘‘threatened species.’’ The Act defines are to locate such areas and trails to of listing in 1985 (50 FR 5755–5759, an ‘‘endangered species’’ as a species minimize damage to soil, watershed, February 12, 1985). OHV use continued that is ‘‘in danger of extinction vegetation, or other resources, and to to be a significant threat to San Benito throughout all or a significant portion of minimize disruption to wildlife and evening-primrose until the temporary its range,’’ and a ‘‘threatened species’’ as their habitats. Areas may be located in closure of the Serpentine ACEC in 2008. a species that is ‘‘likely to become an designated park and refuge areas or The 2014 Resource Management Plan endangered species within the natural areas only if the head of the permanently reduced the amount of foreseeable future throughout all or a agency determines that off-road use will exposure San Benito evening-primrose significant portion of its range.’’ For a not adversely affect the natural, has to OHV recreation and has resulted more detailed discussion on the factors aesthetic, or scenic values of the in indirectly removing the most considered when determining whether a locations. The respective agencies are to significant threat to the species, which species meets the definition of ensure adequate opportunity for public was direct loss of individuals by OHV ‘‘endangered species’’ or ‘‘threatened participation in the designation of areas recreation and indirect loss of habitat species’’ and our analysis on how we and trails. and seed bank through erosion on determine the foreseeable future in E.O. 11989 amends the previous order slopes and soil compaction on alluvial making these decisions, see Regulatory by adding the following stipulations: (a) terraces. The threat from mining was Framework, above. Whenever the agency determines that reduced by 2002 with the closure of the Status Throughout All of Its Range the use of off-road vehicles will cause or last commercial mine, and future threats is causing considerable adverse effects from mining are unlikely based on BLM After evaluating threats to the species on the soil, vegetation, wildlife, wildlife management actions listed in the 2014 and assessing the cumulative effect of habitat, or cultural or historic resources Resource Management Plan for the the threats under the section 4(a)(1) of particular areas or trails on public CCMA. Habitat alteration from invasive factors, we have assessed the best lands, it is to immediately close the species and succession to woody scientific and commercial information areas or trails to the type of off-road vegetation communities are not likely to available regarding the past, present, vehicle causing the effects until it threaten San Benito evening-primrose and future threats faced by San Benito determines that the adverse effects have because invasive species and woody evening-primrose in this proposed rule. ceased and that measures are in place to vegetation communities are intolerant to At the time of listing in 1985 (50 FR prevent future recurrence; and (b) each serpentine soils. The significant 5755–5759, February 12, 1985), San agency is to close portions of public increase in the number of known Benito evening-primrose was known lands within its jurisdiction to off-road occurrences and the associated increase from only nine occurrences within a vehicles except areas or trails in range and the new habitat association very narrow range that were all subject designated as suitable and open to off- greatly reduce the threat of stochastic to potential loss from the threats listed road vehicle use. events resulting in significant loss to the in Factors A through E.

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Off-highway vehicle recreation Status Throughout a Significant Portion We evaluated the range of San Benito (Factor A), the greatest persistent threat of Its Range evening-primrose to determine if any to the species, has been reduced to Under the Act and our implementing area may be a significant portion of the levels that no longer pose a significant regulations, a species may warrant range. San Benito evening-primrose is a threat of extinction to San Benito listing if it is in danger of extinction or narrow endemic that occurs over 300 evening-primrose or loss of its habitat, likely to become so within the square miles, but occupies a relatively due to the closure of the Serpentine foreseeable future throughout all or a small amount of acreage (63.2 ac (25.6 ACEC and the restriction of OHV use significant portion of its range. ha) of occupied habitat). Genetic within the CCMA but outside of the Having determined that San Benito analysis indicated no differentiation in Serpentine ACEC. Most significantly, evening-primrose is not in danger of occurrences based on watershed or surveys by the BLM have shown that the extinction or likely to become so within habitat and that there was no species is much more wide-ranging and the foreseeable future throughout all of hybridization with a close relative. common than originally known and its range, we now consider whether it Every threat to the species in any occurs across a broader range of habitat may be in danger of extinction or likely portion of its range is a threat to the types. The number of known to become so within the foreseeable species throughout all of its range, and so the species has the same status under occurrences has increased from 9 to 79 future in a significant portion of its the Act throughout its narrow range. and includes 658 mapped point range. The range