64306 Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations

Authority: 46 U.S.C. 2103, 3306; E.O. SUBCHAPTER TÐSMALL PART 177ÐCONSTRUCTION AND 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. PASSENGER VESSELS (UNDER 100 ARRANGEMENT 277; 49 CFR 1.46. GROSS TONS) 20. The authority citation for part 177 § 121.710 [Corrected] continues to read as follows: PART 175ÐGENERAL PROVISIONS 15. In § 121.710, remove the words Authority: 46 U.S.C. 2103, 3306; E.O. ‘‘part 160, subpart 160.041, of this 18. The authority citation for part 175 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. chapter’’ and add, in their place, the 277; 49 CFR 1.46. words ‘‘approval series 160.041’’. continues to read as follows: 21. In § 177.500, in paragraph (j)(1), Authority: 46 U.S.C. 2103, 3306; 49 U.S.C. remove the last word ‘‘and’’ and add, in PART 122ÐOPERATIONS App. 1804; 49 CFR 1.45, 1.46. Sec. 175.900 its place, the word ‘‘or’’; and revise also issued under 44 U.S.C. 3507. 16. The authority citation for part 122 paragraph (o)(1) to read as follows: continues to read as follows: 19. In § 175.400, in the definition for § 177.500 Means of escape. Authority: 46 U.S.C. 2103, 3306, 6101; E.O. ‘‘High Speed Craft’’, in the equation ‘‘V 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. = 3.7 × displ 1667 h’’, add a decimal point * * * * * 277; 49 CFR 1.46. (o) * * * before the number ‘‘1667’’, and add, in (1) The space has a deck area less than § 122.604 [Corrected] alphabetical order, a definition for 30 square meters (322 square feet); ‘‘wood vessel’’ to read as follows: 17. In § 122.604, in paragraph (a) * * * * * introductory text, remove the words ‘‘at § 175.400 Definitions of terms used in this least 76 millimeters (3 inches) high’’; in subchapter. PART 178ÐINTACT STABILITY AND SEAWORTHINESS paragraph (d), add the words ‘‘and * * * * * numbers’’ after the word ‘‘letters’’ and Wood vessel means, for the purposes 22. The authority citation for part 178 remove the words ‘‘in letters and of subdivision and lifesaving equipment continues to read as follows: numbers at least 40 millimeters (1.5 requirements in this subchapter, a Authority: 43 U.S.C. 1333; 46 U.S.C. 2103, inches) high’’; in paragraph (e) traditionally-built, plank-on-frame 3306; E.O. 12234, 45 FR 58801, 3 CFR, 1980 introductory text add the words ‘‘and Comp., p. 277; 49 CFR 1.46. numbers’’ after the word ‘‘letters’’ and vessel, where mechanical fasteners remove the words ‘‘in letters and (screws, nails, trunnels) area used to § 178.330 [Corrected] numbers at least 40 millimeters (1.5 maintain hull integrity. 23. In § 178.330(a)(4)(v), remove the inches) high’’. * * * * * equation

‘‘Weight on Upper Deck = —————————————— × ———————— × 1.33’’ # of Passengers on Upper Deck Wt per Passenger and add, in its place, the following equation: ‘‘Weight on Upper Deck = (# of Passengers on Upper Deck) × (Wt per Passenger) × 1.33’’.

PART 180ÐLIFESAVING EQUIPMENT § 185.604 [Corrected] DEPARTMENT OF THE INTERIOR AND ARRANGEMENTS 28. In § 185.604, in paragraph (a) Fish and Wildlife Service introductory text, remove the words ‘‘at 24. The authority citation for part 180 least 76 millimeters (3 inches) high’’; in continues to read as follows: 50 CFR Part 17 paragraph (d), add the words ‘‘and Authority: 46 U.S.C. 2104, 3306; E.O. numbers’’ after the word ‘‘letters’’ and RIN 1018±AC32 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. remove the words ‘‘in letters and 277; 49 CFR 1.46. Endangered and Threatened Wildlife numbers at least 40 millimeters (1.5 and Plants; Determination of § 180.130 [Corrected] inches) high’’; and, in paragraph (e) Endangered Status for the Callippe introductory text, add the words ‘‘and 25. In § 180.130(b), remove the words Silverspot and the Behren's numbers’’ after the word ‘‘letters’’ and ‘‘part 160, subparts 160.062 or 160.162, Silverspot Butterfly and Threatened remove the words ‘‘in letters and of this chapter’’ and add, in their place, Status for the Alameda Whipsnake the words ‘‘approval series 160.062 or numbers at least 40 millimeters (1.5 inches) high’’. AGENCY: Fish and Wildlife Service, 160.162’’. Interior. Dated: December 1, 1997. § 180.210 [Corrected] ACTION: Final rule. Joseph J. Angelo, 26. In § 180.210(d), remove the words Acting Assistant Commandant for Marine SUMMARY: The Fish and Wildlife Service ‘‘complying with approval series Safety and Environmental Protection. (Service) determines endangered status 160.056’’ and add, in their place, the [FR Doc. 97–31895 Filed 12–4–97; 8:45 am] pursuant to the Endangered Act words ‘‘approved under approval series of 1973, as amended (Act) for the BILLING CODE 4910±14±M 160.156’’. callippe silverspot butterfly ( callippe callippe) and Behren’s PART 185ÐOPERATIONS silverspot butterfly ( behrensii) and threatened status for the 27. The authority citation for part 185 Alameda whipsnake (Alameda striped continues to read as follows: racer) ( lateralis Authority: 46 U.S.C. 2103, 3306, 6101; E.O. euryxanthus). The callippe silverspot 12234, 45 FR 58801, 3 CFR, 1980 Comp., p. butterfly is found at two sites on 277; 49 CFR 1.46. grasslands in the San Francisco Bay Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations 64307 area. Behren’s silverspot butterfly is November 22, 1992). The females lay city park in Alameda County (S. found within coastal terrace prairie at their eggs on the dry remains of the Mattoon, in litt., November 22, 1992). one site in southern Mendocino County. larvae foodplant, Johnny jump-up (Viola Behren’s silverspot butterfly (Speyeria These are imperiled by pedunculata), or on the surrounding zerene behrensii) is also a member of the overcollecting, urban development, debris (Arnold 1981, Thomas Reid brush foot family (). alien plant invasion and competition, Associates 1982). Within about 1 week William H. Edwards described this and excessive livestock grazing. The of hatching the larvae eat their egg taxon in 1869 based on an adult male Alameda whipsnake occurs in the shells. The caterpillars wander a short collected by an unknown lepidopterist northern coastal scrub and chaparral distance and spin a silk pad upon which in Mendocino, (Edwards habitats of Contra Costa and Alameda they pass the summer and winter. The 1869, dos Passos and Grey 1947). It is counties. This and its associated larvae are dark colored with many a medium-sized