Endangered and Threatened Wildlife and Plants; Removing San Benito Evening-Primrose (Camissonia benitensis, 33060-33078 [2020-11024]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 85, Number 105 (Monday, June 1, 2020)]
[Proposed Rules]
[Pages 33060-33078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11024]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2019-0065; 4500030113]
RIN 1018-BE11


Endangered and Threatened Wildlife and Plants; Removing San 
Benito Evening-Primrose (Camissonia benitensis) From the Federal List 
of Endangered and Threatened Plants

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS), 
propose to remove San Benito evening-primrose (Camissonia benitensis) 
from the Federal List of Endangered and Threatened Plants. This 
determination is based on a thorough review of the best available 
scientific and commercial information, which indicates that the threats 
to the species have been reduced or eliminated so that the plant no 
longer meets the definition of an endangered or threatened species 
under the Endangered Species Act of 1973, as amended (Act). We are 
seeking information and comments from the public regarding this 
proposed rule and the draft post-delisting monitoring plan for San 
Benito evening-primrose.

DATES: We will accept comments received or postmarked on or before July 
31, 2020. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. Eastern Time on the closing date. We must receive requests for 
public hearings, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by July 16, 2020.

ADDRESSES: 
    Comment submission: You may submit comments by one of the following 
methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R8-ES-2019-0065, 
which is the docket number for this rulemaking. Then click on the 
Search button. On the resulting page, in the Search panel on the left 
side of the screen, under the Document Type heading, click on the 
Proposed Rules link to locate this document. You may submit a comment 
by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R8-ES-2019-0065; U.S. Fish and Wildlife Service, 
MS: JAO/1N; 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Document availability: The recovery plan, 5-year review summary, 
and draft post-delisting monitoring plan referenced in this document 
are available at https://www.regulations.gov under Docket No. FWS-R8-ES-
2019-0065.

[[Page 33061]]


FOR FURTHER INFORMATION CONTACT: Stephen P. Henry, Field Supervisor, 
U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office, 2493 
Portola Road, Suite B, Ventura, CA 93003; by telephone 805-644-1766. If 
you use a telecommunications device for the deaf (TDD), call the 
Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Act, a species may warrant 
removal (i.e., ``delisting'') from the Federal List of Endangered and 
Threatened Plants if it no longer meets the definition of an endangered 
species or a threatened species. Delisting a species can only be 
completed by issuing a rule.
    What this document does. We propose to remove San Benito evening-
primrose (Camissonia benitensis) from the Federal List of Endangered 
and Threatened Plants.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that the threats to the species 
have been reduced or eliminated so that the plant no longer meets the 
definition of an endangered or threatened species under the Act. We are 
seeking information and comments from the public regarding this 
proposed rule and the draft post-delisting monitoring plan for the 
species. We will also seek peer review.
    San Benito evening-primrose, a small annual plant with bright 
yellow flowers, is found in the central coast range in California's San 
Benito, Monterey, and Fresno counties. The scientific community's 
understanding of the San Benito evening-primrose's ecology and habitat 
has improved since time of listing due to the efforts of the Bureau of 
Land Management (BLM) to survey and study the plant over the last three 
decades. We listed San Benito evening-primrose as threatened in 1985 
due to ongoing threats of motorized recreation activities and 
commercial mining operations. At the time of listing, the San Benito 
evening-primrose was documented in only nine locations in a small area 
of only San Benito County.
    Off-highway vehicle recreation, the greatest persistent threat to 
the species, has been reduced to levels that no longer pose a 
significant threat of extinction to San Benito evening- primrose or its 
habitat due to the closure of the Serpentine Area of Critical 
Environmental Concern, and the restriction of off-highway vehicle use 
within the Clear Creek Management Area. Most significantly, the species 
is much more wide-ranging and common than originally known and occurs 
across a broader range of habitat types (BLM 2018, p. 32). The number 
of known occurrences has increased from nine to 79 and the range of the 
species is now known from three watersheds and occupied habitat covers 
63.2 acres (25.6 ha). The species persists through periods of 
disturbance due to the persistence of a robust and long lived seedbank 
that facilitates reestablishment, dispersal, and buffers against 
stochastic events. Annual surveys of San Benito evening-primrose have 
demonstrated a large amount of interannual variation in numbers of 
individuals observed. We conclude that the 27 occurrences that have 
been monitored since 1983 have remained relatively stable around a 5-
year moving average when the abnormally high count year (1988) is 
considered. Furthermore, the significant increase in the number of 
occurrences detected by recent BLM surveys is not represented in the 
analysis of the 27 occurrences that were known at the time the Recovery 
Plan was written. The existing regulatory mechanisms in place are 
adequate to ensure the continued persistence of San Benito evening-
primrose occurrences and suitable potential habitat. Based on the best 
available information, the intent of the recovery criteria and the 
recovery goal identified in the Recovery Plan has been met for the 
species. We, therefore, conclude that San Benito evening-primrose is no 
longer a threatened species throughout its range, nor is it likely to 
become so within the foreseeable future.
    Peer review. In accordance with our joint policy on peer review 
published in the Federal Register on July 1, 1994 (59 FR 34270), and 
our August 22, 2016, memorandum updating and clarifying the role of 
peer review of listing actions under the Act, we will seek the expert 
opinions of at least three appropriate specialists regarding this 
proposed rule. The purpose of peer review is to ensure that our 
classification determinations are based on scientifically sound data, 
assumptions, and analyses. The peer reviewers have expertise in the 
biology, habitat, and threats to the species. A peer review panel will 
conduct an assessment of the proposed rule and the specific assumptions 
and conclusions regarding the proposed delisting. This assessment will 
be completed during the public comment period.
    Because we will consider all comments and information we receive 
during the comment period, our final determinations may differ from 
this proposal. Based on the new information we receive (and any 
comments on that new information), we may conclude that the species is 
still warranted for listing. Such final decisions would be a logical 
outgrowth of this proposal, as long as we: (1) Base the decisions on 
the best scientific and commercial data available after considering all 
of the relevant factors; (2) do not rely on factors Congress has not 
intended us to consider; and (3) articulate a rational connection 
between the facts found and the conclusions made, including why we 
changed our conclusion.

Information Requested

    We intend any final action resulting from this proposal will be 
based on the best scientific and commercial data available and be as 
accurate and as effective as possible. Therefore, we request comments 
or information from other governmental agencies, Native American 
tribes, the scientific community, industry, or other interested parties 
concerning this proposed rule. We particularly seek comments 
concerning:
    (1) The extent of any current threats to the species and its 
habitat.
    (2) The potential for shrub encroachment to reduce suitable habitat 
for the species.
    (3) The ability of previously degraded habitat to return to 
suitable habitat for colonization and/or reintroduction.
    (4) The lasting effects of past off-highway vehicle (OHV) use and 
the level of natural restoration to those areas of suitable habitat 
disturbed by OHV use.
    (5) The potential for climate change to either positively or 
negatively affect the species.
    (6) The climatic conditions under which germination naturally 
occurs and by which seed set is initiated.
    (7) The monitoring guidelines proposed for the post-delisting 
monitoring plan and whether they appropriately characterize the extent 
of disturbance and can adequately identify the thresholds at which San 
Benito evening-primrose can persist.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.

[[Page 33062]]

    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is an endangered or threatened 
species must be made ``solely on the basis of the best scientific and 
commercial data available.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Ventura Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Public Hearing

    Section 4(b)(5)(E) of the Act provides for one or more public 
hearings on this proposal, if requested. We must receive requests for 
public hearings, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by the date shown in DATES. We will schedule a 
public hearing on this proposal, if any are requested, and announce the 
date, time, and place of those hearings, as well as how to obtain 
reasonable accommodation, in the Federal Register at least 15 days 
before the first hearing. For the immediate future, we will provide 
these public hearings using webinars that will be announced on the 
Service's website, in addition to the Federal Register. The use of 
these virtual public hearings is consistent with our regulation at 50 
CFR 424.16(c)(3).

