Federal Register / Vol. 73, No. 235 / Friday, December 5, 2008 / Proposed Rules 74123

For paragraphs (a) and (c) of this Issued on: November 26, 2008. http://www.regulations.gov. This section, the manufacturer shall submit Daniel C. Smith, generally means that we will post any information separately with respect to Associate Administrator for Enforcement. personal information you provide us each make, model, and model year of [FR Doc. E8–28873 Filed 12–4–08; 8:45 am] (see the Information Solicited section medium-heavy vehicle and/or bus BILLING CODE 4910–59–P below for more details). manufactured during the reporting FOR FURTHER INFORMATION CONTACT: period and the nine model years prior Wally ‘‘J’’ Murphy, Field Supervisor, to the earliest model year in the DEPARTMENT OF THE INTERIOR New Mexico Ecological Services Office, reporting period, including models no 2105 Osuna NE, Albuquerque, NM longer in production. Fish and Wildlife Service 87113; by (telephone at 505-346-2525, * * * * * or by facsimile at 505-346-2542. If you 50 CFR Part 17 8. Amend § 579.24 by revising the use a telecommunications devise for the section heading and by revising the first [FWS-R2-ES-2008-0110; MO-9221050083 – deaf (TTD), you may call the Federal sentence of the introductory text to read B2] Information Relay Service (FIRS) at 800- as follows: 877-8339. Endangered and Threatened Wildlife SUPPLEMENTARY INFORMATION: § 579.24 Reporting requirements for and Plants; 90-Day Finding on a manufacturers of 5000 or more trailers Petition To List the Sacramento Information Solicited annually. Mountains Checkerspot Butterfly When we make a finding that a For each reporting period, a (Euphydryas anicia cloudcrofti) as petition presents substantial manufacturer whose aggregate number Endangered with Critical Habitat information indicating that listing a of trailers manufactured for sale, sold, AGENCY: Fish and Wildlife Service, species may be warranted, we are offered for sale, introduced or delivered Interior. required to promptly commence a review of the status of the species. To for introduction in interstate commerce, ACTION: Notice of 90–day petition ensure that the status review is or imported into the United States, finding and initiation of a status review. during the calendar year of the reporting complete and based on the best period or during either of the prior two SUMMARY: We, the U.S. Fish and available scientific and commercial calendar years is 5000 or more shall Wildlife Service (Service), announce a information, we are soliciting submit the information described in this 90–day finding on a petition to list the information on the status of the section. * * * Sacramento Mountains checkerspot Sacramento Mountains checkerspot butterfly. We request information from * * * * * butterfly (Euphydryas anicia cloudcrofti) as an endangered species the public, other concerned 9. Amend § 579.27 by revising the and designate critical habitat under the governmental agencies, Tribes, the section heading to read as follows: Endangered Species Act of 1973, as scientific community, industry, or any other interested parties concerning the § 579.27 Reporting requirements for amended (Act). We find the petition manufacturers of fewer than 500 medium- provides substantial scientific or status of the Sacramento Mountains heavy vehicles or motorcycles annually, for commercial information indicating that checkerspot butterfly. We are seeking manufacturers of fewer than 5000 light listing this subspecies under the Act information regarding the subspecies’ vehicles or trailers annually, for may be warranted. Therefore, with the historical and current status and manufacturers of original equipment, and publication of this notice, we are distribution, its biology and ecology, its for manufacturers of replacement initiating a status review of the species, taxonomy, ongoing conservation equipment other than child restraint and we will issue a 12–month finding measures for the subspecies and its systems and tires. to determine if the petitioned action is habitat, and threats to either the * * * * * warranted. To ensure that the status subspecies or its habitat. 10. Amend § 579.29 by adding review is comprehensive, we are If we determine that listing the paragraph (a)(3) to read as follows: soliciting scientific and commercial data Sacramento Mountains checkerspot regarding this species. We will make a butterfly is warranted, we intend to § 579.29 Manner of reporting. determination on critical habitat for this propose critical habitat to the maximum (a) * * * subspecies if and when we initiate a extent prudent and determinable at the listing action. time we would propose to list the (3) For each report required under DATES: To allow us adequate time to subspecies. Therefore, with regard to paragraphs (a) through (c) of §§ 579.21 conduct this review, we request that we areas within the geographical range through 579.26 and submitted in the receive information on or before currently occupied by the Sacramento manner provided in paragraph (a)(1) of February 3, 2009. Mountains checkerspot butterfly, we this section, a manufacturer must ADDRESSES: You may submit also request data and information on provide a make, model and model year information by one of the following what may constitute physical or that is identical to the make, model, methods: biological features essential to the model year provided in the • Federal eRulemaking Portal: http:// conservation of the subspecies, where manufacturer’s previous report. A www.regulations.gov. Follow the these features are currently found, and manufacturer that intends to provide a instructions for submitting comments. whether any of these features may make, model, model year in its report • U.S. mail or hand-delivery: Public require special management that is not identical to the Comments Processing, Attn: FWS-R2- considerations or protection. In manufacturer’s previous report, must ES-2008-0110; Division of Policy and addition, we request data and notify NHTSA by populating the Directives Management; U.S. Fish and information regarding whether there are appropriate field in the template Wildlife Service; 4401 N. Fairfax Drive, areas outside the geographical area required under paragraph (a)(1) of this Suite 222; Arlington, VA 22203. occupied by the subspecies that are section. We will not accept e-mail or faxes. We essential to the conservation of the * * * * * will post all information received on subspecies. Please provide specific

