The substance of these special conditions has been published in the Federal Register for public comment in several prior instances with no substantive comments received. Therefore, the FAA finds, pursuant to § 11.38(b), that new comments are unlikely, and notice and comment prior to this publication are unnecessary.

The FAA invites interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

The FAA will consider all comments received by the closing date for comments. The FAA may change these special conditions based on the comments received.

On July 1, 2012, Dassault Aviation applied for a type certificate for their new Model Falcon 5X airplane. However, Dassault has decided not to release an airplane under the model designation Falcon 5X, instead choosing to change that model designation to Falcon 6X.

In February of 2018, due to engine supplier issues, Dassault extended the type certificate application date for their Model Falcon 5X airplane under new Model Falcon 6X. This airplane is a twin-engine business jet with seating for 19 passengers, and has a maximum takeoff weight of 77,460 pounds.

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.17, Dassault must show that the Model Falcon 6X airplane meets the applicable provisions of part 25, as amended by amendments 25-1 through 25-146.

If the Administrator finds that the applicable airworthiness regulations ( e.g., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Dassault Model Falcon 6X airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Dassault Model Falcon 6X airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.17(a)(2).

The Dassault Model Falcon 6X airplane will incorporate the following novel or unusual design feature:

The installation of electronic network system architecture that allows access from airplane external sources ( e.g., operator networks, wireless devices, internet connectivity, service provider satellite communications, electronic flight bags, etc.) to the airplane's previously isolated electronic assets (networks, systems, and databases).

The Dassault Model Falcon 6X airplane architecture and network configuration is novel or unusual for commercial transport airplanes because it may allow increased connectivity to and access from external network sources, airline operations, and maintenance networks, to the airplane's control domain and airline information services domain. The airplane's control domain and airline information-services domain perform functions required for the safe operation and maintenance of the airplane. Previously, these domains had very limited connectivity with external network sources. This data network and design integration creates a potential for unauthorized persons to access the aircraft-control domain and airline information-services domain, and presents security vulnerabilities related to the introduction of computer viruses and worms, user errors, and intentional sabotage of airplane electronic assets (networks, systems, and databases) critical to the safety and maintenance of the airplane.

The existing FAA regulations did not anticipate these networked airplane-system architectures. Furthermore, these regulations and the current guidance material do not address potential security vulnerabilities, which could be exploited by unauthorized access to airplane networks, data buses, and servers. Therefore, these special conditions ensure that the security ( i.e., confidentiality, integrity, and availability) of airplane systems is not compromised by unauthorized wired or wireless electronic connections. This includes ensuring that the security of the airplane's systems is not compromised during maintenance of the airplane's electronic systems. These special conditions also require the applicant to provide appropriate instructions to the operator to maintain all electronic-system safeguards that have been implemented as part of the original network design so that this feature does not allow or introduce security threats.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these special conditions are applicable to the Dassault Model Falcon 6X airplane. Should Dassault apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

This action affects only a certain novel or unusual design feature on one model of airplane. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Dassault Model Falcon 6X airplane.

1. The applicant must ensure airplane electronic-system security protection from access by unauthorized sources external to the airplane, including those possibly caused by maintenance activity.

2. The applicant must ensure that electronic-system security threats are identified and assessed, and that effective electronic-system security-protection strategies are implemented to protect the airplane from all adverse impacts on safety, functionality, and continued airworthiness.

3. The applicant must establish appropriate procedures to allow the operator to ensure that continued airworthiness of the airplane is maintained, including all post-type-certification modifications that may have an impact on the approved electronic-system security safeguards.

This rule amends 14 CFR part 97 by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary. This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, CFR part 97, (is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

This rule amends 14 CFR part 97 by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, 8260-15B, when required by an entry on 8260-15A, and 8260-15C.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers or aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the typed of SIAPS, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flights safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CRF part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

This final rule consolidates the FDP rules in § 734.9 of the Export Administration Regulations (EAR). Before publication of this rule, the FDP rules were found in § 736.2(b)(3) (General Prohibition 3) and footnote 1 to supplement no. 4 to part 744 (the Entity List). Placing the FDP rules in part 734 (Scope of the EAR) clarifies that they are used to determine if a foreign-produced item is subject to, and thus within the scope of, the EAR. To further clarify the FPD rules, this rule moves the license requirement, license review policy, and license exception applicability text for listed entities from the Entity List's footnote 1 to supplement no. 4 to part 744 to § 744.11(a), where the overall license requirements pertaining to listed entities are located.

In new § 734.9, this rule separates the FDP provisions into four paragraphs: The National Security FDP rule, the 9x515 FDP rule, the “600 series” FDP rule, and the Entity List FDP rule. While the product scope of the first three FDP rules is relatively similar in format, the country scopes of each rule are different. This reorganization and naming of the FDP rules does not make substantive changes to the FDP rules. Rather, it facilitates reference to and compliance with the rules.

The original national security-focused FDP rule is now the National Security FDP rule. The provisions of the 9x515 FDP rule and the “600 series” FDP rule are reorganized into separate paragraphs with a description of the product scope followed by the country scope. The provisions of the Entity List FDP rule are organized with a description of the product scope followed by the applicable end-user scope.

This rule moves a definition of the term ‘major component’ from a note to footnote 1 to Supplement no. 4 to part 744 of the EAR to a new definition paragraph in § 734.9(a) of the EAR. In making this change, this rule clarifies that the definition of the term ‘major component’ applies to all the FDP rules, and not just the Entity List FDP rule. A ‘major component’ of a plant located outside the United States for all FDP rules is “equipment” that is essential to the “production” of an item, including testing “equipment.” As noted in the August 20, 2020, final rule that amended the Entity List FPD rule (see 85 FR 51596, at 51601), any equipment that is involved in any of the production stages is considered essential . As a conforming edit, to indicate that the term is defined in that section, BIS added single quotation marks around the term `major component' wherever it appears in § 734.9.

This rule further clarifies the FDP rules by adding double quotation marks around terms that are defined in part 772 of the EAR, e.g., direct product, technology, software, and equipment. BIS has received requests for additional guidance about determining the scope of production equipment in relation to the Entity List FDP rule and clarifying that these are defined terms should help the public better understand its obligations.

In addition, this rule clarifies in § 736.2(b)(3) of the EAR (General Prohibition Three), that foreign-direct products subject to the EAR are not necessarily subject to a license requirement and that license requirements must be determined based on an assessment of the classification, destination, end user, and end use of the items.

Lastly, this rule clarifies the circumstances under which the “600 series” FDP rule applies to items described in Export Control Classification Number (ECCN) 0A919. The text of ECCN 0A919 states that it includes the foreign direct product of “600 series” technology or software. However, before this rule, the text of General Prohibition Three did not explicitly include ECCN 0A919 items when describing other aspects of determining applicability of the “600 series” FDP rule. This rule also replaces the cross reference in ECCN 0A919.a.3 as a conforming edit.

In this rule, BIS corrects an earlier revision to General Prohibition Three to clarify when the FDP rules are intended to apply to the direct product of U.S.-origin technology or software. On May 19, 2020, BIS published a rule entitled “Export Administration Regulations: Amendments to General Prohibition Three (Foreign-Direct Product Rule) and the Entity List” (85 FR 29849). This rule removed the word “U.S.” from the heading of § 736.2(b)(3) (Foreign-Direct Product rule) where it had been placed in front of the words “technology and software.” This revision was made because the scope of the heading did not align with the scope of the Entity List foreign-direct product rule being added to the EAR on that date. The Entity List FDP rule in § 734.9(e), and as it previously appeared in footnote 1 to supplement no. 4 to part 744 of the EAR, applies to the FDP of technology or software that is subject to the EAR, but that is not necessarily technology or software of U.S. origin. The preamble of the May 19 rule that added the Entity List FDP rule clearly stated that BIS did not intend to change the scope of the other FDP rules, noting General Prohibition Three: “continues to apply to foreign-produced items controlled for national security reasons, 9x515 items, or “600 series” items and has three criteria: The reason for control or classification of the U.S. “technology” or “software”; the foreign-produced item's reason for control or classification; and the destination country of the foreign-produced item[.]” The May 19 rule stated that it “maintains the scope and criteria of General Prohibition Three[.]” Nevertheless, by removing the term “U.S.” from General Prohibition Three's heading, BIS may have inadvertently caused confusion as to whether the revision was intended to change the product scope of all FDP rules, because the term “U.S.” had only been in the heading and not in the other FDP rules' product scope descriptions. For this reason, this rule clarifies the EAR by specifically stating in each of the FDP rules that the application of the rule relates to U.S.-origin technology or software.

On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included ECRA (codified, as amended, at 50 U.S.C. Sections 4801-4852). ECRA provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects and distributive impacts and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits and of reducing costs, harmonizing rules, and promoting flexibility.

This final rule has not been designated a “significant regulatory action” under Executive Order 12866. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This final rule does not intentionally affect any PRA collection burden, because this intent of this final rule is to organize, clarify, and correct the rules pertaining to the foreign direct product and in doing so BIS only expects minimal, if any, change to the burden hours associated with license requirements. The following is a list of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA) collection approvals that may be encountered if a license is required, and the estimated average burden hours for each:

• 0694-0088, “Simplified Network Application Processing System,” and carries a burden-hour estimate of 29.6 minutes for a manual or electronic submission;

• 0694-0137 “License Exceptions and Exclusions,” which carries a burden-hour estimate average of 1.5 hours per submission (Note: Submissions for License Exceptions are rarely required);

• 0694-0096 “Five Year Records Retention Period,” which carries a burden-hour estimate of less than 1 minute; and

• 0607-0152 “Automated Export System (AES) Program,” which carries a burden-hour estimate of 3 minutes per electronic submission.

Any comments regarding these collections of information, including suggestions for reducing the burden, may be submitted online at https://www.reginfo.gov/public/do/PRAMain. Find the particular information collection by using the search function and entering either the title of the collection or the OMB Control Number.

3. Pursuant to Section 1762 of the Export Control Reform Act of 2018 (ECRA) (50 U.S.C. 4821), this action is exempt from the Administrative Procedure Act (APA) (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation and delay in effective date.

For the reasons discussed in the preamble, the Bureau of Industry and Security of the Department of Commerce amends 15 CFR parts 734, 736, 744, and 774 as follows:

The Captain of the Port Sector Ohio Valley (COTP) is establishing, amending, and updating its current list of recurring special local regulations codified under 33 CFR 100.801 in Table no. 1, for the COTP Ohio Valley zone.

On December 8th, 2021, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Sector Ohio Valley Annual and Recurring Special Local Regulations Update (86 FR 69602). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to those recurring regulated areas. During the comment period that ended January 7th, 2022, no comments were received.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Coast Guard is amending and updating the special local regulations under 33 CFR part 100 to include the most up to date list of recurring special local regulations for events held on or around navigable waters within the Sector Ohio Valley AOR. These events include marine parades, boat races, swim events, and others. The current list under 33 CFR 100.801 requires amending to provide new information on existing special local regulations, include new special local regulations expected to recur annually or biannually, and to remove special local regulations that are no longer required. Issuing individual regulations for each new special local regulation, amendment, or removal of an existing special local regulation creates unnecessary administrative costs and burdens. This rulemaking reduces administrative overhead and provides the public with notice through publication in the Federal Register of the upcoming recurring special local regulations.