butterfly with a habitat are threatened by fire branching sharp spines on their backs. wingspan of approximately 5.5 cm (2.2 suppression and related wildfire The caterpillars immediately seek out in). The upper surfaces are golden problems associated with lack of fuel the foodplant upon termination of their brown with numerous black spots and reduction, urban development, genetic diapause in the spring. In May, after lines. Wing undersides are brown, isolation, and excessive livestock having gone through five instars, each orange-brown, and tan with black lines grazing. This rule implements Federal larva forms a pupa within a chamber of and distinctive silver and black spots. protection and recovery provisions leaves drawn together with silk. Adults Basal areas of the wings and body are afforded by the Act for these . emerge in about 2 weeks and live for densely pubescent. DATES: Effective December 5, 1997. approximately 3 weeks. Depending Behren’s silverspot butterfly is similar ADDRESSES: The complete file for this upon environmental conditions, the in appearance to two other subspecies of rule is available for public inspection, flight period of this single-brooded Speyeria zerene (Howe 1975, Hammond by appointment, during normal business butterfly ranges from mid-May to late 1980, McCorkle and Hammond 1988). hours, at the Sacramento Field Office, July. The adults exhibit hilltopping The Oregon silverspot butterfly (Speyeria zerene hippolyta), federally U.S. Fish and Wildlife Service, 3310 El behavior, a phenomenon in which listed as threatened, has lighter basal Camino Ave., Suite 130, Sacramento, males and virgin or multiple-mated suffusion on the upper sides of the California 95821. females seek a topographic summit on wings than Behren’s silverspot butterfly. which to mate (Shields 1967). FOR FURTHER INFORMATION CONTACT: Another related taxon, the endangered Mike Westphal or Diane Windham, staff Arnold (1983, 1985) conducted Myrtle’s silverspot butterfly (Speyeria biologists, at the above address or by taxonomic studies on the subspecies of zerene myrtleae) is larger in size and telephone (916/979–2725). using wing characters. also lighter in color than Speyeria He concluded that the species consisted SUPPLEMENTARY INFORMATION: zerene behrensii. of 3 subspecies rather than the widely Behren’s silverspot butterfly inhabits Background recognized and accepted 16 subspecies. coastal terrace prairie habitat. The life The callippe silverspot butterfly Based on his study, the range of history of Behren’s silverspot butterfly (Speyeria callippe) is a member of the Speyeria callippe callippe would extend is similar to the callippe silverspot brush foot family (Nymphalidae). The from Oregon to and butterfly. The females lay their eggs in was described by J.A. Boisduval east into the Great Basin (Arnold 1985). the debris and dried stems of the larval (1852) from specimens collected during A comprehensive analysis of this foodplant, violet () the month of June by Pierre Lorquin in species found that the original (McCorkle 1980, McCorkle and San Francisco, California (dos Passos classification remains more appropriate Hammond 1988). Upon hatching, the and Grey 1947). It is a medium sized and that subspecies callippe is restricted caterpillars wander a short distance and butterfly with a wingspan of to the San Francisco Bay region spin a silk pad upon which they pass approximately 5.5 centimeters (cm) (2.2 (Hammond 1986; Murphy undated). The the fall and winter. The larvae are dark- inches (in)). The upper wings are brown Service recognizes the conclusions of colored with many branching, sharp with extensive black spots and lines, Hammond (1986) and the distribution of spines on their backs. The caterpillars and the basal areas are extremely the callippe silverspot butterfly as immediately seek out the foodplant melanic (dark-colored). Wing described by Sterling Mattoon (S. upon termination of their diapause in undersides are brown, orange-brown, Mattoon, in litt., November 22, 1992). the spring. They pass through five and tan with black lines and distinctive The callippe silverspot butterfly is instars before forming a pupa within a black and bright silver spots. Basal areas known from 14 historic populations in chamber of leaves that they draw of the wings and body are densely the San Francisco Bay region. The together with silk. The adults emerge in pubescent (hairy). historic range of the callippe silverspot about 2 weeks and live for The discal area on the upper hind butterfly includes the inner Coast approximately 3 weeks. Depending wings of the callippe silverspot butterfly Ranges on the eastern shore of San upon environmental conditions, the is a darker, more extensive yellow than Francisco Bay from northwestern Contra flight period of this single-brooded on the related Lilian’s silverspot Costa County south to the Castro Valley butterfly ranges from July to August. butterfly (Speyeria callippe liliana). The area in Alameda County (S. Mattoon, in Adult males patrol open areas in search callippe silverspot butterfly is larger and litt., November 22, 1992). On the west of newly emerged females. has a darker ground color with more side of the Bay, it ranged from San The historic range of Behren’s melanic areas on the basal areas of the Francisco south to the vicinity of La silverspot butterfly extends from the wings than Comstock’s silverspot Honda in San Mateo County. Five mouth of the Russian River in Sonoma butterfly (Speyeria callippe comstocki), colonies, including the one located at County northward along the immediate another related taxon. Twin Peaks in San Francisco have been coast to southern Mendocino County in The callippe silverspot butterfly is extirpated for a variety of reasons. the vicinity of Point Arena (S. Mattoon, found in native grassland and associated Currently, extant colonies are known in litt., August 4, 1989). Six historic habitats (Thomas Reid Associates 1982; only from private land on San Bruno populations are known from coastal Steiner 1990; Mattoon, in litt., Mountain in San Mateo County, and a terrace prairie and associated habitats. 64308 Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations

The single extant population is located Highway 680 where the creek passes silverspot butterfly on March 28, 1980 on private land near Point Arena in under the highway, or crossing under (45 FR 20503). The proposal to list the Mendocino County. the highway at Scott’s Corner along callippe silverspot butterfly and the The Alameda whipsnake (Alameda Vallecitos Creek, or where two unnamed reproposal of critical habitat were striped racer) (Masticophis lateralis tributaries to Arroyo de la Laguna cross withdrawn on September 30, 1980 (45 euryxanthus) is a member of the family under Highway 680 north of Scott’s FR 64607) because the Act amendments (Stebbins 1985). It was Corner. The -Black Hills of 1978 required that the final rule for described by William J. Riemer (1954) population has no path for dispersal to the species be completed within 2 years from a total of six specimens collected any of the other populations. after the date of publication of the in the vicinity of Berkeley, Alameda The Alameda whipsnake is proposal to list it as endangered or County, and near Somersville, Contra distinguished from the chaparral threatened. This was listed as a Costa County, and from Mount Diablo, whipsnake (Masticophis lateralis category 2 candidate species in the Contra Costa County, California. The lateralis) by its sooty black dorsum, by Animal Notice of Review on May 22, Alameda whipsnake is a slender, fast- wider yellow-orange stripes that run 1984 (49 FR 21664) and January 6, 1989 moving, diurnal snake with a narrow laterally down each side, the lack of a (54 FR 554). Category 2 species were neck and a relatively broad head with dark line across the rostral, an those taxa for which the Service had large eyes. The dorsal surface is colored uninterrupted light stripe between the data that indicated listing was possibly sooty black with a distinct yellow- rostral and eye, and the virtual absence appropriate, but for which substantial orange stripe down each side. The of spotting on the venter of the head and data on their biological vulnerability anterior portion of the ventral surface is neck. and threats was not currently available orange-rufous colored, the midsection is The Alameda whipsnake is typically to support issuance of proposed listing cream colored, and the posterior and tail found in northern coastal scrub, coastal rules. The callippe silverspot butterfly are pinkish. Adults range in length from sage scrub and chaparral plant was listed as a category 1 species in the 91 to 122 cm (3 to 4 feet (ft)). communities (Ornduff 1974, Swaim Animal Notice of Review on November The Alameda whipsnake inhabits the 1994), but may also occur in adjacent 21, 1991 (56 FR 58804), because of inner Coast Ranges in western and grasslands and oak and oak/bay increased threats from overcollecting central Contra Costa and Alameda woodlands (Swaim 1994). They (see Factor B in the ‘‘Summary of counties (Jennings 1983, McGinnis demonstrate a preference for open- Factors Affecting the Species’’ section of 1992, Swaim 1994). Urban development canopy stands and habitats with woody this rule). Category 1 species were those has fragmented the originally debris and exposed rock outcrops, and taxa for which the Service had on file continuous range of the whipsnake into they tend to be found on southeast, sufficient information on biological five populations centered in the (1) south, and southwest facing slopes vulnerability and threats to support Sobrante Ridge, Tilden/Wildcat (Swaim 1994). This extremely fast- proposed listing rules. As announced in Regional Parks area to the , moving snake holds its head high off the a notice published in the February 28, in Contra Costa County (Tilden-Briones ground to peer over grass or rocks for 1996, Federal Register (61 FR 7596), the population); (2) Oakland Hills, Anthony potential prey and is an active diurnal designation of multiple categories of Chabot area to Las Trampas Ridge, in predator. Its diet includes lizards, small candidates has been discontinued, and Contra Costa County (Oakland-Las mammals, , and nesting birds. only former category 1 species are now Trampas population); (3) Hayward Hills, Radiotelemetry data suggest that recognized as candidates for listing Palomares area to Pleasanton Ridge, in Alameda whipsnakes can occupy home purposes. Alameda County (Hayward-Pleasanton ranges varying in size from 1.9 to 8.7 Ms. Dee Warenycia petitioned the Ridge population); (4) Mount Diablo hectares (ha) (5.0 to 21.5 acres (ac)). Service to list the callippe silverspot vicinity and the Black Hills, in Contra Home ranges of marked snakes butterfly as an endangered species in a Costa County (Mount Diablo-Black Hills overlapped (Swaim 1994). Some letter dated January 14, 1991, which was population); and (5) Wauhab Ridge, Del animals were recorded to have moved received on January 22, 1991. The Valle area to the Cedar Mountain Ridge, over 1.8 kilometers (km) (1 mile (mi)) Service completed a status review and in Alameda County (Sunol-Cedar while crisscrossing their areas determined that sufficient information Mountain population). These (McGinnis 1992). existed to propose the species for populations all occur on private or Alameda whipsnakes breed from listing. The 12-month petition finding public, non-Federal, land. March through June, with mating was published on February 4, 1994, Due to the fragmentation of the range appearing to occur near the hibernacula with the proposed rule (59 FR 5377). of the Alameda whipsnake, little or no of the female (Swaim 1994). On March 20, 1975, Behren’s interchange occurs among the five Whipsnakes lay clutches of 6 to 11 eggs, silverspot butterfly was listed as one of populations. The ability of the May through July (Stebbins 1985), and 42 whose status was being whipsnake to interchange among the the young hatch and emerge in the late- reviewed for listing as either first three populations described above summer to early-fall (Swaim 1994). endangered or threatened by the Service is contingent on their dispersing over (40 FR 12691). This insect was listed as the Caldecott Tunnel in Contra Costa Previous Federal Action a category 2 species in the Animal County and under Highway 580 in A proposed rule to list the callippe Notice of Review on May 22, 1984 (49 Alameda County at the Eden Canyon silverspot butterfly as endangered with FR 21664), and January 6, 1989 (54 FR interchange, the Dublin Boulevard critical habitat was published on July 3, 554). Dr. Dennis Murphy of Stanford undercrossing, or