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information as to what, if any, critical notice of this finding promptly in the Petition habitat should be proposed for Federal Register. On July 5, 2007, we received a designation if the subspecies is Our standard for substantial petition dated June 28, 2007, from proposed for listing, and why that information within the Code of Federal Forest Guardians (now WildEarth proposed habitat meets the Regulations (CFR) with regard to a 90– Guardians) and the Center for Biological requirements of the Act (16 U.S.C. 1531 day petition finding is ‘‘that amount of Diversity requesting that we emergency et seq.). information that would lead a list the butterfly as endangered, and that Please note that comments merely reasonable person to believe that the we designate critical habitat stating support or opposition to the measure proposed in the petition may concurrently with the listing. The action under consideration without be warranted’’ (50 CFR 424.14(b)). If we petition clearly identifies itself as a providing supporting information, find that substantial information was petition, and includes the information although noted, will not be considered presented, we are required to promptly required in 50 CFR 424.14(a). The in making a determination, as section commence a review of the status of the petitioners assert that insect control, 4(b)(1)(A) of the Act directs that species. climate change, private development, determinations as to whether any In making this finding, we based our roads, livestock grazing, wildfire, species is a threatened or endangered decision on information provided by the recreational impacts, and noxious weed species must be made ‘‘solely on the petitioners and information available in basis of the best scientific and management threaten the butterfly. The our files at the time of the petition petitioners state that many of the threats commercial data available.’’ Based on review, and we evaluated that the status review, we will issue a 12– identified in the September 6, 2001, information in accordance with 50 CFR month finding on the petition, as proposed rule to list the species (66 FR 424.14(b). Our process for making a 90– provided in section 4(b)(3)(B) of the Act. 46575) are still valid. They claim that You may submit your information day finding under section 4(b)(3)(A) of the Service erred in 2004 (69 FR 76428) concerning this finding by one of the the Act and §424.14(b) of our when we withdrew the 2001 proposed methods listed in the ADDRESSES regulations is limited to a determination listing rule. The petitioners also claim section. We will not consider of whether the information contained in that insect control and climate change submissions sent by e-mail or fax or to the petition meets the ‘‘substantial pose an imminent and significant risk to an address not listed in the ADDRESSES information’’ threshold. species and request that the Service section. Previous Federal Actions emergency list the butterfly. If you submit information via http:// Emergency listing is not a petitionable www.regulations.gov, your entire On January 28, 1999, we received a action under the Act. Emergency listing submission—including any personal petition from Mr. Kieran Suckling of the is allowed under the Act whenever identifying information—will be posted Southwest Center for Biological immediate protection is needed to on the website. If your submission is Diversity (now Center for Biological address a significant risk to the species’ made via a hardcopy that includes Diversity) requesting emergency listing well being. Based on currently available personal identifying information, you of the Sacramento Mountains information evaluated below, we may request at the top of your document checkerspot butterfly (Euphydryas determine that emergency listing is not that we withhold this information from anicia cloudcrofti) (butterfly) as needed for the butterfly. public review. However, we cannot endangered with critical habitat. On On July 26, 2007, we notified the guarantee that we will be able to do so. December 27, 1999, we published a 90– petitioners that, to the maximum extent We will post all hardcopy submissions day finding that the petition presented practicable, we would decide whether on http://www.regulations.gov. substantial information that listing the the petition presented substantial Information and materials we receive, butterfly may be warranted, but that information that the petitioned action as well as supporting documentation we emergency listing was not warranted; may be warranted. On October 16, 2007, used in preparing this finding, will be that document also initiated a status we informed the petitioners that an available for public inspection on http:// review of the subspecies (64 FR 72300). emergency listing of the butterfly was www.regulations.gov, or by On September 6, 2001, we published a not warranted at that time because the appointment, during normal business 12–month finding and proposed rule to insect control that had been scheduled hours, at the U.S. Fish and Wildlife list the butterfly as endangered with to occur had been postponed until later Service, New Mexico Ecological critical habitat (66 FR 46575). On in the autumn when the butterfly larvae Services Office (see FOR FURTHER October 7, 2004, we published a notice were likely to be inactive and not INFORMATION CONTACT). of availability of a draft of the threatened by the insect control actions. Conservation Plan for the Sacramento On December 10, 2007, we notified the Background Mountains checkerspot butterfly petitioners that funding was available to Section 4(b)(3)(A) of the Act requires (Euphydryas anicia cloudcrofti) complete the 90–day finding in fiscal that we make a finding on whether a (Conservation Plan) (69 FR 60178), year 2008. On January 3, 2008, Forest petition to list, delist, or reclassify a which was finalized in 2005 (Service et Guardians filed suit against the Service species presents substantial scientific or al. 2005). On November 8, 2004, we for failure to issue a 90–day finding on commercial information indicating that