of a species can Therefore, we conclude, based on this locations. The range of the species is theoretically be divided into portions in an infinite number of ways, so we first screening analysis, that the species is now known from three watersheds, and not in danger of extinction or likely to screen the potential portions of the occupied habitat covers 63.2 acres (25.6 become so in the foreseeable future in species’ range to determine if there are ha). Our understanding of the ecology of any significant portion of its range. Our any portions that warrant further the species has demonstrated that the conclusion—that we do not undertake consideration. To do the ‘‘screening’’ species may persist through periods of additional analysis if we determine that analysis, we ask whether there are disturbance due to the persistence of a the species has the same status under portions of the species’ range for which robust and long-lived seedbank that the Act throughout its narrow range—is there is substantial information facilitates reestablishment, dispersal, consistent with the courts’ holdings in indicating that: (1) The portion may be and buffers against stochastic events. Desert Survivors v. Department of the significant; and (2) the species may be, Annual surveys of San Benito evening- Interior, No. 16–cv–01165–JCS, 2018 in that portion, either in danger of primrose have demonstrated that there WL 4053447 (N.D. Cal. Aug. 24, 2018); extinction or likely to become so in the is a large amount of interannual Center for Biological Diversity v. Jewell, foreseeable future. For a particular variation in numbers of individuals 248 F. Supp. 3d, 946, 959 (D. Ariz. portion, if we cannot answer both observed. We believe that the 27 2017); and Center for Biological questions in the affirmative, then that occurrences that have been monitored Diversity v. Everson, 2020 WL 437289 portion does not warrant further since 1983 have remained relatively (D.D.C. Jan. 28, 2020). stable around a 5-year moving average consideration and the species does not warrant listing because of its status in when the abnormally high count year Determination of Status that portion of its range. Conversely, we (1988) is considered. Furthermore, the Our review of the best scientific and emphasize that answering both of these significant increase in the number of commercial data available indicates that questions in the affirmative is not a occurrences is not represented in the the San Benito evening-primrose does determination that the species is in analysis of the 27 occurrences that were not meet the definition of an danger of extinction or likely to become known at the time the Recovery Plan endangered species or a threatened so in the foreseeable future throughout species in accordance with sections 3(6) was written. The best available a significant portion of its range—rather, information indicates that Factors B, C, and 3(20) of the Act. Therefore, we it is a step in determining whether a propose to delist the San Benito and E are not affecting the species and more-detailed analysis of the issue is are unlikely to do so in the foreseeable evening-primrose from the List of required. Endangered and Threatened Plants. future. The existing regulatory If we answer these questions in the mechanisms in place are adequate to affirmative, we then conduct a more Effects of This Rule ensure the continued persistence of San thorough analysis to determine whether If this proposed rule is made final, it Benito evening-primrose occurrences the portion does indeed meet both of the would revise 50 CFR 17.12(h) to remove and suitable potential habitat because a ‘‘significant portion of the range San Benito evening-primrose from the majority of occurrences are managed on prongs’’: (1) The portion is significant Federal List of Endangered and Federal land and are protected by a and (2) the species is, in that portion, Threatened Plants. The prohibitions and 2014 BLM Resources Management Plan either in danger of extinction or likely conservation measures provided by the and a BLM Area of Critical to become so within the foreseeable Act, particularly through sections 7 and Environmental Concern (ACEC) future. Confirmation that a portion does 9, would no longer apply to San Benito designation. Based on the information indeed meet one of these prongs does evening-primrose. Federal agencies presented in this status review, the not create a presumption, prejudgment, would no longer be required to consult recovery criteria in the Recovery Plan or other determination as to whether the with the Service under section 7 of the have been achieved and the recovery species is an endangered species or Act in the event that activities they goal identified in the Recovery Plan has threatened species. Rather, we must authorize, fund, or carry out may affect been met for San Benito evening- then undertake a more detailed analysis San Benito evening-primrose. primrose. Thus, after assessing the best of the other prong to make that available information, we conclude that determination. Only if the portion does Post-Delisting Monitoring San Benito evening-primrose is not in indeed meet both significant portion of Section 4(g)(1) of the Act requires us danger of extinction throughout all of its the range prongs would the species to implement a system to monitor range either now or within the warrant listing because of its status in a effectively, for not less than 5 years, all foreseeable future. significant portion of its range. species that have been recovered and