As noted above, we received no comments on our NPRM published December 8th, 2021. There is one change in the regulatory text of this rule from the proposed rule in the NPRM. The event Thunder Over Louisville will occur the 4th weekend of April this year. The text now reads in the table: 2 days—Third or fourth Friday and Saturday in April.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

The Coast Guard expects the economic impact of this rule to be minimal, and therefore a full regulatory evaluation is unnecessary. This rule establishes special local regulations limiting access to certain areas under 33 CFR 100 within Sector Ohio Valley's AOR. The effect of this rulemaking will not be significant because these special local regulations are limited in scope and duration. Deviation from the special local regulations established through this rulemaking may be requested from the appropriate COTP and requests will be considered on a case-by-case basis. Broadcast Notices to Mariners and Local Notices to Mariners will inform the community of these special local regulations so that they may plan accordingly for these short restrictions on transit. Vessel traffic may request permission from the COTP Ohio Valley or a designated representative to enter the restricted areas.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of special local regulations related to marine event permits for marine parades, regattas, and other marine events. It is categorically excluded from further review under paragraph L(61) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

For the reasons discussed in the preamble, the U.S. Coast Guard amends 33 CFR part 100 as follows:

The Captain of Port Sector Ohio Valley (COTP) is amending 33 CFR 165.801 to update the table of annual fireworks displays and other events in Coast Guard Sector Ohio Valley Area of Responsibility (AOR). These events include air shows, fireworks displays, and other events requiring a safety zone.

On December 6, 2021, the Coast Guard published a notice of proposed rulemaking (NPRM) titled, Safety Zones; Coast Guard Sector Ohio Valley Annual and Recurring Safety Zones Update (86 FR 68948). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to those recurring safety zones. During the comment period that ended on January 5, 2022, no comments were received.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Coast Guard is amending and updating the safety zones under 33 CFR part 165 to include the most up to date list of recurring safety zones for events held on or around navigable waters within the Sector Ohio Valley AOR. These events include fireworks displays, air shows, and festivals. The current list in 33 CFR 165.801 requires amending to provide new information on existing safety zones and to include new safety zones expected to recur annually or biannually. Issuing individual regulations for each new safety zone, amendment of existing safety zones creates unnecessary administrative costs and burdens. This rulemaking reduces administrative overhead and provides the public with notice through publication in the Federal Register of the upcoming recurring safety zones. Based on the nature of these events, large numbers of participants and spectators, and event locations, the COTP has determined that the events listed in this rule could pose a risk to participants or waterways users if the normal vessel traffic were to interfere with the events. Possible hazards include risks of injury or death from near or actual contact among participant vessels and spectators or mariners traversing through the regulated area. This purpose of this rule is to ensure the safety of all waterway users, including event participants and spectators, during the scheduled events.

As noted above, we received no comments on our NPRM published December 6, 2021. There is one change in the regulatory text of this rule from the proposed rule in the NPRM. The event Thunder Over Louisville will occur the 4th weekend of April this year. The text now reads in the table: 2 days—Third or fourth Friday and Saturday in April. The change is within the scope of the originally proposed event.

This rule amends and updates part 165 of 33 CFR by revising the current table for Sector Ohio Valley, and by adding two new recurring safety zones, removing four safety zones, and amending 1 safety zone as described in the NPRM. Vessels intending to transit the designated waterway through the safety zone will only be allowed to transit the area when the COTP, or designated representative, has deemed it safe to do so or at the completion of the event.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, location, and duration of the safety zones. These safety zones are limited in size and duration, and are usually positioned away from high vessel traffic areas. Moreover, the Coast Guard would issue a Broadcast Notices to Mariners, Local Notices to Mariners, and Marine Safety Information Broadcasts to inform the community of these safety zones.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. It is categorically excluded from further review under paragraph L60 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

Section 510 of the Rehabilitation Act charges the Access Board with developing and maintaining minimum technical criteria to ensure that “medical diagnostic equipment used in or in conjunction with physician's offices, clinics, emergency rooms, hospitals, and other medical settings, is accessible to, and usable by, individuals with accessibility needs, and shall allow independent entry to, use of, and exit from the equipment by such individuals to the maximum extent possible.” 29 U.S.C. 794f. The Access Board's minimum technical criteria do not impose any mandatory requirements on health care providers or medical device manufacturers. Adopting agencies or entities may, however, issue regulations or adopt policies requiring health care providers to acquire accessible medical diagnostic equipment that complies with the minimum technical criteria set forth by the Access Board.

In January 2017, the Board issued a final rule establishing accessibility standards for medical diagnostic equipment (MDE Standards). 82 FR 2810 (codified at 36 CFR part 1195). The MDE Standards set forth minimum technical criteria to ensure that medical diagnostic equipment used by health care providers (such as examination tables, weight scales, and imaging equipment) is accessible to, and usable by, individuals with disabilities. One of the areas covered by these Standards is the adjustability of transfer surfaces for certain types of medical diagnostic equipment. Specifically, for diagnostic equipment used by patients in a supine, prone, side-lying, or seated position, the MDE Standards specify the following adjustability requirements for transfer-height positions: A high height of 25 inches, a low height of 17-19 inches, and four unspecified intermediate heights between the high and low transfer height, which are separated by a minimum of one inch. 36 CFR part 1195, appendix, sections M301.2.1 & M302.2.2.

Unlike the other transfer height specifications, the low transfer height was set as a temporary range with five-year sunset provisions. Id. As explained in the preamble to the final rule, the Board took this approach because “there was insufficient information to designate a single minimum low height requirement at this time. Specifically, there [was] insufficient data on the extent to which and how many individuals would benefit from a transfer height lower than 19 inches.” 82 FR at 2816. The Board thus specified a five-year sunset period to afford time for needed research and subsequent promulgation of a final specification for the low transfer height position. Id.

The Access Board is currently conducting research on low transfer heights; however, this research will not be completed in time for the Board to finalize a low transfer height specification prior to the expiration of the sunset period. By this rule, the Board thus extends the sunset provisions by an additional three years ( i.e., January 2025) so that there is no lapse in specifications for the low transfer height provisions while the Board completes both its research and the required rulemaking processes to establish final specifications.

The Access Board is extending the sunset provisions in the MDE Standards without prior notice and opportunity for public comment because it has determined that such procedures are unnecessary and contrary to the public interest. See 5 U.S.C. 553(b)(B) (permitting agencies to bypass notice-and-comment procedures when, for good cause, they find prior notice “impracticable, unnecessary, or contrary to the public interest”). Extending the sunset provisions for the low transfer height provisions represents a minor, technical change that merely maintains the status quo for an additional three years. We thus believe the changes effected by this direct final rule will be noncontroversial and unlikely to draw adverse comment. Additionally, because the MDE Standards were promulgated through full notice-and-comment rulemaking, the public interest is best served by ensuring there is no lapse in low transfer height requirements. The Board thus finds good cause for waiver of prior notice and comment.

In addition, the Access Board finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness of this rule. This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

The Access Board has examined the impact of this direct final rule under Executive Orders 12866 and 13563. These executive orders direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). This rule does not impose any incremental costs or benefits because it simply extends the sunset period for the low transfer height requirement for an additional three years; it imposes no new or revised substantive obligations. As such, this direct final rule is not a significant regulatory action for purposes of section 3(f) of Executive Order 12866.

The Regulatory Flexibility Act (RFA) requires federal agencies to analyze the impact of regulatory actions on small entities, unless an agency certifies that the rule will not have a significant impact on a substantial number of small entities. 5 U.S.C. 604, 605 (b). Because this direct final rule merely extends the existing sunset period for an additional three years to permit the Access Board to complete both its research and the required rulemaking processes to establish a permanent specification for the low transfer height position, the Access Board certifies that the rule will not have a significant economic impact on a substantial number of small entities.

The Access Board has evaluated this direct final rule in accordance with the principles and criteria set forth in Executive Order 13132. We have determined that this action will not have a substantial direct effect on the States, the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have Federalism implications.

The Unfunded Mandates Reform Act of 1995 (codified at 2 U.S.C. 1531 et seq. ) (“UMRA”) generally requires that Federal agencies assess the effects of their discretionary regulatory actions that may result in the expenditure of $100 million (adjusted for inflation) or more in any one year by the private sector, or by state, local, and tribal governments in the aggregate. Because this direct final rule is being issued under the APA's good cause exception, UMRA's analytical requirements are inapplicable. See 2 U.S.C. 1532(a).

Under the Paperwork Reduction Act (PRA), federal agencies are generally prohibited from conducting or sponsoring a “collection of information: As defined by the PRA, absent OMB approval. See 44 U.S.C. 3507 et seq. The MDE Standards do not impose any new or revised collections of information within the meaning of the PRA.

This direct final rule is not a major rule within the meaning of the Congressional Review Act (5 U.S.C. 801 et seq. )

For the reasons stated in the preamble, and under the authority of 29 U.S.C. 794f, the Board amends 36 CFR part 1195 as follows:

On September 14, 2021, VA published an interim final rule in the Federal Register at 86 FR 51000 to amend its adjudication regulation 38 CFR 3.317 regarding compensation for disabilities suffered by veterans who served in the Southwest Asia Theater of Operations during the Persian Gulf War. This amendment is necessary to extend the presumptive period during which disabilities associated with undiagnosed illnesses and medically unexplained chronic multi-symptom illnesses must become manifest in order for a veteran to be eligible for compensation. To effectuate this rule, under 38 CFR 3.317(a)(1)(i), VA replaced the phrase “not later than December 31, 2021” with “not later than December 31, 2026.”

Under the provisions of 5 U.S.C. 553(b)(B) and (d)(3) the Secretary of Veterans Affairs found that there was good cause to publish this rule without prior opportunity for public comment. Had VA not extended the sunset date for the regulation, its authority to provide benefits in new claims for qualifying chronic disability in Gulf War veterans would have lapsed on December 31, 2021. A lapse of such authority would have been contrary to the public interest because it would have had a significant adverse impact on veterans disabled due to such disabilities. To avoid such impact, VA issued this rule as an interim final rule. However, VA invited interested persons to submit written comments on or before October 14, 2021, and received seven comments in response to the interim final rule. These comments are discussed below.

Three commenters referenced their poor health concerns or the poor health concerns of a family member. While VA sympathizes with anyone suffering from a debilitating disability and/or disease, the scope of this rule only addresses the deadline for the manifestation of presumptive conditions. VA makes no changes based on these comments.

One commenter suggested the regulation should contain VA's definition of Southwest Asia. This rule merely extends the presumption period in 38 CFR 3.317, and that section already contains VA's definition of the Southwest Asia theater of operations (in 38 CFR 3.317(e)(2)). VA makes no changes based on this comment.

One commenter suggested that since no end date for the Persian Gulf War has been established by Congress, any deadline is premature. However, this rule does not impose a deadline; it extends the presumptive period during which disabilities associated with undiagnosed illnesses and medically unexplained chronic multi-symptom illnesses must become manifest in order for a veteran to be eligible for compensation based on the presumption. VA makes no changes based on this comment.

VA received two non-substantive comments. VA makes no changes based on these comments.

As VA makes no changes based on the comments received, this document adopts as a final rule the interim final rule published in the Federal Register on September 14, 2021.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is not a significant regulatory action under Executive Order 12866. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov.

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). There are no small entities involved with the process and/or benefits associated with the rulemaking. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule will have no such effect on state, local, and tribal governments, or on the private sector.

This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The Catalog of Federal Domestic Assitance numbers and titles for this rule are: 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.109, Veterans Compensation for Service-Connected Disability.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not a major rule, as defined by 5 U.S.C. 804(2).

Denis McDonough, Secretary of Veterans Affairs, approved this document on January 19, 2022, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Office of the Federal Register's e-CFR site at https://www.ecfr.gov/current/title-40.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2021-0680 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before April 4, 2022. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2021-0680, by one of the following methods.

• Federal eRulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at https://www.epa.gov/dockets/contacts.html.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at https://www.epa.gov/dockets.

In the Federal Register of October 21, 2021 (86 FR 58239) (FRL-8792-04-OCSPP), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the receipt of a pesticide petition (PP IN-11586) filed by BYK USA Inc., 524 South Cherry St., Wallingford, CT 06492. The petition requested that 40 CFR 180.960 be amended by establishing an exemption from the requirement of a tolerance for residues of Poly(oxy-1,2-ethanediyl)-α-hydro-ω-hydroxy-, polymer with poly(isocyanatoalkyl) benzene, alkylol-blocked (No CAS Reg. No Associated). That document included a summary of the petition prepared by the petitioner and solicited comments on the petitioner's request. The Agency did not receive any comments.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and use in residential settings but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing an exemption from the requirement of a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . .” and specifies factors EPA is to consider in establishing an exemption.