Previous Federal Actions

    On February 12, 1985, we listed San Benito evening-primrose as a 
threatened species (50 FR 5755-5759) based primarily on the threats 
from motorized recreation and active gravel mining. Nine occurrences of 
the plant were known at the time, ranging from only 10 to 100 
individuals each (50 FR 5755). At the time of listing, we found that 
designation of critical habitat was not prudent, and no further action 
regarding critical habitat has been taken (50 FR 5757-5759). 
Accordingly, we do not address critical habitat in this proposed rule.
    A recovery plan for San Benito evening-primrose was published on 
September 19, 2006 (71 FR 54837-54838) (Recovery Plan). In the Recovery 
Plan, we noted the need to fully map the extent and range of the 
species, acknowledging that additional occurrences had been found since 
listing in 1985. We also noted that, during 20 years of monitoring 
known occurrences, only 2 of those years had produced large numbers of 
individuals. This determination led recovery actions to focus heavily 
on preserving suitable habitat and the seed bank since target numbers 
of individuals were unlikely to be reliable indicators of population 
health (USFWS 2006, p. 51).
    In 2009, the Service conducted a 5-year review pursuant to 16 
U.S.C. 1533(c)(2)(A) to evaluate whether the species' status had 
changed since listing in 1985 and publication of the Recovery Plan in 
2006 (USFWS 2009, entire). In the 5-year review, we reported an 
increase in the number of known sub-occurrences from 53 in 2006 at the 
time of the Recovery Plan to 69 in 2009 as well as changes in the 
management of OHV use.
    We published a notice announcing the initiation of a 5-year review 
of the status of San Benito evening-primrose on June 18, 2018 (83 FR 
28251-28254). This proposed rule to remove San Benito evening-primrose 
from the Federal List of Endangered and Threatened Plants also serves 
as a status review for the species.

Supporting Documents

    In 2009, a 5-year review was prepared for San Benito evening-
primrose. At the time, the review represented a compilation of the best 
scientific and commercial data available concerning the status of the 
species, including the impacts of past, present, and future factors 
(both negative and beneficial) affecting the species. Where we have 
more recent information than was contained in the 5-year review, we 
have incorporated it as appropriate into this proposed rule.

I. Proposed Delisting Determination

Background

    San Benito evening-primrose is a small, yellow-flowered, annual 
species in the evening-primrose family (Onagraceae). The plant is 
slender with narrowly elliptic leaves 0.3 inches (in) (7-20 millimeters 
(mm)) in length and minutely serrate. The stem may be erect or 
decumbent (lying on the ground with the extremity curving upward) and 
ranges in height from 1.2 to 7.9 in (3-20 centimeters (cm)) with 
branches widely spreading. Petals are 0.1 to 0.2 in (3.5 to 4 mm) and 
may fade from yellow to reddish (Wagner 2012, pp. 925-929). San Benito 
evening-primrose is autogamous (self-fertilizing) and produces seed 
that persists for long periods of time, which creates well-established 
seed banks where the species occurs (Taylor 1990, pp. 7-8).
    San Benito evening-primrose is known only from the southeastern 
portion of San Benito County, the western edge of Fresno County, and 
the northeastern edge of Monterey County, largely within the New Idria 
serpentinite mass (figure 1). Serpentine is a rock formed from ancient 
volcanic activity that results in minerals with a greenish and brownish 
appearance such as antigorite, lizardite, and chrysotile. The New Idria 
serpentinite mass covers approximately 13,000 hectares (32,124 acres) 
and is one of the largest serpentine formations in the southern Coast 
Ranges of California (Rajakaruna et al. 2011, p. 698). Average rainfall 
in areas occupied by San Benito evening-primrose is 16-17 in (40-42 cm) 
annually with temperatures ranging from lows of 21 to 34 degrees 
Fahrenheit (F) (-6.7 to -1.1 degrees Celsius (C)) in the winter to 
highs of 90 to 100 degrees F (32.2 to 37.8 degrees C) in the summer 
(USFWS 2009, p. 8). Occupied habitat of San Benito evening-primrose 
occurs primarily on land managed by the Bureau of Land Management (BLM) 
(36.5 acres), as well as on private land (26.6 acres).

[[Page 33063]]

[GRAPHIC] [TIFF OMITTED] TP01JN20.004

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

[[Page 33064]]

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

                                        Table 1--2018 BLM Survey Results
----------------------------------------------------------------------------------------------------------------
                                       Number of        Number of sub-      Number of point
                                      occurrences         occurrences          locations       Acres (hectares)
----------------------------------------------------------------------------------------------------------------
2018 San Benito evening-primrose                 79                 519                 658         63.2 (25.6)
 (Camissonia benitensis) survey
 results........................
----------------------------------------------------------------------------------------------------------------
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 occurrence data to their point location 
counts in their annual reports, and Service used those comparisons in 
the Recovery Plan (USFWS 2006, entire) and 5-Year Review (USFWS 2009, 
entire). Here, we have chosen to update the occurrence organization 
because the numbers of occurrences, sub-occurrences, and point 
locations have increased dramatically since 2009. Table 1 illustrates 
the nested nature of the way the data are presented. When possible we 
use the same terminology as previous reports.

Recovery and Recovery Plan Implementation

    Section 4(f) of the Act directs us to develop and implement 
recovery plans for the conservation and survival of endangered and 
threatened species unless we determine that such a plan will not 
promote the conservation of the species. Under section 4(f)(1)(B)(ii), 
recovery plans must, to the maximum extent practicable, include: 
``[O]bjective, measurable criteria which, when met, would result in a 
determination, in accordance with the provisions of [section 4 of the 
Act], that the species be removed from the list.'' However, revisions 
to the list (adding, removing, or reclassifying a species) must reflect 
determinations made in accordance with sections 4(a)(1) and 4(b) of the 
Act. Section 4(a)(1) requires that the Secretary determine whether a 
species is an endangered species or threatened species (or not) because 
of one or more of five threat factors. Section 4(b) of the Act requires 
that the determination be made ``solely on the basis of the best 
scientific and commercial data available.'' Therefore, recovery 
criteria should help indicate when we would anticipate that an analysis 
of the species' status under section 4(a)(1) would result in a 
determination that the species is no longer an endangered species or 
threatened species.
    Thus, while recovery plans provide important guidance to the 
Service, States, and other partners on methods of minimizing threats to 
listed species and measurable objectives against which to measure 
progress towards recovery, they are not regulatory documents and cannot 
substitute for the determinations and promulgation of regulations 
required under section 4(a)(1) of the Act. A decision to revise the 
status of or remove a species from the Federal List of Endangered and 
Threatened Plants (50 CFR 17.12) is ultimately based on an analysis of 
the best scientific and commercial data then available to determine 
whether a species meets the definition of an endangered species or a 
threatened species, regardless of whether that information differs from 
the recovery plan. Below, we summarize

[[Page 33065]]

the recovery plan goals and discuss progress toward meeting the 
recovery objectives and how they inform our analysis of the species' 
status and the stressors affecting it.
    The Recovery Plan (USFWS2006, pp. 48-74) describes the recovery 
goal and criteria that need to be achieved in order to consider 
removing San Benito evening-primrose from the Federal List of 
Endangered and Threatened Plants. We summarize the goal and then 
discuss progress toward meeting the recovery criteria in the following 
sections.

Recovery Goal

    In the Recovery Plan, the stated goal is to restore occurrences of 
San Benito evening-primrose so that they are self-sustaining and 
protected from future threats (USFWS 2006, p. 51). This goal is broadly 
evaluated through trends in the observed numbers of individuals 
indicated by annual monitoring, the abundance and distribution of 
suitable habitat, evaluation of the seed bank, and the effectiveness of 
protective measures that have been implemented to reduce threats from 
human activities such as mining, OHV use, and other recreational 
activity (USFWS2006, pp. 51-52). In order to evaluate threats to the 
species we must consider potential impacts within the foreseeable 
future. The Recovery Plan (USFWS 2006, entire) uses 20 years as the 
appropriate period of time to evaluate population stability because the 
number of individuals fluctuates widely from year to year and a longer 
monitoring time will better reflect changes in trends despite this 
variation (USFWS 2006, p. 51, 53). Given this and information on 
potential threats into the future, in this proposed rule we have 
adopted 20 to 30 years as the foreseeable future to evaluate potential 
threats and the species' responses to those threats.

Recovery Criteria

    The Recovery Plan identified five criteria for removing San Benito 
evening-primrose from the Federal List of Endangered and Threatened 
Plants (USFWS 2006, pp. 52-54):
    (1) Research has evaluated the possibility for restoration of 
suitable habitat and the natural rate of the replacement of suitable 
habitat (i.e., succession from open habitat to woody vegetation), the 
ecology of the seedbank, and population viability modeling. The results 
of completed research, and any other research that was conducted, 
should inform all other recovery criteria suggested by the Recovery 
Plan and are listed below.
    (2) Known occurrences and sufficient additional suitable habitat 
within each watershed unit throughout its range are protected from 
direct effects from OHV use and other recreational activities. 
Appropriate levels of compliance with use regulations by recreationists 
have prevented adverse impacts to San Benito evening-primrose 
occurrences and habitat.
    (3) Currently occupied and suitable habitat for the species has 
been restored and maintained over an appropriate period of time, as 
informed by monitoring and research. Twenty years was estimated as 
``the appropriate period of time'' in the Recovery Plan (USFWS 2006, p. 
53). The Recovery Plan emphasizes maintaining suitable habitat and more 
precisely defining the requirements of suitable habitat. Additionally, 
disturbance and erosion rates should not be elevated above natural 
levels and the seed bank should be evaluated for continued persistence, 
as above-ground numbers of individuals are known to fluctuate widely 
from year to year.
    (4) Population sizes have been maintained over a monitoring period 
that includes multiple rainfall cycles (successive periods of drought 
and wet years). The Recovery Plan states that the trend of above-ground 
counts of species should be stable or increasing and defines non-
drought years as those with greater than 15 in (38 cm) of rainfall from 
October through April at the Priest Valley weather station.
    (5) A post-delisting monitoring plan for San Benito evening-
primrose has been developed.

