[Federal Register Volume 87, Number 23 (Thursday, February 3, 2022)]
[Rules and Regulations]
[Pages 6046-6063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02010]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2019-0065; FF09E22000 FXES1113090FEDR 223]
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: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS), are 
removing San Benito evening-primrose (Camissonia benitensis), a plant 
native to California, from the Federal List of Endangered and 
Threatened Plants on the basis of recovery. This final rule 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 to the point that it has recovered and is no 
longer in danger of extinction or likely to become in danger of 
extinction in the foreseeable future. Therefore, the plant no longer 
meets the definition of an endangered or threatened species under the 
Endangered Species Act of 1973, as amended (Act).

DATES: This rule is effective March 7, 2022.

ADDRESSES: This final rule, the post-delisting monitoring plan, and 
supporting documents are available on the internet at https://www.regulations.gov or at https://ecos.fws.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 panel on the left side of the screen, under the 
Document Type heading, click on the Final Rule box to locate this 
document.
    Document availability: The recovery plan, 5-year review summary, 
and post-delisting monitoring plan referenced in this document are 
available at https://www.regulations.gov under Docket No. FWS-R8-ES-
2019-0065.

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. 
Direct all questions or requests for additional information to: SAN 
BENITO EVENING PRIMROSE QUESTIONS, to the address above (See 
ADDRESSES). Individuals who are hearing-impaired or speech-impaired my 
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 are removing San Benito evening-
primrose (Camissonia benitensis) from the Federal List of Endangered 
and Threatened Plants based on its recovery. The prohibitions and 
conservation measures provided by the Act, particularly through 
sections 7 and 9, will no longer apply to the San Benito evening-
primrose.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered species or a threatened species because of any 
of five factors: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or

[[Page 6047]]

manmade factors affecting its continued existence. We have determined 
that the threats to the species have been reduced or eliminated so that 
San Benito evening-primrose no longer meets the definition of an 
endangered or threatened species under the Act.
    Under the Act and our implementing regulations at 50 CFR 424.11, we 
may delist a species if the best available scientific and commercial 
data indicate that: (1) The species is extinct; (2) the species does 
not meet the definition of an endangered species or a threatened 
species when considering the five factors listed above; or (3) the 
listed entity does not meet the statutory definition of a species. 
Here, we have determined that the San Benito evening-primrose should be 
delisted because, based on an analysis of the five listing factors, it 
has recovered and no longer meets the definition of an endangered 
species or a threatened species.
    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. Additionally, the species is more wide-ranging and common than 
originally known and occurs across a broader range of habitat types 
(Bureau of Land Management (BLM) 2018, p. 32). The number of known 
occurrences has increased from 9 to 79; the range of the species is now 
known from 3 watersheds; and occupied habitat covers 63.2 acres (25.6 
ha).
    Peer review and public comment. We evaluated the species' needs, 
current conditions, and future conditions to support our June 1, 2020, 
proposed rule to delist the San Benito evening-primrose (85 FR 33060). 
We sought comments from independent specialists to ensure that our 
determination is based on scientifically sound data, assumptions, and 
analyses. We invited these peer reviewers to comment on the proposed 
rule and draft post-delisting monitoring plan. We considered all 
comments and information we received during the public comment period 
on the proposed rule and the draft post-delisting monitoring plan when 
developing this final rule.

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).
    A notice of the availability of a recovery plan for San Benito 
evening-primrose was subsequently published on September 19, 2006 (71 
FR 54837-54838) (Recovery Plan).
    In 2009, the Service conducted a 5-year review (USFWS 2009, entire) 
and found that the San Benito evening-primrose still met the definition 
of a threatened species. In addition, we announced the initiation of 
another 5-year review on June 18, 2018 (83 FR 28251-28254). On June 1, 
2020, we proposed to delist the San Benito evening-primrose (85 FR 
33060) and announced the availability of a draft post-delisting 
monitoring plan. The June 1, 2020, proposed rule to remove San Benito 
evening-primrose from the Federal List of Endangered and Threatened 
Plants also serves as a 5-year review for the species.