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be shown that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers expected to present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b) and the exclusion criteria for identifying these low-risk polymers are described in 40 CFR 723.250(d). Poly(oxy-1,2-ethanediyl)-α-hydro-ω-hydroxy-, polymer with poly(isocyanatoalkyl) benzene, alkylol-blocked conforms to the definition of a polymer given in 40 CFR 723.250(b) and meets the following criteria that are used to identify low-risk polymers.

1. The polymer is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment.

2. The polymer does contain as an integral part of its composition at least two of the atomic elements carbon, hydrogen, nitrogen, oxygen, silicon, and sulfur.

3. The polymer does not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii).

4. The polymer is neither designed nor can it be reasonably anticipated to substantially degrade, decompose, or depolymerize.

5. The polymer is manufactured or imported from monomers and/or reactants that are already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.

6. The polymer is not a water absorbing polymer with a number average molecular weight (MW) greater than or equal to 10,000 daltons.

7. The polymer does not contain certain perfluoroalkyl moieties consisting of a CF3- or longer chain length as listed in 40 CFR 723.250(d)(6).

Additionally, the polymer also meets as required the following exemption criteria specified in 40 CFR 723.250(e).

8. The polymer's number average MW of 18,721 Daltons is greater than or equal to 10,000 daltons. However, the polymer contains less than 2% oligomeric material below MW 500 (0%) and less than 5% oligomeric material below MW 1,000 (1.1%).

Thus, Poly(oxy-1,2-ethanediyl)-α-hydro-ω-hydroxy-, polymer with poly(isocyanatoalkyl) benzene, alkylol-blocked meets the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the criteria in this unit, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to Poly(oxy-1,2-ethanediyl)-a-hydro-m-hydroxy-, polymer with poly(isocyanatoalkyl) benzene, alkylol-blocked.

For the purposes of assessing potential exposure under this exemption, EPA considered that Poly(oxy-1,2-ethanediyl)-α-hydro-ω-hydroxy-, polymer with poly(isocyanatoalkyl) benzene, alkylol-blocked could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The number average MW of Poly(oxy-1,2-ethanediyl)-α-hydro-ω-hydroxy-, polymer with poly(isocyanatoalkyl) benzene, alkylol-blocked is 18,721 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since Poly(oxy-1,2-ethanediyl)-α-hydro-ω-hydroxy-, polymer with poly(isocyanatoalkyl) benzene, alkylol-blocked conforms to the criteria that identify a low-risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health.

Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” EPA has not found Poly(oxy-1,2-ethanediyl)-α-hydro-ω-hydroxy-, polymer with poly(isocyanatoalkyl) benzene, alkylol-blocked to share a common mechanism of toxicity with any other substances, and Poly(oxy-1,2-ethanediyl)-α-hydro-ω-hydroxy-, polymer with poly(isocyanatoalkyl) benzene, alkylol-blocked does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed Poly(oxy-1,2-ethanediyl)-α-hydro-ω-hydroxy-, polymer with poly(isocyanatoalkyl) benzene, alkylol-blocked does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at https://www.epa.gov/pesticides/cumulative.

Based on the conformance to the criteria used to identify a low-risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population, including infants and children, from aggregate exposure to residues of Poly(oxy-1,2-ethanediyl)-α-hydro-ω-hydroxy-, polymer with poly(isocyanatoalkyl) benzene, alkylol-blocked.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

Accordingly, EPA finds that exempting residues of Poly(oxy-1,2-ethanediyl)-α-hydro-ω-hydroxy-, polymer with poly(isocyanatoalkyl) benzene, alkylol-blocked from the requirement of a tolerance will be safe.

This action establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal Governments, on the relationship between the National Government and the States or Tribal Governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I as follows:

This final rule amends the FMR to improve readability and ease of use. Specifically, it reorganizes certain FMR parts to reflect the asset management life-cycle and updates the definition of a `museum'.

GSA sought public comments on improving FMR regulations through a Federal Register document (MA-2017-03) published on May 30, 2017, at 82 FR 24651. Concurrently, GSA sought comments and recommendations from agencies, GSA subject matter experts, and other stakeholders and customers.

The two substantive/germane comments and recommendations elicited from the Federal Register document were reviewed by GSA and are addressed in this rule. Two other recommendations addressing (1) agency asset management systems and (2) use of voluntary consensus standards were not included in this rule as GSA does not have the legal authority to promulgate regulations addressing property in use by an agency before it is reported to GSA as excess personal property.

Provisions in this final rule make the FMR policies addressing personal property management more understandable and easier to read. This final rule addresses the following:

1. An amendment to FMR section 102-35.10, listing FMR parts related to personal property disposal in sequence so that the listing of FMR parts follows the general life-cycle processes related to asset management and disposal; and

2. Revisions to the regulations governing the donation program to incorporate legislation regarding museums (Pub. L. 114-287, Section 23) to ensure consistency with Federal law. The donation program allows for the transfer of Federal surplus personal property to state agencies for surplus property for distribution to eligible recipients within their state.

GSA is modifying provisions in the FMR to improve readability and ease of use.

The proposed rule was published in the Federal Register on June 9, 2020 (85 FR 35236). Four comments were received, two of which were substantive/germane to the rule. An analysis of these public comments follows:

Comment: One respondent indicated that the proposed rule “is bad for the environment and public safety” and should not be implemented.

Response: These changes do not involve environmental concerns or public safety.

Comment: One respondent objected to “eliminating all definition references in this proposed rule” and that it is important to have definitions repeated in each area that are critical for understanding the requirements.

Response: Concur. The consolidation of duplicative occurrences of definitions has been removed from this final rule.

There is no expected cost to the public from this rule, as this rule is largely administrative. The changes will result in a better user experience with the FMR, as the information will be organized in a more logical order.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is not a significant regulatory action, and therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.

This rule is not a major rule under 5 U.S.C. 804(2). Additionally, this rule is excepted from Congressional Review Act reporting requirements prescribed under 5 U.S.C. 801 since it relates to agency management or personnel.

This final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. This final rule is also exempt from the Administrative Procedures Act per 5 U.S.C. 553(a)(2) because it applies to agency management or personnel.

The Paperwork Reduction Act does not apply because the changes to the FMR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq.

For the reasons set forth in the preamble, GSA amends 41 CFR parts 102-35 and 102-37 as set forth below:

The proposed rule was published at 86 FR 54416 on October 1, 2021. The Petitioner filed comments in support of the petition reaffirming its commitment to apply for channel 20. In support of its channel substitution request, the Petitioner states that the Commission has recognized the deleterious effects manmade noise has on the reception of digital VHF signals, and that the propagation characteristics of these channels allow undesired signals and noise to be receivable at relatively farther distances compared to UHF channels, and also allow nearby electrical devices to cause interference. While the proposed channel 20 facility is predicted to result in loss of service to 15,460 persons, all but approximately 100 of those persons would continue to receive service from at least five other television stations, and no persons would receive service from fewer than four other television stations. The Commission is generally most concerned where there is a loss of an area's only network or non-commercial educational (NCE) TV service, or where the loss area results in an area becoming less than well-served, i.e., served by fewer than five full-power over-the-air signals. As a result, the loss area will continue to remain well-served and the number of persons that will receive less than five signals (approximately 100 persons) is considered to be de minimis.

This is a synopsis of the Commission's Report and Order, MB Docket No. 21-125; RM-11892; DA 22-91, adopted January 27, 2022, and released January 27, 2022. The full text of this document is available for download at https://www.fcc.gov/edocs. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to this proceeding.

The Commission will send a copy of the Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:

Currently, the GSAR uses the terms “handicapped” and “handicapped individuals” to identify individuals with impairments who can benefit from certain electronic office equipment. However, the Americans with Disabilities Act and the Rehabilitation Act use the term “individuals with disabilities” to reference these individuals. Thus, this rule updates language in the GSAR to conform with the statutory language and provide more inclusive acquisition guidance for underserved communities.

Title 40 of the United States Code (U.S.C.) Section 121 authorizes GSA to issue regulations, including the GSAR, to control the relationship between GSA and contractors.

This rule revises the term “handicapped” to “individuals with disabilities” at 552.238-73. Additionally, the rule updates the GSAR to guide the reader to 29 U.S.C. 705(20) for the definition of “individuals with disabilities”, replacing an outdated reference to 29 CFR 1613.702 for the definition of “handicapped.”

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been reviewed and determined by OMB not to be a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.

The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a “major rule” may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. A major rule cannot take effect until 60 days after it is published in the Federal Register . This rule has been reviewed and determined by OMB not to be a “major rule” under 5 U.S.C. 804(2).

The statute that applies to the publication of the GSAR is the Office of Federal Procurement Policy statute (codified at title 41 of the United States Code). Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This rule is not required to be published for public comment, because GSA is not issuing a new regulation. This rule does not add any new solicitation provisions or contract clauses. It does not add any new burdens because the case does not add or change any requirements with which vendors must comply. Rather, this rule is merely an editorial change and will provide consistent language to statute.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) does not apply to this rule, because an opportunity for public comment is not required to be given for this rule under 41 U.S.C. 1707(a)(1) (see Section VI of this preamble). Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, GSA amends 48 CFR parts 538 and 552 as set forth below:

On May 9, 2011, FMCSA published the 49 CFR parts 383, 384 and 385, Commercial Driver's License Testing and Commercial Learner's Permit Standards final rule (76 FR 26854) that amended the commercial driver's license (CDL) knowledge and skills testing standards and established new minimum Federal standards for States to issue the commercial learner's permit. The final rule also set forth the Federal standards for States to allow third party testers to administer the CDL skills test.

On April 3, 2020, the Virginia Department of Motor Vehicles (VA DMV) requested an exemption from 49 CFR 383.75 to allow non-government third party testers to administer knowledge tests for CDL and CLP applicants without a State examiner being present. The VA DMV's request was prompted by the closure of VA DMV service centers resulting from the COVID-19 public health emergency. In response to the VA DMV's request, FMCSA indicated that applicable statutes and regulations do not currently prohibit States from allowing a third party to administer CDL and CLP knowledge tests. The Agency also noted its intention to revise the existing guidance, set forth below, to clarify this point.

Regulatory guidance question 1 for 49 CFR 383.75, “Third Party Testing,” first issued in 1993 (58 FR 60734, 60739 (Nov. 17, 1993)) and most recently reissued in 2019, states:

FMCSA has reconsidered this guidance and concludes that nothing in the Agency's current authorities in 49 U.S.C. chapters 311 or 313, or in 49 CFR parts 383 and 384, prohibits States from permitting third party testers to administer CDL knowledge tests. Accordingly, the Agency amends regulatory guidance question 1 for 49 CFR 383.75 to explain that a State may permit third parties to administer CDL knowledge tests. Pursuant to 49 CFR 384.202, States opting to permit this practice must adhere to current CDL knowledge test standards and requirements set forth in 49 CFR part 383, subparts G and H. FMCSA is currently working on a Notice of Proposed Rulemaking to more fully address the States' use of third party knowledge testers.

FMCSA issues the following guidance:

FMCSA notes that this guidance is intended only to provide clarity to the public regarding existing requirements under the law. The guidance does not have the force and effect of law and is not meant to bind the public in any way.

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 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.

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.

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:

• We made minor editorial changes and revised various sections of the rule based on public and partner comments.

• We reevaluated the climate change analysis with a range more specific to San Benito evening-primrose.

• We updated the population trend analysis with current information and following comments from the BLM.

• We updated off-highway vehicle (OHV) trespass information with current data.

• We updated total known occurrences with current data.

• The post-delisting monitoring plan was revised in partnership with the BLM.

San Benito evening-primrose is a small, yellow-flowered, annual species in the evening-primrose family (Onagraceae). The plant is slender with narrowly elliptic leaves 0.3 inches (in) (7-20 millimeters (mm)) in length and minutely serrate. The stem may be erect or decumbent (lying on the ground with the extremity curving upward) and ranges in height from 1.2 to 7.9 in (3-20 centimeters (cm)) with branches widely spreading. Petals are 0.1 to 0.2 in (3.5 to 4 mm) and may fade from yellow to reddish (Wagner 2012, pp. 925-929). San Benito evening-primrose is autogamous (self-fertilizing) and produces seed that persists for long periods of time, which creates well-established seed banks where the species occurs (Taylor 1990, pp. 7-8).