Achievement of Recovery Criteria

    Criterion 1: Research has been completed.
    Research to increase the understanding of the extent of existing 
occurrences, the range of suitable habitat, the persistence of the seed 
bank, and analysis of the genetic variability across watersheds and 
habitat types have been undertaken since listing in 1985 (Taylor 1990, 
entire; BLM 2010, entire; BLM 2014, entire; BLM 2015, entire; BLM 2018, 
entire; Dick et al. 2014, entire).
    Habitat Suitability. Research conducted in 1990 (Taylor 1990, 
entire) provided the first comprehensive overview of the ecology of San 
Benito evening-primrose that established the initial understanding for 
the requirements of suitable habitat for the species, the species' life 
history, including early examination of the seed bank and germination 
characteristics, and the known distribution of the species as well as 
threats to the known occurrences. From 1990 through 2010, San Benito 
evening-primrose was thought to be restricted to alluvial terrace 
habitat that was characterized by relatively deep and well-developed, 
serpentine-derived soils on flat ground (compared to nearby barren 
serpentine slopes), association with ephemeral or intermittent streams, 
and open habitat lacking woody vegetation (Taylor 1990, pp. 39-40). In 
2010, the BLM identified a second type of habitat, termed the 
``geologic transition zone,'' that was suitable for San Benito evening-
primrose (BLM 2010, pp. 8-16). The geologic transition zone was 
characterized by relatively steeper slopes (0-~60 degrees) of uplands 
on serpentine soils at the interface with non-serpentine soils. 
Geologic transition zone habitat is not topographically constrained to 
the toe of slopes, whereas alluvial stream terrace habitat is. From the 
time of listing through 2018, the BLM conducted extensive surveys 
within these habitat types, which led to the discovery and 
documentation of over 600 new point locations. The results indicated 
that the majority of both occupied and potential habitat is greatest 
within the geologic transition zone type (BLM 2018, p. 32). The new 
sub-occurrences identified within the geologic transition zone habitat 
are relatively undisturbed in comparison to the highly disturbed sites 
of the initial locations known from alluvial stream terraces (BLM 2010, 
p. 11). The majority of new point locations are found outside of the 
historical areas used by OHVs and as a result have not been subjected 
to the same levels of disturbance. Approximately one-third to half of 
the currently known occurrences exist on private land outside of the 
Clear Creek Management Area (table 2, table 3) (BLM 2018, p. 33).
    Seed Bank Analysis. Our understanding of the role of the seed bank 
in the life history of San Benito evening-primrose has similarly 
increased due to research efforts. The number of viable seeds within 
the seed bank was often many times greater than the above-ground 
expression in any given year--including those years in which there was 
a large above-ground expression (Taylor 1990, p. 57). The size of the 
seed bank at existing locations was reevaluated in 2010 by the BLM (BLM 
2011, pp. 36-42). The BLM found that there were 519 times as many seeds 
as emergent plants when averaged across 67 sub-occurrences in 2010, 
emphasizing that the size of the seedbank is much greater than the 
total number of observed individuals in a given year. Maintaining a 
large amount

[[Page 33066]]

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

[[Page 33067]]

[GRAPHIC] [TIFF OMITTED] TP01JN20.005

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

[[Page 33068]]

the Resource Management Plan. The 2006 amendment to the Resource 
Management Plan closed to OHVs all areas not marked for limited or open 
use. This restricted the total OHV use area to 242 miles (390 km) of 
OHV trails and directed OHV use away from areas that provided suitable 
habitat for, or were occupied by, San Benito evening-primrose (BLM 2006 
p. 3-1). By 2009, non-compliance with the 2006 Resource Management Plan 
had declined (BLM 2008, pp. 5-9; USFWS 2009, pp. 19-21). In 2008, the 
EPA issued a report concluding that exposure to naturally occurring 
asbestos during recreational activities, including OHV use, was higher 
than the acceptable risk range for causing cancer within the CCMA (EPA 
2008, p. 6-3). The level of exposure to asbestos varied with 
recreational activity and participant age, but was significant enough 
to warrant an emergency temporary closure of the CCMA (BLM 2008, p. 2). 
Although not the intent, the closure effectively temporarily protected 
all known occurrences of San Benito evening-primrose from OHV 
disturbance. The temporary closure remained in place until the 2014 
amendment to the Resource Management Plan was adopted (BLM 2014, 
entire). The 2014 Resource Management Plan further restricted OHV 
access to areas of suitable habitat and known sub-occurrences of San 
Benito evening-primrose by reducing the amount of open trails and 
restricting access to the Serpentine Area of Critical Environmental 
Concern (ACEC) to 5 days per year per recreationalist through a permit 
system and a series of locked gates (BLM 2014, pp. 1-18).
    The BLM has conducted OHV non-compliance monitoring as part of the 
annual San Benito evening-primrose surveys since 2008 and the initial 
closure of the Serpentine ACEC (table 2). During this time non-
compliance has remained relatively low with the number of point 
locations or potential habitat being impacted by OHV ranging from 2 to 
11 locations in a given year. The amount of disturbance within each 
area has been observed to be low, and natural recovery was observed. 
Upper Clear Creek, Larious Canyon, and San Carlos Creek are areas of 
repeated non-compliance despite annual repairing of fencing and 
barriers and issuance of citations for violating the closures when 
users are caught (BLM 2013, p. 5, BLM 2015, p. 6). The intensity of 
non-compliance varied from heavy (greater than 10 tracks observed) to 
moderate or low (less than 10 tracks observed). The BLM assumes that 
non-compliant OHV use originates from private land 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  with   Minimum number of    Max number of    Average number of
                   Year *                       observed  non-         tracks             tracks             tracks                  Reference
                                                  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 locations of San Benito evening-
primrose had grown to 500 with the majority occurring within the 
geologic transition zone habitat. Approximately half of those locations 
were protected from OHV use due to the restrictions imposed by the 2014 
Resource Management Plan (BLM 2014, pp. 1-18; BLM 2015, pp. 7-16). By 
2018, 658 point locations of San Benito evening-primrose had been 
mapped by the BLM (BLM 2018, pp. 32-47). The 658 point locations 
correspond to 79 occurrences consisting of 519 sub-occurrences and 
covering 63.2 acres (25.6 ha) (table 1, figure 1). Twenty-three 
occurrences (81 sub-occurrences) are located within the Serpentine ACEC 
and are effectively protected from OHV use due to the 2014 Resource 
Management Plan (BLM 2018, p. 33) (table 3). There are 36 occurrences 
(260 sub-occurrences) within BLM-managed land outside of the Serpentine 
ACEC. OHV use within the CCMA, but outside of the Serpentine ACEC, has 
been designated as ``limited,'' meaning that motorized use is 
restricted to highway-licensed vehicles and ATVs and utility task 
vehicles on designated routes only (BLM 2014, pp. 1-13 through 1-14). 
Forty-five occurrences (178 sub-occurrences) are known to occur on 
private land that are not subject to management by the BLM or other 
Federal agencies (table 3, table 4).
    When the recovery plan criteria were written, there were 27 known 
occurrences. Twenty- three of those occurrences were on land managed by 
the BLM, and four were on private property. Currently, there are 59 
occurrences on BLM-managed land and 45 occurrences on private property. 
Although protections for the occurrences on private land cannot be 
guaranteed, the number of occurrences on land managed by the BLM has 
exceeded the goal of Recovery Criterion 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 sub-
                                                            occurrences        occurrences           Acres
----------------------------------------------------------------------------------------------------------------
BLM....................................................                 36                260               23.8
ACEC...................................................                 23                 81               12.7

[[Page 33069]]