Summary of Changes From the Proposed Rule and Post-Delisting Monitoring 
Plan

    We considered all comments and information we received during the 
comment period for the proposed rule to delist San Benito evening-
primrose (85 FR 33060; June 1, 2020). This consideration resulted in 
the following changes from the proposed rule in this final rule:
    <bullet> We made minor editorial changes and revised various 
sections of the rule based on public and partner comments.
    <bullet> We reevaluated the climate change analysis with a range 
more specific to San Benito evening-primrose.
    <bullet> We updated the population trend analysis with current 
information and following comments from the BLM.
    <bullet> We updated off-highway vehicle (OHV) trespass information 
with current data.
    <bullet> We updated total known occurrences with current data.
    <bullet> The post-delisting monitoring plan was revised in 
partnership with the BLM.

Final 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 ([deg]F) (-6.7 to -1.1 degrees Celsius 
([deg]C)) in the winter to highs of 90 to 100 [deg]F (32.2 to 37.8 
[deg]C) in the summer (USFWS 2009, p. 8). San Benito evening-primrose 
occurs across an elevation range from 1,929 ft (588 m) to 4,684 ft 
(1,428 m). At the extremes of the elevation range, the minimum 
precipitation may be as low as 15 in (38 cm) and as high as 20 in (51 
cm) respectively (BLM 2020a, pp. 1-2). 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).
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[GRAPHIC] [TIFF OMITTED] TR03FE22.041

BILLING CODE 4333-15-C
    San Benito evening-primrose occurs 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

[[Page 6049]]

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. berberidifolia (scrub oak) 
(Dick et al. 2014, p. 167).
    Within this rule, 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.
    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 666 in 2020 (BLM 2020b, p. 25). 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 sandy soil 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 indicate 
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 666 point 
locations occurring within and outside of the boundary of the Clear 
Creek Management Area (CCMA), including a substantial number on private 
land (7 known point locations in 2009 and 287 known point locations in 
2020) (BLM 2020b, p. 25).
    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 2020 and are the source of the most recent information 
regarding the status of the occurrences of San Benito evening-primrose. 
In response to the proposed rule, the BLM provided additional 
information regarding the effects of climate change, woody vegetation 
dynamics, habitat recolonization, photopoint monitoring, and life-
history information (BLM 2020a, BLM 2020c, BLM 2020d, BLM 2020e, BLM 
2020f).
    This final determination incorporates data provided by the BLM 
within the 2018 and 2020 Annual Report (BLM 2018, entire, BLM 2020b, 
entire) as well as the supplemental information provided in response to 
the proposed rule. In 2020, 79 occurrences, consisting of 519 sub-
occurrences, and 666 point locations were mapped by the BLM (table 1) 
(BLM 2018, spatial data, BLM 2020b, pp. 10-22).

                                        Table 1--2020 BLM Survey Results
----------------------------------------------------------------------------------------------------------------
                                          Number of        Number of  sub-    Number of  point        Acres
                                         occurrences         occurrences          locations         (hectares)
----------------------------------------------------------------------------------------------------------------
2020 San Benito evening-primrose                    79                 519                 666      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 2020 Annual Report (BLM 2020 p. 25). 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, which we used 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 relationship between 
occurrences, sub-occurrences, and point locations. Occurrence contains 
sub-occurrences and point locations. Sub-occurrences contain point 
locations, and point locations have no further break down. 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 
objective, measurable criteria which, when met, would result in a 
determination, in accordance with the provisions of section 4 of the 
Act, that the species be removed from the List.
    Recovery plans provide a roadmap for us and our partners on methods 
of enhancing conservation and minimizing threats to listed species, as 
well as measurable criteria against which to evaluate progress towards 
recovery and assess the species' likely future condition. However, they 
are not regulatory documents and do not substitute for the 
determinations and promulgation of regulations required under section 
4(a)(1) of the Act. A

[[Page 6050]]