where San Lorenzo 1978 (43 FR 28938). The critical habitat University petitioned the Service to list Creek passes under the highway. The portion of this proposal was withdrawn Behren’s silverspot butterfly as an ability of the Alameda whipsnake to by the Service on March 6, 1979 (44 FR endangered species in a letter dated interchange between the Hayward- 12382) because of procedural and other June 28, 1989, which was received on Pleasanton Ridge and Sunol-Cedar substantive changes in the Act by the June 29, 1989. The Service determined Mountain populations depends on their amendments of 1978. The Service again that the petition contained substantial dispersing along Alameda Creek in published a proposed rule to designate information indicating that the action Alameda County and crossing under critical habitat for the callippe requested may be warranted and Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations 64309 published notice of the 90-day finding Summary of Comments and Alameda whipsnake, with two on November 1, 1990 (55 FR 46080). It Recommendations supporting the listing, one opposing the was listed as a category 1 species in the In the February 4, 1994, proposed rule listing, and three expressing no opinion. Animal Notice of Review on November (59 FR 5377) and associated In accordance with the Service policy 21, 1991 (56 FR 58804), on the basis of notifications, all interested parties were on peer review, published in the significant increases in habitat loss and requested to submit factual information Federal Register on July 1, 1994 (59 FR threats occurring throughout its range. that might assist the Service in 34270), the opinions of three The 12-month petition finding was determining whether these taxa warrant independent scientists were also published with the proposed rule to list listing. Appropriate State and Federal solicited. No responses were received the species on February 4, 1994 (59 FR agencies, county governments, scientific from these specialists. The Service has reviewed all of the organizations, and other interested 5377). written comments described above. New parties were contacted and requested to On September 18, 1985, the Service information received since publication comment. Notices of this proposal were published the Vertebrate Wildlife Notice of the proposed rule is incorporated in published in the San Francisco of Review (50 FR 37958) which the ‘‘Background’’ and ‘‘Summary of Chronicle and San Mateo Times on included the Alameda whipsnake as a Factors Affecting the Species’’ sections February 8, 1994, and the Oakland category 2 candidate species for possible of this final rule. The issues raised in Tribune on February 10, 1994. comments received and the Service’s future listing as endangered or During the comment period, the responses are summarized as follows: threatened. The January 6, 1989, Animal Service received comments from 16 Notice of Review (54 FR 554) solicited Issue 1: One commenter disagreed commenters. Six commenters supported that the Alameda whipsnake would not information on its status as a category 2 the listing of all three taxa. Five candidate species. The Alameda be impacted by construction and commenters supported the listing of the operation of the proposed Los Vaqueros whipsnake was moved to category 1 in callippe silverspot. The Reservoir. The commenter stated that the November 21, 1991, Animal Notice Regional Park District (EBRPD) the snake would be adversely affected of Review (56 FR 58804) on the basis of supported the listing of the Alameda by the reservoir project if there are significant increases in habitat loss and whipsnake. One commenter provided historic records of the snake from the threats occurring throughout its range. information on conservation methods areas that would be inundated. On February 4, 1994, the Service for the callippe silverspot, but did not Service Response: The quarrying published a proposed rule in the express an opinion on the listing. operations for the Los Vaqueros project Federal Register (59 FR 5377) to list the Letters from the City of Danville, will not be undertaken at the location Alameda whipsnake as an endangered California Department of Parks and first proposed for the project, where an species. Recreation (CDPR), and the U.S. Alameda whipsnake was observed National Biological Survey (now the The processing of this final rule (Jones and Stokes 1992). The Service is Biological Resources Division of the follows the Service’s listing priority not aware of any records showing that U.S. Geological Survey) provided this species had ever occurred in the guidance published in the Federal additional information on the Alameda Register on December 5, 1996 (61 FR inundation zone. whipsnake but did not express an Issue 2: One commenter stated that 64475). This guidance clarifies the order opinion on the listing. No public feral pigs (Sus scrofa) prey on snakes in which the Service will process hearing was requested. and other wildlife. rulemakings following two related On November 1, 1996, the Service Service Response: The Service has events—(1) the lifting, on April 26, published in the Federal Register (61 incorporated this information in this 1996, of the moratorium on final listings FR 56501) a notice reopening the final rule. imposed on April 10, 1995 (Public Law comment period for 30 days for these Issue 3: One commenter believed that 104–6), and (2) the restoration of taxa. The basis for this reopening was commercial collecting of the Alameda significant funding for listing through the length of time that had elapsed since whipsnake was an overstated threat and passage of the Omnibus Budget closure of the initial comment period, contended that this was incorrectly used Reconciliation Act following severe changing procedural and biological as a justification for not designating funding constraints imposed by a circumstances, and the need to review critical habitat. Another commenter number of continuing resolutions the best scientific information available stated that the location of the callippe between November 1995 and April during the decision-making process. silverspot butterfly population at San 1996. Under this guidance, highest Specifically, the Service requested Bruno Mountain was well known to priority (Tier 1) is given to processing information regarding—(1) the known or