 
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 occurrences and sub-occurrences occur 
within the geologic transition zone identified by the BLM as habitat in 
2010 (table 4). Occurrences of San Benito evening-primrose within 
geologic transition zone habitat are assumed to be less likely to be 
affected by OHV recreation since OHV riders have historically preferred 
the terrain associated with alluvial terrace habitat (BLM 2010, p. 11). 
In summary, known occurrences and sufficient additional suitable 
habitat within each watershed unit throughout its range are protected 
from direct effects from OHV use and other recreational activities, 
fulfilling 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 sub-                      Number of      Number of sub-
                                                      occurrences      occurrences          Acres        occurrences      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 suitable habitat for the 
species has been restored and maintained over an appropriate period of 
time, as informed by monitoring and research.
    In the Recovery Plan, 20 years was identified as the appropriate 
period of time to conduct and evaluate the success of restoration 
activities. Twenty years was chosen to allow enough time for 
observations of natural and restored occurrences during non-drought 
years to be made in order to evaluate the stability of San Benito 
evening-primrose occurrences (USFWS 2006, pp. 53-54). Thirty-three 
years have passed since San Benito evening-primrose was listed by the 
Service as a threatened species. Restoration began prior to listing by 
using fencing to discourage disturbance by OHVs (Taylor 1990, pp. 24-
36, 71). The BLM has continued to implement passive restoration 
measures such as installation of additional wire fencing and steel pipe 
barriers to reduce OHV trespass and signage to promote awareness of the 
natural resources (BLM 2018 pp. 50-56). Photopoint monitoring has 
demonstrated an increase in the amount of woody vegetation cover in 
previously open and disturbed areas. The increase in woody vegetation 
cover suggests that fencing and other barriers have been effective in 
reducing ground disturbance from OHV use prior to the temporary closure 
in 2008 and the permanent restrictions in 2014.
    Seed of San Benito evening-primrose was introduced between 1990 and 
1991 at six areas near existing point locations. At five of the 
reintroduction sites, 30,000 seeds were broadcast into areas that were 
each 2,153 ft\2\ (200-300 m\2\) in area. Sixty thousand seeds were 
broadcast into the sixth site (BLM 2013, Excel data, Taylor 1993, p. 
14). Very few plants, relative to the amount of seed reintroduced, were 
observed (between 3 and 147 plants) in the years immediately following 
the seeding. It has been determined that San Benito evening-primrose 
establishment from artificially sown seed is very low and that seeding 
introduction is not likely to be a successful restoration tool (Taylor 
1993, p. 14). The areas where seed was introduced have continued to 
have small numbers of individuals observed each year. Approximately 
3,000 seeds were sown in 2008 and 2012 in areas where San Benito 
evening-primrose had not been observed but where potential habitat 
existed that could support new occurrences. The number of individuals 
at these areas have remained similarly low ranging from 0 to 320 
individuals in a single year (BLM 2018, pp. 34-47).
    Restoration of five staging areas located on stream terraces that 
were heavily degraded from OHV use and mining (prior to 1939) was 
completed in 2010 (BLM 2011, pp. 4-10). The staging areas were 
characterized by a mix of lack of vegetation, soil compaction, buried 
original soil surface, debris from facilities, and erosion on adjacent 
hillslopes. A total of 2.01 ac (0.81 ha) of San Benito evening-primrose 
habitat was restored. Annual counts of San Benito evening-primrose at 
each of the staging areas and associated sub-occurrences have indicated 
that the number of individuals in any given year fluctuates greatly 
(BLM 2018, pp. 34-47). Staging areas 1, 4, and 5 have relatively stable 
annual counts, while staging areas 2 and 3 have had more variable, and 
possibly slightly declining, annual counts.
    The BLM has also undertaken efforts to improve watershed quality by 
identifying the most appropriate species and methods to restore 
streambanks (BLM 2011, pp. 10-12). While the immediate stream banks are 
not suitable habitat for San Benito evening-primrose, restoring natural 
hydrology and maintaining bank composition can reduce sedimentation and 
erosion in the watershed that indirectly supports the persistence of 
San Benito evening-primrose habitat. The BLM found that revegetation of 
degraded streambanks

[[Page 33070]]

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

Summary of Recovery Criteria

    Research and survey efforts have clarified the distribution, 
extent, and habitat characteristics of San Benito evening-primrose. The 
seed bank has been demonstrated to be prolific and an integral part of 
the species' ecology in responding to, and persisting through, negative 
stochastic events. A genetic evaluation of the newly identified sub-
occurrences have shown that there is no genetic distinction based upon 
habitat type or watershed among the different sub-occurrences. Existing 
research has resulted in a better understanding of the species' ecology 
and has shown an increase in the species' range, suitable habitat, and 
number of occurrences. With the currently completed research, the 
intent of the first recovery criteria has been met.
    The second recovery criteria has been achieved through the 2014 
Resource Management Plan, which restricted OHV access to areas of 
suitable habitat and known sub-occurrences of San Benito evening-
primrose by reducing the amount of open trails and restricting access 
to the Serpentine ACEC to 5 days per year per recreationalist through a 
permit system and a series of locked gates (BLM 2014, pp. 1-18). The 
identification of a new habitat type, the geologic transition zone, and 
numerous new point locations have increased the known range and amount 
of known occupied habitat. The topography and composition of geologic 
transition zone habitat is not typical of areas preferred by OHV users, 
and many of the new occurrences of San Benito evening-primrose were not 
subject to OHV disturbance. As a result, the majority of the currently 
known occurrences of San Benito evening-primrose have not been 
disturbed from OHV use. The existing Resource Management Plan (BLM 
2014, entire) will continue to provide protection for San Benito 
evening-

[[Page 33071]]

primrose occurrences within the Serpentine ACEC and the CCMA through 
trail restrictions and a permitting system. The Post-delisting 
Monitoring Plan will provide guidelines for evaluating the species 
following delisting to detect substantial declines that may lead to 
consideration of reclassification to threatened or endangered. Changes 
in land use will still be subject to State and Federal environmental 
review.
    Annual monitoring of 27 locations of San Benito evening-primrose 
listed in the Recovery Plan have shown that numbers of individuals at 
historically occupied habitat have remained relatively stable. Active 
and passive restoration efforts undertaken by the BLM, in conjunction 
with the closure of the Serpentine ACEC to OHV use, have improved 
degraded areas into suitable habitat for San Benito evening-primrose. 
The reduction in OHV use described in the 2014 Resource Management Plan 
provided protection of occupied habitat within the CCMA, and continued 
prohibition on OHV use will ensure that future degradation of occupied 
habitat will not occur within the CCMA. The Recovery Plan suggested 
target numbers of individuals that could be used as a point of 
reference to assess the stability of San Benito evening-primrose. Those 
goals have been met for four (five if only normal precipitation years 
are considered) of the 27 locations that are listed in the Recovery 
Plan. Those values were considered an approximation, and it appears 
that the 27 locations listed in the Recovery Plan have remained 
relatively stable around a 5-year moving average when the abnormally 
high-count year (1988) is considered (figure 2). Furthermore, the 27 
locations are no longer representative of the entire range of San 
Benito evening-primrose due to the discovery of the geologic transition 
zone as suitable habitat and the associated increase in the known total 
number of individuals and occupied acreage.
    Therefore, we conclude that based on the best available 
information, the recovery criteria in the Recovery Plan have been 
achieved and the recovery goal identified in the Recovery Plan has been 
met for San Benito evening-primrose. Recovery criterion 1 has been met 
with research to increase the understanding of the extent of existing 
occurrences, the range of suitable habitat, the persistence of the seed 
bank, and analysis of the genetic variability across watersheds and 
habitat types. Recovery criterion 2 has been met with protection of 
known occurrences and sufficient additional suitable habitat within 
each watershed unit throughout its range. Recovery criteria three and 
four have been met through the closure of the Serpentine ACEC, 
restoration of degraded areas, and observed stability of 27 of the 79 
occurrences over a period that included 18 years of normal rainfall 
over a 27-year period. Recovery criterion 5 has been met through the 
development of a draft post-delisting monitoring plan for the species, 
which will be finalized in collaboration with the BLM.

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species is an ``endangered species'' or a ``threatened 
species.'' The Act defines an endangered species as a species that is 
``in danger of extinction throughout all or a significant portion of 
its range,'' and a threatened species as a species that is ``likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range.'' The Act requires that we 
determine whether any species is an ``endangered species'' or a 
``threatened species'' because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the expected response by the species, 
and the effects of the threats--in light of those actions and 
conditions that will ameliorate the threats--on an individual, 
population, and species level. We evaluate each threat and its expected 
effects on the species, then analyze the cumulative effect of all of 
the threats on the species as a whole. We also consider the cumulative 
effect of the threats in light of those actions and conditions that 
will have positive effects on the species, such as any existing 
regulatory mechanisms or conservation efforts. The Secretary determines 
whether the species meets the definition of an ``endangered species'' 
or a ``threatened species'' only after conducting this cumulative 
analysis and describing the expected effect on the species now and in 
the foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as the 
Services can reasonably determine that both the future threats and the 
species' responses to those threats are likely. In other words, the 
foreseeable future is the period of time in which we can make reliable 
predictions. ``Reliable'' does not mean ``certain''; it means 
sufficient to provide a reasonable degree of confidence in the 
prediction. Thus, a prediction is reliable if it is reasonable to 
depend on it when making decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

[[Page 33072]]

Analytical Framework

    The 5-year review documents the results of our comprehensive 
biological status review for the species, including an assessment of 
the potential threats to the species. The review provides the 
scientific basis that informs our regulatory decisions, which involve 
the further application of standards within the Act and its 
implementing regulations and policies. The 5-year review can be found 
at https://www.regulations.gov under Docket FWS-R8-ES-2019-0065. Where 
information in the 5-year review is out of date, we have provided 
updated information in this proposed rule.