decision to revise the status of a species, or to delist a species, is 
ultimately based on an analysis of the best scientific and commercial 
data available to determine whether a species is no longer an 
endangered species or a threatened species, regardless of whether that 
information differs from the recovery plan.
    There are many paths to accomplishing recovery of a species, and 
recovery may be achieved without all of the criteria in a recovery plan 
being fully met. For example, one or more criteria may be exceeded 
while other criteria may not yet be accomplished. In that instance, we 
may determine that the threats are minimized sufficiently and that the 
species is robust enough that it no longer meets the definition of an 
endangered species or a threatened species. In other cases, we may 
discover new recovery opportunities after having finalized the recovery 
plan. Parties seeking to conserve the species may use these 
opportunities instead of methods identified in the recovery plan. 
Likewise, we may learn new information about the species after we 
finalize the recovery plan. The new information may change the extent 
to which existing criteria are appropriate for identifying recovery of 
the species. The recovery of a species is a dynamic process requiring 
adaptive management that may, or may not, follow all of the guidance 
provided in a recovery plan.
    Below, we summarize 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 (USFWS 2006, pp. 48-74) describes the recovery 
goal and criteria that need to be achieved in order to consider 
delisting San Benito evening-primrose. 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 (USFWS 2006, pp. 51-52). In order to determine if a species 
meets the definition of a threatened species, we must consider 
potential impacts within the foreseeable future. The Recovery Plan 
(USFWS 2006, entire) used 20 years as the 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, pp. 51, 
53). Given this and information on potential threats into the future, 
in this final 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 delisting the San 
Benito evening-primrose (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 has 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 more than 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

[[Page 6051]]

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 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 common 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). In response to the proposed 
rule, the BLM developed severity tables for natural and anthropogenic 
sources of disturbance (BLM 2020c, pp. 24-26). 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, pp. 130-131, Lovich and Bainbridge 
1999, pp. 315-317, Switalski et al. 2017, p. 88).
    San Benito evening-primrose occurs in areas where the disturbance 
regime is intermediate between two extremes of not enough disturbance 
and too much disturbance. The disturbance regime may be viewed as a 
combination of the frequency of disturbance and the intensity of 
disturbance. Too little disturbance results in increased competition 
from woody vegetation that negatively affects San Benito evening-
primrose occurrences. Conversely, high levels of disturbance results in 
direct mortality and loss of seed bank (BLM 2020c, entire). 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.
    Population Trends. The Recovery Plan recommends target numbers of 
individuals for a subset (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). Consistent data 
collection of all 27 of these occurrences began in 1998. Although data 
for some occurrences is available from 1983, the current population 
trend analysis uses 1998 as a starting point in order to keep the total 
number of occurrences per year the same, thereby allowing comparisons 
across years. Data from the BLM indicate that the number of individuals 
observed annually at these occurrences has varied around a mean of 
approximately 9,690 individuals (figure 2). The 5-year moving average 
indicates a slightly oscillating but generally stable trend in the 
average number of individuals from 1998 through 2020. Alternative 
analyses of the data using either more years of historical data and/or 
more occurrences have all concluded relatively similar results 
suggesting that the population is stable (85 FR 33060, BLM 2020g, 
entire).
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[GRAPHIC] [TIFF OMITTED] TR03FE22.042

BILLING CODE 4333-15-C
    Population Genetics. The occurrences of San Benito evening-primrose 
found 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 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 (Environmental Protection Agency (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 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

[[Page 6053]]

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, BLM 2020b, pp. 7-8). 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 2020
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              Number of point
                                               locations with   Minimum number  Maximum number  Average number
                   Year *                      observed  non-      of tracks       of tracks       of 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.
2020.......................................                 12               1             10+               8  BLM 2020b pp. 7-8.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* 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 
2020, 666 point locations of San Benito evening-primrose had been 
mapped by the BLM (BLM 2020b, p. 25). The 666 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--1-14). Forty-
five occurrences (178 sub-occurrences) are known to occur on private 
land that is 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: 23 were on land managed by the BLM, and 4 were on private 
property. Currently, there are 59 occurrences on BLM-managed land and 
45 occurrences on private property. Protections for the occurrences on 
private land cannot be guaranteed; however, the occurrences on BLM 
lands are managed to protect San Benito evening-primrose from OHV use 
and other recreational activities.

 Table 3--Number of Occurrences, Sub-Occurrences, and Acreage of Mapped San Benito Evening-Primrose (Camissonia
                                      benitensis) Locations by Land Manager
----------------------------------------------------------------------------------------------------------------
                                                                  Number of      Number of sub-
                                                                 occurrences      occurrences          Acres
----------------------------------------------------------------------------------------------------------------
BLM..........................................................              36                260            23.8
ACEC.........................................................              23                 81            12.7
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 2020 Annual Report (BLM 2020b p. 25). 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.