San Benito evening-primrose is known only from the southeastern portion of San Benito County, the western edge of Fresno County, and the northeastern edge of Monterey County, largely within the New Idria serpentinite mass (figure 1). Serpentine is a rock formed from ancient volcanic activity that results in minerals with a greenish and brownish appearance such as antigorite, lizardite, and chrysotile. The New Idria serpentinite mass covers approximately 13,000 hectares (32,124 acres) and is one of the largest serpentine formations in the southern Coast Ranges of California (Rajakaruna et al. 2011, p. 698).

Average rainfall in areas occupied by San Benito evening-primrose is 16-17 in (40-42 cm) annually with temperatures ranging from lows of 21 to 34 degrees Fahrenheit (°F) (−6.7 to −1.1 degrees Celsius (°C)) in the winter to highs of 90 to 100 °F (32.2 to 37.8 °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).

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 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).

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.

Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Under section 4(f)(1)(B)(ii), recovery plans must, to the maximum extent practicable, include objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of section 4 of the Act, that the species be removed from the List.

Recovery plans provide a roadmap for us and our partners on methods of enhancing conservation and minimizing threats to listed species, as well as measurable criteria against which to evaluate progress towards recovery and assess the species' likely future condition. However, they are not regulatory documents and do not substitute for the determinations and promulgation of regulations required under section 4(a)(1) of the Act. A decision to revise the status of a species, or to delist a species, is ultimately based on an analysis of the best scientific and commercial data available to determine whether a species is no longer an endangered species or a threatened species, regardless of whether that information differs from the recovery plan.

There are many paths to accomplishing recovery of a species, and recovery may be achieved without all of the criteria in a recovery plan being fully met. For example, one or more criteria may be exceeded while other criteria may not yet be accomplished. In that instance, we may determine that the threats are minimized sufficiently and that the species is robust enough that it no longer meets the definition of an endangered species or a threatened species. In other cases, we may discover new recovery opportunities after having finalized the recovery plan. Parties seeking to conserve the species may use these opportunities instead of methods identified in the recovery plan. Likewise, we may learn new information about the species after we finalize the recovery plan. The new information may change the extent to which existing criteria are appropriate for identifying recovery of the species. The recovery of a species is a dynamic process requiring adaptive management that may, or may not, follow all of the guidance provided in a recovery plan.

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.

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.

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.

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 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).

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 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.

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.

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.

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 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.

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.

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:

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 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.

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.

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 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.

The last commercial mining in the CCMA ceased extraction activities in 2002 (BLM 2018, p. 66). The BLM has acquired surface rights to 208 ha (520 ac) along the lower reaches of Clear Creek up to and including the confluence with the San Benito River. This acquisition protects habitat and occurrences of San Benito evening-primrose, but without having the mineral rights to the land, it cannot be considered fully under the control of the BLM (USFWS 2009, p. 13). The BLM decided in the 2014 Resource Management Plan that no mineral leasing or sales on public lands will occur within the Serpentine ACEC and that mineral leasing and sales on public lands outside of the Serpentine ACEC will have “no surface occupancy” stipulations where occupied special status species habitat occurs (BLM 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 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.

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.

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.

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 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.

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.

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 °F) (BLM 2020a, pp. 3, 9-10).

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).

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

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.

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.

A very limited range, small number of occurrences, and direct and indirect threats from OHV use and mining and associated facilities and road maintenance were the primary threats to San Benito evening-primrose at the time of listing in 1985 (50 FR 5755-5759, February 12, 1985). OHV use continued to be a significant threat to San Benito evening-primrose until the temporary closure of the Serpentine ACEC in 2008. The 2014 Resource Management Plan permanently reduced the amount of exposure San Benito evening-primrose has to OHV recreation and has resulted in indirectly removing the most significant threat to the species, which was direct loss of individuals by OHV recreation and indirect loss of habitat and seed bank through erosion on slopes and soil compaction on alluvial terraces. The threat from mining was reduced by 2002 with the closure of the last commercial mine, and future threats from mining are unlikely based on BLM management actions listed in the 2014 Resource Management Plan for the CCMA. Habitat alteration from invasive species and succession to woody vegetation communities are not likely to threaten San Benito evening-primrose because invasive species and woody vegetation communities are intolerant to serpentine soils. The significant increase in the number of known occurrences and the associated increase in range and the new habitat association greatly reduce the threat of stochastic events resulting in significant loss to the species. The 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.

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.

(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.

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.

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.

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.

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.

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.

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.

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.

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.

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)).

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.

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 ).

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.

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

On December 15, 1994, we published a final rule (59 FR 64613) listing Helminthoglypta walkeriana (Morro shoulderband snail (=banded dune snail)) as endangered. This taxon contained two entities: H. walkeriana (what we now consider the Morro shoulderband snail) and H. walkeriana morroensis (what we now consider the Chorro shoulderband snail). At the time of listing in 1994, we thought the subspecific entity morroensis was extinct and that there may have been as few as several hundred individuals of Helminthoglypta walkeriana remaining (59 FR 64613, p. 64615, December 15, 1994); consequently, we did not consider the morroensis subspecies to be part of the listed entity.

In 1997, the subspecific entity morroensis was rediscovered at North Point Natural Area near the northern limit of Morro Bay (Roth and Tupen 2004, p. 3). In subsequent years, it was found in other areas as well. In 1998, we completed the Recovery Plan for the Morro Shoulderband Snail and Four Plants from Western San Luis Obispo County (Service 1998, entire), and in 2001, we designated critical habitat for the Morro shoulderband snail (66 FR 9233; February 7, 2001). Both the recovery plan and critical habitat addressed only Helminthoglypta walkeriana and not the subspecific entity morroensis, as explained above.

In 2004, a taxonomic analysis was completed that elevated these subspecific taxa to full species: Helminthoglypta walkeriana and H. morroensis (Roth and Tupen 2004, entire). After 2004, H. walkeriana and H. morroensis were associated with the common names Morro shoulderband snail and Chorro shoulderband snail, respectively. Also in 2004, in an attempt to provide clarity on what was the listed entity, the Ventura Fish and Wildlife Office issued a “Dear Stakeholders and Interested Parties” letter stating we would no longer be regulating the Chorro shoulderband snail (Service 2004, entire).

However, in 2006, the Service completed a 5-year review for both the Morro and Chorro shoulderband snails and recommended downlisting Morro shoulderband snail from endangered to threatened and delisting Chorro shoulderband snail (Service 2006, entire), even though the Chorro shoulderband snail had previously not been treated as part of the listed entity.

Neither entity, Helminthoglypta walkeriana morroensis or the newly recognized Helminthoglypta morroensis, was ever formally added to the Federal List of Endangered and Threatened Wildlife. Because of its confusing history, however, we determined that it was most appropriate to now complete a listing assessment to determine whether or not the Chorro shoulderband snail meets the definition of an “endangered species” or of a “threatened species” in the Act (16 U.S.C. 1531 et seq. ). Using the results of our evaluation in the species status assessment (SSA) report, we reaffirm our 5-year review that the information on the threats to the Chorro shoulderband snail does not support the species being listed as endangered or threatened under the Act. Since Helminthoglypta morroensis is not currently included on the Federal List of Endangered and Threatened Wildlife, no revision to the list is needed to implement this determination.

On July 24, 2020, we published a proposed rule (85 FR 44821) to reclassify the Morro shoulderband snail ( Helminthoglypta walkeriana ) from an endangered to a threatened species under the Act. In that proposed rule, we also announced the availability of a species assessment form constituting our full determination and threats analysis regarding the status of the Chorro shoulderband snail (Service 2020, entire), which is available on the internet at https://www.regulations.gov under Docket No. FWS-R8-ES-2019-0025.

This final rule incorporates two minor substantive changes to our July 24, 2020, proposed rule (85 FR 44821). First, we made a slight edit to the preamble text of the rule issued under section 4(d) rule of the Act (“4(d) rule”) to remove reference to a specific fire protection plan. We made this change to clarify that any fire protection plan meeting the standards set out in the 4(d) rule will be exempted from take prohibitions. Additionally, based on a public comment, we clarified the effect of conservation on the downlisting of the Morro shoulderband snail. We made no other substantive changes from the July 24, 2020, proposed rule in this final rule.

A species status assessment (SSA) team prepared an SSA report for the Morro shoulderband snail and the Chorro shoulderband snail (Service 2019). The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species. In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, in 2018, we sent the SSA report to peer reviewers with expertise in snail ecology, microhabitat, and distribution, which included three experts from partner agencies: The California Department of Fish and Wildlife (CDFW), the California Department of Parks and Recreation (hereafter, State Parks), and the County of San Luis Obispo. We received six responses, including from two reviewers from partner agencies: Biologists at State Parks and the County of San Luis Obispo. We incorporated the results of those reviews, as appropriate, into the final SSA report, which is the foundation for this final rule.

It is our intent to discuss only those topics directly related to the reclassification of Morro shoulderband snail from an endangered species to a threatened species in this final rule. Below, we summarize the conclusions of the SSA report, including the species description, ecology, habitat, and resource needs. We also discuss recovery plan implementation. In our SSA report, we define viability as the ability of the species to sustain populations in the wild over time and provide a thorough account of the species' overall condition currently and into the future. The full SSA report is available on the internet at https://www.regulations.gov under Docket No. FWS-R8-ES-2019-0025.

The Morro shoulderband snail belongs to the land snail genus, Helminthoglypta (Ancey 1887), which contains three subgenera comprising more than 100 species and subspecies. Morro shoulderband snail shells are umbilicate (having a depression at the center), globose (spherical), reddish brown to chestnut in color, thin, and slightly translucent (Roth 1985, p. 5). The shell has five to six whorls and a single, narrow (2 to 2.5 millimeters (mm) (0.08 to 0.1 inches (in.))), dark spiral band on the “shoulder” with thin light-yellowish margins above and below. Sculptural features of the shell include incised spiral grooves, spiral and transverse striae (grooves) that give the surface a checkerboard-like look, and papillae (small, round protrusions) at the intersections of some of the striae (Walgren 2003, p. 93). Adult shell dimensions range from 18 to 29 mm (0.7 to 1.1 in.) in diameter and from 14 to 25 mm (0.6 to 1.0 in.) in height (Roth 1985, p. 5).

In general, we know very little about the specific life history of Morro shoulderband snails. Using information compiled for other Helminthoglypta species (van der Laan 1975a, entire; 1975b, entire; 1980, entire), we infer information and apply it to the species, where appropriate. Like many species of Helminthoglypta that occur in Mediterranean climate regions of California, the Morro shoulderband snail has adapted to changing environmental conditions by having a two-part life cycle. While feeding, reproduction, and most individual growth occur during the rainy season (Roth 1985, p. 13), individuals spend the majority of the year in aestivation (prolonged dormancy) to survive the drier seasons (Belt 2018, pers. comm.). Refugia used for the aestivation phase of the life cycle for the Morro shoulderband snail appear to be opportunistic in nature. They can include native and nonnative plant species, including dense clumps of native and nonnative grasses; young patches of ice plant ( Carpobrotus spp.); cactus ( Opuntia spp.); and anthropogenic features and debris ( e.g., stockpiled construction materials, wood, cement, plastic) (Roth and Tupen 2004, p. 17; SWCA 2013-2017, entire; Dugan 2018, pers. comm.).

For Helminthoglypta species living in California, most activity occurs during the rainy season (Roth 1985, p. 13), and this is the case for Morro shoulderband snail. In coastal San Luis Obispo County, the period of greatest activity generally extends from October through April but can vary each year depending on the frequency and duration of seasonal rainfall and heavy fog/dew. During this period, individuals may be particularly active during the evening, night, and early morning hours when humidity is higher. Individuals can also be active during overcast and rainy days (van der Laan 1980, pp. 49, 52; U.S. Department of Agriculture (USDA) 1999, p. 3; Tupen 2018, pers. comm.). The Morro shoulderband snail likely emerges from aestivation during and following periods of rainfall in search of food resources and for mating and egg-laying activities.