Summary of Biological Status and Threats

    Historical analyses and discussion of the threats to San Benito 
evening-primrose are detailed in the Recovery Plan (USFWS 2006, pp. 26-
36) and 5-Year Review (USFWS 2009, pp. 10-18). An updated analysis and 
discussion follows here. Primary threats to San Benito evening-primrose 
identified in the listing rule included OHV use of occupied and 
potential habitat and gravel mining. Uncertainty about the reproductive 
capacity of the species and vandalism were also considered additional 
threats at listing. Vandalism was considered a threat due to the small 
population size and public resistance to listing the species under the 
Act. The resistance came from the OHV community perception that listing 
the species would inhibit their ability to continue recreating. 
However, vandalism was not believed to be significant with subsequent 
reviews of the species in the Recovery Plan and 5-Year Review and is 
not considered further in this proposed rule. Since listing, the 
Recovery Plan and 5-Year Review identified as additional threats: Soil 
loss and elevated erosion rates from OHV trails and staging areas, 
camping, facilities construction and maintenance, habitat alteration 
due to invasive species and/or natural vegetation community succession, 
climate change and the local effect on precipitation patterns and 
temperature, and stochastic events. The following sections provide a 
summary of the past, current, and potential future threats relating to 
San Benito evening-primrose.

Off-Highway Vehicle Use

    Off-highway vehicle use of open serpentine barrens and alluvial 
terraces was considered the primary threat to San Benito evening-
primrose when it was listed in 1985. Soil disturbance from OHVs use 
increased soil loss, soil compaction, and could result in the physical 
removal of plants. Staging areas and camping associated with OHV use 
had similar negative impacts to the species and its habitat. Between 
1985 and 2010, the BLM implemented a series of measures to reduce 
effects to known habitat and occurrences of San Benito evening-primrose 
through fencing of sensitive areas, signage, designation of specific 
open riding areas, and enforcement and management of designated OHV 
trails. In 2005, the BLM estimated 50,000 visitor-use days per year 
occurred within the CCMA (USFWS 2006, p. 27). OHV use decreased in 2008 
following the release of an EPA report that found high levels of 
naturally occurring asbestos that posed a significant health risk to 
visitors within the Serpentine ACEC.
    To address the EPA findings, the BLM issued new Management Plans 
and associated Records of Decision in 2014, which restricted OHV access 
to areas of suitable habitat and known sub-occurrences of San Benito 
evening-primrose by reducing the amount of open trails and restricting 
access to the Serpentine ACEC to 5 days per year per recreationalist 
through a permit system and a series of locked gates (BLM 2014, pp. 1-
18). Currently, only highway-licensed vehicles are allowed within the 
Serpentine ACEC on designated roads and by permit, which is limited to 
five use-days per year per person. These restrictions on OHV use have 
effectively removed OHV impacts to San Benito evening-primrose. OHV 
non-compliance with fencing and trail restrictions has been monitored 
within lands managed by the BLM. Findings of non-compliance remain low 
compared to levels of use prior to closure (table 2). Occurrences 
located on private property are not protected from OHV use, and 
occurrences on BLM land near private land are at greater risk of 
disturbance from OHV trespass. Under the current Resource Management 
Plan (BLM 2014, entire), because of its implementation of closures and 
restrictions, we do not consider OHV use will become a threat to 
occurrences on BLM land in the foreseeable future. While BLM 
restrictions do not provide protection to occurrences on private land, 
the best available data on historical and current recreation levels do 
not indicate that the level of OHV use on private land will increase 
from current levels to levels that would threaten the persistence of 
the species in the foreseeable future.

Mining

    The last commercial mining in the CCMA ceased extraction activities 
in 2002 (BLM 2018, p. 66). The BLM has acquired surface rights to 208 
ha (520 ac) along the lower reaches of Clear Creek up to and including 
the confluence with the San Benito River. This acquisition protects 
habitat and occurrences of San Benito evening-primrose, but without 
having the mineral rights to the land, it cannot be considered fully 
under the control of the BLM (USFWS 2009, p. 13). The BLM decided in 
the 2014 Resource Management Plan that no mineral leasing or sales on 
public lands will occur within the Serpentine ACEC and that mineral 
leasing and sales on public lands outside of the Serpentine ACEC will 
have ``no surface occupancy'' stipulations where occupied special 
status species habitat occurs (BLM 2018, pp. 1-36 through 1-37). With 
these requirements, and no active mining leases within suitable habitat 
and known occurrences, we conclude that mining is no longer a 
significant threat to San Benito evening-primrose and is not likely to 
become a threat in the foreseeable future
    Rock hounding (hobby of collecting rock and mineral specimens from 
the natural environment) within the CCMA persists as a recreation 
activity, although quantifying the amount and effect of rock hounding 
on San Benito evening-primrose is lacking. However, given the 
restricted vehicle access and relatively low impact of an individual 
user versus a commercial mining operation, we consider that effects to 
San Benito evening-primrose from rock hounding are negligible and are 
not likely to become a threat in the foreseeable future.

Soil Loss and Elevated Erosion Rates

    Soil loss and erosion may occur naturally due to seasonal 
disturbances as would be expected by frost heaving, overland sheet flow 
from precipitation, unconsolidated soil, sparse vegetation, and flood 
events. These natural disturbances promote areas relatively free of 
dense vegetation, increase water infiltration, and may aid in dispersal 
of the San Benito evening-primrose downstream or downslope from 
existing occurrences. Many of the threats presented under Factor A may 
be considered a ``disturbance'' to the habitat of the species, but this 
does not mean that they are beneficial. For example, the effects to 
soil from frost heaving and overland sheet flow are very different from 
those resulting from repeated use of OHVs. The BLM attempted to 
quantify the differences between the natural, or background, rates of 
soil loss and erosion, and those that result from OHV and highway

[[Page 33073]]

vehicle use. The mean background soil loss in the Clear Creek Watershed 
was 8 yards\3\ (yd\3\)/ac-year (11 tons/ac-year) and that soil loss 
resulting from OHV open riding resulted in soil loss of 12 yd\3\/ac-
year (16 tons/ac-year) (PTI Environmental 1993, pp. 36-39). The erosion 
rate from roads was estimated at 59 yd\3\/ac-year (80 tons/ac-year).
    Increased erosion and elevated soil loss are indicative of loss of 
suitable habitat. The seed bank may be lost as soil erodes and the 
remaining soil may become compacted, decreasing germination potential 
as well as water retention. Trails that form from repeated use on open 
slopes or terraces may collect and funnel water, creating runnels, 
which in turn increase erosion while drawing water away from adjacent 
areas (Brooks and Lair 2005, p. 7; Ouren et al. 2007, pp. 5-16). The 
BLM has recognized this issue and has attempted to enact minimization 
measures for soil loss and erosion. In the most recent Resource 
Management Plan, the BLM includes guidelines that call for road 
closures during extreme wet weather, prioritizing closed roads for 
restoration and reclamation, and establishing automated weather 
stations to monitor precipitation and soil moisture and requires 
approved erosion control strategies to be evaluated for any soil-
disturbing activities on slopes of 20-40 percent (BLM 2014, p. 1-30). 
Presently, the threat of soil loss and erosion is limited to natural 
cycles, remnant effects of past land use, and roads (for which the 
above minimization measures apply). Considering that additional sub-
occurrences of San Benito evening-primrose continue to be identified 
and persist within habitat that is more prone to erosion (upland slopes 
of the geologic transition zone habitat type), it is unlikely that 
natural rates of soil loss and erosion present a threat to the 
continued existence of the species and is not likely to do so in the 
foreseeable future.

Facilities Construction and Maintenance

    The construction of the BLM Section 8 Administrative Site in 1988 
and associated structures resulted in direct loss of San Benito 
evening-primrose and its habitat, although the species still occurs in 
the vicinity of the disturbance (USFWS 2009, pp. 12-13, BLM 2018, p. 
34). The Section 8 Administrative Site was decommissioned in 2010 and 
replaced by the Clear Creek Administrative Site. The new administrative 
site was not constructed on occupied or potential habitat for San 
Benito evening-primrose, although the impacts resulting from the 
original disturbance remain (BLM 2018, p. 66). The old Section 8 
Administrative Site is infrequently used and, at current levels of use, 
does not present a threat to the persistence of San Benito evening-
primrose due to the discovery of new sub-occurrences and potential 
habitat throughout the CCMA (BLM 2018 p. 66). No new facilities and 
construction projects are planned, and it is not likely that new 
projects in occupied or potential habitat will be proposed in the 
foreseeable future.

