Federal Register Vol. 83, No.51,

I. Background

Subpart A of Regulation J governs the collection of checks and other items by the Reserve Banks. This subpart includes the warranties and indemnities that are given to the Reserve Banks by parties that send items to the Reserve Banks for collection and return, as well as the warranties and indemnities for which the Reserve Banks are responsible in connection with the items they handle. Subpart A also describes the methods by which the Reserve Banks may recover for losses associated with their collection of items. Subpart A authorizes the Reserve Banks to issue operating circulars governing the details of the collection of checks and other items and provides that such operating circulars have binding effect on all parties interested in an item handled by a Reserve Bank. The Reserve Banks' Operating Circular No. 3, “Collection of Cash Items and Returned Checks” (OC 3),1 is the operating circular that is most relevant to the Reserve Banks' check collection activities. Subpart B of Regulation J provides rules to govern funds transfers through the Reserve Banks' Fedwire Funds Service. This service is also governed by the Reserve Banks' Operating Circular No. 6, “Funds Transfers through the Fedwire Funds Service” (OC 6).2

In 2004, the Board amended Regulation J to cover electronic check processing options that the Reserve Banks offered after the Check Clearing for the 21st Century Act (Check 21 Act) took effect in October 2004.3 The Board's amendments to Regulation J at the time included provisions to address the rights and obligations of banks and Reserve Banks relating to electronic items handled by Reserve Banks.4

As a result of the 2004 amendments, Regulation J defines an “electronic item” as an electronic image of, and information describing, an item that a Reserve Bank agrees to handle pursuant to an operating circular.5 Regulation J also sets forth certain warranties provided to the Reserve Banks by the sender of an electronic item and certain warranties provided by the Reserve Banks when sending or presenting an electronic item.6 Specifically, Regulation J provides that for electronic items, the sender and the Reserve Banks make warranties (1) as set forth in the Uniform Commercial Code (U.C.C) and Regulation CC as if the electronic item were subject to their terms; and (2) similar to those made for substitute checks under the Check 21 Act (“Check-21-like warranties”).7 Regulation J also currently provides similar provisions related to checks that are returned as electronic items.8

In 2017, the Board published a final rule amending Regulation CC to reflect the virtually all-electronic check collection and return environment.9 Among other things, the amendments created a regulatory framework for the collection and return of electronic items (i.e., electronic images and electronic information derived from a paper item) by defining the terms “electronic check” and “electronic returned check,” creating Check-21-like warranties for electronic checks and electronic returned checks, and applying existing paper-check warranties to electronic checks and electronic returned checks.

Accordingly, the Board is proposing amendments to align subpart A of Regulation J with the Board's 2017 amendments to Regulation CC and incorporate certain provisions by reference, thereby reducing the need for duplication and improving consistency between the regulations. Under the Board's proposal, the term “electronic item” would be removed from Regulation J and “check” and “returned check” would be defined to include an electronic check and electronic returned check as defined in § 229.2 of Regulation CC. The term “item” would also be defined to include an electronic check as defined in Regulation CC. The Board also proposes to eliminate duplicative provisions by removing the Check-21-like warranties currently provided under Regulation J by the sender and the Reserve Banks. Instead, Regulation J would provide that the sender of an item (including an electronic check) and the Reserve Banks would (as applicable and unless otherwise provided) make all the warranties and indemnities set forth in and subject to the terms of subparts C and D in Regulation CC. The Board proposes similar amendments to the provisions of Regulation J that currently address returning checks as electronic items.

In the 2017 amendments to Regulation CC, the Board included certain indemnities with respect to electronically-created items (ECIs), which are check-like items created in electronic form that never existed in paper form. ECIs can be difficult to distinguish from electronic images of paper checks. As a practical matter, a bank receiving an ECI often handles it as if it were derived from a paper check. However, because there was no original paper check corresponding to the ECI, the warranties, indemnities, and other provisions of Regulation CC would not apply to those items. As the Board explained in the 2017 Regulation CC amendments, the payee and the depositary bank are best positioned to know whether an item is electronically created and to prevent the item from entering the check-collection system. Therefore, to protect banks that receive ECIs during the check collection process, the Board's Regulation CC amendments provided indemnities that ultimately shift liability for losses to the depositary bank because either the ECI (1) is not derived from a paper check, (2) was unauthorized, or (3) was transferred or presented for payment more than once.10 The proposed amendments to incorporate Regulation CC's warranties and indemnities into Regulation J by reference would include these ECI indemnities.

Currently, neither Regulation CC nor Regulation J explicitly address the sending of ECIs to the Reserve Banks. However, the definition of item in Regulation J as currently drafted does not encompass ECIs and therefore does not allow for the handling of ECIs by the Reserve Banks. Regulation J defines an item, in part, as “an instrument or a promise or order to pay money, whether negotiable or not” that meets several other requirements.11 The terms “instrument,” “promise,” and “order” are defined under the U.C.C. as requiring a writing.12 Because they never existed in tangible form and therefore do not qualify as writings, ECIs are not “items” as currently defined in Regulation J. To provide greater clarity, the Board proposes to amend the definition of “item” in subpart A of Regulation J to explicitly state that the term does not include an ECI as defined Regulation CC.

Furthermore, because Regulation J is intended to provide rules for the collection and return of items by the Reserve Banks, the Board is proposing amendments to Regulation J that would allow the Reserve Banks to require senders to provide warranties and indemnities that only “items” and any “noncash items” the Reserve Banks have agreed to handle will be provided to the Reserve Banks. The Board's proposed amendments would also permit the Reserve Banks to provide a subsequent collecting bank and a paying bank the warranties and indemnities provided by the sender. As with the amendments to Regulation CC, the Board believes the proposed amendments will help to shift liability to parties better positioned to know whether an item is electronically created and to prevent the item from entering the check-collection system.

The Board recognizes that the proposed amendments may affect the creation and acceptance of ECIs. However, the Board's proposed amendments would not prevent parties that desire to exchange ECIs from doing so by agreement using direct exchange relationships or other methods not involving the Reserve Banks. The Board believes such arrangements are more appropriate to ensure all parties knowingly accept any corresponding risks arising from the fact that the ECI never existed in paper form and therefore does not carry with it the warranties, indemnities, and other provisions associated with a check. The Board requests comment on possible implications that this clarification and change related to ECIs in Regulation J may have on financial institutions or the industry more broadly. The Board also requests comment on whether, and to what extent, the Board should consider amending Regulation J as part of a future rulemaking to permit the Reserve Banks to accept ECIs.

Regulation J currently provides that settlement with a Reserve Bank for cash items “shall be made by debit to an account on the Reserve Bank's books, cash, or other form of settlement” to which the Reserve Bank has agreed.13 With respect to noncash items, Regulation J provides that a Reserve Bank may require settlement by cash, by a debit to an account on a Reserve Bank's books or “by any of the following that is in a form acceptable to the collecting Reserve Bank: Bank draft, transfer of funds or bank credit, or any other form of payment authorized by State law.” 14 Regulation J also currently provides that a Reserve Bank may require a nonbank payor to settle for items by cash, or by “any of the following that is in a form acceptable to the Reserve Bank: Cashier's check, certified check, or other bank draft or obligation.” 15 In order to facilitate the efficient collection of items, the Reserve Banks' current practice is generally to settle for items by debit to an account on the Reserve Bank's books. The use of cash is rare, typically only done in emergency situations, and could be covered by a provision allowing “other form of settlement to which the Reserve Bank agrees.” The Board therefore proposes to revise certain settlement provisions of Regulation J to remove references to cash and other specified forms of settlement (e.g., cashier's checks or certified checks) and instead state that the Reserve Banks may settle by a debit to an account on the Reserve Bank's books, or another form of settlement acceptable to the Reserve Banks. The Board requests comment on possible implications that the proposed changes may have on financial institutions with which the Reserve Banks settle for the presentment of items.

Financial messaging standards provide a common format that allows different financial institutions to communicate. Federal Reserve Banks plan to migrate to the ISO 20022 financial messaging standard for the Fedwire Funds Service. ISO 20022 is an international standard that employs terminology that differs in key respects from that used in U.S. funds-transfer law, including Regulation J. The Board proposes an amendment to subpart B of Regulation J that would clarify that terms used in financial messaging standards, such as ISO 20022, do not confer or connote legal status or responsibilities.

The Board also proposes several other amendments to Regulation J, which include removal of obsolete material and corrections to include certain provisions that were unintentionally omitted by previous amendatory instructions to Regulation J.

The Board proposes an effective date of July 1, 2018, to align with the effective date of the Board's amendments to subpart C of Regulation CC.

The paragraph citations in this section are to the paragraphs of the proposed rule unless otherwise stated. The Board requests comment on all aspects of the proposed rule.

Regulation J currently includes the term “check” (a draft as defined in the U.C.C. drawn on a bank and payable on demand). The Board proposes to revise the definition of “check” to mean a “check” and an “electronic check” as those terms are defined in Regulation CC. This amendment will align the terminology in the two regulations.

Regulation J also includes the term “check as defined in 12 CFR 229.2(k)” (the Regulation CC definition of “check”). This term is used in Regulation J in those provisions that require specific references to the Regulation CC definition of “check.” (See §§ 210.2(m), 210.7(b)(2), and § 210.12(a)(2).) The Board proposes to delete the definition of “check as defined in 12 CFR 229.2(k)” because it is no longer needed in light of the proposed revision of the Regulation J definition of “check” to cross-reference the Regulation CC definition. The Board proposes to revise the three provisions where it is used by deleting the reference to “check as defined in 12 CFR 229.2(k),” as described in more detail in the corresponding section-by-section analysis.

Regulation J uses the term “item” to refer to the instruments and electronic images that the Reserve Banks handle. Regulation J uses the term “electronic item” to refer to an electronic image of an item, and information describing that item, that a Reserve Bank agrees to handle as an item pursuant to an operating circular. To align the terminology of Regulation J with Regulation CC, the Board proposes to delete the definition of “electronic item” and revise the definition of “item” in § 210.2(i) to include a check, which, under the proposed amendment discussed above would include both a check and an electronic check as defined in Regulation CC. The Board also proposes to add a clarifying statement that the term “item” does not include an electronically-created item as defined in § 229.2 of Regulation CC (as discussed in detail above).

Current § 210.2(m) defines a “returned check” as “a cash item or a check as defined in 12 CFR 229.2(k) returned by a paying bank.” To align the definition of “returned check” with “check,” the Board proposes to delete the reference to “check as defined in 12 CFR 229.2(k)” and instead refer to the definition of “electronic returned check” in Regulation CC.

Current § 210.2(n) defines sender by providing a set of entities that sends an item to a Reserve Bank for forward collection. The Board proposes to add “member bank, as defined in section 1 of the Federal Reserve Act” in § 210.2(n)(2) to include a bank or trust company that is a member of one of the Federal Reserve Banks to ensure inclusion of any member bank that does not fall under the existing definition. The Board proposes to redesignate current §§ 210.2(n)(2)-(6) to §§ 210.2(n)(3)-(7) to accommodate the insertion.

Current § 210.2(q) defines “Fedwire” as having the same meaning set forth in § 210.26(e). The Board proposes to amend this definition to refer to both “Fedwire Funds Service and Fedwire” to conform to the proposed amendment to § 210.26(e).

Section 210.3(a) provides general provisions concerning the obligations of Reserve Banks and the role of operating circulars. For reasons described above in connection with electronically-created items, the Board proposes to add a sentence stating that the operating circulars may require a sender to provide warranties and indemnities that only items and any noncash items the Reserve Banks have agreed to handle will be sent to the Reserve Banks. Additionally, in order to allow the Reserve Banks to pass any such warranties and indemnities forward, the Board proposes to authorize the Reserve Banks to provide to a subsequent collecting bank and to the paying bank any warranties and indemnities provided by the sender pursuant to this paragraph.

Section 210.4(a) sets forth the rule for determining the Reserve Bank to which an item should be sent. The Board proposes to clarify this paragraph to provide that a sender's Administrate Reserve Bank may direct a sender (other than a Reserve Bank) to send any item to a specified Reserve Bank, whether or not the item is payable in the Reserve Bank's district. This amendment reflects current practice in the Reserve Banks' check service and is not expected or intended to have a substantive affect. The Board is also proposing to capitalize the term “Administrative Reserve Bank” wherever it appears to conform to the defined term in § 210.2(c).

Current § 210.5(a) lists the warranties, authorizations, and agreements made by a sender. The first two paragraphs (current §§ 210.5(a)(1) and (2)) apply to all items and require the sender to authorize the Reserve Banks to handle the item sent and warrant that the sender is entitled to enforce the item, that the item has not been altered, and that the item bears the indorsements applied by all prior parties. The Board is not proposing to revise these paragraphs. Current §§ 210.5(a)(3) and (4) set out warranties for electronic items and electronic items that are not representations of substitute checks, respectively. These warranties are now specified in Regulation CC, and the Board proposes to revise Regulation J accordingly. Proposed § 210.5(a)(3) would require the sender to make all applicable warranties and indemnities set forth in Regulation CC and the U.C.C. The proposal would retain the existing requirement that the sender make all warranties set forth in and subject to the terms of U.C.C. 4-207 for an electronic check as if it were an item subject to the U.C.C. These proposed changes would streamline Regulation J, align § 210.5(a) with the Regulation CC provisions that set out warranties and indemnities for electronic checks, and ensure a seamless chain of warranties for the items handled by the Reserve Banks.

The Board also proposes to require a sender to make any warranties or indemnities regarding the sending of items that the Reserve Banks include in an operating circular issued in accordance with § 210.3(a) to ensure that only items and any noncash items the Reserve Banks have agreed to handle will be sent to the Reserve Banks (proposed § 210.5(a)(4)). Finally, the Board proposes to add a reference to “indemnities” to the introductory text of § 210.5(a) to reflect that the sender would provide indemnities pursuant to proposed §§ 210.5(a)(3) and (4).

Current § 210.5(a)(5) sets out the sender's liability to Reserve Banks. The Board proposes to make a number of amendments to this subsection that align this paragraph to changes elsewhere in the proposed rule.

Current § 210.5(a)(5)(i)(C) states that the sender agrees to indemnify the Reserve Bank for any loss or expense resulting from “[a]ny warranty or indemnity made by the Reserve Bank under § 210.6(b), part 229 of this chapter, or the U.C.C.” The Board proposes to amend this provision to provide that the sender will also indemnify a Reserve Bank for any loss or expense sustained resulting from any warranties and indemnities regarding the sending of “items” required by the Reserve Bank in an operating circular issued pursuant to proposed § 210.3(a).

Current § 210.5(a)(5)(ii) specifies conditions and limitations to a sender's liability for warranties and indemnities that a Reserve Bank makes for a substitute check, a paper or electronic representation thereof, or any other electronic item. The Board proposes to delete the term “electronic item” in current § 210.5(a)(5)(ii) and replace it with “electronic check.”

Current § 210.5(a)(5)(ii)(A) provides that a sender of an original check is not liable for any amount that the Reserve Bank pays under subpart D of Regulation CC for a subsequently created substitute check or under § 210.6(b)(3) for an electronic item, absent the sender's agreement to the contrary. The Board proposes to delete the reference to current § 210.6(b)(3), which lists warranties and an indemnity for an electronic item that is not a representation of a substitute check, and replace it with a reference to § 229.34 of this chapter with respect to an electronic check, consistent with other proposed amendments to § 210.6(b) described below.

Current § 210.5(a)(5)(ii)(B) provides that nothing in Regulation J alters the liability structure that applies to substitute checks and paper or electronic representations of substitute checks under subpart D of Regulation CC. The Board proposes to add that this subpart also does not alter the liability of a sender of an electronic check under § 229.34, consistent with the other proposed revisions to Regulation J.

Current § 210.5(a)(5)(ii)(C) provides that a sender of an electronic item that is not a representations of a substitute check is not liable for any related warranties or indemnities that a Reserve Bank pays that are attributable to the Reserve Bank's own lack of good faith or failure to exercise ordinary care. The Board proposes to broaden this provision by applying the limitation on liability to all senders for any amount that the Reserve Bank pays that is attributable to the Reserve Bank's own lack of good faith or failure to exercise ordinary care under Regulation J or Regulation CC. The Board proposes to redesignate this section as § 210.5(a)(5)(iii) and make conforming changes to cross-references.

Section 210.5(c) sets out the procedures by which a Reserve Bank may recover against a sender if certain actions or proceedings related to the sender's actions are brought against (or defense is tendered to) a Reserve Bank. A portion of this section was inadvertently dropped from the Code of Federal Regulations. The Board proposes to reinstate the dropped language, which provides that, upon entry of a final judgment or decree, a Reserve Bank may recover from the sender the amount of attorneys' fees and other expenses of litigation incurred, as well as any amount the Reserve Bank is required to pay because of the judgment or decree or the tender of defense, with interest. In addition, the Board proposes to correct cross-references to this provision in § 210.5(d).

Current § 210.5(e) provides that when a sender sends an item to a Reserve Bank, the sender and any prior collecting bank grant to the sender's Administrative Reserve Bank a security interest in all of their respective assets in the possession of, or held for the account of, any Reserve Bank to secure their respective obligations due or to become due to the Administrative Reserve Bank under this subpart or subpart C of part 229 of this chapter (Regulation CC). The Board proposes to amend this subsection to reference subpart D of Regulation CC in addition to subpart C, as senders may have obligations to Reserve Banks under that subpart as well.

Section 210.6(a)(2) limits a Reserve Bank's liability with respect to an item to three instances: (1) The Reserve Bank's own lack of good faith or failure to exercise ordinary care, (2) as provided in this section of Regulation J, and (3) as provided in subparts C and D of Regulation CC. The Board proposes to expand this list to provide that a Reserve Bank may be liable under any warranties and indemnities provided in an operating circular issued in accordance with § 210.3(a) regarding the sending of items.

Section 210.6(b) sets forth the warranties and indemnities made by a Reserve Bank when it presents or sends an item. In alignment with the Board's proposed amendments to the sender's warranties in § 210.5(a), the Board proposes to replace current §§ 210.6(b)(2) and (3), which provide warranties and indemnities for electronic items and electronic items that are not representations of substitute checks, respectively. Those warranties are now covered by Regulation CC. The Board also proposes to make a conforming amendment to § 210.6(b)(1)(iii) to eliminate the unnecessary reference to “paper or electronic form.”

The Board proposes a new § 210.6(b)(2) to provide that a Reserve Bank would make any warranties or indemnities regarding the sending of items as set forth in an operating circular issued pursuant to proposed § 210.3(a). This language corresponds to the similar proposed provision for sender liability in § 210.5(a)(4).

The Board proposes a new § 210.6(b)(3) to provide that the Reserve Bank makes to a subsequent collecting bank and to the paying bank all the warranties and indemnities set forth in subparts C and D for Regulation CC. Proposed § 210.6(b)(3) would retain the existing application of U.C.C. 4-207 warranties to electronic items (now called electronic checks).

In § 210.6(b)(4), the Board proposes to retain the existing Reserve Bank indemnity for substitute checks created from electronic checks, which is in current § 210.6(b)(3)(ii). This provision provides an indemnity chain for substitute check indemnity claims under Regulation CC, enabling receiving banks (and, in turn, Reserve Banks) to pass the loss on such claims to the bank whose choice to handle an item electronically necessitated the later creation of a substitute check.

The limitations on Reserve Bank liability are set forth in proposed (and current) § 210.6(a)(2). The Board is proposing to delete this subsection as it is redundant and to redesignate current subsection (d) as subsection (c).

Section 210.7(b) provides the places of presentment for a Reserve Bank or subsequent collecting bank. Current § 210.7(b)(2) states “In the case of a check as defined in 12 CFR 229.2(k), in accordance with 12 CFR 229.36.” In alignment with the Board's proposed deletion of the defined term “check as defined in 12 CFR 229.2(k),” the Board proposes to delete the use of that term in § 210.7(b)(2), as it is no longer needed, and make other minor edits. As a result, proposed § 210.7(b)(2) would state “In accordance with § 229.36 of this chapter (Regulation CC).”

Current § 210.9(b)(5) requires that settlement for cash items with a Reserve Bank be made by debit to an account on the Reserve Bank's books, cash, or other form of settlement to which the Reserve Bank agrees. As discussed in the overview section, the use of cash as a means of settlement is quite rare and generally used only in emergencies. Accordingly, the Board proposes to amend this provision by removing the reference to cash as a means of settlement. A Reserve Bank could continue to accept cash or other forms of settlement by agreement in special situations. The Board also proposes to make conforming amendments to §§ 210.9(c) and (d), as well as to remove the references to other rarely-used forms of settlement (cashier's checks, certified checks, or other bank drafts or obligations). The Board is also proposing to correct cross-references and to capitalize the term “Administrative Reserve Bank” wherever it appears to conform to the defined term in § 210.2(c).

Current § 210.9(e) states that a Reserve Bank may handle a bank draft or other form of payment it receives in payment of a cash item as a cash item and that a Reserve Bank may handle a bank draft or other form of payment it receives in payment of a noncash item as either a cash item or a noncash item. The Board proposes to delete this section as it is now obsolete.

Current § 210.9(f) states that a Reserve Bank that acts in good faith and exercises ordinary care shall not be liable for the nonpayment of, or failure to realize upon, any bank draft or other form of payment that it accepts pursuant to § 210.9(b)-(d). The Board proposes to renumber this subsection as § 210.9(e) and to replace the reference to “bank draft or other form of payment” with “any non-cash form of payment” to conform to the proposed changes to the other provisions of this section.

Section 210.10(a) states that each Reserve Bank shall “include in its operating circulars” its time schedules for availability of cash items and returned checks and, correspondingly, when credits can be counted toward reserve balance requirements for purposes of Regulation D (12 CFR part 204). The Reserve Banks' practice is to publish the time schedules on the Federal Reserve website for financial services. Accordingly, the Board proposes to amend this section to delete the requirement that time schedules be included in the operating circulars and, instead, require only that the time schedules be published.

Section 210.11(b) states that a Reserve Bank may give credit for the proceeds of a noncash item subject to payment in actually and finally collected funds in accordance with a time schedule included in its operating circulars. To conform to amendments made in proposed § 210.10, the Board proposes to delete the reference to operating circulars and require only that the time schedule be published.

Current § 210.11(c) prohibits a Reserve Bank from providing credit for a bank draft or other form of payment for a noncash item until it receives payment in actually and finally collected funds. The Board proposes to delete this subsection, as actually and finally collected funds are already required by § 210.11(a).

Section 210.12 sets out the provisions governing the handling of returned checks. It is the counterpart to §§ 210.5 and 210.6, which govern the handling of items for forward collection.

Current § 210.12(a)(2) sets out the procedures by which a paying bank may return checks not handled by Reserve Banks and references “check as defined in § 229.2(k) of this chapter (Regulation CC).” In alignment with the Board's proposal to delete the defined term “check as defined in § 229.2(k)” in § 210.2(h), the Board proposes to delete the use of this term in this section, as it is no longer needed, and to use the term “check” instead.