[[Page 6054]]



                                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 2020 Annual Report (BLM
  2020b p. 25). 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 (BLM 2020e, entire).
    Seed of San Benito evening-primrose was introduced between 1990 and 
1991 at six areas near existing point locations. At 5 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. The results of early seed introductions indicate that San 
Benito evening-primrose establishment from artificially sown seed is 
very low (Taylor 1993, p. 14). One area where seed was introduced, that 
did not previously have extant populations, has continued to have small 
numbers of individuals observed each year. The establishment of San 
Benito evening-primrose in an area where it did not previously occur, 
despite low numbers of individuals relative to number of seed 
introduced, led to the recommendation that seed introductions should be 
used as a tool for San Benito evening-primrose conservation and 
recovery (Taylor 1995, p. 7). 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. The BLM estimated that San Benito evening-
primrose may recolonize restored areas within 5 years when seed is 
introduced following restoration. If seed is not added, recolonization 
through natural dispersal may take up to several decades (BLM 2020d, 
pp. 3-4). 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 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). 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

[[Page 6055]]

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 9,690 individuals since 1998 
(Figure 2). The total number of individuals appears stable over time. 
The 5-year moving average suggests a stable number of individuals from 
1998 to 2020. Although the target numbers have not been met for most of 
the 27 occurrences known at the time of the 2006 Recovery Plan, the 
Service determines that the recovery criterion is met because the 
number of individuals in those occurrences has remained stable around a 
5-year moving average, and the number of occurrences has increased 
(population size has increased). Evaluating the trend of each of the 79 
occurrences (666 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 total 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. A post-delisting monitoring plan has been 
developed by the Service with input from the BLM, the sole Federal 
entity that manages land where San Benito evening-primrose occurs. 
Therefore, this criterion has been met.

Summary of Recovery Criteria

    Based on the best available information, we conclude that 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 3 and 4 
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 
post-delisting monitoring plan for the species in partnership 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,'' reclassifying species, or removing species from listed 
status. 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 must consider these same five 
factors in delisting a species. We may delist a species according to 50 
CFR 424.11(d) if the best available scientific and commercial data 
indicate that the species is neither endangered nor threatened for the 
following reasons: (1) The species is extinct; (2) the species does not 
meet the definition of an endangered species or a threatened species 
when considering the five factors listed above; or (3) the listed 
entity does not meet the statutory definition of a species. The same 
factors apply whether we are analyzing the species' status throughout 
all of its range or a significant portion of its range.
    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

[[Page 6056]]

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. For San Benito evening primrose, we examined 
the impacts of the threats out to 2050 based on our climate change 
assessment so our foreseeable future is projected out approximately 30 
years.

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 final 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 follow 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 final 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 
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 
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 5 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 to be a current threat or that 
it 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

[[Page 6057]]

lands outside of the Serpentine ACEC will have ``no surface occupancy'' 
stipulations where occupied special status species habitat occurs (BLM 
2014, pp. 1-36--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) 
within the CCMA persists as a recreation activity, although information 
on 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. Some natural disturbances benefit the species by promoting 
areas relatively free of dense vegetation, increasing water 
infiltration, and aiding 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 vehicle use. The mean background 
soil loss in the Clear Creek Watershed was 8 yards\3\ (yd\3\) per acre 
per year (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 remain viable 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 are 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, as evidenced by 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 occurs 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 foreseeable 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 indicate 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

[[Page 6058]]

open barrens compared to the more organic rich soils of the alluvial 
terraces.
    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 as has been observed at least once within the CCMA (BLM 2020d, p. 
3). 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. The rate of succession 
to woody vegetation is being monitored through photopoint monitoring by 
the BLM (BLM 2020e, entire). 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.

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 
vulnerability of the species to extinction from stochastic events has 
decreased as the number of known occurrences has increased to 79 
occurrences (519 sub-occurrences or 666 point locations) occurring 
across multiple watersheds, and into a new habitat type (the geologic 
transition zone). The species' current known range is approximately 307 
square miles, an area large enough that it is unlikely that a single 
stochastic event would be able to impact the species.
    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 (IPCC). 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 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). 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 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 
consistent within the range where San Benito evening-primrose occurs. 
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 2020, p. NA; table 5). Data from 
weather stations within the range of San Benito evening-primrose 
indicate that the historical and/or modeled estimate of precipitation 
is high (by approximately 2-4 inches) and that the estimate of minimum 
temperature is low (by approximately 5 [deg]F) (BLM 2020a, pp. 3, 9-
10).