published a notice of availability of a the petition (Forest Guardians, et al. v. the petitioned action may be warranted. draft economic analysis and draft Kempthorne, 1:08-cv-00011-RMU (D. We are to base this finding on environmental assessment on our D.C.)). On April 15, 2008, a settlement information provided in the petition, proposed designation of critical habitat was reached that requires the Service to supporting information submitted with for the butterfly (69 FR 64710). On submit to the Federal Register a the petition, and information otherwise December 21, 2004, we published a determination of whether the petition available in our files at the time we withdrawal of the proposed rule (69 FR presents substantial information make the determination. To the 76428), concluding that the threats to indicating that the petitioned action of maximum extent practicable, we are to the species were not as great as we had listing the butterfly may be warranted. make this finding within 90 days of our perceived when we proposed it for The settlement stipulated that the receipt of the petition and publish our listing. determination would be submitted to

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the Federal Register on or before We do not know the extent of the predation; (D) the inadequacy of November 28, 2008. This 90–day historical range of the butterfly due to existing regulatory mechanisms; or (E) finding complies with the settlement limited information collected on this other natural or manmade factors agreement. subspecies prior to the time it was affecting its continued existence. formally acknowledged as a new In making this 90–day finding, we Species Information subspecies (Ferris and Holland 1980). evaluated whether information on The Sacramento Mountains The known range of the butterfly is threats to the Sacramento Mountains checkerspot butterfly is a member of the restricted to the Sacramento Mountains checkerspot butterfly, as presented in brush-footed butterfly family and is bordered on the north by the the petition and other information (Nymphalidae). The adults have a Mescalero Apache Nation lands, on the available in our files at the time of the wingspan of approximately 5 west by Bailey Canyon at the mouth of petition review, is substantial, thereby centimeters (cm) (2 inches (in)), and Mexican Canyon, on the east by Spud indicating that the petitioned action they are checkered with dark brown, Patch Canyon, and on the south by Cox may be warranted. Our evaluation of red, orange, white, and black spots and Canyon (USFS 2000; Service et al. 2005, this information is presented below. lines. Larvae are black-and-white p. 12). The potential range of the A. Present or Threatened Destruction, banded with orange dorsal bumps and butterfly to the east and west is likely Modification, or Curtailment of the black spines. Checkerspot larvae reach a restricted because the non-forested areas Species’ Habitat or Range maximum length of about 2.5 cm (1 in) are below 7,800 ft in elevation and the (Pittenger and Yori 2003, p. 8). The checkerspot butterfly does not occur The petition asserts that the following taxon was described in 1980 (Ferris and below this elevation (Service et al. 2005, conditions under Factor A threaten the Holland 1980). p. 9). butterfly: recreational impacts; roads, corridors, and powerlines; livestock The butterfly inhabits meadows The U.S. Forest Service (USFS) estimates that there are about 1,096 grazing; catastrophic wildfire and fire within the mixed-conifer forest (Lower suppression; noxious weeds; and Canadian Zone) at an elevation between hectares (ha) (2,712 acres (ac)) of suitable butterfly habitat on USFS and private property development and the 2,380 to 2,750 meters (m) (7,800 to 9,000 potential expiration of the Otero County feet (ft)) in the vicinity of the Village of private lands. Of this, 484 ha (1,196 ac) are occupied by the butterfly on USFS Subdivision Ordinance on July 1, 2011. Cloudcroft, Otero County, New Mexico. The petitioners assert that, although The adult butterfly is often found in lands and 314 ha (777 ac) are occupied on private lands (USFS 2004a). About development (residential, commercial, association with the larval food plants 298 ha (736 ac) of the 1,096 ha (2,712 and recreational associated with Penstemon neomexicanus (New Mexico ac) of suitable habitat are unoccupied, residential) within the Village of penstemon) and Valeriana edulis with 79 ha (194 ac) on USFS lands and Cloudcroft decreased following the 2001 (valerian) and adult nectar sources, such 219 ha (542 ac) on private lands (USFS publication of the proposed rule to list as Helenium hoopesii (sneezeweed). 2004a). This estimate is the best and the butterfly (66 FR 46575), Penstemon neomexicanus is a narrow most recent information we have development has nonetheless continued endemic species (Sivinski and Knight regarding the range and distribution of and, combined with other threats to the 1996), restricted to the Sacramento and the butterfly and the same information butterfly, remains significant. The Capitan Mountains of south-central New we used in our 2004 withdrawal of the petitioners correctly note that, as Mexico. proposed rule (69 FR 76428). passed, the amended Otero County Adult butterflies are only known to For more information on the butterfly, Subdivision Ordinance of 2005 will lay their eggs on Penstemon refer to the September 6, 2001, proposed expire on July 1, 2011 (Otero County neomexicanus (Service et al. 2005, rule (66 FR 46575); the November 1, 2005, p. 2). The ordinance requires that, p.10), although the larvae feed on both 2005, Conservation Plan (Service et al. for any new subdivision to be developed P. neomexicanus and Valeriana edulis 2005); and the December 21, 2004, within potential butterfly habitat, a (Service et al. 2005, p.11). After withdrawal of the proposed rule (69 FR survey be conducted for the butterfly, its hatching, larvae feed on host plants and, 76428). Some of this information is habitat, and its host plant Penstemon during the 4th or 5th instar (the period discussed in our analysis below. The neomexicanus. If the survey is positive, between molts in the larval stage of the Conservation Plan (Service et al. 2005) the developer is required to submit butterfly), enter an obligatory and with