Current § 210.12(c) provides the warranties, authorizations, and agreements related to returned checks made by paying banks and returning banks. The Board proposes amendments to this section that are parallel to the proposed amendments for forward-collection items with respect to the liability of the sender (§ 210.5(a)(3)) and the Reserve Banks (§ 210.6(b)(2)). Specifically, the Board proposes to replace current §§ 210.12(c)(3) and (4), which provide warranties for all returned checks that are electronic items and warranties for returned checks that are electronic items that are not representations of substitute checks, respectively, with a provision that requires the paying bank or returning bank to make all the warranties and indemnities as set forth in Regulation CC, as applicable (proposed § 210.12(c)(3)).

Current § 210.12(c)(5) sets out the conditions under which a paying bank or returning bank is liable to a Reserve Bank. The Board proposes to redesignate this paragraph as § 210.12(c)(4) and amend the paragraph to correspond with the proposed amendments to the section on sender's liability to a Reserve Bank (§ 210.5(a)(4)). These proposed amendments are intended to create consistent liability provisions for senders, paying banks, and returning banks.

Current § 210.12(d) is titled “Preservation of other warranties and indemnities.” The Board proposes to change the title of this section to “Returning bank's or paying bank's liability under other law” to mirror the heading for the corresponding section for senders (§ 210.5(b)).

Current § 210.12(e) sets forth a Reserve Bank's liability when it handles a returned check, including warranties and liabilities. The Board proposes to amend this section to correspond to the amendments proposed in § 210.6(b) related to the warranties and liabilities that are made by Reserve Banks when presenting or sending an item.

Section 210.12(f) parallels § 210.5(c) and sets out the procedures by which a Reserve Bank may recover against a paying bank or returning bank if certain actions or proceedings related to the paying bank's or returning bank's actions are brought against (or defense is tendered to) a Reserve Bank. A portion of this section was inadvertently dropped from the Code of Federal Regulations. The Board proposes to reinstate the dropped language, which provides that, upon entry of a final judgment or decree, a Reserve Bank may recover from the paying bank or returning bank the amount of attorneys' fees and other expenses of litigation incurred, as well as any amount the Reserve Bank is required to pay because of the judgment or decree or the tender of defense, with interest. In addition, the Board proposes to correct cross-references and make organizational changes in § 210.12(g).

Section 210.25 sets out the authority, purpose, and scope for subpart B of Regulation J, which governs Fedwire funds transfers. The Board proposes to add a new § 210.25(e) to clarify that financial messaging standards (e.g., ISO 20022), including the financial messaging components, elements, technical documentation, tags, and terminology used to implement those standards, do not confer or connote legal status or responsibilities. The proposed amendment would specify that Regulation J, Article 4A of the U.C.C., and the operating circulars of the Reserve Banks govern the rights and obligations of parties to the Fedwire Funds Service and supersede any inconsistency between a financial messaging standard adopted by the Fedwire Funds Service. Additionally, the Board proposes to add in the commentary examples of inconsistent terminology between the ISO 20022 financial messaging standard and U.S. funds transfer law.

Section 210.2(e) defines the term “Fedwire” to mean the funds-transfer system owned and operated by the Federal Reserve Banks that is used primarily for the transmission and settlement of payment orders governed by Subpart B. The Board is proposing to amend this definition so that it applies to the official title of the service, “Fedwire Funds Service,” as well as the shorthand term “Fedwire.” The Board also proposes to change references to “Fedwire” to “Fedwire Funds Service” in §§ 210.9(b)(4)(i), 210.25(a) and (b)(3), and 210.29(b).

Current § 210.32 sets out provisions that govern Federal Reserve Bank liability and payment of interest. Section 210.32(b) provides that compensation that is paid by Federal Reserve Banks in the form of interest shall be calculated in accordance with section 4A-506 of Article 4A. Under section 4A-506(a), the amount of interest may be determined by agreement between the sender and receiving bank or by funds-transfer system rule. If there is no such agreement, under section 4A-506(b), the amount of interest is based on the federal funds rate. The current commentary to § 210.32(b) states that “Interest would be calculated in accordance with the procedures specified in section 4A-506(b).” The Board proposes to delete this statement and rearrange the commentary to clarify that interest can be calculated in accordance with both section 4A-506(a) and (b).

The Board conducts a competitive impact analysis when it considers an operational or legal change, if that change would have a direct and material adverse effect on the ability of other service providers to compete with the Federal Reserve in providing similar services due to legal differences or due to the Federal Reserve's dominant market position deriving from such legal differences. All operational or legal changes having a substantial effect on payments-system participants will be subject to a competitive-impact analysis, even if competitive effects are not apparent on the face of the proposal. If such legal differences exist, the Board will assess whether the same objectives could be achieved by a modified proposal with lesser competitive impact or, if not, whether the benefits of the proposal (such as contributing to payments-system efficiency or integrity or other Board objectives) outweigh the materially adverse effect on competition.16

The Board does not believe that the amendments to Regulation J will have a direct and material adverse effect on the ability of other service providers to compete effectively with the Reserve Banks in providing similar services due to legal differences. The amendments would align the provisions in Regulation J governing Reserve Bank services to the generally applicable provisions in Regulation CC. The proposed amendment would not affect the competitive position of private-sector presenting banks vis-à-vis the Reserve Banks.

In accordance with the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3506; 5 CFR part 1320 Appendix A.1), the Board may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a valid Office of Management and Budget (OMB) control number. The Board reviewed the proposed rule under the authority delegated to the Board by the OMB and determined that it contains no collections of information under the PRA.17 Accordingly, there is no paperwork burden associated with the rule.

The Regulatory Flexibility Act (the “RFA”) (5 U.S.C. 601 et seq.) requires agencies either to provide an initial regulatory flexibility analysis with a proposed rule or to certify that the proposed rule will not have a significant economic impact on a substantial number of small entities. In accordance with section 3(a) of the RFA, the Board has reviewed the proposed regulation. In this case, the proposed rule would apply to all depository institutions. This Initial Regulatory Flexibility Analysis has been prepared in accordance with 5 U.S.C. 603 in order for the Board to solicit comment on the effect of the proposal on small entities. The Board will, if necessary, conduct a final regulatory flexibility analysis after consideration of comments received during the public comment period.

The Board is proposing the foregoing amendments to Regulation J pursuant to its authority under the Federal Reserve Act, the EFA Act; the Check 21 Act, and other laws. The proposal clarifies and simplifies certain provisions of Subpart A of Regulation J, removes obsolete provisions, and aligns the rights and obligations of sending banks, paying banks, and Reserve Banks with the Board's recent amendments to Regulation CC to reflect the virtually all-electronic check collection and return environment. The proposed rule would also amend subpart B of Regulation J to clarify the legal status of terms in financial messaging standards.

The proposed rule would apply to all depository institutions regardless of their size.18 Pursuant to regulations issued by the Small Business Administration (13 CFR 121.201), a “small banking organization” includes a depository institution with $550 million or less in total assets. Based on call report data as of June 2017, there are approximately 9,918 of depository institutions that have total domestic assets of $550 million or less and thus are considered small entities for purposes of the RFA.

The Board's proposed rule generally does not have any projected reporting, recordkeeping or other compliance requirements, as the proposed amendments to Regulation J align the rights and obligations of sending banks, paying banks, and Federal Reserve Banks (Reserve Banks) with the Board's recent amendments to Regulation CC. The proposed warranties and indemnities are similar to the warranties and indemnities that apply to paper and electronic checks under existing Regulation J and other law. The proposed amendments do not require any bank to change the form in which it submits checks, nor do they require any bank to submit reports, maintain records, or provide notices or disclosures.

With respect to ECIs, the Board recognizes that the proposed amendments that would allow the Reserve Banks to require senders to provide certain warranties and indemnities may affect the creation and acceptance of ECIs by small entities. However, the Board's proposed amendments would not prevent small entities that desire to exchange ECIs from doing so by agreement using direct exchange relationships or other methods not involving the Reserve Banks. The Board believes the proposed amendments will help to shift liability to parties better positioned to know whether an item is electronically created and that can either prevent the item from entering the check-collection system or assume the risk of sending it forward.

Furthermore, the Board does not expect the Board's proposed amendments to remove references to cash and other specified forms of settlement to burden small entities, as the use of cash as settlement is rare and typically only done in emergency situations. The Board's proposed amendment would allow use of cash as settlement in emergency situations by continuing to permit other forms of settlement to which the Reserve Banks agree.

The Board notes that subparts C and D of Regulation CC overlap with the proposed rule with respect to checks collected or returned through the Reserve Banks. The Board's intent in proposing the amendments is, in part, to align Regulation J with Regulation CC and incorporate certain provisions by reference, thereby reducing the need for duplication and improving consistency between the regulations. The provisions of Regulation J would supersede any inconsistent provisions of Regulation CC, but only to the extent of the inconsistency.19 The Board knows of no other duplicative, overlapping, to conflicting Federal rules related to this proposal.

The Board welcomes comment on the impact of the proposed rule on small entities and any approaches, other than the proposed amendments, that would reduce the burden on all entities.

For the reasons set forth in the preamble, the Board proposes to amend 12 CFR part 210 as follows:

The revisions and additions read as follows:

The revisions read as follows:

The revision reads as follows:

The revisions and additions read as follows:

(a) Section 210.9(b)(4)(i)(A);

(b) Sections 210.25(a), (b)(3); and

(c) Section 210.29(b).

Appendix A to subpart B of part 210 [Amended]

(a) Under “Section 210.25—Authority, Purpose, and Scope”, add paragraph (e).

(b) Under “Section 210.32—Federal Reserve Bank Liability; Payment of Interest”, revise paragraph (b).

The additions and revisions read as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace at Mesquite Airport, Mesquite, NV to support IFR operations at the airport.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2018-007; Airspace Docket No. 17-AWP-18”. The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 2200 S 216th St., Des Moines, WA 98198-6547.

This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying Class E airspace extending upward from 700 feet above the surface at Mesquite Airport, Mesquite, NV, to within 2.5 miles northwest and 5.5 miles southeast (from 1.8 miles each side) of the airport 233° bearing (from the Mormon Mesa VORTAC 068° bearing) extending to 10 miles southwest of the airport. This proposed airspace redesign is necessary to accommodate new RNAV procedures for this airport.

Additionally, this action would update the geographic coordinates of the airport to match the FAA's aeronautical database.. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

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, is non-controversial and unlikely to result in adverse or negative comments. 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. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class D airspace, at Appleton International Airport, Appleton, WI, to support instrument flight rules (IFR) operations at the airport.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2018-0006/Airspace Docket No. 18-AGL-1.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Federal Aviation Administration, Air Traffic Organization, Central Service Center, Operations Support Group, 10101 Hillwood Parkway, Fort Worth, TX 76177.

This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying Class D airspace extending upward from the surface to and including 3,400 feet MSL within a 4.2-mile radius (decreased from a 4.4-mile radius) of Appleton International Airport (formerly Outagamie County Airport), Appleton, WI. Airspace reconfiguration is necessary due to the decommissioning of the GAMIE LOM/OM.

This proposal also would update the airport name and geographic coordinates of the airport to coincide with the FAA's aeronautical database.

Additionally, this action would make an editorial change to the Class D airspace legal description replacing “Airport/Facility Directory” with the term “Chart Supplement”.

Finally, an editorial change would be made removing the name of the city associated with the airport name in the airspace designation to comply with a recent change to FAA Order 7400.2L, Procedures for Handling Airspace Actions, dated October 12, 2017.

Class D airspace designations are published in paragraph 5000, of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1

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, is non-controversial and unlikely to result in adverse or negative comments. 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. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation administration proposes to amend 14 CFR part 71 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace at Altoona-Blair County Airport, Altoona, PA, to support IFR operations at the airport.

Interested persons are invited to comment on this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (Docket No. FAA-2018-0129 and Airspace Docket No. 18-AEA-4) and be submitted in triplicate to DOT Docket Operations (see ADDRESSES section for the address and phone number.) You may also submit comments through the internet at http://www.regulations.gov.

Persons wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2018-0129; Airspace Docket No. 18-AEA-4.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this document may be changed in light of the comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined between 8:00 a.m. and 4:30 p.m., Monday through Friday, except federal holidays at the office of the Eastern Service Center, Federal Aviation Administration, Room 350, 1701 Columbia Avenue, College Park, GA 30337.

This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to amend Class E surface area airspace, and Class E airspace extending upward from 700 feet or more above the surface due to the decommissioning of the Altoona VOR and cancelation of associated approaches at Altoona-Blair County Airport, Altoona, PA.

The Class E surface area airspace would be amended to within a 4.7-mile (from a 4-mile) radius of the airport, with a segment 1.0-mile each side of the 026° bearing from the airport to 8.7 miles northeast. The segment extending from the Altoona VOR to 7.4 miles northeast of the VOR would be removed.

The Class E airspace area extending upward from 700 feet above the surface would be amended to within an 11.2-mile (from a 6.5-mile) radius of the airport. The segment extending from the Altoona VOR to 16 miles northeast of the VOR would be removed. These changes would enhance the safety and management of IFR operations at the airport.

Class E airspace designations are published in Paragraphs 6002 and 6005, respectively of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

The FAA has determined that this proposed 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. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

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).

1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

3. Environmental justice. EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. To help address potential environmental justice issues, the Agency seeks information on any groups or segments of the population who, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticides discussed in this document, compared to the general population.

EPA is announcing receipt of a pesticide petition filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the request before responding to the petitioner. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petition described in this document contains data or information prescribed in FFDCA section 408(d)(2), 21 U.S.C. 346a(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the pesticide petition. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on this pesticide petition.

Pursuant to 40 CFR 180.7(f), a summary of the petition that is the subject of this document, prepared by the petitioner, is included in a docket EPA has created for this rulemaking. The docket for this petition is available at http://www.regulations.gov.

As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is publishing notice of the petition so that the public has an opportunity to comment on this request for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petition may be obtained through the petition summary referenced in this unit.

PP 6F8521. (EPA-HQ-OPP-2015-0787). K-I Chemical USA, Inc., 11 Martine Ave., Suite 970, White Plains, NY 10606, requests to establish tolerances in 40 CFR 180.659 for residues of the herbicide, pyroxasulfone (3-[(5-(difluoromethoxy)-1-methyl-3-(trifluoromethyl) pyrazole-4-ylmethylsulfonyl]-4,5-dihydro-5,5-dimethyl-1,2-oxazole), and its metabolites in or on Crop Subgroup 1C, tuberous and corm vegetables (except granular/flakes and chips) at 0.05 part per million (ppm); Crop Subgroup 3-07, bulb vegetables at 0.15 ppm; potatoes, granular/flakes at 0.3 ppm and potato chips at 0.06 ppm. The high performance liquid chromatography/triple quadrupole mass spectrometry (LC/MS/MS) methods has been proposed to enforce the tolerance expression for pyroxasulfone. Contact: RD.

This advance notice of proposed rulemaking (ANPRM) has two sections: Background that describes the authority on which the ANPRM is based and establishes the rationale for its issuance, and Questions for Comment wherein we solicit comment on the AFCARS regulations.

Section 479 of the Social Security Act (the Act) requires HHS to regulate a data collection system for national adoption and foster care data that provides comprehensive national information on the following:

• Demographic characteristics of adopted and foster children and their biological and adoptive or foster parents;

• Status and characteristics of the foster care population;

• Number and characteristics of children entering and exiting foster care, children adopted or for whom adoptions have been terminated, and children placed in foster care outside of the state which has placement and care responsibility for them;

• Extent and nature of assistance provided by government programs for foster care and adoption and the characteristics of the children that receive the assistance; and

• Number of foster children identified as sex trafficking victims before entering and while in foster care.

Section 474(f) of the Act requires HHS to impose penalties for non-compliant AFCARS data. Section 1102 of the Act instructs the Secretary to promulgate regulations necessary for the effective administration of the functions for which HHS is responsible under the Act.

We published a final rule to revise the AFCARS regulations on December 14, 2016 (81 FR 90524) and required title IV-E agencies to continue to report AFCARS data in accordance with § 1355.40 and the appendix to part 1355 until September 30, 2019 and provided two fiscal years for title IV-E agencies to comply with §§ 1355.41 through 1355.47 of the final rule. In a notice of proposed rulemaking published elsewhere in this issue of the Federal Register, we propose to delay the compliance dates in regulations and the effective date of revisions to the AFCARS regulations made in the final rule from October 1, 2019, to October 1, 2021.

The final rule was a culmination of two notices of proposed rulemaking (issued January 11, 2008 (73 FR 2082) and February 9, 2015 (80 FR 7132)) and a supplemental notice of proposed rulemaking (issued April 7, 2016 (81 FR 20283)). The final rule updated the AFCARS regulations to include child welfare legislative changes that occurred since 1993, included data elements related to the Indian Child Welfare Act of 1978 (ICWA), and implemented fiscal penalties for noncompliant AFCARS data.

On February 24, 2017, the President issued Executive Order 13777 on Enforcing the Regulatory Reform Agenda to lower regulatory burdens on the American people. In response to the President's direction that federal agencies establish a Regulatory Reform Task Force to review existing regulations and make recommendations regarding their repeal, replacement, or modification, we have identified the AFCARS regulation as one in which the reporting burden may impose costs that exceed benefits. We are specifically soliciting comments on the data elements and their associated burden through this ANPRM.

Public comments to this ANPRM will allow us to assess whether and how we can potentially reduce burden on title IV-E agencies to report AFCARS data while still adhering to the requirements of section 479 of the Act and collecting useful data that will inform efforts to improve the child welfare system. We encourage state and tribal title IV-E agencies that did not previously comment to do so now. Some state title IV-E agencies provided in their previous comments specific information on compliance cost and burden estimates; however, we received too few estimates to reference for calculating the cost and burden associated with this final rule. We encourage agencies to be as specific as possible when commenting on this ANPRM. We will take comments and estimates into consideration in revising the regulation.

For a full picture of the AFCARS regulation, we invite commenters to review the AFCARS regulation and accompanying information that CB issued on our website, which can be found here: https://www.acf.hhs.gov/cb/laws-policies/whats-new.

1. Identify the data elements, non-ICWA-related, that are overly burdensome for state and tribal title IV-E agencies and explain why. Please be specific in identifying the data elements and provide a rationale for why collecting and reporting this information is overly burdensome. If possible, provide specific cost and burden estimates related to the following areas:

a. Recordkeeping hours spent annually:

i. Searching data sources, gathering information, and entering the information into the electronic case management system,

ii. Developing or modifying procedures and systems to collect, validate, and verify the information and adjusting existing procedures to comply with AFCARS requirements, and

iii. Training and administrative tasks associated with training personnel on the AFCARS requirements (e.g., reviewing instructions, developing the training and manuals).

b. Reporting hours spent annually extracting the information for AFCARS reporting and transmitting the information to ACF.

2. Previously, we received comments regarding burden and the system changes needed to report the ICWA-related data elements of the 2016 SNPRM. We would like to receive more detailed comments on the specific limitations we should be aware of that states will encounter in reporting the ICWA-related data elements in the final rule. Please be specific in identifying the data elements and provide a rationale for why this information is overly burdensome. If possible, provide specific cost and burden estimates related to the following areas:

a. The number of children in foster care who are considered Indian children as defined in ICWA.

b. Recordkeeping hours spent annually:

i. Searching data sources, gathering information, and entering the information into the electronic case management system,

ii. Developing or modifying procedures and systems to collect, validate, and verify the information and adjusting existing ways to comply with AFCARS requirements, and

iii. Training and administrative tasks associated with training personnel on the AFCARS requirements (e.g., reviewing instructions, developing the training and manuals).

c. Reporting hours spent annually extracting the information for AFCARS reporting and transmitting the information to ACF.

3. Previously, we received comments that particular data elements did not lend themselves to national statistics and were best assessed with qualitative methods such as case review. Please provide specific recommendations on which data elements in the regulation to retain that are important to understanding and assessing the foster care population at the national level. Also, provide a rationale for your suggestion that may include its relevance to monitor compliance with the title IV-B and IV-E programs or another strong justification for using the data at the national level.

4. Previously we received comments noting concerns with variability in some of the data elements across states and within jurisdictions. Please provide specific suggestions to simplify data elements to facilitate the consistent collection and reporting of AFCARS data. Also, provide a rationale for each suggestion and how the simplification would still yield pertinent data.

5. Previously we received comments questioning the utility, reliability, and purpose of certain data elements at the national level. Provide specific recommendations on which data elements in the regulation to remove because they would not yield reliable national information about children involved with the child welfare system or are not needed for monitoring the title IV-B and IV-E programs. Please be specific in identifying the data elements and provide a rationale for why this information would not be reliable or is not necessary.

In the AFCARS final rule issued on December 14, 2016 (81 FR 90524), ACF provided an implementation timeframe of two fiscal years for title IV-E agencies to comply with 45 CFR 1355.41 through 1355.47 (81 FR 90529). On February 24, 2017, the President issued Executive Order 13777 on Enforcing the Regulatory Reform Agenda. In response to the President's direction that federal agencies establish a Regulatory Reform Task Force to review existing regulations and make recommendations regarding their repeal, replacement, or modification, the HHS Task Force identified the AFCARS regulation as one where there may be areas for reducing reporting burden.

Therefore, we are engaging in two regulatory actions to adhere to our obligations under the EO. Through this NPRM, ACF proposes to revise § 1355.40 to provide an additional two fiscal years to comply with §§ 1355.41 through 1355.47. ACF also proposes to delay the effective dates of instructions 3 and 5 in the rule published December 14, 2016 (81 FR 90524), from October 1, 2019, to October 1, 2021. If this rule is finalized, the implementation timeframe would be delayed for title IV-E agencies to make revisions to their systems to comply with §§ 1355.41 through 1355.47. This NPRM is open for a 30-day comment period. Per Executive Order 12866, the typical comment period is 60 days. However, the reasons for the shorter comment period for this NPRM is that any delay in issuing a final rulemaking might lead to title IV-E agencies diverting resources to unnecessary changes to their systems to comply with the December 2016 AFCARS final rule. Furthermore, this rule does not establish additional regulatory obligations or impose any additional burden on regulated entities. ACF believes that a 30-day comment period on this non-substantive rulemaking is a sufficient amount of time for the public to comment and ACF does not believe that a 30-day comment period will hamper public comment. ACF is publishing an ANPRM elsewhere in this issue of the Federal Register to seek suggestions on streamlining the data elements and potentially reducing burden to title IV-E agencies to report AFCARS data.

We propose to revise the compliance date in the regulation to provide an additional two fiscal years to comply with §§ 1355.41 through 1355.47. State and tribal title IV-E agencies must continue to report AFCARS data in the same manner they do currently, per § 1355.40 and appendices A through E of part 1355 until September 30, 2021. We propose that as of October 1, 2021, state and tribal title IV-E agencies must comply with §§ 1355.41 through 1355.47.

In assessing the AFCARS regulation in response to E.O. 13777, we identified the following issues:

• In the December 2016 final rule, there are 272 individual data points, of which 153 data points are new items added to AFCARS. Of the 153 data points, 65 are new items related to the Indian Child Welfare Act (ICWA).