[[Page 6059]]



Table 5--Changes in Precipitation, Minimum Average Temperature, and Maximum Average Temperature for Low and High
     Emission Scenarios Compared to Historical Averages Throughout the Range of San Benito Evening-Primrose
----------------------------------------------------------------------------------------------------------------
      Precipitation (inches)          Minimum average temperature        Maximum average temperature ([deg]F)
----------------------------------              ([deg]F)             -------------------------------------------
                                  -----------------------------------
  Historical average     RCP 4.5                            RCP 4.5    Historical average     RCP 4.5 (RCP 8.5)
                        (RCP 8.5)    Historical average    (RCP 8.5)
----------------------------------------------------------------------------------------------------------------
             20.2       23.5                    38.4       41.3                    70.0           72.9 (73.4)
                       (22.5)                             (41.9)
----------------------------------------------------------------------------------------------------------------
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 for running climate simulations. 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. A
  user defined boundary was used and was based on a polygon that was drawn to encompass all areas where San
  Benito evening-primrose occurs.

    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 and possibly 
contradictory (e.g., increased minimum temperatures may have both 
positive and negative effects). An increase in precipitation may 
provide additional 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, reducing 
seedling mortality but may also delay germination (BLM 2020a, pp. 6-7). 
Increasing maximum temperatures could result in increased stress for 
flowering individuals. Conversely, increased amounts of rain may 
promote increased germination and seedling success.
    The BLM conducted a climate envelope analysis comparing the range 
of precipitation and temperature values that San Benito evening-
primrose and two close relatives, Camissonia contorta and C. 
strigulosa, occupy and evaluating the precipitation and temperature 
range that San Benito evening-primrose would shift into under the 
future climate scenarios. Under current conditions, the San Benito 
evening-primrose occupies a small precipitation and temperature niche 
that overlaps with both C. contorta and C. strigulosa suggesting that 
those species may indicate the environmental tolerance of San Benito 
evening-primrose. Under the considered future climate scenarios the 
precipitation and temperature range would fall within the current known 
habitable range of C. contorta and C. strigulosa suggesting that the 
predicted changes in climate would be tolerable by San Benito evening-
primrose (BLM 2020a, pp. 5-7, 14-15).
    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           Mid-High........................           16           48           52           84           10           52
 grassland.
--------------------------------------------------------------------------------------------------------------------------------------------------------
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

[[Page 6060]]

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 
indicate that the species may become endangered due to those changes in 
the foreseeable future.

Existing Regulatory Mechanisms

State Protections

    San Benito evening-primrose is classified 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 ranked 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). 
Environmental analysis for CEQA documentation may analyze impacts to 
the species and recommend protection and conservation measures.

Federal Protections

    The BLM has regulations and policies that guide the management of 
natural resources on the public lands they manage. In particular, the 
Federal Land Policy and Management Act of 1976 provides 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)). Certain mining 
operations, and certain other defined operations, require a plan of 
operations approved by the BLM (see 43 CFR part 3800, subpart 3809).
    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; March 1, 1978).
    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.
    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 
provide 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 5 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).
    While San Benito evening-primrose was listed under the Act, the BLM 
consulted with the Service on any activities it funds, authorizes, or 
carries out that may affect the species. The Act does not provide 
protection for 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, in light of the increased number of populations and 
decreased threats that the species experiences now relative to at the 
time of listing.

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

[[Page 6061]]

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 predicted changes in temperature and rainfall by 2050 
as a result of climate change do not indicate 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.

Summary of Comments and Recommendations

    In the proposed rule published in the Federal Register on June 1, 
2020 (85 FR 33060), we requested that all interested parties submit 
written comments on our proposal to delist the San Benito evening 
primrose by July 31, 2020. We also contacted appropriate Federal and 
State agencies, scientific experts and organizations, and other 
interested parties and invited them to comment on the proposal. We did 
not receive any requests for a public hearing. All substantive 
information provided during the comment period has either been 
incorporated directly into this final rule or is addressed below.
    During the comment period, we received comments from 10 individuals 
addressing the proposed rule, representing 9 public commenters and 1 
partner review. Public comments are posted at https://www.regulations.gov under Docket No. FWS-R8-ES-2019-0065. Five public 
commenters supported the proposed rule with no additional analysis or 
revision requested. These comments are not further addressed. One 
public commenter supported the proposed rule but maintained a concern 
for vehicular threats. Two public comments were against the proposed 
rule but did not provide substantive information that could be 
evaluated or incorporated and are not addressed further. One public 
commenter was against the proposed rule and provided substantive 
information that is addressed below. The BLM provided partner review of 
the proposed rule and post-delisting monitoring plan in support of the 
proposed rule and provided additional information. BLM comments and new 
information have been incorporated into the text of the final rule. 
Public comments are addressed below.