Habitat Alteration Due to Invasive Species

    The serpentine-derived soils inhibit invasion from nonnative plant 
species where San Benito evening-primrose occurs. However, the habitat 
may still be degraded if invasion by nonnative species is allowed to 
occur on adjacent land. High densities of nonnative species may 
negatively influence existing or potential habitat for San Benito 
evening-primrose by providing a persistent threat of colonization. 
Yellow star thistle (Centaurea solstitialis) and tocalote (C. 
melitensis) have been actively controlled near occurrences of San 
Benito evening-primrose within the CCMA since 2005 (BLM 2018, p. 62). 
The BLM has identified prescribed fire followed by broadcast 
application of clopyralid, a broadleaf specific herbicide, as the most 
effective means of reducing the cover of invasive species threatening 
San Benito evening-primrose. The cover of yellow star thistle has been 
reduced by 95 percent in the Clear Creek drainage, and San Benito 
evening-primrose has expanded into the improved habitat (BLM 2018, p. 
62). The natural buffer that the serpentine-derived soils provide, 
coupled with BLM's management of invasive species and the expansion of 
known sub-occurrences and potential habitat, make it unlikely that 
invasive species present a significant threat either now or into the 
future to the persistence of San Benito evening-primrose. The abundance 
of invasive species will be monitored as part of the Post-delisting 
Monitoring Plan. The Post-delisting Monitoring Plan will suggest 
thresholds that will determine the necessary control efforts on 
federally managed land.

Succession to Woody Shrub Community

    San Benito evening-primrose habitat is typically open and 
relatively free of high amounts of woody vegetation and canopy cover. 
Succession to a woody shrub community in habitat that presently or 
historically supported San Benito evening-primrose could result in 
increased canopy cover (potentially shading out San Benito evening-
primrose) and increased competition for resources (lessening the 
success of establishment and survival) (Taylor 1990, p. 66). 
Photopoints initiated by the BLM in 1980 suggest that open serpentine 
barrens are less susceptible to encroachment by woody shrubs (typically 
chaparral species such as manzanita (Arctostaphylos spp.)) than 
alluvial terrace habitat. This is presumably due to the greater 
concentration of serpentine soils on the open barrens compared to the 
more organic rich soils of the alluvial terraces. Continued evidence of 
encroachment into areas occupied by San Benito evening-primrose has 
been observed at established photomonitoring points (BLM 2018, pp. 56-
57).
    The immediate effect of encroachment by woody vegetation would be 
to reduce, or possibly eliminate, known occurrences and potential 
habitat of San Benito evening-primrose through competition and 
alteration of habitat structure. It is possible that the seed bank, 
once established, is long lived enough that it may persist through 
cycles of vegetation community shifts due to natural events such as 
fires. However, the species has not been studied for sufficient time to 
observe the effects of vegetation succession. The BLM has estimated 
that seed may remain viable for 107 years in the presence of common co-
occurring shrubs (BLM 2015, pp. 16-28).
    San Benito evening-primrose has not been observed in the geologic 
transition zone habitat for as long a period of time as either alluvial 
terrace habitat or the open serpentine barrens. As a result, the rate 
of succession to woody vegetation is not as well understood. It is 
likely that the rate of succession to woody habitat is less within 
geologic transition zone habitat than alluvial terrace, but greater 
than the rate of succession compared to open serpentine barrens. 
Succession of plant communities is a natural process and may result in 
loss of current or potential habitat. However, the amount of new sub-
occurrences that have been identified lessen the immediate risk to the 
existence of the species; therefore, succession to woody shrub 
community is not currently a species-level threat. No occurrences of 
San Benito evening-primrose have been extirpated due to succession of 
woody vegetation since monitoring began in 1980, and, because San 
Benito evening-primrose grows on serpentine soils, threats to the 
species from succession to woody vegetation is also unlikely to be a 
threat in the foreseeable future.

[[Page 33074]]

Stochastic Events

    At the time of listing, only nine occurrences of San Benito 
evening-primrose were known within a relatively restricted range. The 
small number of occurrences increased the susceptibility of the species 
to extinction from a stochastic event, such as a fire, flood, drought, 
or other unpredictable event, because a single event had the capability 
to negatively impact all known occurrences at the same time. The threat 
from stochastic events due to a small number of occurrences has 
decreased as the number of known occurrences has increased to 79 
occurrences (519 sub-occurrences or 658 point locations) occurring 
across multiple watersheds, and into a new habitat type (the geologic 
transition zone). The species' current known range is bordered on the 
north by New Idria Road near the confluence of Larious Creek and San 
Carlos Creek, to the south at the Monterey County line near Lewis 
Creek, to the west near the Hernandez Reservoir, and to the east by the 
eastern boundary of the Serpentine ACEC, an area of approximately 307 
square miles.
    Within this broad range, approximately 260 ac (105 ha) is 
considered potential habitat (BLM 2018, p. 31) and 63.2 ac (25.6 ha) 
are known to be occupied. Despite the occupied area being relatively 
small, it is spread over a large geographic area across multiple 
habitat types and many occurrences, suggesting a low possibility of 
extinction from a single stochastic event. The presence of a long-lived 
and well-established seed bank further insulates San Benito evening-
primrose from the possibility of extinction due to a single stochastic 
event. The land management practices of the BLM within the CCMA have 
promoted preserving and restoring San Benito evening-primrose habitat 
and the natural soil processes and hydrology of the watersheds it 
occurs within as well. Stochastic events are unlikely to threaten the 
species in the foreseeable future due to the current range of San 
Benito evening-primrose and number of known occurrences.

Climate Change

    The terms ``climate'' and ``climate change'' are defined by the 
Intergovernmental Panel on Climate Change. The term ``climate change'' 
thus refers to a change in the mean or variability of one or more 
measures of climate (for example, temperature or precipitation) that 
persists for an extended period, whether the change is due to natural 
variability or human activity (IPCC 2014a, pp. 119-120). The effects of 
climate change are wide ranging but include alteration of historical 
climate patterns including storm frequency and severity, seasonal 
shifts in temperatures, and changing precipitation patterns. Globally, 
these effects may be positive, neutral, or negative for any given 
species, ecosystem, land use, or resource, and they may change over 
time (IPCC 2014b, pp. 49-54; IPCC 2018, pp. 9-12). Potential effects 
derived from climate change have consequences for the biological 
environment and may result in changes to the suitability of currently 
occupied habitat through increased drought stress, shortened growing 
seasons, and alteration of the historical soil and hydrologic cycles. 
The synthesis report that was issued by IPCC is conclusive that future 
climate conditions will be dissimilar from current climate conditions. 
The effects of these changes to San Benito evening-primrose and its 
habitat are not known, but we may reasonably infer potential effects 
from the globally anticipated changes. The State of California 
assessment on climate change provides a better estimate for the effects 
of climate change to areas occupied by San Benito evening-primrose.
    California released its fourth climate change assessment in 2018 
(Langridge 2018, entire). The California assessment differs from the 
IPCC assessments in that it is localized to the State and has specific 
analyses for nine regions within the State. California's Fourth Climate 
Change Assessment uses downscaled versions of the global climate models 
used by IPCC to create localized predictions based on future emissions 
scenarios in order to provide relevant predictions for management and 
planning. The range of San Benito evening-primrose falls within the 
Central Coast region of California's fourth climate change assessment. 
In general, the region is expected to experience increasing minimum and 
maximum temperatures and slight increases in precipitation with 
significant increases in variability (Langridge 2018, p. 6). These 
expected trends are slightly variable across the three watersheds 
within which San Benito evening-primrose occurs (hydrologic unit code 
(HUC) 10): Upper San Benito River, Los Gatos Creek, and Larious Creek-
Silver Creek. The predicted increases in minimum temperature, maximum 
temperature, and precipitation are similar for both high 
(representative concentration pathway (RCP) 8.5) and low (RCP 4.5) 
emissions scenarios and across model variations (Cal-adapt 2018, p. NA; 
table 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 (inches)        Min avg. temp. (degrees F)      Max avg. temp. (degrees F)
                                                         -----------------------------------------------------------------------------------------------
                        Watershed                           Historical     RCP 4.5 (RCP     Historical     RCP 4.5 (RCP     Historical     RCP 4.5 (RCP
                                                              average          8.5)           average          8.5)           average          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 plateau 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 assessment of climate change, the 
IPCC data, taking into account known uncertainties with climate change 
projection, the effects of the predicted changes due to climate change 
to occurrences of San Benito evening-primrose are varied. A slight 
increase in precipitation may provide additional

[[Page 33075]]

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

     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
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   Unsuitable                 No change              Newly suitable
          Vegetation macrogroup               Mean  vulnerability  rank    -----------------------------------------------------------------------------
                                                                              Low  (%)    High  (%)     Low  (%)    High  (%)     Low  (%)    High  (%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 grassland  Mid-High.......................           16           48           52           84           10           52
--------------------------------------------------------------------------------------------------------------------------------------------------------
Data from Thorne et al. 2016 pp. 3; 33-41; 114-122; 132-140.