• State commenters expressed concerns with data points that could not be easily reported to AFCARS because they are qualitative data points of which nuances about the circumstances of the child cannot be reported to AFCARS a quantitative data system, they are of a sensitive nature, or could not be aggregated easily at the national level for national statistics. These points included child, adoptive parent, guardian, and foster parent sexual orientation, health assessments, educational information, adoption and guardianship subsidy amounts, and information on legal guardians.

• The scope and complexity of data elements related to ICWA was also a concern. We note that most of the ICWA-related data elements in the December 2016 AFCARS final rule are not tied to statutory reporting requirements in title IV-E or IV-B. Rather, they were finalized to be consistent with the Department of Interior's (DOI) final rule on ICWA (published on June 14, 2016, 81 FR 38778) which is directed to state courts. Furthermore, the majority of the ICWA-related data elements related to activities undertaken by the court are not routinely collected in child welfare electronic databases. The court findings and other activity taking place before the court represent a shift away from a child welfare agency reporting on its own activity to reporting on the activity of an independent third party. This raises questions of efficiency, reliability and consistency, which section 479(c)(1) and 479(c)(2) of the Social Security Act require for the AFCARS data collection.

• We also anticipate states having many questions about how to report the ICWA-related data elements. HHS has no expertise in ICWA compliance, statute, and regulations and is not the cognizant authority over it, yet the December 2016 final rule places HHS in the position of interpreting various ICWA requirements when providing technical assistance to state title IV-E agencies on how to report on those data elements. How states report the data ultimately impacts practice, potentially introducing inconsistency with DOJ and DOI's interpretation of ICWA.

• Costs for system changes, training to consistently collect and report ICWA-related data and time to gather/enter data (sometimes manually) into the case management system.

The Supplemental Notice of Proposed Rulemaking that added the ICWA compliance data elements to the AFCARS was only open for comment for 30 days. This was an insufficient amount of time for states to fairly analyze unfamiliar data elements, accurately calculate burden associated with these elements, and move any comments through their chain of command for submission to HHS for consideration. The ANPRM, on the other hand, will be open for comment for 90 days. It asks title IV-E agencies and the public to comment on the data elements of the December 2016 final rule.

Therefore, in order to get additional feedback on these and other issues we are issuing a proposed rule to delay implementation of the December 2016 AFCARS final rule. As States must go to the expense to revise their data collection systems in response to the December 2016 final rule, we do not want states to incur these costs unnecessarily as we further assess burden under the rule. This is an opportunity for commenters to provide HHS with specific feedback on the data elements and how HHS can revise AFCARS to balance updating requirements, the need for better data, and the burden on title IV-E agencies. Through the aforementioned ANPRM commenters will have the opportunity to tie ICWA related data elements to HHS functions/provisions thus adequately justifying their inclusion in the AFCARS collection.

Executive Orders 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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. ACF consulted with the Office of Management and Budget (OMB) and determined that this rule does meet the criteria for a significant regulatory action under E.O. 12866. Thus, it was subject to OMB review. ACF determined that the costs to title IV-E agencies as a result of this rule will not be significant as defined in Executive Order 12866 (have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities). Because the rule is not economically significant as defined in E.O. 12866, no cost-benefit analysis needs to be included in this NPRM. This proposed rule, if finalized as proposed, would be considered an E.O. 13771 deregulatory action.

The Secretary certifies, under 5 U.S.C. 605(b), as enacted by the Regulatory Flexibility Act (Pub. L. 96-354), that this proposed rule will not result in a significant impact on a substantial number of small entities. This proposed rule does not affect small entities because it is applicable only to state and tribal title IV-E agencies.

The Unfunded Mandates Reform Act (Pub. L. 104-4) requires agencies to prepare an assessment of anticipated costs and benefits before proposing any rule that may result in an annual expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation). That threshold level is currently approximately $146 million. This proposed rule does not impose any mandates on state, local, or tribal governments, or the private sector that will result in an annual expenditure of $146 million or more.

This regulation is not a major rule as defined in 5 U.S.C. 8.

Section 654 of the Treasury and General Government Appropriations Act of 2000 (Pub. L. 106-58) requires federal agencies to determine whether a policy or regulation may affect family well-being. If the agency's determination is affirmative, then the agency must prepare an impact assessment addressing seven criteria specified in the law. This proposed rule will not have an impact on family well-being as defined in the law.

Under the Paperwork Reduction Act (44 U.S.C. 35, as amended) (PRA), all Departments are required to submit to OMB for review and approval any reporting or recordkeeping requirements inherent in a proposed or final rule. PRA rules require that ACF estimate the total burden created by this proposed rule regardless of what information is available. ACF provides burden and cost estimates using the best available information. Information collection for AFCARS is currently authorized under OMB number 0970-0422. This notice of proposed rulemaking does not make changes to the AFCARS requirements for title IV-E agencies; it delays the effective date and provides title IV-E agencies with additional time to comply with sections 1355.41 through 1355.47. Thus, the annual burden hours for recordkeeping and reporting does not change from those currently authorized under OMB number 0970-0422. Therefore, we are not seeking comments on any information collection requirements through this NPRM.

For the reasons set forth in the preamble, we propose to amend 45 CFR part 1355 as follows:

Correction

In the Federal Register of March 2, 2018, in FR Doc. 2018-04359, on page 8962, in the third column, correct the DATES section to read:

Executive Summary

Why we need to publish this document. Under the Endangered Species Act, a species may warrant protection through listing if it is endangered or threatened throughout all or a significant portion of its range. Listing a species as an endangered or threatened species can only be completed by issuing a rule. We issued a proposed rule to list Chorizanthe parryi var. fernandina in 2016. This document withdraws that proposed rule because, based on our evaluation of the best scientific and commercial information available at this time, we have determined that threats have been reduced such that listing is no longer necessary for this plant.

The basis for our action. Under the Endangered Species Act, we can determine that a species is an endangered or threatened species based on 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 threats have been reduced such that listing is no longer necessary for this plant.

Peer review and public comment. We sought comments from independent specialists to ensure that our analysis was based on scientifically sound data, assumptions, and analyses. We invited these peer reviewers to comment on the information we relied upon in making our listing proposal, including the Species Report for the San Fernando Valley Spineflower (Chorizanthe parryi var. fernandina) (Service 2016). We also considered all comments and information we received during the comment periods.

On September 15, 2016, we published a proposed rule (81 FR 63454) to list Chorizanthe parryi var. fernandina as a threatened species under the Act (16 U.S.C. 1531 et seq.). Please refer to this proposed rule for information on Federal actions prior to September 15, 2016.

Under section 4(b)(6) of the Act, the Service is required to make a final listing determination within 1 year from the publication of the proposed rule, by publishing either a final listing rule or a withdrawal of the proposed rule, or extending the final determination by not more than 6 months under certain circumstances specified in the Act. On July 19, 2017, the Service published a 6-month extension of the final determination on the proposed threatened status for C. parryi var. fernandina and reopened the comment period on the proposal for an additional 30 days (82 FR 33035).

After publication of the proposed rule in the Federal Register, the Service and the Newhall Land and Farming Company (Newhall Land) developed a candidate conservation agreement (2017 CCA) for C. parryi var. fernandina to implement conservation measures to improve the status of the plant. On November 13, 2017 (82 FR 52262), the Service reopened the comment period on the proposed rule to list C. parryi var. fernandina as a threatened species for an additional 30 days so that interested parties and the public could review and comment on the additional conservation measures provided by the 2017 CCA.

During all three comment periods on the September 15, 2016, proposed rule, the Service requested additional information on the status of C. parryi var. fernandina or its habitat so that we could analyze this additional information as part of the final listing process. As part of our analysis, we also evaluated the certainty of effectiveness and certainty of implementation of the additional conservation measures that the 2017 CCA signatories have committed to implement.

A thorough review of information that we relied on in making this determination—including information on taxonomy, life history, ecology, population distribution and abundance, land ownership, and potential threats—is presented in the Species Report for the San Fernando Valley Spineflower (Chorizanthe parryi var. fernandina) (Species Report; Service 2016), available on the internet at http://regulations.gov under Docket No. FWS-R8-ES-2016-0078. A summary of this analysis is included in the September 15, 2016, proposed rule (81 FR 63454) and appears below. We used data specific to C. parryi var. fernandina when available.

Chorizanthe parryi var. fernandina currently occupies up to a total of 35-40 acres (ac) (14-16 hectares (ha)) from two populations in Southern California that are 17 miles (mi) (27 kilometers (km)) apart (see Figure 1, above). The Laskey Mesa population is in Ventura County, California, within the Upper Las Virgenes Canyon Open Space Preserve on land owned by the Santa Monica Mountains Conservancy (SMMC) and the Mountains Recreation Conservation Authority (MRCA) (SMMC 2015). The Santa Clarita population is in Los Angeles County on land owned by Newhall Land (Dudek 2010, pp. 16-17). The Laskey Mesa population currently occupies approximately 15-20 ac (6.1-8.1 ha) (GLA 2000, p. 6; Sapphos 2001, p. 5-2; Sapphos 2003a, p. 3; Cooper 2015, pp. 8-10); the Santa Clarita population currently has a cumulative occupied area of approximately 20 ac (8.2 ha) (Dudek 2010, p. 63).

Comparing annual numbers of C. parryi var. fernandina individuals over time is complicated because: (1) Different methodologies and levels of effort have been used to estimate population numbers across both extant populations during survey efforts since 1999; and (2) as is typical of many annual plants, C. parryi var. fernandina shows inter-annual variation in abundance by several orders of magnitude, ranging from hundreds to millions of individuals. Therefore, occupied area or distribution of the populations is an appropriate surrogate measure for plant population size. The Santa Clarita population has roughly the same occupied acreage as Laskey Mesa but is more widely distributed across the landscape, scattered over a range of 4 mi (6.4 km) from east to west, and 4 mi (6.4 km) north to south.

Based upon our review of the public comments, comments from other Federal and State and County agencies, partner and peer review comments (see Summary of Comments and Recommendations, below) and any new relevant information that may have become available since the September 15, 2016, publication of the proposed rule, we reevaluated our proposal. That reevaluation is reflected in this document as follows:

(1) Based on our analyses, the Service has determined that Chorizanthe parryi var. fernandina should not be listed as a threatened species. This document withdraws the proposed rule published on September 15, 2016 (81 FR 63454).

(2) This document summarizes and evaluates the 2017 CCA and provides an analysis using the Service's Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE) (68 FR 15100; March 28, 2003). See Ongoing and Future Conservation Efforts, below.

(3) This document summarizes and evaluates the effects of the December 5, 2017, Rye Fire to Chorizanthe parryi var. fernandina at Newhall Ranch (Santa Clarita population). See Summary of Biological Status and Factors Affecting the Species, below.

Below, we summarize conservation efforts that provide benefits to C. parryi var. fernandina that are already occurring or are expected to occur in the future. We have also completed an analysis of the newly initiated efforts in the 2017 CCA pursuant to PECE. The full PECE analysis can be found at http://www.regulations.gov at Docket No. FWS-R8-ES-2016-0078.

For the Santa Clarita population, the California Department of Fish and Wildlife (CDFW) approved the 2010 Newhall Ranch Spineflower Conservation Plan (SCP) and issued an incidental take permit (permit no. 2081-2008-012-05, the ITP) under the California Endangered Species Act, California Fish and Game Code section 2050-2085 (CESA) in 2010, for the SCP and proposed Newhall Land development within the SCP area that would result in the partial removal of C. parryi var. fernandina. The SCP serves as the mitigation and conservation plan for the purposes of the State ITP (CDFG 2010, p. 2). Through the SCP, the CDFW has required Newhall Land to provide for the perpetual conservation and management of seven spineflower preserves within the Santa Clarita population, totaling 228 ac (92 ha), located within the SCP enrolled lands on Newhall Land property. The SCP spineflower preserves contain approximately three-quarters of the cumulative occupied spineflower habitat on Newhall Land property, totaling approximately 15 ac (6 ha). Newhall Land has granted conservation easements to the CDFW over all of the SCP spineflower preserves. The SCP conservation measures include habitat enhancement and creation for spineflower, and experimental introduction of spineflower in areas outside of existing occupied habitat. The SCP also includes management actions within the preserves to reduce indirect effects of the proposed development (including those from nonnative, invasive grasses and Argentine ants). Newhall Land is implementing an adaptive management program for impacts under the SCP (Dudek 2010a, p. 141) and the Argentine Ant Control Plan (Dudek 2014c, p. 22). Permanent conservation easements for the preserves have been established. Newhall Land has already provided endowments to fund management and monitoring of the SCP spineflower preserves, and will provide more funding in SCP endowments as required by the ITP. The SCP is available at http://www.regulations.gov under Docket No. FWS-R8-ES-2016-0078.

Newhall Land has also deposited funds with the National Fish and Wildlife Foundation for management of C. parryi var. fernandina at the Laskey Mesa population. The August 2014 PAR and September 2014 memorandum prepared by Dudek identify the management activities for C. parryi var. fernandina at Laskey Mesa as part of the SCP (Newhall Land and Dudek 2014, entire). The funding is to be used for on-the-ground management activities that include research studies, fencing, weeding, surveys, annual reporting, and other activities. When this funding becomes accessible, we anticipate that the MRCA will implement the identified management activities.

The rest of the SCP, including construction monitoring, habitat restoration, fencing and signing, and water control at the Santa Clarita population, has not yet been implemented. The implementation will occur in phases associated with the Newall Ranch development project.

Even with the conservation measures in the SCP, the proposed rule identified several threats that were still negatively acting on C. parryi var. fernandina and its habitat. Threats identified in the proposed rule included: (1) Historical and future loss of habitat and individuals from development (Santa Clarita); (2) having small, isolated populations (Santa Clarita and Laskey Mesa); (3) presence of invasive, nonnative plants (Santa Clarita and Laskey Mesa); (4) proliferation of Argentine ants (Linepithema humile) (Santa Clarita); (5) the potential effects of climate change (Santa Clarita and Laskey Mesa); and (6) synergistic effects of the individual factors listed above (Santa Clarita and Laskey Mesa) (81 FR 63454; September 15, 2016).

The 2017 CCA outlines several new conservation actions that will be enacted to address the current and future threats that we identified in our September 15, 2016, proposed rule (81 FR 63454). Additional conservation measures of the 2017 CCA are discussed below. We have also formally evaluated all 2017 CCA conservation measures pursuant to PECE, thereby taking all formalized conservation measures into consideration before making our final determination of the status of the plant. The Service's detailed PECE analysis, as well as the 2017 CCA and exhibits, are available for review at http://www.regulations.gov at Docket No. FWS-R8-ES-2016-0078.

The 2017 CCA provides for Newhall Land to voluntarily implement additional conservation measures described in the introduction plan with the goal of enhancing the status of C. parryi var. fernandina. The introduction plan provides for Newhall Land to voluntarily establish new, protected C. parryi var. fernandina occurrences within the plant's historical range that are expected to increase the resiliency of the existing populations and expand the redundancy and representation of the spineflower. Newhall Land will voluntarily conserve an additional 1,498 ac (606 ha) of its property for the benefit of C. parryi var. fernandina and carry out additional conservation activities for the plant within portions of those 1,498 ac (606 ha) and within an approximately 7-ac (2.8-ha) portion of the existing CDFW Petersen Ranch Mitigation Bank (see Figure 2, below) collectively called the additional conservation areas associated with the CCA. C. parryi var. fernandina introduction will occur on a total of at least 10 ac (4 ha) within the additional conservation areas.

The additional conservation areas in the introduction plan are intended to further increase the distribution of C. parryi var. fernandina within its historic range and include approximately 1,505 ac (609 ha), as follows: (1) Three additional conservation areas totaling approximately 825 ac (334 ha) are contiguous with or adjacent to the existing San Martinez Grande and Potrero preserves established under the SCP (all of which would be considered part of the Santa Clarita population, Areas 1-3 in Figure 2, below); (2) an additional conservation area of 357 ac (144 ha) is located in the Simi Valley watershed on the southern boundary of Newhall Land property in Ventura County (Area 5 in Figure 2); (3) an additional conservation area of approximately 316 ac (128 ha) is located on Newhall Land property in the Castaic Mesa area in northern Los Angeles County, near a known extirpated population location (Area 4 in Figure 2); and (4) an additional conservation area is located in a 7-ac (2.8-ha) portion of the Petersen Ranch Mitigation Bank adjacent to Elizabeth Lake, also near a known extirpated population location (Area 6 in Figure 2). C. parryi var. fernandina introduction will occur on a total of at least 10 ac (4 ha) within the additional conservation areas.

In carrying out the additional conservation measures described in the introduction plan, Newhall Land will introduce C. parryi var. fernandina within portions of the additional conservation areas with the goal of establishing at least two new self-sustaining, persistent C. parryi var. fernandina occurrences, at least one of which will be in a different ecoregion from the existing populations. Newhall Land will put each of the additional conservation areas into permanent conservation to ensure that habitat values of the spineflower are maintained. Newhall Land has funded an endowment for all initial habitat enhancement and C. parryi var. fernandina introduction activities within the additional conservation areas, and will fund one or more endowments to provide perpetual management and monitoring within the additional conservation areas, based on a PAR.

Newhall Land began implementation of the introduction plan in 2016, by commencing site investigations to identify the additional conservation areas and suitable C. parryi var. fernandina introduction sites within the additional conservation areas, and by commencing seeding trials within the San Martinez Grande Preserve Expansion—Los Angeles County and Potrero Preserve Expansion Additional Conservation Areas. Newhall Land will continue to conduct seeding trials within each of the additional conservation areas in accordance with the introduction plan.

The first step for each introduction site is the establishment of seeding trials. A series of initial seeding trials will be implemented at the proposed introduction areas prior to widespread introductions. The seeding trials are expected to take a minimum of 2 years to implement and obtain meaningful results. The seeding trials will be followed by more widespread introductions. The locations for widespread introductions will be based on where seeding trials demonstrate a reasonable probability of success and will occur on a minimum of 10 ac (4 ha) within the additional conservation areas. Following the initial 10-year implementation period for an additional conservation area under the introduction plan, and a determination made in consultation with the Spineflower Adaptive Management Working Group that newly occupied C. parryi var. fernandina habitat within the additional conservation area contains one or more self-sustaining occurrences, Newhall Land or its designee will conduct long-term management (including adaptive management), monitoring, and annual reporting of the newly occupied habitat within the additional conservation areas in perpetuity.

Enhancement activities in areas surrounding introduction sites will be implemented prior to or concurrently with C. parryi var. fernandina introduction. Anticipated enhancement activities include passive and active revegetation of native vegetation communities, including weed control to ameliorate the threat of invasive, nonnative grasses. Enhancement activities will occur with an adaptive management approach that will continue beyond the 10-year maintenance and monitoring period and into the long-term management period. Targeted areas for habitat enhancement correspond to the sites identified for introduction and an approximately 50-ft (15-meter (m)) area surrounding introduction sites.

All C. parryi var. fernandina introduction sites will be closed to public access. Existing dirt access roads and utility easement access roads within the additional conservation areas will function as the intended access points to the introduction sites for the project biologist, landscape contractor, utility personnel, and emergency services vehicles (e.g., police, fire, and medical). Signs identifying restricted land and discouraging unauthorized access/entry into the introduction sites will be posted on all gates providing access to introduction sites, adjacent to any roads that border introduction sites, and along any introduction site fencing. The signs will indicate that enhancement activities are in progress and that the areas are to be protected.

The introduction plan describes in detail the biological monitoring of the introduction sites that will be conducted to determine the status of introduced C. parryi var. fernandina through monitoring and collection of qualitative and quantitative data. Monitoring will occur in the winter and spring of each year while the plants are actively growing and in bloom/seed. Additional monitoring at the sites will occur periodically throughout the year to determine the need for maintenance measures related to protecting the introduction sites from weed invasion or other disturbances. Reference sites will be established within both the Santa Clarita population and Laskey Mesa population to ensure that the reference sites encompass the range of conditions currently supporting C. parryi var. fernandina. A sufficient number of sampling plots will be established to capture site variability so that, collectively, the reference sites are representative of the range of conditions of occupied habitat. Annual monitoring of the introduction sites will include at least three quantitative biological assessments each year, to be timed with the peak of the growing season before plants have begun to desiccate, during the flowering period of C. parryi var. fernandina, and during seed set (approximately February, May, and June). The quantitative monitoring methods are established for the purpose of collecting adequate data to be able to analyze the relative success or failure of the introduction program in terms of achieving the project goals. Quantitative monitoring will begin in the first year after establishing seeding trials and will include monitoring of density, seed production, seed viability, population size, recruitment, and aerial extent. The monitoring period will commence upon initiation of seeding trials and continue for a period of 10 years.

The purpose of PECE is to ensure consistent and adequate evaluation of recently formalized conservation efforts when making listing decisions. The policy provides guidance on how to evaluate conservation efforts that have not yet been implemented or have not yet demonstrated effectiveness. The evaluation focuses on the certainty that the conservation efforts will be implemented and effective. The policy presents nine criteria for evaluating the certainty of implementation and six criteria for evaluating the certainty of effectiveness for conservation efforts. These criteria are not considered comprehensive evaluation criteria. The certainty of implementation and the effectiveness of a formalized conservation effort may also depend on species-specific, habitat-specific, location-specific, and effort-specific factors. We consider all appropriate factors in evaluating formalized conservation efforts. The specific circumstances will also determine the amount of information necessary to satisfy these criteria.

To consider that a formalized conservation effort contributes to forming a basis for not listing a species, or listing a species as threatened rather than endangered, we must find that the conservation effort is sufficiently certain to be (1) implemented, and (2) effective, so as to have contributed to the elimination or adequate reduction of one or more threats to the species identified through the section 4(a)(1) analysis. The elimination or adequate reduction of section 4(a)(1) threats may lead to a determination that the species does not meet the definition of endangered or threatened, or is threatened rather than endangered.

An agreement or plan may contain numerous conservation efforts, not all of which are sufficiently certain to be implemented and effective. Those conservation efforts that are not sufficiently certain to be implemented and effective cannot contribute to a determination that listing is unnecessary, or a determination to list as threatened rather than endangered. Regardless of the adoption of a conservation agreement or plan, however, if the best available scientific and commercial data indicate that the species meets the definition of “endangered species” or “threatened species” on the day of the listing decision, then we must proceed with appropriate rulemaking activity under section 4 of the Act. Further, it is important to note that a conservation plan is not required to have absolute certainty of implementation and effectiveness in order to contribute to a listing determination. Rather, we need to be certain that the conservation efforts will be implemented and effective such that the threats to the species are reduced or eliminated.

Using the criteria in PECE (68 FR 15100, March 28, 2003), we evaluated the certainty of implementation (for those measures not already implemented) and effectiveness of conservation measures pertaining to Chorizanthe parryi var. fernandina. The Service's detailed PECE analysis is available at http://www.regulations.gov at Docket No. FWS-R8-ES-2016-0078. As summarized below, we have determined that there is sufficient certainty that the conservation efforts outlined in the 2017 CCA will be implemented and effective, and significantly reduce the identified threats and their impacts to C. parryi var. fernandina and its habitat.