Public Comments

    (1) Comment: One commenter acknowledged recovery of San Benito 
evening primrose and concurred with the conclusions of the proposed 
rule but maintained a concern for changes to current OHV regulations.
    Our Response: Changes to the regulation of OHV use of the Clear 
Creek Management Area and the Serpentine ACEC are governed by the BLM's 
2014 Record of Decision. Changes in OHV use of these areas would 
initiate environmental review, and potential impacts and threats to San 
Benito evening primrose would be evaluated during that process. This 
concern is addressed under the discussion of Existing Regulatory 
Mechanisms.
    (2) Comment: One commenter disagreed with the conclusions of the 
proposed rule based on evidence of continued OHV trespass of occupied 
areas, the potential for the reopening of the CCMA and the Serpentine 
ACEC, occurrences on private land without protections, and the adequacy 
of the post-delisting monitoring plan.
    Our Response: Continued trespass has been documented by the BLM and 
was addressed in the proposed rule. The level of trespass shown and 
described in the comment, as well as updated trespass information 
provided by the BLM, have been incorporated into the final rule. Based 
on the available population data and analysis, and supporting 
documentation provided by the BLM, we conclude that the current level 
of trespass does not place the species in danger of extinction or 
becoming endangered in the foreseeable future. The number of additional 
occurrences of the species in areas unaffected by OHV use reduces the 
likelihood that OHV trespass is likely to lead to the extinction of the 
species. However, the Service acknowledges the potential for OHV use to 
result in negative effects to the species, and this issue is addressed 
in the post-delisting monitoring plan, developed in coordination with 
the BLM. The post-delisting monitoring plan will evaluate disturbance 
(from OHV use and other sources) in the context of the biology of the 
species. The post-delisting monitoring plan requires a reevaluation of 
the status of the species if negative trend thresholds are reached for 
aboveground abundance and seed bank size (see post-delisting monitoring 
plan).
    Changes to the vehicular use of the CCMA and the Serpentine ACEC 
are governed by the BLM's 2014 Record of Decision. Changes in vehicular 
use of these areas would initiate environmental review, and potential 
impacts and threats to San Benito evening primrose would be evaluated 
during that process. This concern is addressed under the discussion of 
Existing Regulatory Mechanisms.
    Many occurrences of San Benito evening primrose do occur on private 
land. However, the number of occurrences on public land where the 
conservation of the species is a management goal is large enough to 
warrant delisting because the species is not in danger of extinction 
now or in the foreseeable 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 and Analytical 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 final 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 6062]]

    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 666 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 weathers periods of disturbance due to the persistence 
of a robust and long-lived seedbank that facilitates reestablishment 
and 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. The 27 
occurrences monitored since 1998 have remained stable around a 5-year 
moving average. Further, the significant increase in the number of 
occurrences was not contemplated at the time the Recovery Plan was 
written, which focused recovery on increases to the 27 occurrences. The 
best available information indicates that Factors A, 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 viability of San Benito evening-primrose 
occurrences and suitable potential habitat even if the species is 
delisted and protections under the Act are removed, because a majority 
of occurrences are managed on Federal land and are protected by a 2014 
BLM Resource Management Plan and a BLM 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 now or likely to become so within the foreseeable 
future throughout all of its range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
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--that is, whether there is 
any portion of the species' range for which it is true that both (1) 
the portion is significant; and (2) the species is in danger of 
extinction now or likely to become so in the foreseeable future in that 
portion. Depending on the case, it might be more efficient for us to 
address the ``significance'' question or the ``status'' question first. 
We can choose to address either question first. Regardless of which 
question we address first, if we reach a negative answer with respect 
to the first question that we address, we do not need to evaluate the 
other question for that portion of the species' range.
    In undertaking this analysis for San Benito evening-primrose, we 
choose to address the status question first--we consider information 
pertaining to the geographic distribution of both the species and the 
threats that the species faces to identify any portions of the range 
where the species is endangered or threatened. San Benito evening-
primrose 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 that the species is not in danger of extinction now or likely 
to become so in the foreseeable future in any significant portion of 
its range. This does not conflict with the courts' holdings in Desert 
Survivors v. U.S. Department of the Interior, 321 F. Supp. 3d 1011, 
1070-74 (N.D. Cal. 2018), and Center for Biological Diversity v. 
Jewell, 248 F. Supp. 3d. 946, 959 (D. Ariz. 2017) because, in reaching 
this conclusion, we did not need to consider whether any portions are 
significant and therefore did not apply the aspects of the Final 
Policy's definition of ``significant'' that those court decisions held 
were invalid.