Species of Helminthoglypta, like other terrestrial snails, become inactive during prolonged dry periods and enter a state of aestivation where individuals produce an epiphragm (a seal of dried mucus) across the shell aperture to greatly reduce water and weight loss (van der Laan 1975b, p. 361). They frequently aestivate attached to the lower outer branches of shrubs (van der Laan 1975b, p. 365; Roth 1985, p. 13). This attachment to a substrate may provide additional protection from desiccation by forming a more complete seal of the aperture (van der Laan 1975b, p. 365). There is a possible decreased vulnerability to predation during dormancy when the attachment point is 20- 30 centimeters (7.9-11.8 in.) above the ground surface (van der Laan 1975b, p. 365). Smaller snails tended to experience higher mortality rates during aestivation, possibly due to their thinner shells and higher surface-to-volume ratios (van der Laan 1975b, p. 364). Individuals come out of aestivation after rain events that thoroughly wet the environment and may regain as much as 50 percent of their body weight back within 24 hours (van der Laan 1975b, p. 364).

Like other terrestrial snails, we expect the Morro shoulderband snail to have a patchy distribution coincident with the presence of suitable refugia and food sources.

Initially, Hill (1974, p. 6) and others projected a very limited distribution for Helminthoglypta walkeriana (as the coastal form of the banded dune snail). Its range was thought to extend only a short distance inland along the southeastern shore of Morro Bay to Shark Inlet, southward to near Islay Creek, and northward on the Morro Bay sand spit at the western edge of the community of Los Osos. In the listing rule (59 FR 64613; December 15, 1994), the Service expanded the range to include the coastal dune and coastal sage scrub communities underlain by sandy soils near Morro Bay ( i.e., Los Osos). Based on known species occurrences and soil associations, we used the presence of Baywood Fine Sand soils and small areas of Dune Land soils to determine distribution. We currently estimate the distribution for the Morro shoulderband snail to be approximately 2,638 hectares (ha) (6,520 acres (ac)) located in and around the community of Los Osos/Baywood Park and City of Morro Bay (see figure, below). At the time of listing, we estimated that there may have been as few as several hundred individuals of H. walkeriana (currently, Morro shoulderband snail) extant. Based on the most recent surveys, thousands of Morro shoulderband snails currently exist in this area (SWCA Environmental Consultants (SWCA) 2018, p. 7).

Using known species occurrence and estimated abundance along with the presence of suitable soil types, we identified six geographic units (hereafter, “population areas”) for the purpose of discussion in our SSA report. These include North Morro Bay, Sand Spit, Morro Bay, East Los Osos, Downtown Los Osos, and South Los Osos. For a map and detailed description of these population areas, please reference the SSA report (Service 2019, pp. 24-29). The level of survey effort throughout each of the six population areas comprising the distribution of the Morro shoulderband snail is limited and variable. For this reason, we are not able to make comparable estimates for species abundance. The Downtown and South Los Osos population areas have been subject to a greater level of survey effort associated with required monitoring for the installation of infrastructure to connect the community of Los Osos with its wastewater system. Between 2012 and 2017, more than 2,200 individuals were found in these two population areas, with over 80 percent occurring in the Downtown Los Osos area (SWCA 2018, p. 5).

Portions of the North Morro Bay, Sand Spit, Morro Bay, East Los Osos, and South Los Osos population areas are within State Parks ownership, but comprehensive surveys or monitoring have not been conducted. From discussions with State Parks biologists, we know Morro shoulderband snails are present on State Park lands in Montaña de Oro and Morro Bay State Parks and Morro Strand State Beach, portions of which are found within several of the population areas. Data on the level of species occupation and condition of individuals is generally lacking (Walgren and Andreano 2018, pers. comm.). There have been no comprehensive surveys for the Morro shoulderband snail conducted on CDFW's Morro Dunes Ecological Reserve (MDER); however, based on species observations and presence of suitable habitat, CDFW assumes the reserve contains a robust population of the species (Stafford 2018, pers. comm.). While we know the species is present on MDER (Service files; Stafford 2018, pers. comm.), there is no evidence that the population is robust or that large numbers of individuals are present. Survey data gathered between 2012 and 2017 in contiguous habitat of similar quality and species composition indicate greater Morro shoulderband snail numbers in disturbed habitats than in native habitats (SWCA 2018, p. 5).

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 of Endangered and Threatened Wildlife or the List of Endangered and Threatened Plants.

Recovery plans provide a roadmap for us and our partners on methods of enhancing conservation and minimizing threats to listed species, as well as measurable criteria against which to evaluate progress towards recovery and assess the species' likely future condition. However, they are not regulatory documents and do not substitute for the determinations and promulgation of regulations required under section 4(a)(1) of the Act. A decision to revise the status of a species or to delist a species is ultimately based on an analysis of the best scientific and commercial data available to determine whether a species is no longer an endangered species or a threatened species, regardless of whether that information differs from the recovery plan.

There are many paths to accomplishing recovery of a species, and recovery may be achieved without all of the criteria in a recovery plan being fully met. For example, one or more criteria may be exceeded while other criteria may not yet be accomplished. In that instance, we may determine that the threats are minimized sufficiently and that the species is robust enough that it no longer meets the Act's 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 recovery plan goals for the Morro shoulderband snail and discuss progress made toward meeting recovery plan objectives in terms of how they inform our analyses of the species' status and the stressors affecting them.

In 1998, we completed the Recovery Plan for the Morro Shoulderband Snail and Four Plants from Western San Luis Obispo County, California, which included recovery goals and objectives for Morro shoulderband snail (Recovery Plan; Service 1998, pp. 40-41). The Recovery Plan identified criteria for downlisting Morro shoulderband snail from an endangered to a threatened species and criteria for its delisting. The Recovery Plan identified four “conservation planning areas” (CPAs). These CPAs were designed to incorporate areas where distribution of the Morro shoulderband snail and three other plant species covered in the plan overlap; thus, they are more limited than the population areas for the Morro shoulderband snail defined in the SSA.

Our summary analysis of downlisting and delisting criteria follows:

The Recovery Plan stated that downlisting from endangered to threatened can be considered when sufficient populations and suitable occupied habitats from all CPAs are secured and protected (Service 1998, p. 39). These areas should be intact and relatively unfragmented by urban development. Snail populations must be large enough to minimize the short-term (next 50 years) risk of extinction on any of the four CPAs identified in the Recovery Plan, based on results of tasks 3.2.1.1, 3.2.1.2, and 3.2.1.3 (see below) and on at least preliminary results from task 4.1. The identification and survey of potential habitat within the snail's historic range to see if undiscovered populations exist are necessary to consider downlisting.

All of CPA 1 (Morro Spit) and portions of CPAs 2, 3, and 4 (West Pecho, South Los Osos, and Northeast Los Osos) are largely secure under various ownerships and management (Service 2019, pp. 72-74). All have conservation easements or deed restrictions, or are managed by a conservation association for conservation purposes. Landowners and managers include the County, State Parks, CDFW, the Land Conservancy of San Luis Obispo County, Morro Coast Audubon Society, and the Small Wilderness Area Program (SWAP). Approximately 202 ha (500 ac) have been added to conserved lands since time of listing. This includes 56 ha (138 ac) of parcels purchased and transferred to State Parks or CDFW managed for conservation purposes and 141 ha (348 ac) with a conservation easement or deed restriction managed for conservation purposes. Overall, 85 percent (approximately 1,457 ha (3,600 ac)) of CPAs are now conserved. However, a lack of funding precludes adequate threats management on most of these lands (Service 2019, p. 53).

Recovery Task 3.2.1.1 is to determine if brown garden snail ( Cornu aspersum (formerly Helix aspersa )) is a competitive threat to the Morro shoulderband snail. Since the time of listing, we found that Morro shoulderband snails feed primarily on dead plant materials and the brown garden snail consumes live plant materials, so competition between these species is likely minimal (Service 2019, p. 75).

Task 3.2.1.2 involves the study of habitat use and life-history needs of the Morro shoulderband snail. Monitoring and habitat restoration activities conducted in association with the construction of a sewer system in the community of Los Osos have generated substantial new information on the diversity of habitats in which the species can occur and numbers of individuals present. We also have new information based upon anecdotal observations and surveys conducted in association with proposed development in the Los Osos area (Service 2019, pp. 28-30).

Task 3.2.1.3 is to identify Morro shoulderband snail parasites and determine if parasitism rates are threatening populations. At the time of listing, parasitism was identified as a threat to the species, based on observations of vacant sarcophagid fly puparia within empty subadult shells (59 FR 64613, p. 64619, December 15, 1994). Since the time of listing, there has been an increase in snail observations, but not a corresponding increase in sarcophagid fly pupae infestations of snails. A few species in this fly family have been documented to eat live material (Walgren 2003, pp. 108-114; Service 2006, p. 7). While there have been no specific studies on the potential threats to the snail from these sarcophagid flies, the majority of flies in this family do not eat live organisms; thus, we conclude that the flies do not pose a threat to the species (Service 2006, p. 13). Therefore, the best available current evidence does not indicate that parasitism is a threat to the species.

Finally, Task 4.1 is to monitor populations to document population dynamics and cycles to ascertain trends. No systematic monitoring has been conducted to provide data that would allow for trend analysis. However, based on the most recent surveys, thousands of Morro shoulderband snails were detected across the species' range, as compared to hundreds known at the time of listing (Service 2019, pp. 28-30; SWCA 2018, p. 5; Walgren and Andreano 2018, pers. comm.). Therefore, although we do not have specific trend data, we conclude that we have still met the intent of this criterion.

Delisting can be considered when habitats from all CPAs (and any newly located populations) are successfully managed to maintain the desired community structure and are secured from threats of development, invasion of nonnative plants, structural changes due to senescence of dune vegetation, recreational use, pesticides (including slug and snail baits), parasites, and competition or predation from nonnative snail species. The outcomes of recovery tasks must result in a low medium-to-long-term risk of extinction from any of the four CPAs (Service 1998, p. 40).

Our analyses in the SSA report indicate that the current viability of Morro shoulderband snail has improved to some degree since the time of listing due to information indicating there are substantially more individuals than previously thought, as well as beneficial effects of certain conservation efforts, predominantly in the form of land acquisition. Based on our future scenario analyses, the species is still at risk in the future due to the potential for development and because the level of continued conservation efforts and habitat management is uncertain. Currently and into the future, habitat loss due to development and habitat degradation, predominantly from invasive plant species, remain threats to the Morro shoulderband snail.

To improve habitat for the species, the Morro Coast Audubon Society has a dedicated volunteer work force to remove the invasive, nonnative plant species Ehrharta calycina (perennial veldt grass) and Eucalyptus globulus (blue gum) seedlings at their Sweet Springs Preserve (outside of any CPA) under the direction of a recovery action plan. The Los Osos/Morro Bay Chapter of SWAP does the same for the Elfin Forest Reserve in CPA 4. State Parks staff annually prioritize areas for invasive species treatment on a case-by-case basis. When funding is available, they implement actions to control invasive species in Montaña de Oro State Park, Morro Strand State Beach, Morro Bay State Park, and Los Osos Oaks Preserve (CPAs 1 and 2, portions of 3 and 4, and Area A). Identified invasive species prioritized for removal include E. calycina, Conicosia pugioniformis (narrowleaf iceplant), Emex spinosa (devil's thorn), Cortaderia species, and Eucalyptus species because they are the most invasive and conspicuous in the landscape.