We have certainty that the conservation efforts will be implemented because the implementation of the 2017 CCA has already begun and funding has been secured, providing certainty that funding will continue to be available to implement the conservation efforts. The seeding trails began in 2016, restrictive covenants have been placed over the CCA additional conservation areas on Newhall Property, consent has been obtained to perform C. parryi var. fernandina introduction within the Peterson Mitigation Bank, and the endowment for the initial phases of implementing the CCA has been established. In addition, the parties to the CCA have the legal and regulatory authority to implement the agreement, which includes an implementation schedule (including incremental completion dates) for the conservation efforts.

We have certainty that the conservation efforts will be effective because the nature and extent of threats is adequately addressed in the 2017 CCA, including improving resiliency of the Santa Clarita population, increasing the number of ecoregions in which the plant is represented, and adding to the overall redundancy of the species. In addition, the combined factors of documented success with other Chorizanthe introductions, the introduction site selection based on scientific analysis of occupied sites, positive results of 2016 spineflower seeding trials, and the accompanying enhancement program to aid establishment and persistence provide the rationale and optimism for effectiveness of the introduction program. Further, explicit objectives for the conservation efforts are defined and the associated dates for achieving them are stated. Quantifiable, scientifically valid parameters are identified that will help demonstrate achievement of the objectives. Finally, Newhall Land has funded an endowment for the initial implementation of the 2017 CCA. For ongoing (in-perpetuity) management and monitoring associated with the CCA, Newhall Land has committed to fund additional endowments. Input from the Spineflower Adaptive Management Working Group, which is already in place, will be sought to guide the management, monitoring, and planning activities of the adaptive management program of the conservation efforts.

In conclusion, we have a high level of certainty that the conservation measures in the 2017 CCA will be implemented (for those measures not already begun) and effective, and thus they can be considered as part of the basis for our final listing determination for Chorizanthe parryi var. fernandina.

In the proposed rule published on September 15, 2016 (81 FR 63454), we requested that all interested parties submit written comments on the proposal by November 14, 2016. We also contacted appropriate Federal and State agencies, Tribes, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. On July 19, 2017, we published a 6-month extension of the final determination on the proposed threatened status for C. parryi var. fernandina (82 FR 33035) and reopened the comment period on the proposal for an additional 30 days, ending August 18, 2017. On November 13, 2017, we published a document (82 FR 52262) that again reopened the comment period on the September 15, 2016, proposed rule for an additional 30 days, ending December 13, 2017, so that interested parties and the public could review and comment on the additional conservation measures provided by the 2017 CCA. During all three comment periods, which totaled 120 days, the Service requested any additional information on the status of C. parryi var. fernandina or its habitat so that we could analyze this additional information as part of the final listing process. We did not receive any requests for a public hearing.

During the three comment periods on the proposed rule, we received six peer-review comment letters and four public comment letters on the proposed rule, one public comment letter on the 6-month extension, and five public comment letters on the reopening of the comment period for the 2017 CCA directly addressing the proposed listing of Chorizanthe parryi var. fernandina. Submitted comments were both for and against listing the species. We also received comments that were not related to the proposed listing of Chorizanthe parryi var. fernandina. All substantive information provided during the comment periods has either been incorporated directly into this withdrawal or is addressed below.

The purpose of peer review is to ensure that our analysis of the information and assumptions used for listing determination is scientifically sound. In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from six independent specialists with scientific expertise in the biology of Chorizanthe parryi var. fernandina biology, habitat, physical or biological factors, or threats. We received responses from all six peer reviewers. We reviewed the comments we received from the peer reviewers for substantive issues and new information regarding the listing of C. parryi var. fernandina. Peer reviewer comments are addressed in the following summary and incorporated into this withdrawal document as appropriate.

Comment (1): Three peer reviewers stated that Argentine ants are likely to impact C. parryi var. fernandina pollinators at Newhall Ranch, which could result in a species-level threat to the reproductive potential of the plant. Given potential ant control methods in existence, the peer reviewers recommended that qualified pest control professionals and conservation managers be allowed to review and approve any control or mitigation plan. They stated that, for such a plan to be effective, it will require constant vigilance and a substantial financial investment.

Response: In our proposed rule (81 FR 63454; September 15, 2016), we determined that loss of habitat and individuals and the associated edge effects (i.e., proliferation of Argentine ants) at the Santa Clarita population are likely to decrease habitat quality, reducing resiliency at this population. The additional conservation areas that will be established as part of the CCA, including the three additional conservation areas totaling approximately 825 ac (334 ha) that are contiguous with or adjacent to the existing San Martinez Grande and Potrero spineflower preserves established under the SCP (all of which would be considered part of the Santa Clarita population), are intended to buffer the Santa Clarita population from detrimental effects of loss of habitat and individuals and the associated edge effects, including Argentine ant invasion.

As of February 2016, Argentine ants were present within two preserves at the Santa Clarita population, Entrada and Potrero (Dudek 2016, pp. 17, 20). Therefore, the additional conservation area adjacent to the existing Potrero preserve is at risk of invasion by Argentine ants. However, the two additional conservation areas adjacent to the existing San Martinez Grande preserve are farther from existing or proposed development (see Figure 2, below). None of the adjacent land uses near San Martinez Grande poses a heightened threat of Argentine ant invasion (Dudek 2016, p. 6); therefore, these additional conservation areas are not expected to be at risk of invasion of Argentine ants and should contribute to C. parryi var. fernandina numbers and recruitment at the Santa Clarita population.

The 2017 CCA requires that annual Argentine ant monitoring be conducted as part of the ongoing habitat maintenance and describes appropriate control measures consistent with the Argentine Ant Control Plan for Newhall Ranch (Dudek 2014, entire). If Argentine ants invade, Newhall Land proposes control methods as part of an integrated pest management plan, which will be both to remove Argentine ants and mitigate for the absence of native pollinators within the preserves (Dudek 2014c, pp. 25-42). Qualified pest control professionals and conservation managers will review and approve any control or mitigation plan. The endowment associated with long-term management and monitoring of the additional conservation areas would provide the substantial financial investment needed to implement this plan.

Chorizanthe parryi var. fernandina introduction sites in the 2017 CCA outside of the Santa Clarita population include an additional conservation area of 357 ac (114 ha) located in the Simi Valley watershed on the southern boundary of Newhall Land property in Ventura County; an additional conservation area of approximately 316 ac (128 ha) located on Newhall Land property in the Castaic Mesa area in northern Los Angeles County, near a known extirpated population location; and an additional conservation area located in a 7-ac (2.8-ha) portion of the Petersen Ranch Mitigation Bank adjacent to Elizabeth Lake, also near a known extirpated population location. Argentine ants are not considered to be a significant long-term risk to C. parryi var. fernandina at these introduction sites because the sites are all well separated from areas supporting potential source populations of Argentine ants, such as urban development areas.

Comment (2): Two peer reviewers questioned the available data on C. parryi var. fernandina pollinators and suggested that experiments should be done to determine: (a) If C. parryi var. fernandina can effectively self-pollinate, (b) if the plants make seeds when pollinators are excluded, (c) whether seeds produced by self-pollination suffer inbreeding depression compared to seeds produced by out-crossing, and (d) how much nectar or other rewards the flowers offer to pollinators.

Response: A wide range of arthropods have been observed visiting flowers in the vicinity of C. parryi var. fernandina plants in the field. Jones et al. (2009) conducted a series of dawn-to-dusk surveys at Laskey Mesa in 2001, and at Santa Clarita in 2004. During these surveys, more visits were made to plants by the pyramid ant (Dorymyrmex insanus) than any other ant taxon; the southern fire ant (Solenopsis xyloni) visited in much smaller numbers; and little red ant (Forelius mccooki) was an important visitor at the Santa Clarita populations (Jones et al. 2010, p. 165).

Jones et al. (2010) examined the effects the pyramid ant on spineflower seed production at Ahmanson Ranch with an exclusion study. They found that fruit set was 57 percent higher in flowers exposed to ant visitation, compared to 27 percent in control flowers where ants were excluded. Data indicate that 27 percent of seed set occurred where all potential pollinators were excluded, suggesting that SFVS is not productive at self-pollination (Jones et al. 2010, p. 166). This would seem to indicate that the viability of seeds produced by self-pollination is much lower than those produced by the cross-pollinating actions of ants and other insect pollinators, and may reflect inbreeding depression in self-produced seeds.

Comment (3): One peer reviewer stated that C. parryi var. fernandina seeds are not likely prompted to germinate by smoke or other features of fire, but that this needs to be studied more specifically. Also, studies should be done to determine how long seeds last and what proportion of seeds germinate under various conditions. This information is needed to successfully introduce or reintroduce C. parryi var. fernandina into additional sites near existing or historical sites.

Response: C. parryi var. fernandina is typical of many winter-spring native annuals that occur in the Mediterranean climate of California. Germination occurs following the onset of sufficient late-fall and winter rains and typically represents different cohorts from the seed bank. Because C. parryi var. fernandina is sensitive to annual levels of rainfall, germination of resident seed banks may be low or nonexistent in unfavorable years, with little or no visible aboveground expression of the plant, but a seedbank would be present.

The direct effects of fire on C. parryi var. fernandina are not known. We stated in the Species Report that seed germination of a related taxa, Parry's spineflower (C. parryi var. parryi), appears to be inhibited by fire (Ellstrand 1994 and Ogden 1999, in CBI 2000, pp. 4, 13), but despite the inhibitory effect of direct scorching, fire may prove beneficial to C. parryi var. fernandina by creating openings in ground cover and temporarily reducing competition (CBI 2000, p. 13). We agree that additional research on the C. parryi var. fernandina seed bank would be useful to inform future efforts to expand existing populations and reintroduce plants to historical sites.

Comment (4): One peer reviewer asked if there is evidence that ants secrete a substance that causes pollen grains to burst.

Response: Some ants have chemical secretions from the metapleural gland that reduce pollen viability and germination (Beattie et al 1984). However, from data presented by Jones et al. (2010), it appears to not be a problem for C. parryi var. fernandina. As noted above, seed production and the seed germination rate were much higher in the presence of ants, indicating that the presence of ant pollinators actually increases the viability of the seeds. Further, Jones et al. (2010) suggest that ant pollination may be more prevalent in drier climates and that ant production of inhibitory substances may not be a severe limitation to their function as pollinators.

Comment (5): One peer reviewer asked if there is adequate management of the State of California's conserved site (Laskey Mesa), and what specific management at this site benefits the spineflower.

Response: In 2010, CDFW issued an ITP under CESA to Newhall Land. The ITP requires Newhall Land to provide guaranteed long-term funding for the management of the C. parryi var. fernandina population at Laskey Mesa (CESA ITP# 2081-2008-012-05) (CDFG 2010, p. 17; Newhall Land and Dudek 2014, entire). On September 25, 2014, Newhall Land made the required deposit for the endowment at Laskey Mesa (K. Drewe 2016b, pers. comm.). Newhall Land cannot withdraw the funding for this account, and there is nothing in the ITP that would allow the funding to be returned to Newhall Land (K. Drewe 2016a, b, pers. comm.).

The CDFW, SMMC, and National Fish and Wildlife Foundation will execute the agreement that requires the endowment be spent for the conservation and management of C. parryi var. fernandina at Laskey Mesa (K. Drewe 2016a, b, pers. comm.; Newhall Land and Dudek 2014, entire). The August 2014 PAR and September 2014 memorandum completed by Dudek (Newhall Land and Dudek 2014, entire) contains the management activities for C. parryi var. fernandina at Laskey Mesa (CDFW, in litt. 2016). The endowment is to be used for on-the-ground activities that include research studies, fencing, weeding, surveys, annual reports, and other activities that will benefit the plant. The agreement between CDFW and SMMC that would allow SMMC access to the endowment funds is currently undergoing internal review within CDFW.

Comment (6): One peer reviewer pointed out that while the SCP provides for a number of preserves to be established, some of the preserves do not afford great protection for the spineflower. For example, the proposed preserve area at Entrada shows that a large portion of the spineflower patches are located within a utility easement. Plants could easily be destroyed by large equipment activity in the easement.

Response: The Entrada preserve is connected to open space via an existing and frequently-maintained utility corridor. There may be risk to these plants from large equipment. This is one reason why it is important to establish additional C. parryi var. fernandina occurrences at the Santa Clarita population, including three additional conservation areas totaling approximately 825 ac (334 ha) that are contiguous with or adjacent to the existing San Martinez Grande and Potrero preserves. These areas are intended to expand the area of protected conservation land for C. parryi var. fernandina and increase the extent of protected occurrence locations within the Santa Clarita population.

Comment (7): One peer reviewer suggested that we might have conducted our assessment of the current impact level of development on C. parryi var. fernandina over a wider geographic area, to encompass its former geographic range. The peer reviewer emphasized that it is clear that habitat loss and other factors associated with development (agricultural and urban) are the reasons C. parryi var. fernandina now occurs in just two localities at the edge of the Los Angeles metropolitan area. Moreover, all of the stressors discussed in the proposed listing document have strong links to development.

Response: C. parryi var. fernandina is currently known from only two populations in southern California that are 17 mi (27 km) apart, one in Ventura County (Laskey Mesa population) and one in Los Angeles County (Santa Clarita population). Historically, the plant was known from no fewer than 10 additional locations in Los Angeles and Orange Counties. However, the scope of our stressor analysis was only the two extant populations because there is limited value in evaluating the potential for stressors in areas where the species is no longer considered extant. We presented our analysis of threats to the existing populations in our Species Report. Currently, there is no threat of development and there will be no development in the future at Laskey Mesa because the property is owned and managed by the SMMC and the MRCA.

Development was considered a future threat to the Santa Clarita population. However, the additional conservation areas proposed in the CCA are intended to further increase the number and extent of C. parryi var. fernandina within its historical range, which will reduce the threat of development at this population. We considered whether there are any known threats or potential stressors to the spineflower on these additional conservation areas, and determined them to be suitable for C. parryi var. fernandina. All of these will be in permanent conservation where development will be precluded.

Comment (8): One peer reviewer stated that the open structure of the vegetation in which C. parryi var. fernandina occurs suggests that external effects are likely to penetrate deeply into patches. The very small stature of C. parryi var. fernandina plants makes them likely to be especially vulnerable to disturbances such as trampling and erosion. Therefore, it seems likely that recreational impacts on the species will increase, particularly in Santa Clarita, where the proximity to high densities of humans will increase in the proposed developments.

Response: We recognize edge effects of increased trampling and soil compaction from recreation. Recreation has minimal direct effects on C. parryi var. fernandina habitat because recreation does not occur in the same areas where C. parryi var. fernandina occurs. Even though the plant is small in stature and may grow in open areas, such as old roads, making it vulnerable to trampling, there are currently no trails that overlap the plant's occurrences, and we do not expect trails to overlap the plant's occurrences in the future. Additionally, all additional conservation areas provided for in the 2017 CCA will be closed to the public.

Comment (9): One peer reviewer questioned our assessment that the impact of invasive, nonnative plants on C. parryi var. fernandina will decrease with time from moderate today to low in the future, as a result of ecological restoration plans at the Santa Clarita population.

Response: Nonnative, invasive plants are abundant at Laskey Mesa and Santa Clarita, and reduce available habitat. They compete with C. parryi var. fernandina for light, water, and soil nutrients; increase potential for wildfire; and alter pollinator communities. The August 2014 PAR and September 2014 memorandum outline the management activities to be undertaken at Laskey Mesa for C. parryi var. fernandina. The funding for these actions is set aside in the form of a non-wasting endowment. The endowment will fund on-the-ground activities, such as weeding and other methods to control the impacts of nonnative invasive plants. We anticipate that MRCA will address the abundance of nonnative vegetation at Laskey Mesa once they implement the management activities for C. parryi var. fernandina at that site.

At the Santa Clarita site, development of Newhall Ranch would remove ground coverage of nonnative plants. However, part of this development will create urban edges that would border some of the preserves. Nonnative weedy species are often edge species and become more prevalent or increase in abundance to the detriment of native species. Therefore, Newhall Land has proposed to restore C. parryi var. fernandina habitat and implement measures as part of the development of Newhall Ranch to reduce the abundance and impact of nonnative vegetation at this site. Overall, nonnative, invasive plants currently act as a moderate-level stressor to C. parryi var. fernandina and its habitat. The management activities at Laskey Mesa and the conservation measures at Santa Clarita are likely to reduce the direct impact of nonnative, invasive plants to a low-level stressor. The enhancement areas surrounding the 2017 CCA introduction sites are intended to help minimize invasion of nonnative plant species, which could degrade the quality of the habitat for C. parryi var. fernandina occupation in the additional conservation areas.

Comment (10): One peer reviewer questioned our prediction that future fire effects will be low. The proposed plan for development in Santa Clarita will put Chorizanthe parryi var. fernandina within the urban-wildland interface and thereby should increase the potential for fire to affect population patches.

Response: We anticipate that wildfire will occur in the future, based on the historical fires that have occurred in these areas and because wildfire is a natural phenomenon in southern California. Additionally, both populations are surrounded by residential and commercial developments, and fire frequency tends to increase at the urban-wildland interface (Dudek 2010a, p. 136). Furthermore, due to climate change, drier conditions may result (PRBO Conservation Science 2011, pp. 41-42). However, because the fire intervals at these two populations have been relatively short in recent history, we do not anticipate an increased fire frequency at Laskey Mesa or Santa Clarita.

At Santa Clarita, proposed development in the area will break up large expanses of potential fuels and may reduce the risk of wildfire, but human-caused ignition may increase with increasing human presence and traffic. However, fire protection in the surrounding areas is also expected to increase because of the need to avoid loss of life and property; therefore, it is anticipated that any fires in the SCP preserves will be lighter rather than heavier in intensity (Dudek 2010a, p. 136). In addition, if fire-control lines or other forms of bulldozer damage occur within the preserves, Newhall Land proposed to repair and revegetate these areas to pre-burn conditions (Dudek 2010a, pp. 135-137). In our assessment of climate change, we analyze that drier conditions in the future may result in increased fire frequency, making the ecosystems in which a species currently grows more vulnerable to threats of nonnative plant invasion.

The December 2017 Rye Fire burned four out of seven of the SCP preserves on Newhall Ranch. The intensity of the fire was diagnosed as being light (Watershed Emergency Response Team 2018, pp. 18-20). Numerous previous wildfire events have occurred on Newhall Ranch since 1913, including at least 12 since 1983 (excluding the 2017 Rye Fire), and several of these fires have affected extensive areas of habitat occupied by the spineflower (Dudek 2017, p. 10). Chorizanthe parryi var. fernandina monitoring began on Newhall Ranch in 2002. Two fires have affected the Santa Clarita population since then. The 2003 Verdale Fire burned the Homestead North Project Site, including almost the entire San Martinez Grande preserve. The 2007 Magic Fire burned portions of the Grapevine Mesa and Entrada preserves. Both the 2003 Verdale Fire and the 2007 Magic Fire occurred in October, after spineflower surveys had been conducted for that year. The biggest concern is that fire may promote the invasion and spread of nonnative, invasive grasses that outcompete small native annuals like C. parryi var. fernandina.

Monitoring conducted under the SCP will continue to evaluate the performance of C. parryi var. fernandina within the SCP preserves, and if the monitoring shows that management is needed to address direct or indirect effects of the fire, such as an increase in nonnative, invasive grasses, measures will be incorporated into annual work plans as required by the SCP and reviewed by the Spineflower Adaptive Management Working Group. The primary management activities we anticipate to occur post-fire in the SCP preserves involves monitoring and controlling weeds that may invade burned areas following a fire event, specifically if weeds exceed 30 percent relative cover (Dudek 2017, p. 7).

Comment (11): One peer reviewer noted that because the historical range of C. parryi var. fernandina has been reduced, and now the plant has only two isolated populations, the plant's heterozygosity (having a varied genetic makeup) may be considerably reduced.

Response: While we agree that C. parryi var. fernandina likely has reduced heterozygosity due to a reduced range as compared to the historical distribution, the genetic characteristics have not been investigated. Dr. Deborah Rodgers is currently conducting research into genetic structure of C. parryi var. fernandina and potential degree of inbreeding depression (Dudek 2015, p. 2; Dudek 2016c, p. 9).

Comment (12): One peer reviewer pointed out that nitrogen deposition associated with fossil fuel combustion is a potential stressor to C. parryi var. fernandina, and this was not discussed in the Species Report. Several recent studies have shown that nitrogen can have important consequences to native and nonnative plant species in southern California although there is no information available about how nitrogen deposition has affected C. parryi var. fernandina and its ecosystem.

Response: Because there is no information available about how nitrogen deposition has affected C. parryi var. fernandina and the ecosystem it occupies, we did not analyze it in our stressor analysis.

Comment (13): One peer reviewer stated that Newhall Land may have destroyed C. parryi var. fernandina subpopulations on Newhall Ranch lands in the past, and investigations were purported to be initiated by CDFW into possible violation. This resulted in an agreement by Newhall to actively manage and restore C. parryi var. fernandina habitat. However, the reviewer did not believe any of these restoration and management activities have been initiated.

Response: There was a 2003 settlement agreement executed between Newhall Land and CDFW following an onsite investigation that occurred in 2002. This resulted in establishing two permanent conservation easements, one at Airport Mesa and one at Grapevine Mesa, totaling approximately 64 ac (26 ha). The settlement agreement required that a management plan for the plant be prepared, funded, and implemented in those two areas as mitigation for impacts affiliated with that investigation.

Comment (14): One peer reviewer stated that creating small rare plant preserves under the SCP has the potential to reduce long-term success to maintain a viable population into the future, as this eliminates connectivity to adjacent habitats to which populations might have migrated, beyond the borders of the preserve boundaries.

Response: The 2017 CCA establishes additional C. parryi var. fernandina occurrences at the Santa Clarita population, including three additional conservation areas totaling approximately 825 ac (334 ha) that are contiguous with or adjacent to the existing San Martinez Grande and Potrero preserves established under the SCP. This will allow C. parryi var. fernandina populations to expand into the area of protected conservation land, and increase the extent of protected spineflower occurrence locations within the Santa Clarita population.

Comment (15): One peer reviewer stated that there are six other species in the genus Chorizanthe in California that have been listed under the Act as endangered species, all of which have larger populations than C. parryi var. fernandina. The Service's listing of these other plants as endangered has established a precedent for endangered plants of this genus.

Response: The Service evaluates each species individually, using the best available scientific and commercial information on that species, in making a listing determination. There are many factors and reasons why a determination for one species may be different than that for another species. The fact that a species has been determined to be endangered under the Act does not mean that other species within the same genus also automatically meet the Act's definition of endangered.

Comment (16): One peer reviewer stated that the introduction plan provided for by the 2017 CCA is more appropriately addressed under a C. parryi var. fernandina recovery plan than as part of the proposed listing rule. The success or failure of the proposed plan will likely require decades to determine. The use of positive outcomes can only occur after a measured success. Since the effectiveness of proposed conservation measures cannot be evaluated for many years, it is premature to rely on potential future success of these measures when determining the vulnerability of C. parryi var. fernandina.