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, with 
this rule, we delist the San Benito evening-primrose from the List of 
Endangered and Threatened Plants.

Effects of This Rule

    This final rule revises 50 CFR 17.12(h) by removing San Benito 
evening-primrose from the Federal List of Endangered and Threatened 
Plants. On the effective date of this rule (see DATES, above), the 
prohibitions and conservation measures provided by the Act, 
particularly through sections 7 and 9, will no longer apply to San 
Benito evening-primrose. Federal agencies will 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. There is no critical habitat designated for this 
species, so there will be no effect to 50 CFR 17.96.

Post-Delisting Monitoring

    Section 4(g)(1) of the Act requires us to implement a monitoring 
program for not less than 5 years for all species that have been 
delisted due to recovery. Post-delisting monitoring (PDM) refers to 
activities undertaken to verify that a species delisted due to recovery 
remains secure from the risk of extinction after the protections of the 
Act no longer apply. The primary goal of PDM is to monitor the species 
to ensure that its status does not deteriorate, and if a decline is 
detected, to take measures to halt the decline so that proposing it as 
endangered or threatened is not again needed. 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.

[[Page 6063]]

Post-Delisting Monitoring Overview

    A post-delisting monitoring plan was developed in partnership with 
the BLM. The post-delisting monitoring has been designed to verify that 
San Benito evening-primrose remains secure from risk of extinction 
after its removal from the Federal List of Endangered and Threatened 
Plants by detecting changes in population trends of known occurrences. 
The Act has a minimum post-delisting monitoring requirement of 5 years; 
however, if populations decline in abundance past the defined threshold 
in the post-delisting monitoring plan, or a substantial new threat 
arises, post-delisting monitoring may be extended or modified and the 
status of the species will be reevaluated.
    Post-delisting monitoring will occur for 5 years with the first 
year of monitoring beginning the first spring following the publication 
of the final delisting rule. Post-delisting monitoring will annually 
census aboveground individuals within the 27 occurrences listed in the 
Recovery Plan, which are also the 27 occurrences that have been used to 
evaluate population trends in the final rule. Annual monitoring of 
disturbance frequency and intensity will also occur annually in 
conjunction with the annual census. Seed bank quantification will occur 
in years 2 and 5 to determine if there has been a loss of viable seed 
across the range of habitat types. Woody vegetation structure will be 
evaluated in year 5 and compared to data collected in 2020, the year 
the proposed rule was published, to evaluate potential changes in 
habitat suitability across habitat types and historical disturbance 
levels. A final post-delisting monitoring plan for the species can be 
found at https://www.regulations.gov under Docket No. FWS-R8-ES-2019-
0065. We will work closely with our partners to maintain the recovered 
status of the San Benito evening-primrose and ensure post-delisting 
monitoring is conducted and future management strategies are 
implemented (as necessary) to benefit the San Benito evening-primrose.

Required Determinations

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

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act (42 U.S.C. 4321 et seq.), need not be prepared 
in connection with determining a species' listing status under the 
Endangered Species Act. We published a notice outlining our reasons for 
this determination in the Federal Register on October 25, 1983 (48 FR 
49244). This position was upheld by the U.S. Court of Appeals for the 
Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), 
cert. denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship With Tribes

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

References Cited

    A complete list of all references cited in this final 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 final 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, Plants, 
Reporting and recordkeeping requirements, Transportation, Wildlife.

Regulation Promulgation

    Accordingly, we hereby 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. Amend Sec.  17.12, in paragraph (h), by removing the entry for 
``Camissonia benitensis'' under Flowering Plants from the List of 
Endangered and Threatened Plants.

Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the 
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-02010 Filed 2-2-22; 8:45 am]
BILLING CODE 4333-15-P