butterfly collectors. He asserted that the emergency listings, and second highest potential effects of fire suppression and threat of collecting was not a priority (Tier 2) is given to resolving the general fire management practices on justification for determining that listing status of outstanding proposed the Alameda whipsnake and its habitat; designation of critical habitat is not (2) any other threats to these taxa; and listings. The third highest priority (Tier prudent for the callippe silverspot (3) the size, number, or distribution of 3) is assigned to resolving the butterfly. populations of these taxa. During the 30- Service Response: Under section conservation status of candidate species day reopened comment period, the 4(a)(3)(A) of the Act and 50 CFR 424.12, and processing administrative findings Service received comments from 10 the Secretary must designate critical on petitions to add species to the lists entities and individuals. One habitat if such designation is prudent or reclassify species from threatened to commenter stated that the listing of the and determinable. Section 4(b)(2) of the endangered status. The lowest priority callippe silverspot butterfly would not Act further states that any area may be (Tier 4) is given to processing critical be beneficial. Two commenters excluded from critical habitat if it is habitat determinations, delistings, and supported listing of all three taxa and determined that the benefits of such other types of reclassifications. one commenter expressed no opinion exclusion outweigh the benefits of Processing of this final rule is a Tier 2 on the listing of all three taxa. The specifying such area as part of the action. remaining letters mentioned only the critical habitat. In the case of the 64310 Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations

Alameda whipsnake and callippe and other lepidopterans may be prone to period were mapped. Such projects silverspot butterfly, the Service believes injury and mortality from dust because included road construction and that designation of critical habitat for their respiratory apparatus (spiracles) widening, subdivision construction and these species would confer little, if any, are easily clogged. The Service is expansion, and brush removal. conservation benefit to these species concerned that high levels of dust from Approximately 25 projects in Alameda beyond that provided by listing. quarry operations on San Bruno County and 41 projects in Contra Costa Application of the statute and its Mountain may adversely affect the County either converted or encroached regulations are described in more detail butterflies in areas immediately upon chaparral in the 1970–1996 in the ‘‘Critical Habitat’’ section of this bordering this location. period. The extent of conversion and rule. Issue 7: One commenter claimed that encroachment ranged from Issue 4: Several commenters the three species are being used by approximately 0.8 to 2.0 ha (2 to 5 ac) contended that the failure of the San environmentalists as ‘‘roadblocks’’ to to approximately 8 to 20 ha (20 to 50 ac) Bruno Mountain Habitat Conservation economic uses of private property. for larger projects. Freeway construction Plan (HCP) is the primary cause of the Another commenter stated that public and residential and commercial decline of the callippe silverspot lands should be managed for development have added dispersal butterfly. productivity and sustainability and that barriers measuring up to 4.8 km (3.0 mi) Service Response: In 1982, a Section the economic impact, customs, wide. The Service’s conclusion, from 10(a)(1)(B) incidental take permit was traditions and culture of local this review, was that regional issued to the cities of Brisbane, Daly communities should be considered development has significantly City, South San Francisco, and the during the listing process. fragmented the remaining Alameda County of San Mateo for the endangered Service Response: Under section whipsnake populations and that natural mission blue butterfly (Icaricia 4(a)(1)(A) of the Act, a listing genetic exchange between the five icarioides missionensis), San Bruno determination must be based solely on remaining populations is unlikely. elfin butterfly (Incisalia mossii the best scientific and commercial data A precise assessment of the amount of bayensis), and San Francisco garter available. The legislative history of this habitat loss is difficult, because snake (Thamnophis sirtalis tetrataenia). provision clearly states the intent of Alameda whipsnakes are known to use This permit and HCP is described in the Congress to ‘‘ensure’’ listing decisions adjacent habitats at a high level ‘‘Available Conservation Measures’’ are ‘‘based solely on biological criteria (McGinnis 1992), and may be found at section of this rule. The Service is not and to prevent non-biological distances up to approximately 500 aware of any documented evidence or considerations from affecting such meters (1,640 feet) from scrub and data showing that the callippe silverspot decisions’’ (H.R. Rep. No. 97–835, 97th chaparral habitat and utilize riparian butterfly is declining as a result of the Cong. 2d Sess. 19 (1982)). As further habitat as a corridor (Swaim 1994). The San Bruno Mountain HCP. However, the stated in the legislative history, ‘‘* ** substantial amount of habitat loss HCP does not regulate collecting threats economic considerations have no documented by the Service brings into to the callippe silverspot butterfly or relevance to determinations regarding question the effectiveness of current other butterfly species inhabiting San the status of species * * *.’’ Because regulatory protection which is further Bruno Mountain. Listing the callippe the Service is specifically precluded discussed under factor D in the silverspot butterfly will provide this from considering economic impacts, ‘‘Summary of Factors’’ section of this species with regulatory protection from either positive or negative, in a decision rule. collection and other impacts. on listing any species, the Service does The issues raised in comments Issue 5: One commenter thought that not evaluate or consider the economic received during the 30 days that the designation of San Bruno Mountain as impacts of listing these species. comment period was reopened and the critical habitat for the callippe Section 2(a)(3) of the Act recognizes Service’s responses to these issues are silverspot butterfly would lead to that species of fish, wildlife, and plants summarized as follows: increased levels of environmental are of esthetic, ecological, educational, Issue 9: Several commenters noted the review and greater protection for the historical, recreational, and scientific benefits of fuels management for snake species. value to the Nation and its people. The habitat maintenance and public safety. Service Response: Critical habitat Service recognizes that the species One commenter noted the difficulty in extends additional protection to listed included in this listing have esthetic, conducting prescribed burns near species through section 7 of the Act by ecological, education, historical and residential communities. Another requiring that Federal agencies ensure scientific value. commenter recommended that the that any actions they fund, authorize, or Issue 8: One commenter thought it Service explicitly recognize the tradeoff carry out do not destroy or adversely would be prudent for the Service to between protecting individual snakes modify critical habitat. However, indicate the percentage of Alameda from mortality during fuels management because development activities on whipsnake habitat lost since 1971, the and the benefits of maintaining long- callippe silverspot butterfly habitat on year the species was listed as term suitable habitat conditions. The San Bruno Mountain have already been ‘‘threatened’’ under the California commenter further noted that completed, designation of critical Endangered Species Act, to document restrictions on fuels treatment activities habitat would not provide additional the level of protection afforded the should meet appropriate standards for benefits to the species. A section species with State listing. reasonableness, given the critical need 10(a)(1)(B) HCP currently protects Service Response: The Service to provide for public safety. habitat in the area. mapped Alameda whipsnake habitat Service Response: The subject of the Issue 6: One commenter was that was extant in 1970 and identified effects of fire suppression and general concerned that particulate matter from areas where conversion and fire management practices on the vehicle exhaust and quarry operations encroachment into potential habitat had Alameda whipsnake and its habitat was may pose a significant threat to the occurred from then until 1996. To the a factor in deciding to reopen the callippe silverspot butterfly. extent determinable from aerial comment period. The Service is Service Response: The adult and early photographs and slides, projects concerned that fire suppression has had, stages of the callippe silverspot butterfly impacting habitat during the 1970–1996 and continues to have, negative impacts Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations 64311 on habitat for the Alameda whipsnake. factor E of the ‘‘Summary of Factors’’ Issue 15: One commenter stated that Fire suppression is discussed in depth section of this rule. involvement of State and local under factor E of the ‘‘Summary of Issue 12: One commenter was governments, as well as all types of land Factors’’ section of this rule. The concerned over the method by which users, should be required prior to listing Service also recognizes the need for information was gathered on private a species. efficient fire control in urban areas and property. Service Response: To solicit would work with appropriate Service Response: The Service is not comments from the public, a notice of management agencies to develop fuels aware of any information that was the February 4, 1994, proposed rule (59 management plans that protect the gathered without the permission of the FR 5377) was published in the San public while affording the maximum property owner. Information was Francisco Chronicle and San Mateo practicable conservation benefit to obtained from Environmental Impact Times on February 8, 1994, and in the Alameda whipsnakes. Reports or Statements that are required Oakland Tribune on February 10, 1994. Issue 10: One commenter expressed under the California Environmental In addition, appropriate State agencies, concern that the proposed rule to list Quality Act (CEQA) or National county governments, Federal agencies, these taxa may not have complied with Environmental Protection Act, reports scientific organizations, and other the regulatory policies announced by and data summaries prepared by State interested parties were contacted and the Department of the Interior on July 1, agencies and independent scientists, requested to comment. On November 1, 1994. In particular, the commenter information submitted during public 1996 (61 FR 56501), the Service expressed concern that the listing comment periods, and other information reopened for public comment the proposal had not been subjected to peer published in the scientific journals or proposed listing of the three species review, as required by the Notice of available in student dissertations. with a closing date of December 2, 1996, Policy Statement published in the Issue 13: One commenter stated that to allow further comments from the Federal Register on that date (59 FR the Service did not use sound scientific public. 34270). information as indicated by its use of Issue 16: One commenter stated that Service Response: The proposed rule phrases such as ‘‘may be threatened.’’ the expense of amending the San Bruno Mountain HCP to permit incidental take to list these taxa was published on Service Response: Section 4(b)(a)(A) of callippe silverspot butterflies would February 4, 1994 (59 FR 5377), of the Act requires that listing preclude other habitat management predating the Service’s formal policy on determinations be based on the best activities. peer review made final on July 1, 1994 scientific and commercial data Service Response: The Service will (59 FR 34270). However, the list of available. The Service has relied on the work with the permit holders involved interested parties to whom the Service best available scientific and commercial in the San Bruno Mountain HCP to sent the proposed rule for comment data in making this listing ensure that the process of amending included several experts on the life determination. The data upon which their Section 10(a)(1)(B) permit will not history, , and ecology of the this determination is based were cause undue diversion of funding from taxa proposed for listing. During the collected by the petitioners and other habitat management activities. reopened comment period discussed qualified scientists. The phrase ‘‘may be above in the ‘‘Previous Federal Actions’’ threatened,’’ in particular, is used to Summary of Factors Affecting the section, the opinions of three indicate that a potential threat may Species independent specialists were solicited become an actual one in the foreseeable After a thorough review and in accordance with this policy. No future. The Service believes that it is consideration of all information responses were received from these sound and responsible science to available, the Service has determined specialists. acknowledge a lack of absolute certainty that the callippe silverspot butterfly Issue 11: One commenter noted that when that is the case. (Speyeria callippe callippe) and because California has experienced Issue 14: One commenter asked what Behren’s silverspot butterfly (Speyeria severe fires during the past several scientific information was used to zerene behrensii) should be classified as years, fire suppression may not be a determine what constitutes endangered species, and the Alameda threat to the Alameda whipsnake. ‘‘inappropriate grazing levels.’’ whipsnake (Masticophis lateralis Service Response: Several areas of Service Response: The final rule euryxanthus) should be classified as a California, particularly southern includes livestock grazing as one of threatened species. Procedures found at California, have recently experienced many factors affecting the species, and section 4(a)(1) of the Act and regulations wildfires. Within the range of the ranks it as a contributing factor, rather (50 CFR part 424) implementing the Alameda whipsnake, however, there than as a major factor. Indeed, this final listing provisions of the Act were have been few large wildfires within the rule states that some grazing could help followed. A species may be determined last 10 years with the notable exception to keep other plants from outcompeting to be endangered or threatened due to of the Oakland Hills firestorm of 1991. the butterflies’ host plants. Studies on one or more of the five factors described Although this fire occurred within the Alameda whipsnakes that have been in section 4(a)(1). These factors and range of the species, the burned areas equipped with radiotelemetry units their application to the callippe were mostly located in developed have shown that the whipsnake forages silverspot butterfly (Speyeria callippe portions of the Oakland Hills that did in grassland between stands of scrub. callippe), Behren’s silverspot butterfly not contain habitat suitable for the Livestock grazing that significantly (Speyeria zerene behrensii), and whipsnake. Fire suppression practices reduces or eliminates plant cover in Alameda whipsnake (Masticophis that do not include controlled burning these grasslands would lead to an lateralis euryxanthus) are as follows: can lead to severe fires that damage both increased loss of snakes and their prey urban and wildlife areas, whereas to other predators. The Service believes A. The Present or Threatened controlled burning can benefit both that livestock grazing, if appropriately Destruction, Modification, or wildlife habitat and reduce the risk of managed, can benefit both the Alameda Curtailment of Habitat or Range catastrophes such as the 1991 fire. Fire whipsnake and the two species of The primary causes of the decline in suppression is discussed in detail under butterflies. the callippe silverspot butterfly and 64312 Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations

Behren’s silverspot butterfly is the loss inappropriate grazing practices, and occupied by the Alameda whipsnake and degradation of habitat from human alteration of suitable habitat from fire (McGinnis 1992). In addition, activities, including off-road vehicle suppression (see factor E below for a full contiguous habitat exists between use, trampling by hikers and discussion of the effects of fire known occupied habitat to the west and equestrians, inappropriate levels of suppression on Alameda whipsnake east of the Bailey Ranch and Hayward livestock grazing, and invasive exotic habitat). The central and western 1900 development projects. Although vegetation. Off-road vehicles and portions of Alameda and Contra Costa Bailey Ranch has proposed mitigation to uncontrolled off-trail foot traffic pose a counties are highly urbanized and offset impacts to the Alameda threat to the colonies of the two continue to be subject to increased whipsnake, both developments will butterfly species. These activities could urbanization. Habitat fragmentation further impact and fragment the harass, injure, or kill individuals of the from urban development and associated Hayward-Pleasanton Ridge population. two species by trampling or crushing highway and road construction has led the early life stages, the foodplants of to isolation of the five populations by Hayward 1900 has proposed open space the larvae, or the adults’ nectar sources. wholly preventing or severely reducing but is planning to construct trails and The Behren’s silverspot butterfly also is movement of individuals between areas vineyards in the proposed open space imperiled by residential and of suitable habitat as described earlier in (Planning Collaborative 1995). commercial development. this rule. These activities have also Vineyards, associated agricultural land The callippe silverspot butterfly was reduced the total amount of suitable uses, and trails could eliminate and once considerably more widespread in habitat available for the Alameda fragment whipsnake habitat and further the San Francisco Bay area, and at least whipsnake. Swaim (1994) listed 55 restrict the movement of snakes. five populations of this species have historical localities for this species, of Within the Oakland-Las Trampas been eliminated by urban development which only 25 are considered to be population, several proposed and other causes. The species was extant. developments may impact Alameda known historically from 14 sites in San McGinnis (1992) documented whipsnakes and their habitat. Several of Mateo, Alameda, Sonoma, and Solano colonies scattered throughout the range