Response: We stated in the proposed rule (81 FR 63454, September 15, 2016, see p. 63458) that we will formally evaluate all measures included in Newhall Land's conservation strategy using PECE before making our final determination of the status of the plant. In determining whether a formalized conservation effort contributes to forming a basis for not listing a species, or for listing a species as threatened rather than endangered, we must evaluate whether proposed conservation efforts improve the status of the species under the Act. Two factors are key in that evaluation: (1) For those efforts yet to be implemented, the certainty that the conservation effort will be implemented; and (2) for those efforts that have not yet demonstrated effectiveness, the certainty that the conservation effort will be effective. In our PECE analysis of the 2017 CCA for the spineflower, we found that there is a high degree of certainty that the conservation measures under the plan will be implemented, and a high degree of certainty that the conservation measures will be effective. Please see the full PECE analysis at http://www.regulations.gov at Docket No. FWS-R8-ES-2016-0078.

Comment (17): One commenter stated that McGraw (2012) found a strong positive correlation between percentage of the mapped cumulative footprint supporting C. parryi var. fernandina in a given year and total annual rainfall. However, the data of acres occupied annually by C. parryi var. fernandina demonstrate that there is no apparent overall increase or decreasing trend over the last 17 years; therefore, there is no reason to expect a trend change in the next 25 years based on the best available information.

Response: Interannual variability in total annual rainfall is a major driver of the variability in C. parryi var. fernandina's distribution, but additional factors, including temperature, timing of precipitation in fall or winter, and drought, may also play a role (McGraw 2012, p. A-6). The proposed development of Newhall Ranch would directly remove 25 percent of the C. parryi var. fernandina population at Santa Clarita, and the vast majority of the remaining 75 percent of this population would be surrounded and bordered by residential and commercial development. While the data may not show a trend over the survey period, reducing the population by 25 percent and fragmenting the remaining populations introduces new stressors into the population that will affect the persistence of the plant over the next 25 years at this population.

The 2017 CCA establishes additional C. parryi var. fernandina occurrences at the Santa Clarita population, including three additional conservation areas totaling approximately 825 ac (334 ha) that are contiguous with or adjacent to the existing San Martinez Grande and Potrero preserves established under the SCP. These areas are intended to expand the area of protected conservation land for C. parryi var. fernandina and increase the extent of protected occurrence locations within the Santa Clarita population to buffer it from the detrimental effects of loss of habitat and individuals and the associated edge effects, which should increase persistence of the plant over the next 25 years at this population.

Comment (18): One commenter stated that the Species Report overstates the extent to which habitat fragmentation will affect C. parryi var. fernandina. The commenter stated that C. parryi var. fernandina preserves and large, connected open spaces within and around the Newhall Land property development areas will preserve connectivity for mobile pollinators such as honeybees and potential seed dispersers, maintaining opportunities for genetic exchange between preserves. C. parryi var. fernandina preserve management, including habitat restoration and enhancement, will maintain and enhance floral and other habitat resources in the preserves for pollinators and seed dispersers.

Response: Development of Newhall Ranch will remove some occurrences that connect, or are intermittent between, the larger concentrations of C. parryi var. fernandina in the designated preserves. Removing some of the smaller scattered populations outside the preserves will likely make the distances between remaining concentrations of C. parryi var. fernandina larger and make the habitat that supports the plant more isolated. However, the implementation of the 2017 CCA will establish additional C. parryi var. fernandina occurrences at the Santa Clarita population, including three additional conservation areas totaling approximately 825 ac (334 ha) that are contiguous with or adjacent to the existing San Martinez Grande and Potrero preserves established under the SCP. These expansion areas will aid connectivity of populations, as well as establish new populations.

Comment (19): Future habitat conditions in C. parryi var. fernandina preserves will generally be resistant to permanent Argentine ant invasions. Consequently, there is little risk of long-term infestation by Argentine ants in numbers sufficient to permanently displace arthropods that provide pollinator and seed dispersal services.

Response: Our analyses in the Species Report indicate that if Argentine ants invade an area, they are likely to permanently displace arthropods that provide pollinator and seed dispersal services (Service 2016, pp. 44-62). Argentine ants are present on Newhall Ranch in at least two SCP preserves (Entrada and Potrero), and within the open space that acts as a corridor between the SCP preserves, the Santa Clara River (Dudek 2016b, pp. 17, 20). It is therefore reasonable to assume that conditions are currently suitable for Argentine ants within at least two preserves. Argentine ants are assumed to be present throughout the development and are expected to be present in the open areas adjacent to the preserves in the future post-development (Dudek 2010a, p. 130). Also, Dudek (2016b, pp. 5-18) states that five out of the seven SCP preserves (82 percent of the total preserve area) have a “high potential for serious encroachment or invasion of Argentine ants” given current and proposed adjacent land uses.

The 2017 CCA states that annual Argentine ant monitoring will be conducted as part of the ongoing habitat maintenance, and appropriate control measures consistent with the Argentine Ant Control Plan for Newhall Ranch (Dudek 2014, entire) will be implemented in the event that invasion occurs. If Argentine ants invade, Newhall Land proposes control methods as part of an integrated pest management plan to remove Argentine ants and mitigate for the absence of native pollinators within the preserves (Dudek 2014c, pp. 25-42). Qualified pest control professionals and conservation managers will review and approve any control or mitigation plan. Argentine ants are not considered to be a significant long-term risk to C. parryi var. fernandina at the introduction sites outside the Santa Clarita population because they are all well separated from areas supporting potential source populations, such as urban development areas.

Comment (20): One commenter stated that in the proposed rule (81 FR 63454; September 15, 2016), the Service's conclusion that there may not be sufficient redundancy to sustain C. parryi var. fernandina over the long term is overstated, because evidence indicates the long-term threats to redundancy can be effectively managed through habitat restoration in the preserves, management of Argentine ants, and introduction of C. parryi var. fernandina into non-preserve areas.

Response: Redundancy does not just refer to the population at Santa Clarita but refers to the ability of a species to compensate for fluctuations in or loss of populations across the species' range such that the loss of a single population has little or no lasting effect on the structure and functioning of the species as a whole. Multiple interacting populations across a broad geographic area provide insurance against the risk of extinction caused by catastrophic events. Because historically there were no fewer than 10 additional populations across Los Angeles and Orange Counties in Southern California, and currently there are 2 populations, redundancy is decreased for C. parryi var. fernandina. If either of the two extant populations were permanently lost, the redundancy would be further lowered, thereby decreasing the plant's chance of survival in the face of potential environmental or demographic stochastic factors and catastrophic events (e.g., wildfire, extreme drought).

The additional conservation areas proposed in the 2017 CCA are intended to increase the number and extent of C. parryi var. fernandina populations within its historical range and increase redundancy. The CCA provides for Newhall Land to introduce C. parryi var. fernandina within portions of the additional conservation areas with the goal of establishing at least two new self-sustaining, persistent occurrences to increase the redundancy of the species.

Comment (21): One commenter stated that the seven C. parryi var. fernandina preserves will help maintain the existing representation of the plant on Newhall property. Likewise, the endowment for management of the Laskey Mesa population will also contribute to continued representation of that population.

Response: Representation refers to a species' ability to adapt to changing environmental conditions, which is a species' adaptive capacity. Representation is characterized by the breadth of genetic and environmental diversity within and among populations; this can be related to the distribution of populations within the variation in a species' ecological settings. Historically, there were no fewer than 10 C. parryi var. fernandina populations across southern California, representing at least five ecoregions of the conterminous United States. Ecoregions denote areas of general similarity in ecosystems through analysis of patterns of biotic and abiotic phenomena, including geology, physiography, vegetation, climate, soils, land use, wildlife, and hydrology. Currently, there are only two C. parryi var. fernandina populations, 17 mi (27 km) apart, representing only one ecoregion.

The goal of the 2017 CCA is to establish at least two new self-sustaining, persistent C. parryi var. fernandina occurrences, at least one of which will be in a different ecoregion from the existing populations to increase the number of ecoregions in which the plant is represented. The two existing C. parryi var. fernandina populations are located in the Venturan-Angeleno Coastal Hills ecoregion. The additional conservation area in the Castaic Mesa area in northern Los Angeles County, near a known extirpated population location, is within the Southern California Lower Montane Shrubland Woodland ecoregion. The additional conservation area located in the Petersen Ranch Mitigation Bank adjacent to Elizabeth Lake near a known extirpated population location is within the Arid Montane Slopes ecoregion. Establishing at least two new self-sustaining, persistent C. parryi var. fernandina occurrences where at least one is in a different ecoregion from the existing populations may improve the ability of the plant to adapt to changing environmental conditions into the future.

Comment (22): One commenter stated that long-term establishment of C. parryi var. fernandina is feasible. Efforts to do so will require a commitment to significant planning, resources, ongoing scientific observation and study, adaptive management, and incorporation of most current plant and environmental science. Constraints to establishment of new populations of C. parryi var. fernandina include: (a) Availability of seed source due to physical and morphological reasons; (b) availability of land in the historical range of the plant that is not already developed or threatened by encroachment of nonnative and invasive species; (c) presence of appropriate climatic and hydrologic conditions (hot and dry with seasonal drought conditions and no irrigation); (d) presence of specific soil types and geomorphological conditions (including specific substrate, elevation, and aspect); (e) minimal environmental threats; and (f) availability of arthropods that can facilitate pollination to ensure higher achene (seed head) set and ensure genetic diversity.

Response: The 2017 CCA includes a commitment to significant planning, resources, ongoing scientific observation and study, adaptive management, and incorporation of most current plant and environmental science. Newhall Land will cause permanent conservation instruments to be recorded over each of the additional conservation areas in which C. parryi var. fernandina is established to ensure that the habitat values for the species are maintained, minimizing environmental threats. Newhall Land will fund all initial habitat enhancement and C. parryi var. fernandina introduction activities within the additional conservation areas, and will fund one or more endowments to provide perpetual management and monitoring within the additional conservation areas.

To address availability of seed source, it is anticipated that there will be opportunities for topsoil salvage from C. parryi var. fernandina occupied areas within the proposed developments on Newhall Land property at the Santa Clarita population. In addition, a phased approach will provide lead time to conduct wild seed collections (and to grow these seeds in a controlled nursery setting to bulk seed, if necessary) to acquire the necessary seed resources to implement C. parryi var. fernandina introduction in the various areas.

To address the need for appropriate climatic and hydrologic conditions and the presence of specific soil types and geomorphological conditions, the additional conservation areas were selected based on proximity to extant C. parryi var. fernandina populations, proximity to extirpated historical locations, availability of undeveloped open space, surrounding land uses, and land ownership. Some other areas were considered, but rejected due to lack of conserved open space, unsuitable conditions, or untenable land ownership situations. Once potential sites were identified, the sites that best met the identified parameters that appear to favor occupation by C. parryi var. fernandina were chosen. Site selection relied heavily on the results of a habitat characterization study, which compared occupied and unoccupied areas within coastal scrub and annual grassland, to identify characteristics of occupied C. parryi var. fernandina habitat. In addition to selecting what appeared to be the most suitable sites, the approach in the 2017 CCA is to assist C. parryi var. fernandina during the early establishment period in order to help the introduced population develop a foothold through habitat enhancement, ultimately resulting in at least two new self-sustaining, persistent populations.

Comment (23): One commenter stated that Newhall Land appears to have begun vegetation clearing on the project site where Chorizanthe parryi var. fernandina is located. The commenter does not believe that such actions comply with the rules and regulations of the Act.

Response: Section 7 of the Act provides a mechanism for identifying and resolving potential conflicts between a proposed action and a species proposed for listing at an early planning stage. While consultations for listed species are required when the proposed action may affect listed species, a conference is required only when the proposed action is likely to jeopardize the continued existence of a species proposed for listing.

The Final Environmental Impact Statement (EIS)/Environmental Impact Report (EIR) for the Newhall Ranch Resource Management and Development Project included detailed analysis of the direct, indirect, and cumulative impacts of the proposed discharges of fill material in waters of the United States and associated upland development activities on C. parryi var. fernandina and included mitigation measures to avoid, minimize, and compensate for impacts to the plant. Subsequent to the Final EIS/EIR, Newhall Land agreed to implement additional measures to further compensate for unavoidable impacts to C. parryi var. fernandina as documented in the 2017 CCA. In consideration of the additional conservation areas and C. parryi var. fernandina introduction sites required as part of the CCA, the U.S. Army Corps of Engineers made a final determination that permit no. SPL-2003-01264 would not jeopardize the continued existence of C. parryi var. fernandina and is not required to complete a conference opinion to comply with the requirements of the Act.

Comment (24): One commenter stated that the Rye Fire in Santa Clarita, which began on December 5, 2017, has apparently burned at least five of the proposed seven conservation areas for C. parryi var. fernandina and possibly all those located on the Mission Village project. The commenter stated that it is important to determine whether native pollinator arthropods survived the fire. The commenter urged a delay and extension of the comment period so that the effect of this fire on C. parryi var. fernandina could be investigated.

Response: The December 2017 Rye Fire burned four out of seven of the SCP preserves on Newhall Ranch. Based on prior research, we expect relatively minor effects from the Rye Fire on arthropods that could be spineflower pollinators. Jones et al. (2004) conducted pollinator studies on spineflower populations on Newhall Ranch and Ahmanson Ranch, and found that one of the dominant floral visitors on Newhall Ranch was little red ant and the dominant floral visitors at the Ahmanson Ranch were two species of ants: The pyramid ant and the southern fire ant. Matsuda et al. (2011, entire) investigated the effect of broad-scale wildfire on ground foraging ants within southern California. They found a net negative effect of fire on the overall diversity of ground foraging ants likely because of changes in community structure rather than the loss of species richness. Although they found a negative effect of fire on ant diversity, the increases in overall species diversity in both the fire-impacted and reference plots suggest that ground-foraging ants may be relatively resilient to fire because only about 2 percent of an ant colony is active on the surface, thus limiting direct mortality. They also suggest that unburned patches within a burn area can provide refuge for ants and source populations for recolonization of burned areas.

The intensity of the Rye Fire on Newhall Ranch was diagnosed as light (Watershed Emergency Response Team 2018, pp. 18-20). Based on field testing, the California Geological Survey found that within the mapped fire perimeter, 64 percent of the area was classified as very low/unburned, 34 percent as low, and 2 percent as moderate; no area was classified as high (Watershed Emergency Response Team 2018, pp. 18-20). The severity of the Rye Fire was similar to or generally less than the most recent fires on Newhall Ranch in C. parryi var. fernandina habitat, the 2003 Verdale Fire and 2007 Magic Fire. Severity in burn areas was generally low in the Magic Fire and very low to moderate in the Verdale Fire (Dudek 2017, p. 10). We were able to investigate the effect of the fire on the plant and its pollinators within the allotted timeframe, and therefore we do not need to extend the comment period on the proposal.

Comment (25): One commenter stated that throughout the 2017 CCA there are definitive statements that the proposed actions will result in the establishment of new populations and reduce or eliminate threats to C. parryi var. fernandina. The commenter states that the plan will attempt to establish populations and hopefully provide protective measures, but that the proposed conservation efforts cannot be considered as guarantees. The commenter concluded that the 2017 CCA should not be used to determine the current status of C. parryi var. fernandina.

Response: PECE (68 FR 15100, March 28, 2003) ensures consistent and adequate evaluation of recently formalized, but not yet implemented conservation efforts when making listing decisions. The policy provides guidance on how to evaluate conservation efforts that have not yet been implemented or have not yet demonstrated effectiveness. The evaluation focuses on the certainty that the conservation actions will be implemented and effective.

Using the criteria specified in PECE, we evaluated the certainty of future implementation and certainty of effectiveness of the 2017 CCA. Based on our evaluation, we have a high level of certainty that the conservation actions will be effectively implemented and, therefore, should be considered as part of the basis for our final listing determination for C. parryi var. fernandina. Please see the full PECE analysis at http://www.regulations.gov at Docket No. FWS-R8-ES-2016-0078.

Comment (26): One commenter noted that after the proposed rule was published, an activity occurred at the Laskey Mesa population that threatens the continued existence of C. parryi var. fernandina. This activity was permitted by the managing agency.

Response: We assume that the recent activity to which the commenter refers is a fashion show that occurred on May 11, 2017. Our understanding is that MRCA permitted approximately 2.5 ac (1 ha) at Laskey Mesa be utilized for the show, but resulting impacts were about 1 ac (.4 ha) larger than planned, and that several aspects of the event were not covered under the permitted activities. The MRCA permit required that there be no disturbance of terrain or indigenous plants. As a result, CDFW sent a letter to the State Wildlife Conservation Board expressing concern over consistency between the funding provided for the purchase of Laskey Mesa and the intended conservation purpose of that funding. There was a follow-up meeting with representatives of CDFW, the State Wildlife Conservation Board, MRCA, and SMMC, in which the same concerns were shared. As a result of the meeting, the State Wildlife Conservation Board, MRCA, and CDFW agreed to develop a strategy so that concerns regarding the conservation of sensitive species are given a more prominent part in the permitting of activities on Laskey Mesa (e.g., sensitive species surveys prior to filming activities). The CDFW is currently working with its partners in developing the strategy. This strategy should be effective in preventing further variances from permitted activities that might affect C. parryi var. fernandina.

Section 4 of the Act and its implementing regulations (50 CFR 424) set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination. Stressors that currently act, or may act, on C. parryi var. fernandina in the foreseeable future include development (Factors A and E); nonnative, invasive plants (Factors A and E); Argentine ants (Factor E); grazing and agriculture (Factor A); utility line easements and maintenance (Factor A); miscellaneous land use (Factor A); recreation (Factor E); wildfire (Factor E); and climate change (Factors A and E). The effects of these stressors are magnified by virtue of the plant having small population sizes (Factor E). For the purposes of this analysis, we define the “foreseeable future” time period to be 25 years. The basis for this timeframe is that it includes cycles of variation in climate, the potential impacts of the completion of the proposed development of Newhall Ranch, and planned conservation measures for the Laskey Mesa and Santa Clarita populations.

All of these potential stressors are evaluated and presented in our Species Report (Service 2016, pp. 20-78). The best available data indicate that grazing and agriculture, utility line easements and maintenance, miscellaneous land use, and recreation are not resulting in population or rangewide impacts currently or in the future such that they rise to the level of threats to the continued existence of the species. We conclude this because these activities have been or will be removed from most areas that overlap C. parryi var. fernandina. The remaining stressors—development; nonnative, invasive plants; Argentine ants; wildfire; and potentially climate change—acting on the small isolated populations are described below. We address the remaining stressors below because we determined in our September 15, 2016, proposed rule (81 FR 63454) that population or rangewide impacts may contribute to, or are likely to contribute to, considerable loss of individuals or habitat currently or in the future. Please refer to the Potential Stressors section in the Species Report (Service 2016, pp. 20-78) for a more detailed discussion of our evaluation of the biological status of the plant and the factors that may affect its continued existence.

Development consists of converting the landscape into residential, commercial, industrial, and recreational features, with associated infrastructure such as roads. Currently, development does not impact C. parryi var. fernandina at either population. In the future, no development is anticipated at the Laskey Mesa site because the property is owned and managed by the SMMC and MRCA, and preserved as permanent parkland. At the Santa Clarita site, the population is within the footprint of the proposed Newhall Ranch development project.

At the time we issued the proposed rule (81 FR 63454, September 15, 2016), available information indicated that the future development of the proposed Newhall Ranch would directly remove 24 percent of the C. parryi var. fernandina population and occupied habitat at the Santa Clarita site, reducing the population from approximately 20 ac (8 ha) to 15 ac (6 ha) of cumulative occupied area (Dudek 2010a, Table 12, p. 67). In addition to habitat removal, the proposed development would also create indirect effects by fragmenting the remaining habitat between the occurrences of C. parryi var. fernandina. The impacts of fragmented habitat include: (1) Edge effects around remaining populations, such as increasing the risk of invasion of nonnative, invasive plants and animals; and (2) further separation of occurrences relative to current conditions because much of the area between the remaining occurrences would be residential and commercial development (Dudek 2010a, pp. 48-117), potentially affecting pollination and dispersal of the plant (Steffan-Dewenter and Tscharntke 1999, p. 437; Menges 1991, pp. 158-164; Jennerston 1988, pp. 359-366; Cunningham 2000, pp. 1149-1152). These indirect effects of the proposed development would remain into the future post-construction.

Under the 2010 SCP, Newhall Land Company designated seven spineflower preserves containing approximately 15 ac (6 ha) of C. parryi var. fernandina occupied area, which is the remaining 76 percent of the Santa Clarita population. Easements and an endowment to manage and monitor the preserves have been put in place. In addition to the preserves designated under the SCP, the 2017 CCA establishes additional C. parryi var. fernandina occurrences at the Santa Clarita population (Areas 1-3 in Figure 2, above), reducing the overall threat to this population from development. The additional conservation areas at the Santa Clarita population total approximately 825 ac (334 ha) that are contiguous with or adjacent to the existing San Martinez Grande and Potrero preserves established under the SCP. These areas are intended to expand the area of protected conservation land for the plant and increase the extent of protected occurrence locations within the Santa Clarita population to buffer it from detrimental effects of loss of habitat and individuals and the associated edge effects. All of the conservation areas (i.e., preserves under the SCP and occurrences under the 2017 CCA) will be in permanent conservation and will not be directly threatened by development.

Overall, we projected in our September 15, 2016, proposed rule that development at one of the two C. parryi var. fernandina populations would result in the loss of 24 percent of the Santa Clarita population in the future and that edge effects to the remaining Santa Clarita population were expected. Edge effects around the remaining occurrences put these patches at risk and separate them more than they are under current conditions. However, under the 2017 CCA, abundance and distribution of the plant within the Santa Clarita population will be increased to buffer the population from detrimental effects of loss of habitat and individuals and the associated edge effects of the development. When we issued the proposed rule, we concluded that development was a future population-level threat to the plant, as it would result in loss of habitat and individuals, and further reduce the range of the plant, which was already vulnerable due to its small size and isolated populations (Factor E). Since the publication of the proposed rule, the 2017 CCA was developed and signed, and is being implemented. The 2017 CCA provides support for C. parryi var. fernandina by further protecting, increasing, and expanding existing and future populations and habitat.

As discussed above, we have determined that the conservation actions outlined in the 2017 CCA are sufficiently certain to be implemented and effective such that they should be considered in our assessment of status. These conservation actions significantly reduce the identified threats, including effects of historical and future loss of habitat from development (Factor A and E), and their impacts to C. parryi var. fernandina and its habitat. Thus, the best scientific and commercial data available indicate that the effects associated with development are not a threat to the continued existence of C. parryi var. fernandina now nor will they be in the foreseeable future.