Lack of funding precludes most State of California resource agencies ( e.g., State Parks and CDFW) from implementing invasive species control programs on lands where these species are present. State Parks staff have conducted limited prescribed burns and proposed additional prescribed burns to improve the quality of coastal dune scrub and central maritime chaparral and their constituent species within their park units. Fires typically kill snails, but if properly applied in small areas to create a mosaic of varying stand ages for coastal dune scrub and central maritime chaparral, such burns could improve the quality of these habitats for the Morro shoulderband snail in the long term. Previous threats to habitat resulting from illegal off-road vehicle activities are largely controlled; however, illegal trail development and use by hikers, mountain bikers, and equestrians negatively affects habitat for Morro shoulderband snails by increasing erosion, reducing native plant cover, and facilitating further invasion by nonnative plant species (Service 2019, pp. 75-76).

Based on the Recovery Plan and our SSA report, we conclude that the status of the Morro shoulderband snail has improved throughout its range due to information demonstrating that there are substantially more individuals than previously thought, and due to conservation efforts predominantly in the form of land acquisition. The SSA report contains an accounting of known conservation and management efforts (Service 2019, pp. 23-24). Overall, our analysis indicates that the intent of the downlisting criteria for the Morro shoulderband snail has been met; however, delisting criteria have not yet been achieved.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species is an endangered species or a threatened species. The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether any species is an “endangered species” or a “threatened species” because of any of the following factors:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects. We consider these same five factors in downlisting a species from endangered to threatened (see 50 CFR 424.11(c), (d), and (e)).

We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (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 species' expected response and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species—such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future.

The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. The term foreseeable future extends only so far into the future as we can reasonably determine that both the future threats and the species' responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions.

It is not always possible or necessary to define foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.

The SSA report documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the species, including an assessment of the potential threats to the species. The SSA report does not represent our decision on whether the species should be reclassified as a threatened species under the Act. It does, however, provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found on the internet at https://www.regulations.gov under Docket No. FWS-R8-ES-2019-0025.

To assess Morro shoulderband snail viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation supports the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes). In general, the more resilient and redundant a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.

The SSA process can be categorized into three sequential stages. During the first stage, we evaluated individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' responses to positive and negative environmental and anthropogenic influences. Throughout all of these stages, we used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decision.

Below, we review the biological condition of the species and its resources, and the threats that influence the species' current and future condition, in order to assess the species' overall viability and the risks to that viability.

We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have not only analyzed individual effects on the species, but we have also analyzed their potential cumulative effects. We incorporate the cumulative effects into our SSA analysis when we characterize the current and future condition of the species. To assess the current and future condition of the species, we undertake an iterative analysis that encompasses and incorporates the threats individually and then accumulates and evaluates the effects of all the factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis.

We reviewed the potential threats that could be affecting Morro shoulderband snails now and in the future. In this final rule, we discuss in detail only those factors that could meaningfully affect the status of the species. At the time of listing, we identified urban development and other anthropogenic activities such as recreation, grazing, and utility construction as threats to the Morro shoulderband snail (59 FR 64613; December 15, 1994). In the SSA report (Service 2019, pp. 21-64), we reviewed four potential threats that could be affecting the current condition of the Morro shoulderband snail (development, agriculture, vegetation management, and predation), and those threats and two others (wildfire, invasive species) that could affect the future condition of the species. For the Morro shoulderband snail, we consider the foreseeable future to be 30 years. This timeframe takes into account threats associated with fire, habitat degradation, and climate change, and also the implementation of the Los Osos Habitat Conservation Plan (LOHCP).

The primary risk factors affecting the Morro shoulderband snail are the present and threatened modification or destruction of its habitat from development, wildfire, and invasive plant species (Factor A), as well as effects to its life cycle from changing climate conditions (Factor E). We also considered the effect of existing regulatory mechanisms (Factor D) on the magnitude of threats. Additional threats affecting the species' habitat include agriculture (Factor A) and vegetation management (Factor A), and threats affecting the species include predation (Factor C); however, we have determined that these threats have little to no impact on the species' viability. We also analyzed the threat of collection (Factor B). At the time of listing, we stated that the taxonomic distinctiveness of the Morro shoulderband snail made it vulnerable to recreational or scientific collectors. Since the time of listing, however, we are not aware of specific collection activities for recreational or scientific purposes. Therefore, we conclude that overcollection (Factor B) is not a threat to the species.

At the time of listing, development was identified as one of the main threats impacting the Morro shoulderband snail. Human development consists of converting the landscape into residential, commercial, industrial, and recreational features, with associated infrastructure such as roads. Converting the landscape into development not only removes individual Morro shoulderband snails but also removes their habitat, thereby reducing the space available for the species to inhabit and functionally lowering carrying capacity. In addition, development results in indirect effects by fragmenting the habitat and creating edge effects, such as increased vulnerability to desiccation, fire, and predation. The effects of development on the Morro shoulderband snail are predicated upon several factors ( e.g., how the City and County of San Luis Obispo revise and implement their respective general plans, the economy, water availability).

However, as detailed in the SSA report, conservation actions have been undertaken since the time of listing to reduce the threat of development (Service 2019, pp. 24-25). Approximately 202 ha (500 ac) of Morro shoulderband snail habitat have been conserved since the time of listing. This includes 56 ha (138 ac) of parcels purchased and transferred to the California Department of Parks and Recreation (CDPR) or CDFW and 141 ha (348 ac) with conservation easement or deed restriction; all of these areas are managed for conservation purposes. Overall, 85 percent (approximately (1,457 ha (3,600 ac)) of CPAs are now protected from development. Although most lands within the species' distribution outside of CPAs are not under formal or legal protection as open space or conservation easements, many are protected as part of a State Park, State of California ecological reserve, or parcels set aside specifically to conserve and enhance natural resource values. For example, the County of San Luis Obispo's Broderson and Midtown parcels are both protected through deed restrictions that preclude development other than that which would enhance habitat that supports Morro shoulderband snails. With increased conserved lands, the threat of development has been reduced since the time of listing, but some potential impacts remain that could result in the loss of populations and thus the loss of representation and redundancy across the species' range. For example, large portions of the East Los Osos and Downtown Los Osos population areas consist predominantly of public and private land parcels zoned for development. Apart from the protections afforded by the Act, the existing regulatory mechanisms do not address the impacts of development on the Morro shoulderband snail.

Invasion of native habitat by nonnative plant species can reduce suitability for native constituent species that evolved in these habitats. Areas dominated by a single invasive plant species tend to support lower levels of animal diversity due to a reduction in heterogeneity as compared to the original native plant community (Steidl and Litt 2009, p. 57). The presence of nonnative plant species can also alter the abundance of native plants that serve as an important food source for herbivores, such as snails. Invasive plant species can increase vegetative cover and reduce space between native plant species in native communities. Invasive plant species can change fuel properties in native habitats, which can then affect fire behavior and alter fire regime characteristics such as frequency, severity, extent, type, and seasonality (Brooks et al. 2004, entire). In coastal dune scrub and maritime chaparral, native communities that typically support a sparse understory, invasive grasses, such as perennial veldt grass, can serve as ladder fuel to carry fire into these communities. Fires can also create an opportunity for invasive plant species to expand their local distributions and dominance (Brooks and Lusk 2008, p. 9).

While once thought to be largely restricted to native coastal scrub communities underlain by sandy soils, Morro shoulderband snails are known to occur, at least in the short term, in disturbed areas and those dominated by nonnative species ( e.g., perennial veldt grass, ice plant) (SWCA 2018, p. 5). Biologists and land planners typically classify these areas as ruderal or “disturbed” and, as such, discount them in terms of their conservation value. Ruderal, disturbed, and nonnative grassland habitats are, therefore, subject to mowing, herbicide use, development, and other uses that put individual Morro shoulderband snails in these areas at a greater risk of injury or mortality than those found in native habitat.

Currently, three of the six population areas that support the Morro shoulderband snail are in moderate- or low-quality habitat, with impacts from nonnative species (Service 2019, pp. 37-38). Habitat in these areas is either somewhat degraded (one population area) (9.5 percent of species distribution) or highly degraded and fragmented (two population areas) (38.3 percent of species distribution).

Both the Morro Coast Audubon Society and SWAP conduct activities to improve habitat quality for the Morro shoulderband snail and other coastal dune scrub species on lands conserved and protected under their ownership and/or management (Sweet Springs Nature Preserve and Elfin Forest, respectively). These actions focus primarily on the removal of exotic plant species (perennial veldt grass, iceplant), restoration of coastal dune scrub, and erosion control. The CDPR also conducts similar activities on its lands ( i.e., Montaña de Oro and Morro Bay State Parks and Morro Strand State Beach). The County of San Luis Obispo owns two large parcels in Los Osos, Broderson and Mid-Town, that support coastal dune scrub and, to a lesser extent, central maritime chaparral. Management actions on both parcels focus on the restoration and enhancement of habitat for the Morro shoulderband snail (Kevin Merk Associates, LLC (KMA) 2017, entire; County of San Luis Obispo 2017, entire). The Land Conservancy of San Luis Obispo County recently purchased approximately 5.7 ha (14 ac) adjacent to the Morro Coast Audubon Society's Sweet Springs Preserve. They plan to enhance habitat quality for coastal dune scrub species, including Morro shoulderband snail, before transferring these lands to Morro Coast Audubon Society ownership and management (Theobald 2017, pers. comm.). Overall, while these conservation measures have decreased the overall impact of invasive plant species, degradation of native habitats from those species is ongoing, and the existing regulatory mechanisms do not address the impact of invasive species.

Morro shoulderband snails evolved in a fire-adapted landscape dominated by coastal dune scrub and maritime chaparral. Exposure to fire can result in individual mortality; however, an evolutionary strategy has enabled the species to persist in these habitats. Theories related to the nature of fire history in California shrublands are complicated and varied (Goforth and Minnich 2007, p. 779). In the range of the Morro shoulderband snail, the “natural” condition was one of frequent, small fires that fragmented the landscape into a fine-grained mosaic of age classes that precluded large, catastrophic fires (Minnich and Chou 1997, p. 244). In this type of situation, areas of unburned coastal dune scrub and central maritime chaparral would serve as refugia for individual snails that could then recolonize areas as the fire-adapted plant communities reestablished.

We consider an increase in wildfire frequency and/or intensity associated with continued climate change to be plausible in the future within the range of the Morro shoulderband snail (Service 2019, entire). A landscape-level or more severe fire event would constitute a threat to the species due to its very limited distribution. This type of fire could leave little in the way of habitat to serve as native refugia and result in a substantial amount of individual mortality, increasing the likelihood of local population extirpation. Absent individuals in nearby habitat to recolonize burned areas as habitat reestablishes, large-scale fire could result in a reduction in the overall distribution of the species, and thus loss of redundancy and representation. The existing regulatory mechanisms do not address the impact of wildfire on the Morro shoulderband snail or its habitat.

Climate change is likely to affect many terrestrial gastropod populations in California, including the Morro shoulderband snail. Species with small geographic ranges are particularly vulnerable to extinction due to the effects of climate change (Allan et al. 2005, p. 284). In the range of the Morro shoulderband snail, climate change may result in both droughts and localized flood events from heavy rainfall. In the future, extreme storm events may increase in severity beyond historic levels of intensity with potential to increase flood risks in California (Dettinger 2011, pp. 521-522). Future estimates of changes in temperature and precipitation patterns in California by the 2060s based on downscaled climate models show that the historically maximum July temperatures are likely to increase and heat waves may span longer durations (Pierce et al. 2013, entire).

The increased frequency of protracted drought events predicted in California is likely to result in higher mortality during prolonged periods of seasonal aestivation, particularly among smaller individuals in the population (van der Laan 1975b, p. 364). Higher levels of egg mortality from desiccation are expected. Warmer temperatures and greatly reduced wet season precipitation during prolonged multiyear drought events also increase stress on vegetation (Coates et al. 2015, p. 14277) and may limit time for feeding and breeding in the Morro shoulderband snail. Coastal sage scrub communities had the highest seasonal variability in terms of the relative amount of ground covered by green vegetation during the drought years of 2013-2014 (Coates et al. 2015, p. 14283). Coastal sage scrub plant species also had the highest land surface temperature values of the communities analyzed, likely resulting from lower vegetation cover, lower evapotranspiration, and south-facing slopes typical of coastal sage scrub communities (Coates et al. 2015, p. 14284). These effects of prolonged drought reduce the value and quality of sheltering habitat as well as food availability within the primary plant community associated with the Morro shoulderband snail. Combined with impacts from wildfire, invasive species, and development, the negative effects of climate change on growth and reproduction are likely to result in decreased population abundance and increased vulnerability to local extirpation into the future.