the Village of Cloudcroft, Otero plans to address wildfire control, extended diapause (maintaining a state County, USFS, and the Service was avoidance of destruction of the butterfly of extended inactivity), generally as the developed to identify and commit to and its habitat, and, if avoidance is not food plants die back in the autumn from implementing actions to conserve the possible, relocation of butterflies and freezing. Some larvae may remain in butterfly so it would not warrant future restoration of destroyed habitat. The diapause for more than one year, listing under the Act. ordinance also contains a section on depending on environmental enforcement, penalties, and remedies. conditions. During diapause, larvae Threats Analysis The amendment to the subdivision probably remain in leaf or grass litter Section 4 of the Act and ordinance was not in place when we near the base of shrubs, under the bark implementing regulations at 50 CFR 424 made our withdrawal of the proposed of conifers, or in the loose soils set forth the procedures for adding listing rule in 2004, so we did not rely associated with pocket gopher species to the Federal Lists of on it when we concluded that (Thomomys bottae) mounds (Service et Endangered and Threatened Wildlife development was not a significant threat al. 2005, p.10). Once the larvae break and Plants. Under section 4(a)(1) of the to the butterfly. The Village of diapause, they feed and grow through Act, we may list a species on the basis Cloudcroft has received no permit three or four more instars before of any of five factors, as follows: (A) The applications for new subdivisions since pupating (entering the inactive stage present or threatened destruction, the Ordinance became effective in 2005. within a chrysalis) and emerging as modification, or curtailment of its This may be because it has experienced adults. Diapause is generally broken in habitat or range; (B) overutilization for water shortages in recent years spring (March and April) and adults commercial, recreational, scientific, or (Friederici 2007). The petition presents emerge in summer (June and July). educational purposes; (C) disease or information on these issues that was

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previously submitted in comments on biking, can result in harm to individual the discussion in the petition, we the 2004 draft Conservation Plan (69 FR butterflies and to their food plants. assume they are addressing only service 60178), draft environmental assessment, In our 2004 withdrawal of the roads and corridors related to powerline and draft economic analysis (69 FR proposed rule, we discussed increased construction and maintenance. In our 64710) for the butterfly. The draft efforts by the USFS to reduce off-road withdrawal, we acknowledged that, environmental assessment and draft vehicle use in Bailey Canyon and although some restrictions were likely economic analysis did not contemplate campgrounds where the butterfly to be placed on a powerline company effects of the future ordinance. occurs, and we evaluated information when constructing a new powerline, In our 2004 draft economic analysis, on the extent and nature of off-road because of the linear nature of these we found that approximately 8 to 10 impacts to the butterfly and its food impacts and the recognition that new homes had been constructed plants. We concluded that the actions adjacent habitat will remain intact, we annually since 2000 within the the USFS had taken to reduce off-road concluded that the activity represented boundary of the proposed critical vehicle impacts appeared to be effective, only a limited threat to the species (69 habitat designation of approximately that only a small proportion of occupied FR 73428). We also noted that no new 140 square kilometers (54 square miles) habitat would be impacted annually by projects are currently planned by that in the vicinity of the Village of continuing off-road vehicle use, that the company, indicating no other Cloudcroft (Service 2004). Based upon magnitude of the impact is low, and that powerline-related threats were this trend of 8 to 10 new homes off-road vehicle use does not foreseeable. We have no new annually, over the next 20 years, significantly threaten the butterfly (69 information in our files, and the approximately 160 to 200 new FR 76428, December 21, 2004). The petitioners presented no new residential projects may occur within petitioners do not present information, information on increased impacts to the the boundary of the then-proposed and we have no information in our files, butterfly and its habitat from powerlines critical habitat for the butterfly. Of that off-road vehicle use has increased and associated roads and corridors, these, the economic analysis assumed since 2004. since our withdrawal was published in In our 2004 withdrawal of the that 55 to 69 of the landowners may 2004. proposed rule, we discussed increased conduct butterfly surveys because they The petitioners claim that livestock efforts by the USFS to reduce impacts to would be located within areas that were grazing continues to threaten butterfly the butterfly from dispersed camping proposed as critical habitat and that habitat. In our 2004 withdrawal of the and camping at established proposed rule, we found that, because provide butterfly habitat. Our draft campgrounds. Although the petitioners the USFS is managing these allotments economic analysis estimated that acknowledge that USFS has taken for medium-intensity grazing, the effects butterflies could be found in 8 to 24 of measures to reduce recreational impacts on the butterfly and its habitat will be those 55 areas surveyed. Our draft to the butterfly at established minimal and will not result in the economic analysis also estimated that campgrounds, they claim that increased butterfly population being compromised the median lot size of these camping can result in harm to the (69 FR 76428). We concluded that the developments was 0.14 ha (0.34 ac), butterfly. We agree that increased current and future occurrence of grazing indicating that up to 3.4 ha (8.2 ac) of camping can result in increased impacts does not represent a principal factor in suitable butterfly habitat may be to the butterfly. However, the the viability of the butterfly and its impacted from