The effects of small, isolated populations include increased risk of extinction from random, naturally occurring events, and potentially reduced genetic variation, which can affect the ability of a species to sustain itself into the future in the face of environmental fluctuations. There are two known populations of C. parryi var. fernandina, 17 mi (27 km) apart, one at Laskey Mesa and one at Santa Clarita, each comprising approximately 15 to 20 ac (6 to 8 ha) of occupied area. Historically, the plant was known from no less than 10 additional locations across southern California (see Figure 1).

When we issued the proposed rule (81 FR 63454, September 15, 2016), we concluded that having only two small, isolated populations decreased the ability of C. parryi var. fernandina to sustain itself into the future in the face of environmental fluctuations and random, naturally occurring events. At that time, we determined that this stressor would continue to affect C. parryi var. fernandina and its habitat at both sites into the future.

Since the publication of the proposed rule, the 2017 CCA was completed, which provides for additional conservation areas that are intended to increase the number and extent of spineflower occurrences within the plant's historic range. The additional conservation areas at the Santa Clarita population, which total approximately 825 ac (334 ha), are contiguous with or adjacent to the existing San Martinez Grande and Potrero preserves established under the SCP. These areas are intended to expand the area of protected conservation land for C. parryi var. fernandina and increase the extent of protected occurrence locations within the Santa Clarita population to buffer it from detrimental effects of loss of habitat and individuals and the associated edge effects, including Argentine ant invasion.

Introduction sites outside of the Santa Clarita population include an additional conservation area of 357 ac (144 ha) located in the Simi Valley watershed on the southern boundary of Newhall Land property in Ventura County; an additional conservation area of approximately 316 ac (128 ha) located on Newhall Land property in the Castaic Mesa area in northern Los Angeles County, near a known extirpated population location; and an additional conservation area located in a 7-ac (2.8-ha) portion of the Petersen Ranch Mitigation Bank adjacent to Elizabeth Lake, also near a known extirpated population location.

Introduction of C. parryi var. fernandina at historically occupied but currently extirpated sites and at new sites decreases the risk of having small, isolated populations for C. parryi var. fernandina into the future. When we issued the proposed rule, we concluded that having small, isolated populations was a current and future population-level threat to the plant (Factor E). Since the publication of the proposed rule, the 2017 CCA was developed and is being implemented to increase future populations and habitats for C. parryi var. fernandina.

At this time, under PECE, we have determined that the conservation actions outlined in the 2017 CCA are sufficiently certain to be implemented and effective such that they should be considered in our assessment of status. These conservation actions significantly reduce the identified threats, including having small, isolated populations (Factor E), and their impacts to C. parryi var. fernandina and its habitat. Thus, the best scientific and commercial data available indicate that the adverse effects of small, isolated populations to the continued existence of C. parryi var. fernandina is not a threat to the continued existence of the plant now nor will it be in the foreseeable future.

Nonnative, invasive plants include nonnative vegetation that occurs within or adjacent to habitat that supports C. parryi var. fernandina. In particular, we focused on the impacts of nonnative grasses and other fast-invading, nonnative annual plants because they are abundant at both sites and are efficient at displacing native vegetation.

When we issued the proposed rule (81 FR 63454, September 15, 2016), we determined that this stressor would likely affect C. parryi var. fernandina and its habitat at both sites into the future, but at a decreased severity. Newhall Land provided funding for the management of the Laskey Mesa population, including control of nonnative, invasive vegetation. At the Santa Clarita population, the proposed development of Newhall Ranch would convert areas that currently contain nonnative vegetation to urban areas, thereby reducing the total acreage of nonnative vegetation at this site, but this ground disturbance would also create additional opportunities for nonnative plants to invade urban edges of C. parryi var. fernandina preserves and natural open space. In general, nonnative weedy species are often edge species and become more prevalent or increase in abundance, while rare and sensitive species and species that were once widespread tend to decline (Hilty et al. 2006, pp. 42-45).

The 2017 CCA provides for Newhall Land to voluntarily implement conservation measures described in the introduction plan with the goal of establishing new, protected C. parryi var. fernandina occurrences within the plant's historical range. Weed control is an important component of the introduction plan and will be implemented at all additional conservation areas. The first year of the seeding trials demonstrated successful plant establishment from both broadcast seeding and salvaged topsoil and documented positive effects from weeding. Confirmation that the weed control method used in the seeding trials is effective in improving performance of the plant has important positive implications both for the introduction plan and for management of occupied habitat within the SCP preserves.

In our September 15, 2016, proposed rule, we concluded that nonnative, invasive plants are abundant at both Laskey Mesa and Santa Clarita populations, reduce available habitat quality, compete with C. parryi var. fernandina for resources, and increase potential for wildfire. We also concluded that this stressor historically affected Laskey Mesa and Santa Clarita populations and will continue to affect C. parryi var. fernandina and its habitat at both sites into the future, but at a lower level than historically. Management actions will reduce the presence and impact of nonnative, invasive grasses that would be implemented in the near future and would be effective in reducing this stressor. When we issued the proposed rule, we concluded that nonnative, invasive plants are a population-level threat to C. parryi var. fernandina (loss of individuals) and its habitat (Factors A and E). Since the publication of the proposed rule, the 2017 CCA was developed and signed that now provides additional protected habitat for C. parryi var. fernandina by increasing future populations and habitats where weeds will be controlled. At this time, under PECE, we have determined that the conservation actions outlined in the 2017 CCA are sufficiently certain to be implemented and effective such that they should be considered in our assessment of the status. These conservation actions significantly reduce the identified threats, including historical and future loss of habitat from nonnative, invasive plants (Factors A and E), and their impacts to C. parryi var. fernandina and its habitat. Thus, the best scientific and commercial data available indicate that the stressor of invasive, nonnative plants is not a threat to the continued existence of C. parryi var. fernandina now nor will it be in the foreseeable future.

Argentine ants may impact pollination and seed dispersal vectors of C. parryi var. fernandina. Based on the best available information, Argentine ants have not historically impacted the Laskey Mesa or Santa Clarita populations of C. parryi var. fernandina. Currently, at Laskey Mesa, Argentine ants are present in close proximity, but they were not encountered in areas occupied by C. parryi var. fernandina because, presumably, the conditions are too dry and thus unsuitable (Sapphos 2000, pp. 6-8). At Santa Clarita, as of February 2016, Argentine ants were present within two SCP preserves, Entrada and Potrero (Dudek, 2016b, pp. 17, 20), in the Santa Clara River corridor (Dudek 2016b, entire), at Middle Canyon Spring (Dudek 2010a, p. 130), and in the existing utility corridor that runs along the southern portion of the property and through the Entrada Preserve (Dudek 2016b, p. 17).

At Laskey Mesa, we do not expect Argentine ants will impact C. parryi var. fernandina in the future as there is no anticipated change in land use. At Santa Clarita, Argentine ants already occur, and we would expect them to occur within development areas and open areas adjacent to the preserves in the future after development of the proposed Newhall Ranch (Dudek 2010a, p. 130; Dudek 2016b, pp. 4-20).

In our September 15, 2016, proposed rule, we determined that loss of habitat and individuals and the associated edge effects including proliferation of Argentine ants at the Santa Clarita population are likely to decrease habitat quality, reducing resiliency at this population. The 2017 CCA includes establishing additional C. parryi var. fernandina occurrences at the Santa Clarita population, including three additional conservation areas totaling approximately 825 ac (334 ha) that are contiguous with or adjacent to the existing San Martinez Grande and Potrero preserves established under the SCP. These additional conservation areas are intended to increase the extent of protected C. parryi var. fernandina occurrences within the Santa Clarita population to buffer it from detrimental effects of loss of habitat and individuals and the associated edge effects, including Argentine ant invasion.

The additional conservation area adjacent to the existing Potrero preserve is at risk of invasion by Argentine ants. The two additional conservation areas adjacent to the existing San Martinez Grande preserve are farther from existing or proposed development (see Figure 2, above). None of the adjacent land uses near San Martinez Grande poses a heightened threat of Argentine ant invasion (Dudek 2016, p. 6). These additional conservation areas are not expected to be at risk of invasion from Argentine ants and should contribute to C. parryi var. fernandina numbers and recruitment at the Santa Clarita population. Pollination and seed dispersal vectors are therefore expected to remain healthy at these sites. Argentine ants are not considered to be a significant long-term risk to C. parryi var. fernandina at the introduction sites outside of the Santa Clarita population because they are all well separated from areas supporting potential source populations of Argentine ants, such as urban development areas.

The 2017 CCA describes that annual Argentine ant monitoring will be conducted as part of the ongoing habitat maintenance and appropriate control measures consistent with the Argentine Ant Control Plan for Newhall Ranch (Dudek 2014, entire) in the event that invasion occurs. If Argentine ants invade, Newhall Land proposes control methods as part of an integrated pest management plan to remove Argentine ants and mitigate for the absence of native pollinators within the preserves (Dudek 2014c, pp. 25-42). Qualified pest control professionals and conservation managers will review and approve any control or mitigation plan.

When we issued the proposed rule, we concluded that Argentine ants are a current and future population-level threat to C. parryi var. fernandina (loss of individuals) (Factor E). Since the publication of the proposed rule, the 2017 CCA was developed and signed, which will expand the area of protected conservation land for C. parryi var. fernandina and increase the extent of protected occurrences within the Santa Clarita population to buffer it from detrimental effects of Argentine ant invasion. Argentine ants may still affect some portion of the Santa Clarita population, but by increasing the overall resiliency of the population to those effects by increasing numbers and area for the spineflower, the effects of Argentine ants, including loss of pollinators and seed dispersers, are not expected to result in meaningful impacts at the population scale. At this time, under PECE, we have determined that the conservation actions outlined in the 2017 CCA are sufficiently certain to be implemented and effective such that they should be considered in our assessment of status. These conservation actions significantly reduce the identified threats, including Argentine ants (Factor E), and their impacts to C. parryi var. fernandina and its habitat. Thus, the best scientific and commercial data available indicate that Argentine ants are not a threat to the continued existence of C. parryi var. fernandina now nor will they be in the foreseeable future.

The term “climate” refers to the mean and variability of different types of weather conditions over time, with 30 years being a typical period for such measurements, although shorter or longer periods also may be used (IPCC 2014, p. 119). 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, typically decades or longer, whether the change is due to natural variability, human activity, or both (IPCC 2014, p. 120). A recent synthesis report of climate change and its effects is available from the Intergovernmental Panel on Climate Change (IPCC) (IPCC 2014, entire).

There is no way to measure past impacts at either population associated with climate change. Compared to historical or baseline temperature and precipitation measurements, projections of climate change in the south coast region of California indicate that precipitation will decrease slightly and temperature will increase slightly by mid-century. The response of C. parryi var. fernandina may be similar to other plant species with a similar life history. A growing body of literature discusses the specific mechanisms by which climate change could affect the abundance, distribution, and long-term viability of plant species, as well as current habitat configuration over time, including, but not limited to, Root et al. (2003), Parmesan and Yohe (2003), and Visser and Both (2005). Some of the responses by plants to climate change presented by these studies and others include the following:

1. Drier conditions may result in less suitable habitat, or a lower germination success and smaller population sizes;

2. Higher temperatures may inhibit germination, dry out soil, or affect pollinator services;

3. The timing of pollinator life cycles may become out-of-sync with timing of flowering;

4. A shift in the timing and nature of annual precipitation may favor expansion in abundance and distribution of nonnative species; and

5. Drier conditions may result in increased fire frequency, making the ecosystems in which a species currently grows more vulnerable to threats of nonnative plant invasion.

Overall, although many climate models generally agree about potential future changes in temperature and precipitation, their consequent effects on vegetation are more uncertain, as is the rate at which any such changes might be realized. It is not clear how or when changes in vegetation type or plant species composition will affect the distribution of C. parryi var. fernandina. Therefore, uncertainty exists when determining the level of impact climate change may have on C. parryi var. fernandina or its habitat. At the time of the proposed listing, based on the analysis in the Species Report (Service 2016, pp. 73-78) and summarized above, the best available information did not allow us to reliably project responses of C. parryi var. fernandina to indicate that climate change is a threat to the continued existence of the plant or its habitat now or in the future, although we continue to seek additional information concerning how climate change may affect the plant and its habitat (Factors A and E).

Since the publication of the proposed rule, the 2017 CCA was developed and signed. The actions in the 2017 CCA will result in at least two new self-sustaining, persistent C. parryi var. fernandina occurrences and will increase the number of ecoregions in which C. parryi var. fernandina is represented. Increasing the number of ecoregions in which the plant is represented is intended to improve the ability of the plant to adapt to changing environmental conditions into the future. Ecoregions denote areas of general similarity in ecosystems through analysis of patterns of biotic and abiotic phenomena, including geology, physiography, vegetation, climate, soils, land use, wildlife, and hydrology; level IV is the finest ecoregion level developed by the Environmental Protection Agency (Environmental Protection Agency 2016). Currently, there are only two C. parryi var. fernandina populations, 17 mi (27 km) apart, representing only one level IV ecoregion. Increasing the number of ecoregions in which the species occurs may increase the ability of the plant to adapt to a changing environment, which may decrease the risk of future extirpation of the plant under climate change. The two existing C. parryi var. fernandina populations are located in the Venturan-Angeleno Coastal Hills ecoregion. The additional conservation area in the Castaic Mesa area in northern Los Angeles County, near a known extirpated population location, is within the Southern California Lower Montane Shrubland Woodland ecoregion. The additional conservation area located in the Petersen Ranch Mitigation Bank adjacent to Elizabeth Lake near a known extirpated population location is within the Arid Montane Slopes ecoregion.

In our September 15, 2016, proposed rule, based on the analysis in the Species Report (Service 2016, pp. 73-78), we determined that we did not have reliable information to indicate that climate change is a threat to C. parryi var. fernandina or its habitat now or in the future (Factors A and E). Uncertainty about the effects of climate change on the plant remains. Therefore, we do not have reliable information to indicate that climate change is a threat to C. parryi var. fernandina habitat now or in the future (Factors A and E).

In our Species Report, we concluded that wildfire directly impacts C. parryi var. fernandina where they co-occur, but that this impact is temporary until vegetation reestablishes post fire (Service 2016, pp.73-76). The extent of direct impacts may depend on the severity of the fire, which is a function of its intensity (heat output) and duration. A high-intensity (i.e., hotter) and/or long duration fire would be more likely to incinerate seeds than a fire that is lower intensity (i.e., cooler) and/or has a shorter duration (i.e., is faster moving) (McGraw 2017, p. 4). Seed germination of related taxa, Parry's spineflower, appears to be inhibited by fire (Ellstrand 1994 and Ogden 1999, in CBI 2000, pp. 4, 13). A study on the effects of fire on Ben Lomond spineflower (Chorizanthe pungens var. hartwegiana) found that fire directly reduced seed germination during the first year after the fire (McGraw 2017, p. 5).

Despite the effect of direct scorching, fire may prove beneficial to C. parryi var. fernandina by creating openings in ground cover and temporarily reducing competition (CBI 2000, p. 13). The Ben Lomond spineflower study found that fire indirectly facilitated Ben Lomond spineflower by removing accumulative leaf litter and creating openings for seedlings (McGraw 2017, p. 5). However, by creating such open areas, wildfire expands the footprint of invasive annual plants that are more likely to ignite and carry fire than much of the native flora, thereby creating a feedback mechanism.

The Rye Fire on Newhall Ranch began on December 5, 2017, and burned approximately 2,845 ac (1,150 ha) of land within the boundaries of the SCP area. Of the seven SCP preserves, four were burned (Grapevine Mesa, Airport Mesa, Spring, and Potrero). The westernmost portion of the Airport Mesa preserve burned while the entirety of the Spring, Grapevine, and Potrero preserves burned. Of the 20-ac (8-ha) cumulative C. parryi var. fernandina occupied area within the SCP, approximately 13 ac (5 ha) were affected by the Rye Fire (approximately 66 percent of total cumulative occupied area since 2002), including 4 ac (1.6 ha) in the Grapevine Mesa preserve, 5 ac (2 ha) in Airport Mesa preserve, less than 1 ac (0.4 ha) in the Spring preserve, and 1 ac (0.4 ha) in the Potrero preserve (Dudek 2017, pp. 14-15). Approximately 3 ac (1.2 ha) of C. parryi var. fernandina habitat outside the SCP preserves were affected by the fire; of that area, approximately 1 ac (0.4 ha) was no longer occupied at the time of the fire, because this area lies within the Mission Village Project Site, and Newhall Land had previously conducted soil salvage in the C. parryi var. fernandina occupied area as an SCP conservation measure (Dudek 2017, pp. 14-15). This soil was stored off site at the time of the fire and was not burned.

The intensity of the Rye Fire on Newhall Ranch was characterized as light (Watershed Emergency Response Team 2018, pp. 18-20). Based on field testing, the California Geological Survey found that within the mapped fire perimeter, 64 percent of the area was classified as very low/unburned, 34 percent as low, and 2 percent as moderate; no area was classified as high (Watershed Emergency Response Team 2018, pp. 18-20). The severity of the Rye Fire was similar to or generally less than the most recent fires on Newhall Ranch in C. parryi var. fernandina habitat, the 2003 Verdale Fire and 2007 Magic Fire. Severity in burn areas was generally low in the Magic Fire and very low to moderate in the Verdale Fire (Dudek 2017, p. 10). At the Laskey Mesa population, the Devonshire-Parker Fire (1967) burned a portion of the C. parryi var. fernandina; the Clampett Fire (1970) burned most of the plants; and the Dayton Fire (1982) and Topanga Fire (2005) burned all C. parryi var. fernandina plants onsite. These fires had relatively short intervals between burn events, between 2 and 18 years.

If the Rye Fire promotes the invasion and spread of exotic plants, it will degrade habitat for C. parryi var. fernandina. In the 2016 Species Report, we found that small native annuals like C. parryi var. fernandina cannot compete with fast-growing nonnative plants (i.e., grasses) for light, water, and soil nutrients (Service 2016, pp. 39-44). Chorizanthe parryi var. fernandina's size, density, and biomass were all found to be negatively correlated with exotic plant cover during the observational studies conducted as part of habitat characterization (McGraw 2017, p. 20). In addition, by manipulating the cover of exotic plants through weed whacking, the 2016 seeding trials demonstrated that exotic plants reduce population growth rate by significantly reducing C. parryi var. fernandina seedling establishment, survivorship, flower production, and seed set through competition (McGraw and Thomson 2017, p. 14).

Numerous previous wildfire events have occurred on Newhall Ranch since 1913, including at least 12 since 1983 (excluding the 2017 Rye Fire), and several of these fires have affected extensive areas of spineflower-occupied habitat (Dudek 2017, p. 10). Chorizanthe parryi var. fernandina monitoring began on Newhall Ranch in 2002. Two fires have affected the Santa Clarita population since then. The 2003 Verdale Fire burned almost the entire San Martinez Grande preserve area. The 2007 Magic Fire burned portions of the Grapevine Mesa and Entrada preserve areas. Both the 2003 Verdale Fire and the 2007 Magic Fire occurred in October, after C. parryi var. fernandina surveys had been conducted for that year.

Large year-to-year fluctuations in population numbers make it difficult to discern pre- and post-burn trends in C. parryi var. fernandina. As an annual plant that exhibits large fluctuations in aboveground population size, abundance appears to track to annual climatic variability, particularly amount of rainfall (Dudek 2010a, pp. 18-20; Dudek 2012, p. 12; McGraw 2012, entire). Surveys conducted following the fires that occurred on Newhall Ranch in 2003 and 2007 show that year-to-year fluctuations in C. parryi var. fernandina occupied area and population numbers within burned areas have generally been consistent with fluctuations in unburned areas (Dudek 2017, p. 11). In addition, no significant patterns relating historical fire frequency to C. parryi var. fernandina cover, density, survival to flower, or size were observed in 2014 (McGraw 2017, p. 3). However, C. parryi var. fernandina cover, density, and size were all generally negatively correlated with the cover of shrubs, which increases with time after fire, suggesting that C. parryi var. fernandina may do better in terms of density and size in more recently burned areas (McGraw 2017, p. 3).

We expect relatively minor effects from the Rye Fire on arthropods that could be C. parryi var. fernandina pollinators. Jones et al. (2004) conducted pollinator studies on C. parryi var. fernandina populations on Newhall Ranch and Ahmanson Ranch, and found that one of the dominant floral visitors on Newhall Ranch was little red ant and the dominant floral visitors at the Ahmanson Ranch were two species of ants: The pyramid ant and the southern fire ant. Matsuda et al. (2011, entire) investigated the effect of broad-scale wildfire on ground foraging ants within southern California. They found a net negative effect of fire on the overall diversity of ground foraging ants likely because of changes in community structure rather than the loss of species richness. Although they found a negative effect of fire on ant diversity, the increases in overall species diversity in both the fire-impacted and reference plots suggest that ground-foraging ants may be relatively resilient to fire because only about 2 percent of an ant colony is active on the surface, thus limiting direct mortality. They also suggest that unburned patches within a burn area can provide refuge for ants and source populations for recolonization of burned areas.

Fire suppression activities may impact C. parryi var. fernandina and its habitat, including clearing vegetation for fire and fuel breaks or spreading retardant. Fire retardant is known to act as a fertilizer that enhances the growth of nonnative grasses (Avery 2001, pp. 17-18). During the Rye Fire, Airport Mesa was the only SCP preserve where Phos-Chek (i.e., aerial applied fire retardant) was dropped. It covered approximately 5 ac (2 ha) of the preserve and less than 1 ac (0.4 ha) of the cumulative spineflower area in that preserve. Also in the Airport Mesa Preserve, an existing road and a portion of undisturbed lands were used by vehicles during the fire (Dudek 2017, p. 15).

In 2011, the Service issued a biological and conference opinion based on our review of the continued aerial application of fire retardants, including Phos-Chek, on National Forest System Lands and its effects on 75 species listed as endangered or threatened, or proposed for listing, and on designated critical habitat in accordance with section 7 of the Act (Service 2011, entire). This opinion did not directly address effects to C. parryi var. fernandina. However, it addressed effects to the slender-horned spineflower (Dodecahema leptoceras) (Service 2011, pp. 411-414). Our analyses found that fire retardant applications could impact the plant via short-term (1 to 2 growing seasons) phytotoxic effects, including leaf burning, shoot die-back, a decrease in germination, and plant death. However, the more likely effects to the species would be that nonnative plants could be enhanced by fire retardant application and impact population. Fire retardants contain nitrogen and phosphorus that could act as nutrients. While fire retardant could enhance nonnative plants, it could also enhance slender-horned spineflower growth.

The effects of Phos-Check were also examined as part of the Ben Lomond spineflower study (McGraw 2017, pp. 5-6). There were no biologically meaningful increases in the cover or richness of exotic plants within the Phos-Chek treated areas. This may reflect the dense shrub and tree cover in these areas, which limits the ability of light-limited exotic plants to establish, or the Phos-Chek nutrients might have been readily taken up by native plants, or readily flushed from the sandy-soil system.