We examined the effects of threats affecting the Morro shoulderband snail and its habitat; we now summarize these threats and their cumulative effects on the species. Currently, the species and its habitat are being impacted by development, invasive nonnative plants, wildfire, and effects associated with climate change. Along with a decrease in habitat quality due to increased temperatures and increased frequency of droughts, the effects of climate change may also exacerbate low population size and fragmented habitats, resulting in increased risk of extirpation. The effects of climate change will also combine with the effects of development, wildfire, and invasive species to exacerbate habitat loss and mortality of individuals. However, the magnitude of threats has decreased since the time of listing, and conservation actions have addressed some of the impacts from development and nonnative plants. Still, the species' low abundance and fragmented habitat mean it is vulnerable to threats into the future, including potential extirpation of population areas by wildfire.

We assessed the viability of the Morro shoulderband snail by evaluating its ability to maintain a sufficient number and distribution of healthy populations in order to maintain resiliency, redundancy, and representation. We analyzed threats to the species and ongoing conservation actions by incorporating the effects of development, invasive species, wildfire, and changing climate conditions into our analyses of resiliency, representation, and redundancy.

For the Morro shoulderband snail to maintain viability, its populations, or some portion thereof, need to be resilient to stochastic events. Resiliency is measured by the size and growth rate of each population, which influence the likelihood that the populations comprising a species are able to withstand or bounce back from environmental or demographic stochastic events. We evaluated variables influencing the ability of the Morro shoulderband snail to withstand stochastic events by population area, including abundance (as available), distribution of individuals, habitat quality and configuration, and the likelihood that suitable habitat would persist into the future. To determine habitat quality and configuration in each population area, we evaluated its context in the overall landscape relative to fragmentation and whether one or more of those primary constituent elements identified for critical habitat designated in 2001 (66 FR 9233; February 7, 2001) are present. Primary constituent elements for this species include the following physical or biological features: Sand or sandy soil needed for reproduction; a slope not greater than 10 percent to facilitate movement of individuals; and native coastal dune scrub vegetation. To determine the likelihood that suitable habitat will persist into the future, we evaluated the proportion of protected habitat in each population area. We then created an overall current condition for each population area based on these three variables.

Based on overall current condition, we then forecasted the condition of these variables into the future for 30 years under three different scenarios. The three future scenarios attempt to encompass the range of plausible possibilities for each population area over the next 30 years. To forecast climate change impacts, we relied on scientific papers (Dettinger 2011, entire; Pierce et al. 2013, entire) that incorporated multi-model ensembles and downscaled regional climate projections that examine key characteristics relating to the Morro shoulderband snail, such as summer temperatures and seasonal changes in precipitation.

First, we forecasted the condition of each population area under the status quo, with continued climate change effects, all existing threats continuing at their current level, and no additional conservation efforts for the species (“Status Quo” scenario). Second, we forecasted the condition of each population area under implementation of the LOHCP, a draft regional habitat conservation plan that proposes the Morro shoulderband snail as a covered species, against a backdrop of continued climate change effects (“Limited Conservation” scenario). In the “Limited Conservation” scenario, the LOHCP consolidates the threat of development to one population area, while other existing threats continue at their current level. Finally, we forecasted implementation of the LOHCP, active management for the Morro shoulderband snail within existing protected but generally unmanaged lands, and additional habitat protection through acquisition and subsequent management (“Major Conservation” scenario), again against a backdrop of continued climate change. The “Major Conservation” scenario includes decreased threats due to development and invasive plant species, as well as conservation benefits from habitat restoration.

Maintaining representation of healthy populations across the diversity of habitat types or ecological gradients within the distribution of Morro shoulderband snail will likely conserve the relevant genetic diversity and adaptive capacity associated with individual persistence across these habitat types. Currently, the species is represented in all of six population areas; however, changes under future scenarios could put individuals in some population areas at greater risk of extirpation, resulting in a potential loss of representation and leaving the species extant only in the periphery of its range.

The Morro shoulderband snail needs multiple resilient population areas distributed throughout its extremely limited distribution to provide for redundancy. Historically, based on the mapping of Baywood Fine Sand soils, it is likely that habitat was once well-distributed throughout the species' range. Development now primarily separates these population areas. Low resiliency and disconnected population areas, currently and in the future, suggest that stochastic events could increase species vulnerability to loss of redundancy and could increase the risk of loss of population areas, which would then diminish species redundancy. An overall decrease in the condition of population areas in two of the three future scenarios suggests a potential compromised redundancy and, therefore, risk of extirpation from catastrophic events in the future, unless major conservation actions are undertaken. Prolonged and/or more intensive drought, increased wildfire frequency and/or intensity, and localized flooding are those events that could affect the Morro shoulderband snail at the catastrophic scale.

The resiliency of Morro shoulderband snail population areas within the species' distribution has changed over time due to loss, degradation, and/or fragmentation of native habitat. Currently, we consider two population areas (Sand Spit and South Los Osos) to have a high level of resiliency, three population areas (North Morro Bay, East Los Osos, Downtown Los Osos) to have moderate resiliency, and one population area (Morro Bay) to have a low resiliency. It is not likely that loss of the Morro Bay population area would affect species representation across the remaining portion of the range, as current numbers of individuals in this population area are very low, and it is generally isolated from the other five population areas. Regarding redundancy, we consider those population areas with low or moderate resiliencies to be at a greater risk of local extirpation, which has the potential to decrease overall species redundancy.

Our analyses indicate that the current viability of the Morro shoulderband snail has likely improved to some degree since the time of listing because there are substantially more individuals than thought at the time of listing and certain conservation efforts (predominantly protection of habitat through conservation easement, deed restriction, or management for conservation purposes) have been implemented.

Overall, we anticipate that the viability of the species will decline in the future under two of the three scenarios: “Status Quo” and “Limited Conservation.” Under the “Status Quo” scenario, resiliency of the North Morro Bay and Morro Bay population areas would remain moderate and low, respectively, while all other population areas would be expected to experience decreased resiliency. Under the “Status Quo” scenario, half of the population areas are projected to be in the low resiliency category. Under the “Limited Conservation” scenario, resilience of the North Morro Bay, Morro Bay, and South Los Osos population areas would remain unchanged. The South Los Osos population area is where the majority of the conservation strategy for the LOHCP would occur. Only in the “Major Conservation” scenario does resiliency remain the same or improve, with the exception of Downtown Los Osos, where we anticipate the majority of development would occur as part of LOHCP implementation. For redundancy, an overall decrease in the condition of population areas in two of the three future scenarios suggests those low-condition populations are at risk of being lost and, therefore, that there could be decreased species redundancy. Against a backdrop of increased climate change effects expected to result in prolonged and/or more intensive droughts, increased wildfire frequency and/or intensity, and localized flooding events, risk of extirpation could increase with decreased species redundancy.

In the proposed rule published on July 24, 2020 (85 FR 44821), we requested that all interested parties submit written comments on the proposed reclassification of the Morro shoulderband snail from endangered to threatened and the associated proposed 4(d) rule by September 22, 2020. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. Newspaper notices inviting general public comment were published in the San Luis Obispo Tribune. We did not receive any requests for a public hearing. We received seven public comments. Six expressed only opinions in support or in opposition to the proposed downlisting without supporting information.

As discussed in Supporting Documents above, we received comments from six peer reviewers during the 2018 peer review of the SSA. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the information contained in the SSA report. The peer reviewers generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions to improve the final SSA report, including on snail morphology, habitat preferences, and behavior. Peer reviewer comments were incorporated into the final SSA report (Service 2019, entire).

We did not receive any comments from Federal agencies, States or State agencies, or Tribes during the public comment period.

(4) Comment: One commenter thought that the proposed rule inferred that the Service did not intend to include the Chorro shoulderband snail in the original 1994 listing. The commenter notes that, in fact, information in the Service's Ventura Fish and Wildlife Office's files indicates that the inclusion of the Chorro shoulderband snail in the 1994 listing rule was intentional. The commenter stated that the proposed rule states that it was appropriate to complete a listing assessment for the Chorro shoulderband snail.

Our response: We acknowledge that the Chorro shoulderband snail was part of the taxonomic entity that was included in the original listing rule in 1994 (59 FR 64613; December 15, 1994). We further acknowledge the confusing history of the two taxa, and that we referred to them in different ways in the original listing rule (59 FR 64613; December 15, 1994), the designated critical habitat (66 FR 9233; February 7, 2001), and our 2004 letter to partners. We address the inconsistency under Summary of Previous Federal Actions, above. Additionally, in the July 24, 2020, proposed rule (85 FR 44821), we announced the availability of a Species Assessment form constituting our full determination and threats analysis regarding the status of the Chorro shoulderband snail (Service 2020, entire). In that assessment, we determined that, based on the best available science, the Chorro shoulderband snail does not meet the Act's definition of an “endangered species” or a “threatened species.” Although information on the Chorro shoulderband snail is limited, under section 4(b)(1)(A) of the Act, we are required to make our determinations based solely on the best scientific and commercial data available at the time of our rulemaking.

(5) Comment: One commenter noted the line in the proposed rule that states, “the current viability of Morro shoulderband snail has improved to some degree since the time of listing due to concerted conservation efforts” and thought that this means the proposed rule infers that conservation measures are the reason for the substantial increase in numbers. The commenter notes the reason for increase in knowledge of number of snails is based on surveys from ruderal/disturbed habitat, not from the acreage that has been conserved. Commenter notes most of the land that has been conserved is not managed for the Morro shoulderband snail. Currently, the Morro shoulderband snail is not restricted to native habitat and is able to persist in highly disturbed areas and those dominated by nonnative plant species.

Our response: We have revised the rule to clarify that we are reclassifying the Morro shoulderband snail from endangered to threatened ( i.e., “downlisting” the species) because there are substantially more individuals than previously thought, as well as beneficial effects of certain conservation efforts, predominantly in the form of land acquisition, since the time the species was listed. We acknowledge that those lands are not managed for the Morro shoulderband snail; however, they still provide protection from development, which was one of the greatest threats identified at the time of listing.

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

We evaluated threats to the species and assessed the cumulative effect of the threats under the Act's section 4(a)(1) factors. This included an examination of the best scientific and commercial information available regarding the past, present, and future threats faced by the species, as well as information presented in the 2006 5-year review (Service 2006, entire), additional information available since the 5-year review was completed, and other available published and unpublished information. We also consulted with species experts and land management staff who are actively managing habitat for the conservation of the Morro shoulderband snail.

The primary risk factors affecting Morro shoulderband snails are the present and threatened modification or destruction of its habitat from development (Factor A), wildfire (Factor A), and invasive species (Factor A), as well as effects to its life cycle from changing climate conditions (Factor E). We also considered the threat of collection (Factor B), agriculture and vegetation management (Factor A) and predation (Factor C) (Service 2019, pp. 21-45). Finally, we examined the adequacy of existing regulatory mechanisms in addressing these threats (Factor D).

Threats influencing the viability of Morro shoulderband snail populations at the time of listing were urban development, off-road vehicle activity, nonnative vegetation (referred to as invasive species in this final rule), parasitoids (an insect whose larvae live as parasites that eventually kill their hosts), and competition from brown garden snails, all of which were exacerbated by effects associated with small population size and drought conditions (59 FR 64613; December 15, 1994). Since the time of listing, we have determined that some of these threats are no longer affecting the species, particularly off-road vehicle activity, brown garden snails, parasitoids, and controlled burns (Service 2006, pp. 11-15). Our current analysis indicates that the remaining threats identified at the time of listing have been reduced in magnitude, and that overall the level of impacts to Morro shoulderband snail and its habitat that placed the species in danger of extinction in 1994 have been substantially reduced. These reductions have occurred predominantly because of significant protection of lands at risk of development and surveys indicating that population numbers now occur in the thousands rather than the hundreds. However, threats are still impacting the species and its habitat, and new threats have been identified since the time of listing.