commercial and private petitioners did not present information habitat. The petitioners present no new development activities. For a detailed that camping has increased in habitats information about livestock grazing discussion see Service 2004. In the 2001 occupied by the butterfly, and we have since our 2004 withdrawal of the proposed rule, we described an no information in our files that camping proposed rule, and we have no new additional 4 ha (10 ac) of impacts from has increased. information in our files to indicate that a private development on the east side In our 2004 withdrawal of the the threat from livestock grazing has of the Village of Cloudcroft. Thus, we proposed rule, we acknowledged that increased. continue to estimate that about 2 butterfly larvae were known to occur on In addressing the threat of fire percent of the suitable butterfly habitat and adjacent to mountain bike trails, suppression and wildfire, the on private lands (7.4 of 314 ha (18 of and we reviewed efforts routinely made petitioners compare the analysis used in 777 ac), using the USFS (2004a, p.2) by the USFS to address potential our 2001 proposed rule (66 FR 46575) estimate of occupied acres on private impacts to the butterfly, including to our analysis in the 2004 withdrawal lands) may be subject to commercial larvae, during large events, such as of the proposed rule (69 FR 76428). In and private development. Based on this mountain bike races (69 FR 76428). We our withdrawal, we used information information, we continue to believe that concluded that, while mountain biking from the USFS, assessed new and this level of impact is not a significant does impact the butterfly and its host continued efforts to reduce the risk of threat to the butterfly. We find no plants to some extent, it did not appear catastrophic wildfire in the Sacramento substantial information provided by the that the impacts were likely significant Mountains, and concluded that the petitioners or in our files supporting the to the butterfly. The petitioners do not threat to the butterfly from catastrophic claim that commercial and private present information that impacts from wildfire had been reduced and was no development threaten the butterfly. mountain biking have increased in longer significant. We found that fire The petitioners acknowledge that habitats occupied by the butterfly, and and activities conducted to reduce the USFS has taken measures to reduce we have no information in our files that risk of fire may be beneficial by recreational impacts to the butterfly at such impacts have increased. increasing connectivity between areas of two campgrounds and has proposed The petitioners discuss the impacts of suitable butterfly habitat. We have no measures to reduce impacts at five roads, corridors, and powerlines by new information in our files that the additional campgrounds where the comparing our discussion of those threat of wildfires has increased since butterfly is present. However, the impacts in our 2004 withdrawal of the our 2004 withdrawal of the proposed petitioners assert that increasing proposed rule (69 FR 76428) to our rule. recreation demands, including off-road discussion of those impacts in our 2001 The petitioners assert that the manual vehicle use, camping, and mountain proposed rule (66 FR 46575). Based on weed-pulling program to control

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noxious weeds does not fully address C. Disease or Predation of interest are those for which the the threat of noxious weeds to the The petitioners provide no responsible official determines that butterfly. The USFS began the weed- information addressing this factor, and management actions may be necessary pulling program in 2001, and the we have no information in our files or desirable to achieve ecological or program is described in the indicating that the petitioned action other multiple-use objectives (USFS Conservation Plan (Service et al. 2005, may be warranted due to disease or planning rule; 73 FR 21468; April 21, p. 34). In our 2004 withdrawal of the predation. We agree that this issue is not 2008). The USFS’s new planning rule proposed listing (69 FR 76428), we applicable to the subspecies at this time. indicated that once a USFS land and found that nonnative vegetation and the resource management plan has been application of herbicides are currently D. Inadequacy of Existing Regulatory revised, the sensitive species being managed, and we concluded that Mechanisms designation will no longer be needed the nonnative vegetation is a not The petition asserts that the because species of concern (listed, significant threat to the butterfly. The subspecies’ status as a Forest Sensitive proposed, or candidate species under petitioners present no new information Species does not provide the binding the Act) or species of interest will since our 2004 withdrawal that the protections of listing under the Act. The replace them. Although we have no threat of nonnative or noxious weeds butterfly has been designated by the information indicating when the plan has increased. Regional Forester as a Forest Sensitive might be revised, the USFS’ new Species. As a Forest Sensitive Species, planning rule states that the responsible To support their claims of any threats official would determine if the to the species under Factor A, the the USFS is required to analyze the butterfly in all applicable National ecological conditions to support species petitioners provided no information or of interest would be provided by the references beyond those available to us Environmental Policy Act (NEPA) (42 U.S.C. 4321 et. seq.) documents. In plan components for ecosystem when we withdrew our proposal to list diversity. If not, then additional species- addition, the petitioners claim that new the butterfly in 2004. We find that the specific plan components would be USFS regulations were recently passed petition does not present substantial included (73 FR 21468; April 21, 2008). that remove any species viability information, and we have no The Service’s 2004 withdrawal of the standard protections that were information in our files, indicating that proposed listing rule for the butterfly previously provided in 36 CFR 219.20, the petitioned action may be warranted relied partly on the butterfly’s inclusion a