    Under both high and low emissions scenarios, currently suitable 
habitat for San Benito evening-primrose is lost due to changes in 
climate. Conversely, the species that compose the vegetation 
communities that are associated with San Benito evening-primrose are 
expected to have the capability to migrate into newly suitable habitat. 
The primary concern, in regard to San Benito evening-primrose habitat, 
is the threat of an increase in woody vegetation as a response to 
climate change. However, San Benito evening-primrose is found in 
serpentine and serpentine-derived soils that are not likely to be 
affected by climate change in the foreseeable future. The edaphic 
(soil) conditions may restrain woody vegetation migration into areas 
currently occupied. While the soil type may mitigate habitat loss due 
to habitat conversion, it may also restrain the species from dispersing 
to areas where climatic conditions are more favorable for survival. The 
currently predicted changes in precipitation and climate do not suggest 
that the species may become endangered due to those changes in the 
foreseeable future.

Existing Regulatory Mechanisms

State Protections
    San Benito evening-primrose is not a State-listed taxon under the 
California Endangered Species Act. The species is listed by the 
California Native Plant Society (CNPS) as 1B.1, indicating that the 
taxon is rare throughout its range and is generally endemic to 
California as well as having been reduced throughout its historical 
range. Species listed by CNPS as 1B.1 meet the definition of threatened 
in the California Endangered Species Act as described in the California 
Fish and Game Code (CNPS 2018 Rare Plant Inventory website) and must 
therefore be considered during environmental analysis for California 
Environmental Quality Act (CEQA) documentation (CEQA 2018 Guidelines 
Section 15380).
Federal Protections
    In 2001, the BLM published the National Management Strategy for 
Motorized Off-Highway Vehicle Use on Public Lands. This guiding 
document ensures consistent and positive management of environmentally 
responsible motorized OHV use on public lands. Detailed regulations are 
established in BLM's 2014 Resource Management Plan for the CCMA that 
provides for protections of San Benito evening-primrose. BLM's 2014 
Resource Management Plan for the CCMA is in place until superseded. The 
restriction of OHV use within the CCMA and the Serpentine ACEC is based 
on concerns of health risks and will be unaffected by the delisting of 
San Benito evening-primrose. Currently, only highway-licensed vehicles 
are allowed within the Serpentine ACEC on designated roads and by 
permit, which is limited to five use-days per year per person, and 
within the CCMA trail riding is restricted to designated areas near 
Condon Peak (BLM 2014, p. 1-18). The Post-delisting Monitoring Plan 
will provide for continued evaluation of the status of occurrences to 
prevent the species from again becoming warranted for listing under the 
Federal Endangered Species Act.

[[Page 33076]]

    The BLM has regulations and policies that guide the management of 
natural resources on the public lands they manage. In particular, 
Congress passed the Federal Land Policy and Management Act of 1976 to 
provide policy for ``the management, protection, development, and 
enhancement'' of public lands managed by the BLM. This law directs the 
BLM to ``take any action necessary to prevent unnecessary or undue 
degradation of the lands'' during mining operations (43 U.S.C. 
1732(b)). Mining operations that exceed 5 acres (2.02 ha), and certain 
other defined operations, require a plan of operations approved by the 
BLM (43 CFR 3809.1-4, 1-6).
    BLM may enact special rules to protect soil, vegetation, wildlife, 
threatened or endangered species, wilderness suitability, and other 
resources by immediately closing affected areas to off-road vehicles 
that are causing resource damage until the adverse effects are 
eliminated and measures are implemented to prevent recurrence (43 FR 
8340-8364).
    Two Executive Orders (E.O.) apply specifically to off-road vehicles 
on public lands: E.O. 11644 directs agencies to designate zones of off-
road use that are based on protecting natural resources, the safety of 
all users, and minimizing conflicts among various land uses. The BLM 
and other agencies are to locate such areas and trails to minimize 
damage to soil, watershed, vegetation, or other resources, and to 
minimize disruption to wildlife and their habitats. Areas may be 
located in designated park and refuge areas or natural areas only if 
the head of the agency determines that off-road use will not adversely 
affect the natural, aesthetic, or scenic values of the locations. The 
respective agencies are to ensure adequate opportunity for public 
participation in the designation of areas and trails.
    E.O. 11989 amends the previous order by adding the following 
stipulations: (a) Whenever the agency determines that the use of off-
road vehicles will cause or is causing considerable adverse effects on 
the soil, vegetation, wildlife, wildlife habitat, or cultural or 
historic resources of particular areas or trails on public lands, it is 
to immediately close the areas or trails to the type of off-road 
vehicle causing the effects until it determines that the adverse 
effects have ceased and that measures are in place to prevent future 
recurrence; and (b) each agency is to close portions of public lands 
within its jurisdiction to off-road vehicles except areas or trails 
designated as suitable and open to off-road vehicle use.
    As San Benito evening-primrose is a listed species under the Act, 
the BLM is required to consult with the Service on any activities it 
funds, authorizes, or carries out that may affect San Benito evening-
primrose. There are no Federal prohibitions under the Act for 
negatively impacting listed plants on non-Federal lands, unless a 
person damages or destroys federally listed plants while in violation 
of a State law or a criminal trespass law. Where the species occurs on 
private lands, protections afforded by section 7(a)(2) of the Act are 
triggered only if there is a Federal nexus (i.e., an action funded, 
permitted, or carried out by a Federal agency). If the species is 
delisted, the protections afforded by the Act would no longer apply. 
Even in the absence of the protections of the Act, adequate regulatory 
mechanisms are in place, such as the Federal Land Policy and Management 
Act of 1976, E.O. 11644 and E.O. 11989, to ensure the continued 
persistence of San Benito evening-primroses occurrences and suitable 
potential habitat.

Summary of Threats Analysis

    A very limited range, small number of occurrences, and direct and 
indirect threats from OHV use and mining and associated facilities and 
road maintenance were the primary threats to San Benito evening-
primrose at the time of listing in 1985 (50 FR 5755-5759, February 12, 
1985). OHV use continued to be a significant threat to San Benito 
evening-primrose until the temporary closure of the Serpentine ACEC in 
2008. The 2014 Resource Management Plan permanently reduced the amount 
of exposure San Benito evening-primrose has to OHV recreation and has 
resulted in indirectly removing the most significant threat to the 
species, which was direct loss of individuals by OHV recreation and 
indirect loss of habitat and seed bank through erosion on slopes and 
soil compaction on alluvial terraces. The threat from mining was 
reduced by 2002 with the closure of the last commercial mine, and 
future threats from mining are unlikely based on BLM management actions 
listed in the 2014 Resource Management Plan for the CCMA. Habitat 
alteration from invasive species and succession to woody vegetation 
communities are not likely to threaten San Benito evening-primrose 
because invasive species and woody vegetation communities are 
intolerant to serpentine soils. The significant increase in the number 
of known occurrences and the associated increase in range and the new 
habitat association greatly reduce the threat of stochastic events 
resulting in significant loss to the species. The effects of climate 
change on the species are predicted changes in temperature and rainfall 
by 2050, and do not suggest species-level threats to survival.
    When individual threats that influence reproductive output, 
germination, and survival occur together, one threat may add to, or 
exacerbate, the effects of another, resulting in a disproportionate 
increase in threat to the species. When this occurs, we call the 
interactive effects synergistic or cumulative. The lack of current 
threats to San Benito evening-primrose reduce the possibility of 
synergistic or cumulative effects occurring, and, given the current 
range of the species, number of known occurrences, and likelihood of 
new occurrences to become known, synergistic and cumulative effects do 
not pose a significant population-level impact to San Benito evening-
primrose at this time nor do we anticipate that they will in the 
future.

Determination of San Benito Evening-Primrose Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of ``endangered species'' or 
``threatened species.'' The Act defines an ``endangered species'' as a 
species that is ``in danger of extinction throughout all or a 
significant portion of its range,'' and a ``threatened species'' as a 
species that is ``likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range.'' For a more detailed discussion on the factors considered when 
determining whether a species meets the definition of ``endangered 
species'' or ``threatened species'' and our analysis on how we 
determine the foreseeable future in making these decisions, see 
Regulatory Framework, above.