Of the factors identified above, habitat loss and degradation from fragmentation associated with development and invasive plant species (Factor A), wildfire (Factor A), and effects to the Morro shoulderband snail's life cycle from changing climate conditions (Factor E) are the most significant threats to the species currently and into the foreseeable future. Conservation actions have somewhat decreased the magnitude of impacts from nonnative, invasive plant species; however, degradation of native habitats by these species is ongoing. Apart from the protections afforded by the Act, no regulatory mechanisms are addressing the threats impacting the species and its habitat.

We considered plausible future conditions for the Morro shoulderband snail to evaluate the status of the species into the future. Under the “Status Quo” scenario, the species would lose resiliency due to continued threats of habitat loss, decreasing habitat quality due to invasive species and drought, and increased wildfire frequency and intensity. These effects will increase into the future, putting some population areas at risk of extirpation. Major conservation efforts, including implementation of the LOHCP conservation program, active management within currently protected but generally unmanaged lands throughout the distribution of the species, and additional habitat protection through acquisition and subsequent management, could help ameliorate some of these threats in the future; however, this level of conservation is not sufficiently certain to be implemented.

After our review and analysis of threats as they relate to the five statutory factors, we find that this information does not indicate that these threats are affecting individual populations of Morro shoulderband snail or the species as a whole across its range to the extent that the threats currently are of sufficient imminence, scope, or magnitude to rise to the level that the species is presently in danger of extinction throughout all of its range. However, while numbers of individuals across the majority of the species' range are greater now than at the time of listing and some habitat for the species is protected from development, the species remains negatively affected by continued and future threats and inadequate resource needs across much of its range.

The best available information indicates there are continued population- and rangewide-level impacts to Morro shoulderband snails despite beneficial conservation efforts in several of the population areas that have reduced the magnitude of development. Specifically, Morro shoulderband snail populations across the range continue to be negatively affected by effects of development and invasive, nonnative plant species, although at a lower level than at the time of listing. However, in the foreseeable future, available information also indicates increasing temperatures and reductions in the amount of annual rainfall associated with climate change will likely result in prolonged drought conditions that negatively influence Morro shoulderband snail abundance in the future, along with increasing frequency and intensity of wildfires. These effects will combine with the ongoing low-grade impacts of development and invasive plants such that the species is likely to become endangered in the foreseeable future.

After evaluating threats to the species and assessing the cumulative effect of the threats under the Act's section 4(a)(1) factors, based on the best available information, we determine that the Morro shoulderband snail is not currently in danger of extinction, but is likely to become in danger of extinction within the foreseeable future, throughout all of its range.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. The court in Center for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020) ( Center for Biological Diversity ), vacated the aspect of the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578; July 1, 2014) that provided that the Service does not undertake an analysis of significant portions of a species' range if the species warrants listing as threatened throughout all of its range. Therefore, we proceed to evaluating whether the species is endangered in a significant portion of its range—that is, whether there is any portion of the species' range for which both (1) the portion is significant; and (2) the species is in danger of extinction in that portion. Depending on the case, it might be more efficient for us to address the “significance” question or the “status” question first. We can choose to address either question first. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the other question for that portion of the species' range.

Following the court's holding in Center for Biological Diversity, we now consider whether there are any significant portions of the species' range where the species is in danger of extinction now ( i.e., endangered). In undertaking this analysis for the Morro shoulderband snail, 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.

For the Morro shoulderband snail, we considered whether the threats are geographically concentrated in any portion of the species' range at a biologically meaningful scale. We examined the following threats: Development; invasive species; wildfire; climate change; collection; agriculture and vegetation management; and predation; as well as cumulative effects. Threats do occur at different magnitudes across the range of the Morro shoulderband snail. For example, the East Los Osos and Downtown Los Osos population areas are at higher risk of development than other areas. Other population areas are at higher risk of fire, such as South Los Osos and Sand Spit. However, we found no concentration of threats in any portion of the Morro shoulderband snail's range at a biologically meaningful scale, so there is no population area where the species might be endangered. Therefore, no portion of the species' range provides a basis for determining that the species is in danger of extinction in a significant portion of its range, and we determine that the species is likely to become in danger of extinction within the foreseeable future throughout all 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.

Our review of the best scientific and commercial data available indicates that the Morro shoulderband snail meets the Act's definition of a “threatened species.” Therefore, we are reclassifying the Morro shoulderband snail as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act.

It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is classified, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a listing on proposed and ongoing activities within the range of the species being listed. Because we are reclassifying this species as a threatened species, the prohibitions in the section 9 of the Act will not automatically apply. We are, therefore, issuing a rule under section 4(d) of the Act (a “4(d) rule”) to provide for the conservation of the species; section 4(d) authorizes us to apply any of the prohibitions in section 9 to a threatened species. The 4(d) rule, which includes a description of the kinds of activities that will or will not constitute a violation, complies with this policy.

Section 4(d) of the Act contains two sentences. The first sentence states that the Secretary shall issue such regulations as she deems necessary and advisable to provide for the conservation of species listed as threatened. The U.S. Supreme Court has noted that statutory language like “necessary and advisable” demonstrates a large degree of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)). Conservation is defined in the Act to mean the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Additionally, the second sentence of section 4(d) of the Act states that the Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 9(a)(1), in the case of fish or wildlife, or section 9(a)(2), in the case of plants. Thus, the combination of the two sentences of section 4(d) provides the Secretary with wide latitude of discretion to select and promulgate appropriate regulations tailored to the specific conservation needs of the threatened species. The second sentence grants particularly broad discretion to us when adopting the prohibitions under section 9.

The courts have recognized the extent of the Secretary's discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, courts have upheld rules developed under section 4(d) as a valid exercise of agency authority where they prohibited take of threatened wildlife, or include a limited taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do not address all of the threats a species faces ( see State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when the Act was initially enacted, “once an animal is on the threatened list, the Secretary has an almost infinite number of options available to him [or her] with regard to the permitted activities for those species. He [or she] may, for example, permit taking, but not importation of such species, or he [or she] may choose to forbid both taking and importation but allow the transportation of such species” (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).

Exercising this authority under section 4(d), we have developed a rule that is designed to address the Morro shoulderband snail's specific threats and conservation needs. Although the statute does not require us to make a “necessary and advisable” finding with respect to the adoption of specific prohibitions under section 9, we find that this rule as a whole satisfies the requirement in section 4(d) of the Act to issue regulations deemed necessary and advisable to provide for the conservation of the Morro shoulderband snail. As discussed above under Summary of Biological Status and Threats, we have concluded that the Morro shoulderband snail is likely to become in danger of extinction within the foreseeable future primarily due to the ongoing impacts of development and invasive plants combined with projected impacts from climate change and increasing frequency and severity of wildfire. The provisions of this 4(d) rule promote conservation of the Morro shoulderband snail by encouraging management of the landscape in ways that meet both land management considerations and the conservation needs of the Morro shoulderband snail. The provisions of this rule are one of many tools that we will use to promote the conservation of the Morro shoulderband snail.

This final 4(d) rule provides for the conservation of the Morro shoulderband snail by prohibiting all acts described under section 9(a)(1) of the Act, except take resulting from the activities listed below when conducted within habitats occupied by the Morro shoulderband snail. This final rule to reclassify the Morro shoulderband snail as a threatened species discusses take of individuals through removal or degradation of native habitat as one of the reasons for its decline. It also discusses the effects of more frequent or increased intensity of wildfire events associated with climate change. The specific focus of the exceptions to prohibitions included in this final 4(d) rule is take directly associated with habitat restoration activities in disturbed or degraded native scrub and chaparral habitats throughout the estimated 2,638-ha (6,520-ac) range of the Morro shoulderband snail, and specific fire hazard reduction activities within the estimated range of the species.

Habitat restoration activities improve the condition and habitat suitability for the Morro shoulderband snail and other constituent scrub and chaparral species. Habitat within the range of the species has been subject to degradation that has reduced its suitability for the Morro shoulderband snail. This degradation is the result of invasion by nonnative plant species, particularly perennial veldt grass, that occurs after clearing of native plant communities or on unmanaged lands post-fire. Perennial veldt grass and other nonnative grass species can serve as ladder fuels and convey fires originating in the wildland-urban interface into the native scrub and chaparral communities that surround the community of Los Osos. Community concern over the frequency and intensity of wildfire is increasing every year with the increased frequency of catastrophic wildfire events in California. Widespread wildfires within the range of the Morro shoulderband snail could result in local extirpations of populations/occurrences of the Morro shoulderband snail and reduce or eliminate the ability of the species to recolonize recovering habitat post-fire, even with management of post-wildfire areas.

This final 4(d) rule sets forth the following exceptions to the prohibitions on incidental take when conducted within the range of the Morro shoulderband snail:

(1) Native habitat restoration activities, inclusive of invasive and/or nonnative species removal, conducted by a conservation organization ( e.g., the California Native Plant Society, Audubon Society, the Land Conservancy of San Luis Obispo County) pursuant to a Service-approved management or restoration plan.

(2) Fire hazard reduction activities implemented by the California Department of Forestry and Fire Protection (CALFIRE) in accordance with a Service-approved plan within the range of the Morro shoulderband snail.

Fire hazard reduction activities on legal parcels or other non-Federal land within the range of the species will be exempted from the take prohibitions of section 9(a)(1) of the Act. Anticipated fire reduction treatments include removal of downed, dead, or diseased vegetation, creation of shaded fuel breaks, and mowing of nonnative grassland. We anticipate that these fire hazard reduction activities will have short-term effects on the Morro shoulderband snail. Implementation of fire hazard reduction activities will reduce the risk of catastrophic wildfires, which otherwise could result in local extirpations of Morro shoulderband snail occurrences/populations. Under the Act, “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Some of these provisions have been further defined in regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by direct and indirect impacts, intentionally or incidentally. Regulating incidental take would help preserve the species' remaining populations, slow their rate of decline, and decrease synergistic, negative effects from other threats.

We may issue permits to carry out otherwise prohibited activities, including those described above, involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance propagation or survival, for economic hardship, for zoological exhibition, for educational purposes, for incidental taking, or for special purposes consistent with the purposes of the Act. The statute also contains certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

We recognize the special and unique relationship with our State natural resource agency partners in contributing to conservation of listed species. State agencies often possess scientific data and valuable expertise on the status and distribution of endangered, threatened, and candidate species of wildlife and plants. State agencies, because of their authorities and their close working relationships with local governments and landowners, are in a unique position to assist us in implementing all aspects of the Act. In this regard, section 6 of the Act provides that we shall cooperate to the maximum extent practicable with the States in carrying out programs authorized by the Act. Therefore, any qualified employee or agent of a State conservation agency that is a party to a cooperative agreement with us in accordance with section 6(c) of the Act, who is designated by his or her agency for such purposes, will be able to conduct activities designed to conserve the Morro shoulderband snail that may result in otherwise prohibited take without additional authorization.

Nothing in this 4(d) rule will change in any way the recovery planning provisions of section 4(f) of the Act, the consultation requirements under section 7 of the Act, or our ability to enter into partnerships for the management and protection of the Morro shoulderband snail. However, interagency cooperation may be further streamlined through planned programmatic consultations for the species between us and other Federal agencies, where appropriate.

As a result of the new data and supportive references noted earlier in this rule, we recognize the change in the common name of the listed entity Helminthoglypta walkeriana as the Morro shoulderband snail, without the synonym “banded dune snail.” We include this change in nomenclature for the species under Regulation Promulgation, below.

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

In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes.

We did not receive any comments from Tribes on the proposed rule. We have determined that no Tribes will be affected by this rule because there are no Tribal lands or interests within or adjacent to Morro shoulderband snail habitat.

A complete list of references cited in this rulemaking is available on the internet at https://www.regulations.gov and upon request from the Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this final rule are the staff members of the Fish and Wildlife Service's Species Assessment Team and the Ventura Fish and Wildlife Office.

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