regulation requiring the USFS to due to the present or threatened in the Forest Sensitive Species address ecological conditions necessary destruction, modification, or designation for maintenance of certain to maintain species viability. The curtailment of the habitat or range of the protections for the butterfly through petition also asserts that conservation butterfly due to development (including NEPA (69 FR 76428). Since these the explanation of the Otero County measures resulting from section 7 (of the particular protections have been subdivision Ordinance in 2011), Act) conferencing no longer apply eliminated, and it is unclear whether recreation, powerlines and associated because the species is no longer the butterfly will be designated a roads and corridors, livestock grazing, proposed for listing. Additionally, the species of interest under the new rule, fire suppression and wildfire, and petitioners assert that the butterfly has it is unclear whether this change will be noxious weeds. no State protection, as New Mexico does adequate to protect the butterfly. not recognize insects as ‘‘wildlife.’’ The petitioners state that the butterfly B. Overutilization For Commercial, On April 21, 2008, a new USFS has no State protection, because New Recreational, Scientific, or Educational planning rule (73 FR 21468) was made Mexico does not recognize insects as Purposes final. In that rule, species viability ‘‘wildlife.’’ This information is correct. standard protections are removed and We presented this information in the The petition asserts that collection there is no requirement similar to October 7, 2004, draft Conservation Plan threatens the butterfly, reiterating our section 7 consultation under the Act. for which we invited public comment preliminary finding from the 2001 However, as part of their multiple-use (69 FR 60178), and we considered this proposed rule that the butterfly’s life mandate, the National Forest information when we withdrew the history characteristics, attractiveness to Management Act (NFMA) requires the proposal to list the species. State statute collectors due to rarity, and newspaper USFS to ‘‘provide for diversity of plant does not address habitat protection, publications promote collection (66 FR and animal communities based on the threats to the larval food plant, or other 46575). In our 2004 withdrawal, we suitability and capability of the specific threats that are not directly related to concluded that the closure of USFS land area in order to meet overall taking (killing or otherwise harming) lands to butterfly collecting in 2000 had multiple-use objectives’’ (16 U.S.C. individual butterflies. The petition does reduced the threat of collection and that 1604(g)(3)(B)). The NFMA does not not indicate how a lack of State overcollection was no longer a threat. mandate a specific degree of diversity regulations threatens the butterfly with The petition presents no new nor does it mandate viability. In extinction. New Mexico State status as information or explanation as to why practice, the USFS has taken actions to an endangered species would only the butterfly is threatened by collection. conserve and avoid impacts to the convey protection from collection or We have no new information in our files butterfly and its habitat (see USFS intentional harm. As noted above, we since the 2004 withdrawal indicating 2004a, 2004b, 2007a, 2007b, 2007c, believe the USFS’ butterfly closure that overutilization for commercial, 2007f). As a Forest Sensitive Species, order adequately protects the species recreational, scientific, or educational the butterfly has been analyzed in all from collection. Moreover, the petition purposes is a threat to the butterfly. applicable NEPA documents (USFS and information in our files do not Therefore, we find that the petition does 2004b). We do not know whether the contain substantial information that the not present substantial information butterfly would be designated a species butterfly is faced with current and indication that the petitioned action of interest by the USFS under the new future threats that could be addressed may be warranted due to overutilization planning rule, which would be applied by current State statute. for commercial, recreational, scientific, when the Lincoln National Forest Plan In summary, the petitioners provide or educational purposes. is revised in the coming years. Species substantial information on changes in

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USFS regulations that remove the During summer and autumn 2007, Otero in avoiding impacts to the butterfly in butterfly from the Forest Sensitive County and the USFS requested, and we the autumn of 2007. One conservation Species status, but the petitioners provided, technical assistance on action agreed to in the Conservation provide no new information since our appropriate measures to minimize or Plan was for the Service to provide 2004 withdrawal of the listing rule on avoid impacts to the butterfly (USFS technical assistance on management of the inadequacy of other existing 2007a; Otero County 2007a, 2007b). We the butterfly when requested by a party regulatory mechanisms. In light of all of advised them that indirect effects to the to the plan. We acknowledge that if Btk this information, we find that the butterfly from Btk could be significant if or chemical insecticides, such as petition presents substantial the insecticide were applied when Carbaryl or Confirm 2F, are applied information that the petitioned action larvae of the butterfly were actively when larvae of the butterfly are actively may be warranted due to the inadequacy feeding (Service 2007a, 2007b, 2007c, feeding, insect control would pose a of existing mechanisms. 