Monitoring of C. parryi var. fernandina on Newhall Ranch within the SCP preserves will continue to evaluate the performance of the Santa Clarita population post-Rye Fire. If the monitoring shows that management is needed to address direct or indirect effects of the fire, measures will be incorporated into annual work plans as required by the SCP and reviewed by the Spineflower Adaptive Management Working Group. The primary anticipated post-fire preserve management activity involves monitoring and controlling weeds that may invade burned areas following the fire event, particularly if they exceed 30 percent relative cover (Dudek 2017, p. 7).

Additional information about the effects of the fire on C. parryi var. fernandina will be obtained through the second year of monitoring of the 2016 seeding trial study plots. The Rye Fire burned 7 of the 10 experimental blocks (groups of treatment plots) into which spineflower seed was sown and topsoil was placed to evaluate the effects of seeding methods and habitat treatment (weeding, irrigation, and soil compaction) on spineflower establishment (McGraw 2017, pp. 7-8). During monitoring of the plots in the 2018 growing season, rates of seedling establishment, survivorship, growth, and reproduction can be compared across plots that burned and those that did not burn.

Given the large C. parryi var. fernandina occupied area and potentially suitable habitat affected by the Rye Fire (approximately 13 ac (5 ha) or 66 percent of the cumulative occupied area of the Santa Clarita population), the fire has the potential to affect the distribution and performance of the population both directly and indirectly, with these effects having the potential to result in positive or negative outcomes. Overall, the Rye Fire falls within the historical range of fires on Newhall Ranch in terms of size and severity (i.e., generally light burning and little evidence of deep soil charring), and we expect that the plant will be affected by this fire similarly to past fires, where year-to-year fluctuations in C. parryi var. fernandina occupied area and population numbers within burned areas were generally consistent with fluctuations in unburned areas (Dudek 2017, p. 11). The biggest concern is that fire may promote the invasion and spread of nonnative, invasive grasses that out-compete small native annuals like C. parryi var. fernandina. The effects of the Rye Fire on C. parryi var. fernandina may depend on the climate in the ensuing years. Monitoring conducted under the SCP will continue to evaluate the performance of the population, in terms of cover, density, and size of plants, within the SCP preserves, and if the monitoring shows that management is needed to address direct or indirect effects of the fire, such as an increase in nonnative, invasive grasses, measures will be incorporated into annual work plans and implemented (Dudek 2017, p. 7). Therefore, the best scientific and commercial data available indicate that the stressor of wildlife is not a threat to the continued existence of C. parryi var. fernandina now nor will it likely be in the foreseeable future.

When stressors occur together, one stressor may exacerbate the effects of another stressor, causing effects not accounted for when stressors are analyzed individually. Synergistic effects may be observed in a short amount of time or may not be noticeable for years into the future, and could affect the long-term viability of C. parryi var. fernandina. Stressors that could act synergistically on C. parryi var. fernandina include development; having small, isolated populations; nonnative, invasive plants; Argentine ants; wildfire; and potentially climate change. At the Laskey Mesa site, the presence of nonnative, invasive grasses increases the frequency of wildfire, which in turn creates more open area for nonnative, invasive plants to grow that are more likely to ignite and carry fire than native vegetation (Keeley et al. 2005, p. 2123). At the Santa Clarita site, the future development of Newhall Ranch would directly remove 24 percent of the C. parryi var. fernandina population, fragmenting the habitat between the occurrences of C. parryi var. fernandina, which will create edge effects around remaining occurrences within C. parryi var. fernandina preserves, and increase the risk of invasion of Argentine ants and nonnative, invasive plants. When we issued our September 15, 2016, proposed rule, we determined that when considered together, the impact of these stressors has the potential to be high. Even though the impact of each of these stressors may be low to moderate under current conditions, the proposed development of Newhall Ranch, which would occur over the next 25 years, will likely exacerbate the impact of the stressors while confining the C. parryi var. fernandina population at this site to small patches of suitable habitat adjacent to and bordered by urban development. At the time of the proposed listing, we also determined that long-term future impacts may increase synergistic effects, and it is unknown if C. parryi var. fernandina will be able to adapt to the potential synergistic effect of stressors. Since the publication of the proposed rule, the 2017 CCA was developed and signed, and is being implemented; the 2017 CCA now provides additional populations and protected habitat for C. parryi var. fernandina.

At the Laskey Mesa site, we anticipate that management actions will be undertaken to manage the proliferation of nonnative, invasive grasses. At the Santa Clarita site, the 2017 CCA conservation efforts will expand the area of protected conservation land for the plant and will increase the extent of protected locations within the Santa Clarita population to buffer it from detrimental effects. Argentine ants may still affect some portion of the Santa Clarita population, but by increasing the overall resiliency of the population to those effects by increasing numbers and area for the spineflower, the effects of Argentine ants, including some loss of pollinators and seed dispersers, is not expected to have significant impacts at the population scale. Weeding will decrease the impacts of nonnative, invasive plants. Additional conservation areas associated with the 2017 CCA outside the Santa Clarita population are not at risk from Argentine ant invasion; weeding will also take place. Increasing the overall redundancy of C. parryi var. fernandina with additional populations and distributing those populations across different ecoregions improves the ability of the plant to withstand small-scale stressors, as well as catastrophic events. At this time, under PECE, we have determined that the conservation actions outlined in the 2017 CCA are sufficiently certain to be implemented and effective such that the actions will significantly reduce the identified threats, including their synergistic effects, to C. parryi var. fernandina and its habitat. Thus, the best scientific and commercial data available indicate that synergistic effects acting on C. parryi var. fernandina or its habitat are not a threat to the continued existence of the plant now nor will they be in the foreseeable future.

We use the principles of resiliency, redundancy, and representation as a lens to evaluate current and future effects to C. parryi var. fernandina. Resiliency describes the ability of a species to withstand stochastic disturbance. Resiliency is positively related to population size and growth rate, and may be influenced by connectivity among populations. Generally speaking, populations need abundant individuals within habitat patches of adequate area and quality to maintain survival and reproduction in spite of disturbance.

Redundancy describes the ability of a species to withstand catastrophic events. It is about spreading risk among multiple populations to minimize the potential loss of the species from catastrophic events. Redundancy is characterized by having multiple, resilient populations distributed within the species' ecological settings and across the species' range. It can be measured by population number, resiliency, special extent, and degree of connectivity.

Representation describes the ability of a species to adapt to changing environmental conditions overtime. It is characterized by the breadth of genetic and environmental diversity within and among populations. Measures may include the number of varied niches occupied, the gene diversity, and heterozygosity of alleles per locus.

In our September 15, 2016, proposed rule (81 FR 63454) to list Chorizanthe parryi var. fernandina as a threatened species, we concluded that, overall, redundancy and representation are currently reduced and resiliency is likely to decrease in the future, bringing into question whether C. parryi var. fernandina can sustain itself in the face of environmental fluctuations and random, naturally occurring events.

In our proposed rule, we determined that loss of habitat and individuals and the associated edge effects (i.e., proliferation of invasive, nonnative plants and Argentine ants) at the Santa Clarita population are likely to decrease habitat quality, reducing resiliency at this population and increasing the overall risk to the plant from random, naturally occurring events. The portions of the 2017 CCA that intend to establish additional C. parryi var. fernandina occurrences at the Santa Clarita population (Areas 1-3 in Figure 2, above) include three additional conservation areas totaling approximately 825 ac (334 ha) that are contiguous with or adjacent to the existing San Martinez Grande and Potrero preserves established under the SCP. These areas are intended to expand the area of protected conservation land for C. parryi var. fernandina and increase the extent of protected occurrences within the Santa Clarita population to buffer it from detrimental effects of loss of habitat and individuals and the associated edge effects.

Given that invasion by invasive, nonnative plants and Argentine ants could occur, all additional conservation areas will be monitored and managed for these stressors. The enhancement areas surrounding introduction sites will help minimize invasion of nonnative plant species, which could threaten the quality of the habitat for C. parryi var. fernandina occupation. The overall maintenance program described in the introduction plan, which will occur throughout the duration of the 10-year maintenance and monitoring period, directs enhancement efforts in the additional conservation areas to focus on: (1) Reducing annual nonnative/exotic plant species cover and competition to help facilitate C. parryi var. fernandina establishment, persistence, and recruitment; (2) increasing native species cover and diversity in disturbed areas, particularly in areas surrounding introduction sites that function as a buffer; and (3) providing regulation and protection of the preserve boundaries from unauthorized human activity and intrusion.

As of February 2016, Argentine ants were present within two SCP preserves at the Santa Clarita population, Entrada and Potrero (Dudek, 2016, pp. 17, 20). Therefore, the additional conservation area adjacent to the existing Potrero preserve is at risk of invasion by Argentine ants. The two additional conservation areas adjacent to the existing San Martinez Grande preserve are farther from existing or proposed development (see Figure 2, above). None of the adjacent land uses near San Martinez Grande poses a heightened threat of Argentine ant invasion (Dudek 2016, p. 6); therefore, these additional conservation areas are not expected to be at risk of invasion Argentine ants and should contribute to C. parryi var. fernandina numbers and recruitment at the Santa Clarita population. Section 2.4 of the introduction plan describes that annual Argentine ant monitoring will be conducted as part of the ongoing habitat maintenance and appropriate control measures consistent with the Argentine Ant Control Plan for Newhall Ranch (Dudek 2014, entire) will be implemented in the event that invasion occurs. If Argentine ants invade, Newhall Land proposes control methods as part of an integrated pest management plan to remove Argentine ants and mitigate for the absence of native pollinators within the preserves (Dudek 2014c, pp. 25-42). Qualified pest control professionals and conservation managers will review and approve any control or mitigation plan.

Overall, increasing the number and health of the plants at the Santa Clarita population with introduction and enhancement is expected to increase the overall resiliency of the population to potential proliferation of invasive, nonnative plants and the effects of Argentine ant invasion. The two additional conservation areas adjacent to the San Martinez Grande preserve are at low risk of invasion by invasive, nonnative plants and Argentine ants, and should contribute to C. parryi var. fernandina numbers and recruitment at the Santa Clarita population in the event that the additional conservation area adjacent to the Potrero preserve becomes invaded by Argentine ants and control measures are unsuccessful.

The introduction sites outside of the Santa Clarita population include an additional conservation area of 357 ac (144 ha) located in the Simi Valley watershed on the southern boundary of Newhall Land property in Ventura County (Area 5 in Figure 2, above); an additional conservation area of approximately 316 ac (128 ha) located on Newhall Land property in the Castaic Mesa area in northern Los Angeles County, near a known extirpated population location (Area 4 in Figure 2); and an additional conservation area located in a 7-ac (2.8-ha) portion of the Petersen Ranch Mitigation Bank adjacent to Elizabeth Lake, also near a known extirpated population location (Area 6 in Figure 2). Argentine ants are not considered to be a significant long-term risk to C. parryi var. fernandina at these introduction sites because they are all well separated from areas supporting potential source populations, such as urban development areas. Supplemental watering will be delivered through a water truck rather than a permanent point of connection to a live water line to minimize the potential for the introduction of Argentine ants. The enhancement areas surrounding introduction sites are intended to help minimize invasion of nonnative plant species, which could threaten the quality of the habitat for C. parryi var. fernandina occupation.

In our proposed rule, we determined that with only two extant populations, there may not be sufficient redundancy to sustain C. parryi var. fernandina over the long term, given current and future stressors acting upon the populations. The additional conservation areas proposed in the introduction plan are intended to further increase the number and extent of C. parryi var. fernandina within its historic range. The 2017 CCA provides for Newhall Land to introduce C. parryi var. fernandina within portions of the additional conservation areas with the goal of establishing at least two new self-sustaining, persistent occurrences to at least double the redundancy of the spineflower. C. parryi var. fernandina introduction will occur on a total of at least 10 ac (4 ha) within the additional conservation areas: (1) Three additional conservation areas totaling approximately 825 ac (334 ha) are contiguous with or adjacent to the existing San Martinez Grande and Potrero preserves established under the SCP (all of which would be considered part of the Santa Clarita population); (2) an additional conservation area of 357 ac (144 ha) is located in the Simi Valley watershed on the southern boundary of Newhall Land property in Ventura County; (3) an additional conservation area of approximately 316 ac (128 ha) is located on Newhall Land property in the Castaic Mesa area in northern Los Angeles County, near a known extirpated population location; and (4) an additional conservation area containing introduction sites is located in a 7-ac (2.8-ha) portion of the Petersen Ranch Mitigation Bank adjacent to Elizabeth Lake, also near a known extirpated population location.

In our proposed rule, we determined that the two C. parryi var. fernandina populations represent only one level IV ecoregion (EPA 2016), down from five historically, which theoretically may decrease the ability of the plant to adapt to changing environmental conditions into the future. The goal of the 2017 CCA is to establish at least two new self-sustaining, persistent C. parryi var. fernandina occurrences, at least one of which will be in a different ecoregion from the existing populations to increase the number of ecoregions in which the species is represented (see Figure 2, above). The two existing populations are located in the Venturan-Angeleno Coastal Hills ecoregion. The additional conservation area in the Castaic Mesa area in northern Los Angeles County, near a known extirpated population location, is within the Southern California Lower Montane Shrubland Woodland ecoregion. The additional conservation area located in the Petersen Ranch Mitigation Bank adjacent to Elizabeth Lake near a known extirpated population location is within the Arid Montane Slopes ecoregion. Establishing at least two new self-sustaining, persistent spineflower occurrences where at least one is in a different ecoregion from the existing populations should improve the ability of the plant to adapt to changing environmental conditions into the future.

In conclusion, based on our high certainty that these efforts will be implemented and be effective, we conclude that the nature and extent of threats identified in our September 15, 2016, proposed rule (81 FR 63454) are adequately addressed. The threats identified in the proposed rule include reduced resiliency due to habitat fragmentation and associated edge effects (i.e., proliferation of Argentine ants) at the Santa Clarita population, reduced redundancy with only two extant populations, and reduced representation down to one ecoregion from five historically across the range of C. parryi var. fernandina. The 2017 CCA and associated introduction plan have identified the types of threats to the plant and include actions to address these threats, including the establishment of at least two new self-sustaining, persistent C. parryi var. fernandina occurrences, at least one of which will be in a different ecoregion from the existing populations on a total of at least 10 ac (4 ha) within the additional conservation areas. Permanent conservation instruments will be recorded over each of the additional conservation areas to ensure that the habitat values are maintained and that all initial habitat enhancement and introduction activities and perpetual management and monitoring will be funded.

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.” The Act requires that we determine whether a species meets the definition of “endangered species” or “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.

We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to C. parryi var. fernandina including development (Factors A and E); nonnative, invasive plants (Factors A and E), Argentine ants (Factor E); wildfire (Factor E); and potentially climate change (Factors A and E) acting on the small, isolated populations (Factor E) of C. parryi var. fernandina. Our analysis of this information indicates that these stressors are not of sufficient imminence, intensity, or magnitude to indicate that C. parryi var. fernandina is in danger of extinction or likely to become an endangered species within the foreseeable future throughout all of its range.

Since the publication of the September 15, 2016, proposed rule, the 2017 CCA was developed and signed, and is being implemented; the 2017 CCA provides for additional populations and protected habitat for C. parryi var. fernandina. The additional conservation areas proposed in the C. parryi var. fernandina introduction plan are intended to further increase the number and extent of the spineflower within its historic range. The actions in the 2017 CCA will result in at least two new self-sustaining, persistent C. parryi var. fernandina occurrences and will increase the number of ecoregions in which the plant is represented. This effort is expected to double the number of extant C. parryi var. fernandina occurrences. At the Santa Clarita population, the extent of protected occurrences will be increased to buffer the population from edge effects, such as Argentine ant invasion. At both Santa Clarita and the Laskey Mesa populations, we anticipate that management actions will be undertaken to manage the proliferation of nonnative, invasive grasses. Increasing the overall redundancy of C. parryi var. fernandina with additional populations and distributing those populations across different ecoregions improves the ability of the plant to withstand small-scale stressors, as well as catastrophic events. Increasing the number of ecoregions in which the spineflower is represented is intended to improve the ability of the plant to adapt to changing environmental conditions into the future. Thus, after assessing the best available information, we conclude that C. parryi var. fernandina is not in danger of extinction throughout all of its range nor is it likely to become so in the foreseeable future.

Because we determined that C. parryi var. fernandina is not in danger of extinction or likely to become so in the foreseeable future throughout all of its range, we will consider whether there are any significant portions of its range in which C. parryi var. fernandina is in danger of extinction or likely to become so in the foreseeable future.

Under the Act and our implementing regulations, a species may warrant listing if it is an endangered species or a threatened species throughout all or a significant portion of its range. The Act defines “endangered species” as any species that is “in danger of extinction throughout all or a significant portion of its range,” and “threatened species” as any species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The term “species” includes “any subspecies of fish or wildlife or plants, and any distinct population segment [DPS] of any species of vertebrate fish or wildlife which interbreeds when mature.” We published a final policy interpreting the phrase “significant portion of its range” (SPR) (79 FR 37578, July 1, 2014). The final policy states that (1) if a species is found to be an endangered or a threatened species throughout a significant portion of its range, the entire species is listed as an endangered or a threatened species, respectively, and the Act's protections apply to all individuals of the species wherever found; (2) a portion of the range of a species is “significant” if the species is not currently an endangered species or a threatened species throughout all of its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range; (3) the range of a species is considered to be the general geographical area within which that species can be found at the time the Service makes any particular status determination; and (4) if a vertebrate species is an endangered species or a threatened species throughout an SPR, and the population in that significant portion is a valid DPS, we will list the DPS rather than the entire taxonomic species or subspecies.

The SPR policy is applied to all status determinations, including analyses for the purposes of making listing, delisting, and reclassification determinations. The procedure for analyzing whether any portion is an SPR is similar, regardless of the type of status determination we are making. The first step in our analysis of the status of a species is to determine its status throughout all of its range. If we determine that the species is in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range, we list the species as an endangered (or threatened) species and no SPR analysis will be required. If the species is neither an endangered nor a threatened species throughout all of its range, we determine whether the species is an endangered or a threatened species throughout a significant portion of its range. If it is, we list the species as an endangered or a threatened species, respectively; if it is not, we conclude that listing the species is not warranted.

When we conduct an SPR analysis, we first identify any portions of the species' range that warrant further consideration. The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose to analyzing portions of the range that are not reasonably likely to be significant and either an endangered or a threatened species. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that (1) the portions may be significant and (2) the species may be in danger of extinction in those portions or likely to become so within the foreseeable future. We emphasize that answering these questions in the affirmative is not a determination that the species is an endangered or a threatened species throughout a significant portion of its range—rather; it is a step in determining whether a more detailed analysis of the issue is required. In practice, a key part of this analysis is whether the threats are geographically concentrated in some way. If the threats to the species are affecting it uniformly throughout its range, no portion is likely to warrant further consideration. Moreover, if any concentration of threats apply only to portions of the range that clearly do not meet the biologically based definition of “significant” (i.e., the loss of that portion clearly would not be expected to increase the vulnerability to extinction of the entire species); those portions will not warrant further consideration.

If we identify any portions that may be both (1) significant and (2) endangered or threatened, we engage in a more detailed analysis to determine whether these standards are indeed met. The identification of an SPR does not create a presumption, prejudgment, or other determination as to whether the species in that identified SPR is an endangered or a threatened species. We must go through a separate analysis to determine whether the species is an endangered or a threatened species in the SPR. To determine whether a species is an endangered or a threatened species throughout an SPR, we will use the same standards and methodology that we use to determine if a species is an endangered or a threatened species throughout its range.

Depending on the biology of the species, its range, and the threats it faces, it may be more efficient to address the “significant” question first, or the status question first. Thus, if we determine that a portion of the range is not “significant,” we do not need to determine whether the species is an endangered or a threatened species there; if we determine that the species is not an endangered or a threatened species in a portion of its range, we do not need to determine if that portion is “significant.”

Applying the process described above to identify whether any portions warrant further consideration, we determine whether there are any particular portions where (1) the portions may be significant and (2) the species may be in danger of extinction or likely to become so within the foreseeable future. To identify portions that may be significant, we consider whether any natural divisions within the range might be of biological or conservation importance. To identify portions where the species may be in danger of extinction or likely to become so in the foreseeable future, we consider whether the threats are geographically concentrated in any portion of the species' range.

We evaluated the range of Chorizanthe parryi var. fernandina to determine if any area may be a significant portion of the range. We determine whether a portion is significant by considering the importance of the members in that portion to the conservation of the species. To be significant, a portion must be of such importance to the species that the hypothetical loss of the members in that portion would cause the entire species to be in danger of extinction or likely to become so in the foreseeable future throughout the remainder of its range. In this determination, we are not forecasting the outcome of our evaluation of the portion's status; rather, we are only hypothesizing what the status of the species would be if the members of the species in that portion were to be extirpated.

Because there are only two extant Chorizanthe parryi var. fernandina populations (Santa Clarita population and Laskey Mesa population) 17 mi (27 km) apart, we determined that either the Santa Clarita population portion or the Laskey Mesa population portion of the range may be considered significant. At the same time, we also examined whether either portion, the Santa Clarita population or the Laskey Mesa population, might be endangered or threatened as a result of a geographic concentration of threats. We determine the status of the species in a portion of its range the same way we determine the status of a species throughout all of its range. We consider whether threats are reasonably likely to affect the species in that portion to such an extent that the species is in danger of extinction or likely to become so in the foreseeable future in that portion.

When we issued our September 15, 2016, proposed rule (81 FR 63454), we determined that the Laskey Mesa population was currently affected by nonnative, invasive grasses; effects of small, isolated populations; and potentially climate change. We also determined at the time we issued that proposed rule that the Santa Clarita population was affected by nonnative, invasive grasses; Argentine ants; effects of small, isolated populations; and potentially climate change. The Santa Clarita population would also be affected in the future by the proposed Newhall Ranch development project, which would result in removal of 24 percent of the C. parryi var. fernandina population at this site. Therefore, the Santa Clarita population portion of the C. parryi var. fernandina's range would be affected by a greater concentration of stressors than the Laskey Mesa population portion. At the time of the proposed listing, this greater concentration of the stressors at the Santa Clarita population was considered to be significant, so this population may have met the definition of threatened or endangered in that portion of the range.

However, in considering whether the geographic concentration of threats in the Santa Clarita portion of the range are such that the species may be threatened or endangered there, we now consider how the implementation of the 2017 CCA have and will continue to ameliorate these threats. With the implementation of the 2017 CCA, as discussed above, we have determined that the Santa Clarita portion of C. parryi var. fernandina's range currently does not meet the definition of a threatened or endangered species.

As summarized under Ongoing and Future Conservation Efforts and Summary of PECE Analysis above, we have a high degree of certainty that the 2017 CCA will continue to be implemented and will be effective. The CCA provides for Newhall Land to voluntarily implement conservation measures with the goal of establishing new, protected spineflower occurrences within its historical range, such that no future C. parryi var. fernandina population will be one of only two small, isolated populations (Factor E). For the Santa Clarita population, increasing the extent of protected C. parryi var. fernandina occurrences within that population will help buffer it from detrimental effects of loss of habitat and individuals and the associated edge effects, such as invasion of nonnative plants (Factors A and E) and Argentine ants (Factor E), such that these stressors are not having significant impacts in this portion of the range currently or into the future. For the Laskey Mesa population, with additional funding and management forthcoming and no future land use changes anticipated, we conclude that stressors affecting this population, such as invasion of nonnative plants (Factors A and E), are not having significant impacts in this portion of the range.