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the section 4(a)(1) factors, we 
have assessed the best scientific and commercial information available 
regarding the past, present, and future threats faced by San Benito 
evening-primrose in this proposed rule. At the time of listing in 1985 
(50 FR 5755-5759, February 12, 1985), San Benito evening-primrose was 
known from only nine occurrences within a very narrow range that were 
all subject to potential loss from the threats listed in Factors A 
through E.

[[Page 33077]]

    Off-highway vehicle recreation (Factor A), the greatest persistent 
threat to the species, has been reduced to levels that no longer pose a 
significant threat of extinction to San Benito evening-primrose or loss 
of its habitat, due to the closure of the Serpentine ACEC and the 
restriction of OHV use within the CCMA but outside of the Serpentine 
ACEC. Most significantly, surveys by the BLM have shown that the 
species is much more wide-ranging and common than originally known and 
occurs across a broader range of habitat types. The number of known 
occurrences has increased from 9 to 79 and includes 658 mapped point 
locations. The range of the species is now known from three watersheds, 
and occupied habitat covers 63.2 acres (25.6 ha). Our understanding of 
the ecology of the species has demonstrated that the species may 
persist through periods of disturbance due to the persistence of a 
robust and long-lived seedbank that facilitates reestablishment, 
dispersal, and buffers against stochastic events. Annual surveys of San 
Benito evening-primrose have demonstrated that there is a large amount 
of interannual variation in numbers of individuals observed. We believe 
that the 27 occurrences that have been monitored since 1983 have 
remained relatively stable around a 5-year moving average when the 
abnormally high count year (1988) is considered. Furthermore, the 
significant increase in the number of occurrences is not represented in 
the analysis of the 27 occurrences that were known at the time the 
Recovery Plan was written. The best available information indicates 
that Factors B, C, and E are not affecting the species and are unlikely 
to do so in the foreseeable future. The existing regulatory mechanisms 
in place are adequate to ensure the continued persistence of San Benito 
evening-primrose occurrences and suitable potential habitat because a 
majority of occurrences are managed on Federal land and are protected 
by a 2014 BLM Resources Management Plan and a BLM Area of Critical 
Environmental Concern (ACEC) designation. Based on the information 
presented in this status review, the recovery criteria in the Recovery 
Plan have been achieved and the recovery goal identified in the 
Recovery Plan has been met for San Benito evening-primrose. Thus, after 
assessing the best available information, we conclude that San Benito 
evening-primrose is not in danger of extinction throughout all of its 
range either now or within the foreseeable future.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
within the foreseeable future throughout all or a significant portion 
of its range.
    Having determined that San Benito evening-primrose is not in danger 
of extinction or likely to become so within the foreseeable future 
throughout all of its range, we now consider whether it may be in 
danger of extinction or likely to become so within the foreseeable 
future in a significant portion of its range. The range of a species 
can theoretically be divided into portions in an infinite number of 
ways, so we first screen the potential portions of the species' range 
to determine if there are any portions that warrant further 
consideration. To do the ``screening'' analysis, we ask whether there 
are portions of the species' range for which there is substantial 
information indicating that: (1) The portion may be significant; and 
(2) the species may be, in that portion, either in danger of extinction 
or likely to become so in the foreseeable future. For a particular 
portion, if we cannot answer both questions in the affirmative, then 
that portion does not warrant further consideration and the species 
does not warrant listing because of its status in that portion of its 
range. Conversely, we emphasize that answering both of these questions 
in the affirmative is not a determination that the species is in danger 
of extinction or likely to become so in the foreseeable future 
throughout a significant portion of its range--rather, it is a step in 
determining whether a more-detailed analysis of the issue is required.
    If we answer these questions in the affirmative, we then conduct a 
more thorough analysis to determine whether the portion does indeed 
meet both of the ``significant portion of the range prongs'': (1) The 
portion is significant and (2) the species is, in that portion, either 
in danger of extinction or likely to become so within the foreseeable 
future. Confirmation that a portion does indeed meet one of these 
prongs does not create a presumption, prejudgment, or other 
determination as to whether the species is an endangered species or 
threatened species. Rather, we must then undertake a more detailed 
analysis of the other prong to make that determination. Only if the 
portion does indeed meet both significant portion of the range prongs 
would the species warrant listing because of its status in a 
significant portion of its range.
    We evaluated the range of San Benito evening-primrose to determine 
if any area may be a significant portion of the range. San Benito 
evening-primrose is a narrow endemic that occurs over 300 square miles, 
but occupies a relatively small amount of acreage (63.2 ac (25.6 ha) of 
occupied habitat). Genetic analysis indicated no differentiation in 
occurrences based on watershed or habitat and that there was no 
hybridization with a close relative. Every threat to the species in any 
portion of its range is a threat to the species throughout all of its 
range, and so the species has the same status under the Act throughout 
its narrow range. Therefore, we conclude, based on this screening 
analysis, that the species is not in danger of extinction or likely to 
become so in the foreseeable future in any significant portion of its 
range. Our conclusion--that we do not undertake additional analysis if 
we determine that the species has the same status under the Act 
throughout its narrow range--is consistent with the courts' holdings in 
Desert Survivors v. Department of the Interior, No. 16-cv-01165-JCS, 
2018 WL 4053447 (N.D. Cal. Aug. 24, 2018); Center for Biological 
Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017); and 
Center for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 
28, 2020).

Determination of Status

    Our review of the best scientific and commercial data available 
indicates that the San Benito evening-primrose does not meet the 
definition of an endangered species or a threatened species in 
accordance with sections 3(6) and 3(20) of the Act. Therefore, we 
propose to delist the San Benito evening-primrose from the List of 
Endangered and Threatened Plants.

Effects of This Rule

    If this proposed rule is made final, it would revise 50 CFR 
17.12(h) to remove San Benito evening-primrose from the Federal List of 
Endangered and Threatened Plants. The prohibitions and conservation 
measures provided by the Act, particularly through sections 7 and 9, 
would no longer apply to San Benito evening-primrose. Federal agencies 
would no longer be required to consult with the Service under section 7 
of the Act in the event that activities they authorize, fund, or carry 
out may affect San Benito evening-primrose.

Post-Delisting Monitoring

    Section 4(g)(1) of the Act requires us to implement a system to 
monitor effectively, for not less than 5 years, all species that have 
been recovered and

[[Page 33078]]

delisted (50 CFR 17.11, 17.12). The purpose of this post-delisting 
monitoring is to verify that a species remains secure from the risk of 
extinction after it has been removed from the protections of the Act. 
The monitoring is designed to detect the failure of any delisted 
species to sustain itself without the protective measures provided by 
the Act. If, at any time during the monitoring period, data indicate 
that protective status under the Act should be reinstated, we can 
initiate listing procedures, including, if appropriate, emergency 
listing under section 4(b)(7) of the Act. Section 4(g) of the Act 
explicitly requires us to cooperate with the States in development and 
implementation of post-delisting monitoring programs, but we remain 
responsible for compliance with section 4(g) and, therefore, must 
remain actively engaged in all phases of post-delisting monitoring. We 
also seek active participation of other entities that are expected to 
assume responsibilities for the species' conservation post-delisting.

Post-Delisting Monitoring Overview

    If we make this proposed rule final, the post-delisting monitoring 
is designed to verify that San Benito evening-primrose remains secure 
from the risk of extinction after its removal from the Federal List of 
Endangered and Threatened Plants by detecting changes in trend and 
habitat suitability. A draft post-delisting monitoring plan for the 
species can be found at https://www.regulations.gov under Docket No. 
FWS-R8-ES-2019-0065. If this proposed rule is finalized, the final 
post-delisting monitoring plan will be agreed upon by the Service and 
the BLM prior to publication of a final rule.

Required Determinations

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the names of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare an 
environmental analyses pursuant to the National Environmental Policy 
Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) in connection with 
regulations adopted pursuant to section 4(a) of the Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244). This position was upheld by 
the U.S. Court of Appeals for the Ninth Circuit (Douglas County v. 
Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 
(1996)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes. There are no tribal lands associated 
with this proposed rule.

References Cited

    A complete list of all references cited in this proposed rule is 
available on the internet at https://www.regulations.gov under Docket 
No. FWS-R8-ES-2019-0065, or upon request from the Ventura Fish and 
Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Ventura Fish and Wildlife Office in Ventura, California, in 
coordination with the Pacific Southwest Regional Office in Sacramento, 
California.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

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


Sec.  17.12   [Amended]

0
2. In Sec.  17.12(h), remove the entry for ``San Benito evening-
primrose (Camissonia benitensis)'' under FLOWERING PLANTS from the List 
of Endangered and Threatened Plants.

Aurelia Skipwith,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2020-11024 Filed 5-29-20; 8:45 am]
 BILLING CODE 4333-15-P