2007d, 2007e, 2007f). The USFS threat to the butterfly. That such spraying actually occurred in 2007 E. Other Natural or Manmade Factors conducted an environmental assessment during the butterfly’s active feeding Affecting the Species’ Continued under NEPA that analyzed the effects to period, although admittedly on only 4 Existence private and Federal lands of Btk spraying on Federal lands (USFS 2007b, ha (10 ac), indicates that private The petition asserts that insect 2007c, 2007d). Following that landowner spraying on private lands control, climate change, and extreme environmental assessment, the USFS, may be a threat. The petition does not weather threaten the butterfly under Village of Cloudcroft, and Otero County present references or substantial Factor E. The petitioners state that waited until they and the Service information regarding insect spraying insect control on private lands was determined from surveys that the larvae beyond the autumn of 2007 and spring conducted within the Village of of the butterfly were in diapause of 2008. However, insect control may be Cloudcroft. Newspaper articles provided (inactive and not feeding) to spray Btk a threat in the future, based on the fact by the petitioners substantiate that to control the fir looper (USFS 2007e, that spraying occurred in 2007; that the spraying of Confirm 2F was used on an 2007f; Service 2007g, 2007h). Surveys delay of additional spraying to a time area of private land in June of 2007. In confirmed that larvae of the butterfly when the butterfly was inactive took the proposed rule (66 FR 46575; were in diapause prior to spraying Btk considerable time and effort by the September 6, 2001), we estimated that on November 5, 2007 (USFS 2007f, Village of Cloudcroft, Otero County, there were about 4 ha (10 ac) of 2007g, Service 2007g). Btk is sensitive to USFS, and the Service; and there is potentially suitable butterfly habitat sunlight, usually becoming inactive uncertainty over how the USFS will within a private development on the within 3 to 7 days after application address insect control and the butterfly east side of the Village of Cloudcroft. (USFS 2007c). Therefore, Btk would under the new USFS regulations. From information in our files, we have been inactive when larvae of the The petition asserts that climate believe this private development is the butterfly emerged from diapause in the change is likely a greater threat to the same area sprayed with Confirm 2F. It spring of 2008, indicating that the butterfly than was previously is unknown how much of the spraying of Btk during November 2007 considered by the Service. The potentially suitable butterfly habitat was did not measurably impact the butterfly. petitioners assert that scientific sprayed, because no further information Post-spraying monitoring in the autumn information not considered in, or is available in our files or the petition. published subsequent to, the 2004 of 2007 determined that the fir looper That all of the 4 ha (10 ac) of potentially withdrawal indicates that the impact of population had declined to nearly suitable butterfly habitat was sprayed is climate change will be especially severe undetectable levels on the Lincoln unlikely, because insect control was in New Mexico and the southwestern National Forest and adjacent lands targeting a fir looper (Nepytia janetae) United States. They cite a State of New (Anderson 2008). Therefore, the USFS within mixed conifer forests, whereas Mexico website, which states that the concluded that no spraying was needed the butterfly is found within open impacts of climate change and climate during March 2008 (Anderson 2008). meadow habitat. If we assume a worst variability on the environment include case scenario (that drift from the spray Similar to the spraying that occurred the potential for prolonged drought, affected all of the 4 ha (10 ac) of in November 2007, any future proposed severe forest fires, warmer temperatures, potentially suitable butterfly habitat insect control by the USFS would be increased snowmelt, and reduced snow within this area), a small fraction (4 of analyzed under NEPA. However, pack (http://www.nmclimatechange.us/ 1,096 ha (10 of 2,709 ac)) of the suitable because new USFS regulations remove background-impacts.cfm). The butterfly habitat throughout the the butterfly’s Forest Sensitive Species petitioners also note that harm from subspecies’ range was affected, and that status when the land management climate change to butterflies has been is not significant. As described below, resource plan for the Lincoln National particularly well documented for other the fir looper population has declined Forest is revised (see discussion under species of checkerspot butterflies. (USFS 2008), and we do not have any Factor D), we do not know whether the The petitioners cite Parmesan (1996) information to indicate that spraying for butterfly will be included in future to support their claim that the fir looper control will continue. NEPA analyses. A NEPA analysis is not Sacramento Mountains checkerspot The petitioners requested emergency required for non-Federal agency butterfly will be imperiled by climate listing due to the perceived immediate spraying on private lands, which change. Parmesan (1996, p. 765) threats to the species’ continued comprise 49 percent of the butterfly’s documented a range shift due to existence from a proposed aerial suitable habitat. We note that the population extinctions in the non- spraying in the autumn of 2007 of the Conservation Plan provided the migratory Edith’s checkerspot butterfly biological insecticide Bacillus framework under which the USFS and (Euphydryas editha) in western North thuringiensis var. kurstaki (Btk) to Otero County requested and received America and presented arguments on control the fir looper. Btk is activated by technical assistance on the avoidance of why the shift was attributable to climate the alkaline condition of the mid-gut of impacts to the butterfly. Through this change. The petition correctly indicates larvae that ingest it. Consequently, framework and subsequent dialogue, we that Penstemon neomexicanus, the only larvae must ingest Btk for it to be toxic. found that this process was successful plant on which the butterfly is known