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delisted (50 CFR 17.11, 17.12). The (c) Use clear language rather than with tribes in developing programs for purpose of this post-delisting jargon; healthy ecosystems, to acknowledge that monitoring is to verify that a species (d) Be divided into short sections and tribal lands are not subject to the same remains secure from the risk of sentences; and controls as Federal public lands, to extinction after it has been removed (e) Use lists and tables wherever remain sensitive to Indian culture, and from the protections of the Act. The possible. to make information available to tribes. monitoring is designed to detect the If you feel that we have not met these There are no tribal lands associated with failure of any delisted species to sustain requirements, send us comments by one this proposed rule. itself without the protective measures of the methods listed in ADDRESSES. To References Cited provided by the Act. If, at any time better help us revise the rule, your during the monitoring period, data comments should be as specific as A complete list of all references cited indicate that protective status under the possible. For example, you should tell in this proposed rule is available on the Act should be reinstated, we can initiate us the names of the sections or internet at http://www.regulations.gov listing procedures, including, if paragraphs that are unclearly written, under Docket No. FWS–R8–ES–2019– appropriate, emergency listing under which sections or sentences are too 0065, or upon request from the Ventura long, the sections where you feel lists or section 4(b)(7) of the Act. Section 4(g) of Fish and Wildlife Office (see FOR tables would be useful, etc. the Act explicitly requires us to FURTHER INFORMATION CONTACT). cooperate with the States in National Environmental Policy Act (42 Authors development and implementation of U.S.C. 4321 et seq.) post-delisting monitoring programs, but It is our position that, outside the The primary authors of this proposed we remain responsible for compliance jurisdiction of the U.S. Court of Appeals rule are the staff members of the with section 4(g) and, therefore, must for the Tenth Circuit, we do not need to Ventura Fish and Wildlife Office in remain actively engaged in all phases of prepare an environmental analyses Ventura, California, in coordination post-delisting monitoring. We also seek pursuant to the National Environmental with the Pacific Southwest Regional active participation of other entities that Policy Act of 1969 (NEPA; 42 U.S.C. Office in Sacramento, California. are expected to assume responsibilities 4321 et seq.) in connection with List of Subjects in 50 CFR Part 17 for the species’ conservation post- regulations adopted pursuant to section delisting. 4(a) of the Act. We published a notice Endangered and threatened species, Post-Delisting Monitoring Overview outlining our reasons for this Exports, Imports, Reporting and determination in the Federal Register recordkeeping requirements, If we make this proposed rule final, on October 25, 1983 (48 FR 49244). This Transportation. the post-delisting monitoring is position was upheld by the U.S. Court designed to verify that San Benito Proposed Regulation Promulgation of Appeals for the Ninth Circuit evening-primrose remains secure from (Douglas County v. Babbitt, 48 F.3d Accordingly, we propose to amend the risk of extinction after its removal 1495 (9th Cir. 1995), cert. denied 516 part 17, subchapter B of chapter I, title from the Federal List of Endangered and U.S. 1042 (1996)). 50 of the Code of Federal Regulations, Threatened Plants by detecting changes as set forth below: in trend and habitat suitability. A draft Government-to-Government post-delisting monitoring plan for the Relationship With Tribes PART 17—ENDANGERED AND species can be found at http:// In accordance with the President’s THREATENED WILDLIFE AND PLANTS www.regulations.gov under Docket No. memorandum of April 29, 1994 FWS–R8–ES–2019–0065. If this (Government-to-Government Relations ■ 1. The authority citation for part 17 proposed rule is finalized, the final with Native American Tribal continues to read as follows: post-delisting monitoring plan will be Governments; 59 FR 22951), Executive agreed upon by the Service and the BLM Authority: 16 U.S.C. 1361–1407; 1531– Order 13175 (Consultation and 1544; and 4201–4245, unless otherwise prior to publication of a final rule. Coordination with Indian Tribal noted. Required Determinations Governments), and the Department of the Interior’s manual at 512 DM 2, we § 17.12 [Amended] Clarity of the Rule readily acknowledge our responsibility ■ 2. In § 17.12(h), remove the entry for We are required by Executive Orders to communicate meaningfully with ‘‘San Benito evening-primrose 12866 and 12988 and by the recognized Federal Tribes on a (Camissonia benitensis)’’ under Presidential Memorandum of June 1, government-to-government basis. In FLOWERING PLANTS from the List of 1998, to write all rules in plain accordance with Secretarial Order 3206 Endangered and Threatened Plants. language. This means that each rule we of June 5, 1997 (American Indian Tribal publish must: Rights, Federal-Tribal Trust Aurelia Skipwith, (a) Be logically organized; Responsibilities, and the Endangered Director, U.S. Fish and Wildlife Service. (b) Use the active voice to address Species Act), we readily acknowledge [FR Doc. 2020–11024 Filed 5–29–20; 8:45 am] readers directly; our responsibilities to work directly BILLING CODE 4333–15–P

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