We have identified portions (both Santa Clarita and Laskey Mesa) of C. parryi var. fernandina's range that may be significant. We also identified a portion (Santa Clarita population) where the species may be in danger of extinction or likely to become so in the foreseeable future, as a result of a greater concentration of threats. However, the best information available does not support a conclusion that the species may be in danger of extinction or likely to become so in the foreseeable future in the Santa Clarita portion of the range given the conservation efforts in the 2017 CCA. Also, while the Laskey Mesa portion of the range may be significant, there is no concentration of threats in that portion that would lead us to conclude that the species may be in danger of extinction or likely to become so in the foreseeable future. Therefore, neither portion of C. parryi var. fernandina's range warrants a detailed SPR analysis.

We have carefully assessed the best scientific and commercial data available regarding the past, present, and future threats to Chorizanthe parryi var. fernandina. We have determined that the conservation efforts have sufficient certainty of implementation and effectiveness such that they can be relied upon in this final listing determination. Further, we conclude that conservation efforts have reduced or eliminated current and future threats to C. parryi var. fernandina to the point that it is not in danger of extinction now throughout all or significant portions of its range, nor is it likely to become so within the foreseeable future throughout all or any significant portion of its range; therefore, C. parryi var. fernandina does not meet the definition of an endangered species or threatened species. As a consequence of this determination, we are withdrawing our proposed rule to list C. parryi var. fernandina as a threatened species.

A complete list of references cited in this document is available on http://www.regulations.gov under Docket No. FWS-R8-ES-2016-0078 and upon request from the Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

The primary authors of this document are the staff members of the Ventura Fish and Wildlife Office.

The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

Background

The scallop fishery's management unit ranges from the shorelines of Maine through North Carolina to the outer boundary of the Exclusive Economic Zone. The Atlantic Sea Scallop Fishery Management Plan (FMP), established in 1982, includes a number of amendments and framework adjustments that have revised and refined the fishery's management. The New England Fishery Management Council sets scallop fishery catch limits and other management measures through specification or framework adjustments that occur annually or biennially. The Council adopted Framework 29 to the Atlantic Sea Scallop FMP in its entirety on December 7, 2017. The Council submitted a decision draft of the framework, including a draft EA, for NMFS review and approval on December 21, 2017. Framework 29, which establishes scallop specifications and other measures for fishing years 2018 and 2019, includes changes to the NGOM management provisions for fishing years 2018 and 2019, changes to the catch, effort, and quota allocations and adjustments to the rotational area management program for fishing year 2018, and default specifications for fishing year 2019.

On February 20, 2018, NMFS published a separate proposed rule to approve and implement the portion of Framework 29 that address the NGOM measures (83 FR 7129). We informed the Council at the December meeting that we would consider separating out the NGOM measures in Framework 29 to ensure that they were in place prior to April 1, 2018. Additional information on the proposed NGOM measures is provided in the February 20, 2018, proposed rule and is not repeated here. This action addresses only the remaining portions of Framework 29.

This action proposes to approve and implement the portion of Framework 29 that establishes scallop specifications and other measures for fishing year 2018. This includes default fishing year 2019 measures that would go into place should the next specifications-setting action be delayed beyond the start of fishing year 2019.

NMFS will implement these measures of Framework 29, if approved, as close as possible to the April 1, 2018, start of fishing year 2018. If NMFS implements these Framework 29 measures after the start of the 2018 fishing year, 2018 default allocation measures will go into place on April 1, 2018. The Council has reviewed the proposed regulations in this rule as drafted by NMFS and deemed them to be necessary and appropriate as specified in section 303(c) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

The Council set the proposed OFL based on a fishing mortality rate (F) of 0.48, equivalent to the overfishing F threshold updated through the 2014 assessment. The Council's Scientific and Statistical Committee recommended a scallop fishery ABC for 2018 of 132 million lb (59,968 mt) and 128 million lb (58,126 mt) for 2019, after accounting for discards and incidental mortality. The Council reduced these recommended ABCs to the amounts included in this proposed rule: 45,950 mt for the 2018 fishing year, and 45,805 mt for the 2019 fishing year. For each fishing year the ACL is based on the proposed ABC using an F of 0.38, which is the F associated with a 25-percent probability of exceeding the OFL. The Scientific and Statistical Committee will reevaluate the default ABC for 2019 when the Council develops the next framework adjustment in 2018.

Table 1 outlines the proposed scallop fishery catch limits. After deducting the incidental target total allowable catch (TAC), the research set-aside (RSA), and the observer set-aside, the remaining ACL available to the fishery is allocated according to the following fleet proportions established in Amendment 11 to the FMP (72 FR 20090; April 14, 2008): 94.5 percent is allocated to the limited access scallop fleet (i.e., the larger “trip boat” fleet); 5 percent is allocated to the limited access general category (LAGC) individual fishing quota (IFQ) fleet (i.e., the smaller “day boat” fleet); and the remaining 0.5 percent is allocated to limited access scallop vessels that also have LAGC IFQ permits. Amendment 15 to the FMP (76 FR 43746; July 21, 2011) specified that no buffers to account for management uncertainty are necessary in setting the LAGC ACLs, meaning that the LAGC ACL would equal the LAGC ACT. For the limited access fleet, the management uncertainty buffer is based on the F associated with a 75-percent probability of remaining below the F associated with ABC/ACL, which, using the updated Fs applied to the ABC/ACL, now results in an F of 0.34.

This action would deduct 1.25 million lb (567 mt) of scallops annually for 2018 and 2019 from the ABC for use as the Scallop RSA to fund scallop research. Participating vessels are compensated through the sale of scallops harvested under RSA projects. Of the 1.25 million lb (567 mt) allocation, NMFS has already allocated 133,037 lb (60.3 mt) to previously-funded multi-year projects as part of the 2017 RSA awards process. NMFS is reviewing proposals submitted for consideration of 2018 RSA awards and will be selecting projects for funding in the near future.

This action would also deduct 1 percent of the ABC for the industry-funded observer program to help defray the cost to scallop vessels that carry an observer. The observer set-aside is 460 mt for 2018 and 458 mt for 2019. The Council may adjust the 2019 observer set-aside when it develops specific, non-default measures for 2019.

This action would implement vessel-specific DAS allocations for each of the three limited access scallop DAS permit categories (i.e., full-time, part-time, and occasional) for 2018 and 2019 (Table 2). Proposed 2018 DAS allocations are lower than those allocated to the limited access fleet in 2017 (30.55 DAS for full-time, 12.22 DAS for part-time, and 2.44 DAS for occasional vessels). Framework 29 would set 2019 DAS allocations at 75 percent of fishing year 2018 DAS allocations as a precautionary measure. This is to avoid over-allocating DAS to the fleet in the event that the 2019 specifications action is delayed past the start of the 2019 fishing year. The proposed allocations in Table 2 exclude any DAS deductions that are required if the limited access scallop fleet exceeded its 2017 sub-ACL.

If NMFS implements these Framework 29 measures after April 1, 2018, fishing year 2018 default DAS allocations, which were established in Framework Adjustment 28 to the Scallop FMP (82 FR 15155; March 27, 2017), will go into place on April 1, 2018. Full-time vessels will receive 21.75 DAS, Part-time vessels will receive 8.69 DAS, and Occasional vessels will receive 1.91 DAS. The allocations would later be increased in accordance with Framework 29, if approved. NMFS will send a letter to all limited access permit holders providing both default and Framework 29 DAS allocations so that vessel owners know what mid-year adjustments would occur should Framework 29 be approved and implemented after April 1, 2018.

For fishing year 2018 and the start of 2019, Framework 29 would keep the Mid-Atlantic Access Area (MAAA) open as an access area and would include what is now the Elephant Trunk Flex Rotational Area as part of the MAAA. In addition, this action would close the northern portion of Nantucket Lightship (NLS-N), but it would allocate trips into the southern portion of Nantucket Lightship in an area referred to as Nantucket Lightship-South (NLS-S). Further, this action would allocate effort into new access areas (Closed Area 1 (CA1) and Nantucket Lightship-West (NLS-W)) that will become available to scallop fishing through the Omnibus Essential Fish Habitat Amendment 2 (Omnibus Habitat Amendment). We published a proposed rule for the Omnibus Habitat Amendment on November 6, 2017 (82 FR 51492). On January 3, 2018, NMFS approved the Omnibus Habitat Amendment, which would open areas that are now contained in CA1 and NLS-W. We intend to publish the final rule implementing the Omnibus Habitat Amendment on or about the same time as the final rule implementing these non-NGOM portions of Framework 29.

Table 3 provides the proposed limited access full-time allocations for all of the access areas, which could be taken in as many trips as needed, so long as the vessels do not exceed the possession limit (also in Table 3) on each trip.

Table 4 provides the proposed limited access part-time allocations for three of the access areas, which could be taken in as many trips as needed, so long as the vessels do not exceed the possession limit (also in Table 4) on each trip. There is no part-time allocation in NLS-S.

For the 2018 fishing year, an occasional limited access vessel would be allocated 9,000 lb (4,082 kg) of scallops with a trip possession limit at 9,000 lb of scallops per trip (4,082 kg per trip). Occasional vessels would be able to harvest 9,000 lb (4,082 kg) allocation from only one of three available access areas (CA1, NLS-W, or MAAA). There is no occasional vessel allocation in NLS-S. For the 2019 fishing year, occasional limited access vessels would be allocated 9,000 lb (4,082 kg) in the MAAA only with a trip possession limit of 9,000 lb per trip (4,082 kg per trip).

The owner of a vessel issued a limited access scallop permit may exchange unharvested scallop pounds allocated into one access area for another vessel's unharvested scallop pounds allocated into another access area. These exchanges may only be made for the amount of the current trip possession limit (18,000-lb (8,165-kg)). In addition, these exchanges would be made only between vessels in the same permit category. For example, a full-time vessel may not exchange allocations with a part-time vessel, and vice versa.

Towards the end of fishing year 2012 and into fishing year 2013 catch rates in CA1 began to drop below profitable levels for limited access vessels. As a result, many vessels were unable to harvest the pounds associated with their CA1 trips in these two fishing years. Because these trips were not allocated evenly throughout the fleet, Framework Adjustment 25 to the Scallop FMP (79 FR 34251; June 16, 2014) allowed unharvested pounds associated with fishing years 2012 and 2013 CA1 trips to be harvested by those vessels in CA1 when it reopens in the future. Because Framework 29 would be the first action since 2013 to open CA1 to scallop fishing, it would reinstate this unharvested allocation to the limited access fleet in fishing year 2018. 1,638,604 lb (743,258 kg) of CA1 allocation went unharvested from fishing years 2012 and 2013, distributed across 130 permit holders. All amounts of outstanding limited access unharvested CA1 allocation would be made available in addition to fishing year 2018 allocations to that access area. For example, if a full-time limited access vessel has 2,000 lb (907 kg) of unharvested 2012/2013 CA1 allocation, and the CA1 trip limit is 18,000 lbs (8,165 kg), the vessel would be able to land a total of 20,000 lb (9,072 kg) from CA1 in fishing year 2018. Unharvested 2012/2013 CA1 allocation may only be harvested from CA1. There would be no change to specified trip limits through Framework 29, i.e., vessels must still abide by the 18,000-lb (8,165-kg) trip limit. Once allocated for the 2018 fishing year, these allocations would not be eligible to carry over into future years (i.e., available only for fishing year 2018, plus the first 60 days of fishing year 2019). This additional harvest in CA1 would not be included in the fishing year 2018 APL established in Framework 29, because this catch is specific to those vessels that have unharvested 2012/2013 CA1 allocation and is not applicable to the entire fleet. However, the additional scallops harvested from CA1 would not cause the limited access fleet to exceed its ACT, because the APL is far below the ACT.

The Omnibus Habitat Amendment will make available several areas that were previously closed to the scallop fishery. However, these areas remain closed to scallop fishing until they are opened by a scallop action. The bulk of these areas are encompassed in the NLW-W and CA1 Rotational Areas, which Framework 29 intends to open to scallop fishing. Framework 29 does not propose to open the area west and north of NLS-W (Table 5). We are calling this area the Nantucket Lightship Hatchet Scallop Rotational Area, and it would remain closed to help minimize flounder bycatch due to uncertainty about catch rates in the area.

1. ACL and IFQ Allocation for LAGC Vessels with IFQ Permits. For LAGC vessels with IFQ permits, this action would implement a 2,245-mt ACL for 2018 and a default ACL of 2,238 mt for 2019 (see Table 1). These sub-ACLs have no associated regulatory or management requirements, but provide a ceiling on overall landings by the LAGC IFQ fleets. If the fleet were to reach this ceiling any overages would be deducted from the following year's sub-ACL. The annual allocation to the LAGC IFQ-only fleet for fishing years 2018 and 2019 based on APL would be 1,273 mt for 2018 and 955 mt for 2019 (see Table 1). Each vessel's IFQ would be calculated from these allocations based on APL.

If NMFS implements these Framework 29 measures after April 1, 2018, the default 2018 IFQ allocations would go into place automatically on April 1, 2018. Because this action would implement IFQ allocations greater than the default allocations, NMFS will send a letter to IFQ permit holders providing both default April 1, 2018, IFQ allocations and Framework 29 IFQ allocations so that vessel owners know what mid-year adjustments would occur should Framework 29 be approved.

2. ACL and IFQ Allocation for Limited Access Scallop Vessels with IFQ Permits. For limited access scallop vessels with IFQ permits, this action would implement a 225-mt ACL for 2018 and a default 224-mt ACL for 2019 (see Table 1). These sub-ACLs have no associated regulatory or management requirements, but provide a ceiling on overall landings by this fleet. If the fleet were to reach this ceiling any overages would be deducted from the following year's sub-ACL. The annual allocation to limited access vessels with IFQ permits for fishing years would be 127 mt for 2018 and 95 mt for 2019 (see Table 1). Each vessel's IFQ would be calculated from these allocations based on APL.

3. LAGC IFQ Trip Allocations for Scallop Access Areas. Framework 29 would allocate LAGC IFQ vessels a fleetwide number of trips in the CA1, NLS-S, NLS-W, and MAAA for fishing year 2018 trips and default fishing year 2019 trips in the MAAA (see Table 6). The total number of trips for all areas combined (3,426) for fishing year 2018 is equivalent to the 5.5 percent of total catch from access areas.

4. Scallop Incidental Catch Target TAC. This action proposes a 50,000-lb (22,680-kg) scallop incidental catch target TAC for fishing years 2018 and 2019 to account for mortality from vessels that catch scallops while fishing for other species, and to ensure that F targets are not exceeded. The Council and NMFS may adjust this target TAC in a future action if vessels catch more scallops under the incidental target TAC than predicted.

This action proposes that vessels participating in RSA projects would be able to harvest RSA compensation from all available access areas and the open area. Vessels would be prohibited from fishing for RSA compensation in the NGOM unless the vessel is fishing an RSA compensation trip using NGOM RSA allocation that was awarded to an RSA project, as proposed in the separate rule for the NGOM portions of Framework 29. In addition, Framework 29 would prohibit the harvest of RSA from any access areas under default 2019 measures. At the start of 2019, RSA compensation could only be harvested from open areas. The Council would re-evaluate this measure in the action that would set final 2019 specifications.

This action would adjust the scallop fleet's accountability measures for two different flatfish stocks (Southern New England/Mid-Atlantic (SNE/MA) yellowtail flounder and Georges Bank yellowtail flounder) and develop an accountability measure for northern windowpane flounder. The Council wanted to make the flatfish accountability measures more consistent throughout the Scallop FMP. In addition, it had a preference for gear restricted areas as opposed to closed areas, similar to the existing southern windowpane flounder accountability measure already in place. This action would change the existing Georges Bank yellowtail flounder and the SNE/MA yellowtail flounder accountability measures from closed areas to gear restricted areas, and it would develop a gear restricted area accountability measure for northern windowpane flounder.

For SNE/MA yellowtail flounder this action would adopt the same gear restricted area that is already in place for southern windowpane flounder, i.e., the area west of 71° W. Long.

For Georges Bank yellowtail flounder and northern windowpane flounder this action would create the Georges Bank Accountability Measure Area (Table 7).

When the fleet is subject to any of the flatfish accountability measures in a gear restricted area vessels would be required to fish with scallop dredge gear that conforms to the restrictions already in place for the southern windowpane flounder accountability measure:

(1) No more than 5 rows of rings in the apron of the dredge;

(2) A maximum hanging ratio of 1.5 meshes per 1 ring overall; and

(3) A prohibition on the use of trawl gear.

For Georges Bank yellowtail flounder this action would change the existing accountability measure to a requirement to use the accountability measure gear in the Georges Bank Gear Restricted Area. The requirement to use this AM gear in the gear restricted area would remain in effect for the period of time based on the corresponding percent overage of the Georges Bank yellowtail flounder sub-ACL, as follows:

For northern windowpane flounder this action would create an accountability measure that requires the use of the accountability measure gear in the Georges Bank Gear Restricted Area. The requirement to use this AM gear in the gear restricted area would remain in effect for the period of time based on the corresponding percent overage of the northern windowpane flounder sub-ACL, as follows:

For SNE/MA yellowtail flounder this action would change the existing accountability measure to a requirement to use the accountability measure gear in the area west of 71° W. Long. The requirement to use this AM gear in the gear restricted area would remain in effect for the period of time based on the corresponding percent overage of the SNE/MA yellowtail flounder sub-ACL, as follows:

This proposed rule includes three revisions to address regulatory text that is unnecessary, outdated, or unclear. These revisions are consistent with section 305(d) of the Magnuson-Stevens Act, which provides authority to the Secretary of Commerce to promulgate regulations necessary to ensure that amendments to an FMP are carried out in accordance with the FMP and the Magnuson-Stevens Act. The first revision, at § 648.10(f)(4), would clarify that scallop vessels no longer need to send in daily catch reports through their vessel monitoring system for trips less than 24 hours because these reports are no longer useful for monitoring purposes. The second revision, at § 648.11(g)(2)(ii), would remove the limitation that a LAGC IFQ could be selected for observer coverage no more than twice in a given week. This revision is necessary because, due to an update to our pre-trip notification system, we will no longer be able to accommodate the limit of two trips per week. Because of the change, vessels may be selected more than twice in given week, but we expect that this would be a very rare occurrence. The final revision, at § 648.14 (i)(4)(ii)(A) and (B), is a correction to the regulations that should have been made as part of Framework Adjustment 28 to the Scallop FMP (82 FR 15155; March 27, 2017). This correction would clarify that owners of IFQ vessels cannot have an ownership interest in vessels that collectively are allocated more than 5 percent of the total IFQ scallop APL, and that they may not have an IFQ allocation on an IFQ scallop vessel of more than 2.5 percent of the total IFQ scallop APL.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator has determined that this proposed rule is consistent with the Atlantic Sea Scallop FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

An IRFA has been prepared for Framework 29, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities, and also addresses the measures included in the separate proposed rule for the NGOM measures in Framework 29. The IRFA consists of Framework 29 analyses, the draft IRFA, and the preamble to this proposed rule.

This action proposes the management measures and specifications for the Atlantic sea scallop fishery for 2018, with 2019 default measures, with the exception of specifications and management measures applicable to the NGOM, which are addressed separately in the NGOM portion of Framework 29. A description of the action, why it is being considered, and the legal basis for this action are contained in the Council's Framework 29 document and the preamble of this proposed rule, and are not repeated here.

This action contains no new collection-of-information, reporting, or recordkeeping requirements.

The proposed regulations do not create overlapping regulations with any state regulations or other federal laws.

The proposed regulations would affect all vessels with limited access and LAGC scallop permits, but there is no differential effect based on whether the affected entities are small or large. Framework 29 provides extensive information on the number and size of vessels and small businesses that would be affected by the proposed regulations, by port and state (see ADDRESSES). Fishing year 2016 data were used for this analysis because these data are the most recent complete data set for a fishing year. There were 313 vessels that obtained full-time limited access permits in 2016, including 250 dredge, 52 small-dredge, and 11 scallop trawl permits. In the same year, there were also 34 part-time limited access permits in the sea scallop fishery. No vessels were issued occasional scallop permits. NMFS issued 225 LAGC IFQ permits in 2016, and 125 of these vessels actively fished for scallops that year. The remaining permit holders likely leased out scallop IFQ allocations associated with their permits. In 2016, there were 27 NGOM vessels that actively fished.

For RFA purposes, NMFS defines a small business in a shellfish fishery as a firm that is independently owned and operated with receipts of less than $11 million annually (see 50 CFR 200.2). Individually-permitted vessels may hold permits for several fisheries, harvesting species of fish that are regulated by several different fishery management plans, even beyond those impacted by this proposed rule. Furthermore, multiple permitted vessels and/or permits may be owned by entities with various personal and business affiliations. For the purposes of this analysis, “ownership entities” are defined as those entities with common ownership as listed on the permit application. Only permits with identical ownership are categorized as an “ownership entity.” For example, if five permits have the same seven persons listed as co-owners on their permit applications, those seven persons would form one “ownership entity,” that holds those five permits. If two of those seven owners also co-own additional vessels, that ownership arrangement would be considered a separate “ownership entity” for the purpose of this analysis. On June 1 of each year, ownership entities are identified based on a list of all permits for the most recent complete calendar year. The current ownership dataset is based on the calendar year 2016 permits and contains average gross sales associated with those permits for calendar years 2014 through 2016. Matching the potentially impacted 2016 fishing year permits described above (limited access permits and LAGC IFQ permits) to calendar year 2016 ownership data results in 161 distinct ownership entities for the limited access fleet and 115 distinct ownership entities for the LAGC IFQ fleet. Of these, based on the Small Business Administration guidelines, 154 of the limited access distinct ownership entities and 113 of the LAGC IFQ entities are categorized as small. The remaining seven of the limited access and two of the LAGC IFQ entities are categorized as large entities. The number of distinct small business entities with active NGOM permits were 27 in 2016 permits.

The Council's preferred alternative (Alternative 4, Sub-option 2) would allocate each full-time limited access vessel 24 open area DAS and 6 access area trips, amounting to 108,000 lb (49,988 kg) at a possession limit of 18,000 lb (8,165 kg) for each trip (Table 11). The LAGC IFQ sub-ACL for vessels with IFQ permits only will be 2.8 million pounds (1.3 million kg). This alternative is expected to positively impact profitability of small entities regulated by this action in 2018 because, compared to the status quo (4 trips, 72,000 lb (32,659 kg)), it would allocate more access trips and allocation to access areas, but it would allocate only one DAS less than the status quo (25 DAS). This alternative would also redirect fishery effort away from Closed Area II in 2018 to more productive areas with larger scallops and higher densities (i.e., CA1 and NLS-W). As a result, the preferred alternative would have about 27 percent higher net revenue per entity compared to the status quo levels, translating to higher profits (Table 8).