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to lay eggs, is known within portions of Finding completed a thorough status review of the Capitan Mountains, which are We have reviewed the petition and the species, which is conducted adjacent to and north of the current the literature cited in the petition, and following a positive 90–day finding. range of the butterfly in the Sacramento evaluated the information to determine Because the Act’s standards for 90–day Mountains. The petition asserts that a whether the sources cited support the and 12–month findings are different, as slight shift in either the butterfly’s or P. claims made in the petition. We also described above, a positive 90–day neomexicanus’ distribution, reviewed reliable information that was finding does not mean that the 12– productivity, phenology, or other factors readily available in our files to clarify month finding also will be positive. resulting from climate change could and verify information in the petition. We encourage interested parties to imperil the butterfly. The apparent Based on our evaluation of the continue gathering data that will assist northward range ‘‘shift’’ in the Edith’s information provided in the petition, with the conservation and monitoring of checkerspot butterfly was due to greater and in accordance with recent the butterfly. The petitioners requested population extinctions at southern applicable court decisions pertaining to that critical habitat be designated for latitudes, not to a northward expansion 90–day findings, we find that the this species. If we determine in our 12– of its range (Parmesan 1996, p. 765). petition presents substantial scientific month finding that listing the butterfly Parmesan (1996, pp. 765-766) discussed information indicating that listing the is warranted, we will address the why these extinctions were most likely Sacramento Mountains checkerspot designation of critical habitat at the time attributable to climate change rather butterfly may be warranted. Our process of the proposed rulemaking. than habitat destruction. If the for making this 90–day finding under Sacramento Mountains checkerspot References Cited section 4(b)(3)(A) of the Act is limited butterfly were to respond similarly, it to a determination of whether the A complete list of all references cited may decline at the southern portion of information in the petition presents in this finding is available upon request its range, but not expand northward to ‘‘substantial scientific and commercial from the New Mexico Ecological the Capitan Mountains. FOR FURTHER information,’’ which is interpreted in Services Office (see As noted under Species Information, INFORMATION CONTACT). the elevational range for the Sacramento our regulations as ‘‘that amount of Mountains checkerspot butterfly is information that would lead a Author reasonable person to believe that the 2,380 to 2,750 m (7,800 to 9,000 ft), and The primary authors of this rule are measure proposed in the petition may that of Penstemon neomexicanus, on the New Mexico Ecological Services be warranted’’ (50 CFR 424.14(b)). which the butterfly lays its eggs, is 1,830 Office staff members (see FOR FURTHER The petitioners present substantial to 2,750 m (6,000 to 9,000 ft) (New INFORMATION CONTACT). Mexico Rare Plant Technical Council information indicating that the butterfly 2008, webpage). Thus, the butterfly is at may be threatened by Factor D Authority the upper elevational range of the plant (inadequacy of existing USFS regulatory The authority for this action is the on which it depends, so it would be mechanisms) and Factor E (pesticide Endangered Species Act of 1973, as dependent on an upward elevational spraying and climate change) amended (16 U.S.C. 1531 et seq.). shift of P. neomexicanus for the throughout the entire range of the Dated: November 12, 2008. butterfly to shift to higher elevations. butterfly. The petitioners do not present The petition asserts that extreme substantial information that Factors A, Kenneth Stansell, weather threatens the butterfly. B, and C are currently, or in the future, Acting Director, Fish and Wildlife Service However, other than reiterating our considered a threat to the butterfly. [FR Doc. E8–28119 Filed 12–4–08; 8:45 am] preliminary finding from the 2001 Based on this review and evaluation, we BILLING CODE 4310-55-S proposed listing rule (66 FR 46575; find that the petition has presented September 6, 2001) that this may be a substantial scientific or commercial threat to the species, the petition information that listing the butterfly DEPARTMENT OF COMMERCE presents no information or explanation throughout all or a portion of its range regarding why the butterfly is may be warranted due to current and National Oceanic and Atmospheric threatened as a result of extreme future threats under Factors D and E. As Administration weather. In our 2004 proposed listing such, we are initiating a status review to withdrawal, we found that the butterfly determine whether listing the butterfly 50 CFR Part 680 can survive and persist despite natural under the Act is warranted. We will RIN 0648–AW97 events such as drought (69 FR 76428; issue a 12–month finding as to whether December 21, 2004). Since our finding any of the petitioned actions are Fisheries of the Exclusive Economic in that 2004 withdrawal, we have no warranted. To ensure that the status Zone Off Alaska; Bering Sea and new information in our files indicating review is comprehensive, we are Aleutian Islands Crab Rationalization that there is any such threat from soliciting scientific and commercial Program extreme weather currently or in the information regarding the butterfly. foreseeable future. It is important to note that the Correction In summary, the petition and ‘‘substantial information’’ standard for a In proposed rule document E8–28015 information readily available to us do 90–day finding is in contrast to the Act’s starting on page 71598 in the issue of not provide substantial information that ‘‘best scientific and commercial data’’ Tuesday, November 25, 2008, make the extreme weather threatens the butterfly. standard that applies to a 12–month following correction: The petition and information readily finding as to whether a petitioned action On page 71598, in the first column, available to us provide substantial is warranted. A 90–day finding is not a under the DATES heading, in the second information that indicate that the status assessment of the species and line ‘‘November 25, 2008’’ should read petitioned action may be warranted does not constitute a status review ‘‘January 26, 2009’’. because pesticide spraying and climate under the Act. Our final determination change are other natural or manmade as to whether a petitioned action is [FR Doc. E8–28015 Filed 12–4–08; 8:45 am] factors that may threaten the butterfly. warranted is not made until we have BILLING CODE 1505–01–D

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