these proposed projects are located counties, only 2 of which are still of the snake that are likely to be extant. One of the known extant adversely impacted by various contiguous to the east side of Las populations of the callippe silverspot residential developments. In addition, Trampas Regional Wilderness and butterfly is located in a city park in the Service has identified numerous contain habitat known to be occupied Alameda County. This colony is small housing developments that threaten the by Alameda whipsnakes. The proposed and likely to be imperiled by Alameda whipsnake populations. Some 9 ha (22 ac) Rossmoor Neighborhood anthropogenic and natural causes (S. housing developments in Alameda Nine Project would result in the direct Mattoon, in litt., November 22, 1992). County will further fragment habitat loss of snake habitat and could The population at San Bruno Mountain areas of the Hayward-Pleasanton Ridge potentially impact mitigation habitat in San Mateo County is largely population. These developments previously provided to offset impacts protected against further loss of habitat, include the proposed 200 ha (500 ac) from an earlier phase of the project which will remain undeveloped in Schaefer Ranch Project with (CDFG, in litt., November 25, 1995). The perpetuity by virtue of the San Bruno approximately 474 homes, and the 58 ha proposed expansion of the Oakland Zoo Mountain HCP (Thomas Reid Associates (146 ac) Hansen Ranch Project, both of could potentially impact suitable snake 1982; S. Mattoon, in litt., November 22, which could potentially impact suitable habitat (K. Swaim and S. McGinnis, 1992). However, overcollection of habitat for the Alameda whipsnake. The Hayward State University, pers. comm., specimens by lepidopterists at San Schaefer Ranch contains suitable habitat 1996). Some of these projects have, or Bruno Mountain and at sites where and the adjacent Hansen Ranch is in may, set aside suitable habitat for the hybrids can be found in Solano County close proximity to an Alameda Alameda whipsnake, preserved either as continues to pose a threat (see Factor B). whipsnake sighting (California open space or as mitigation for habitat Behren’s silverspot butterfly has been Department of Fish and Game (CDFG), losses associated with the project. extirpated from a significant portion of in litt., February 13, 1996). In addition, its former range, which extended from the proposed dedication of Although these proposed developments the mouth of the Russian River in approximately 64 ha (161 ac) of the may mitigate for impacts to Alameda Sonoma County north to southern Schaefer Ranch project to the EBRPD whipsnakes, the undeveloped hillsides Mendocino County. One of the six will increase public use and associated that support chaparral growth will be historically known colonies was recreational impacts to habitat of the subject to increased fire suppression eliminated by a housing development Alameda whipsnake. The proximity of due to the close proximity of urban (S. Mattoon, in litt., August 7, 1989). urban development will also increase development. This fire suppression will Currently, this species is known from a the likelihood of predation from result in habitat degradation and an single locality near Point Arena in domestic and feral to EBRPD lands increased probability of catastrophic Mendocino County (Sally DeBecker, that are otherwise protected from wildfires as discussed under factor E Pacific Gas and Electric, in litt., 1990). development (DelVecchio 1997) (see below. The site is subject to grazing by factor C below). The Mount Diablo-Black Hills, livestock. Although no development Two other proposed projects to the Tilden-Briones, and Sunol-Cedar plans have been proposed for this site, south affect the Hayward-Pleasanton urban development is occurring in the Ridge population. The 632 ha (1,580 ac) populations are indirectly threatened by vicinity. No specimens have been Hayward 1900 project and the 156 ha urban development. The Mount Diablo- observed at the sites of the other (391 ac) Bailey Ranch are adjacent Black Hills population will be adversely historically known colonies since 1987. housing developments along Walpert affected by the urban expansion of the The current threats to the habitat of Ridge in Hayward (Planning cities of Pittsburg, Oakley, Brentwood, the Alameda whipsnake are urban Collaborative 1995, City of Hayward and Antioch. These cities are projected development and associated impacts 1996). Both the Walpert Ridge and the to expand by over 40,000 units, which due to increased population densities, Bailey Ranch sites have habitat will result in increased visitation and Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations 64313 associated impacts to nearby EBRPD less than 1.6 km (1 mi) wide in some issuance of a final rule for these animals parks and Mt. Diablo State Park. places, may impose a significant that is not effective immediately upon Specific developments such as the 115- constraint on the species. Few publication will result in greatly unit Clayton Ranch (412 ha (1,030 ac)) individuals have been captured during intensified level of collecting and and 5,200-unit Cowell Ranch (1,709 ha trapping studies conducted over commercial trade in the callippe (4,272 ac)) will expose the eastern flank thousands of trap days, indicating that silverspot butterfly and Behren’s of the Mt. Diablo-Black Hills population Alameda whipsnakes may be sparse silverspot butterfly. Because of the to these indirect impacts of even in suitable habitat (Swaim 1994). immediate threat posed by these on- urbanization. The Mt. Diablo-Black Hills These factors may combine to cause going activities, the Service finds that population is also subject to increased Alameda whipsnakes to be vulnerable to good cause exists for this rule to take urban impacts on the south side from extinction in small habitat patches effect immediately upon publication in the proposed Dougherty Valley (2,400 resulting from habitat fragmentation. accordance with 5 U.S.C. 553(d)(3). The Alameda whipsnake does not ha (6,000 ac)) and Tassajara Valley B. Overutilization for Commercial, (1,600 ha, (4,000 ac)) projects, which appear to be particularly popular among Recreational, Scientific or Educational collectors; however, Federal total over 17,000 units. The Tilden- Purposes Briones population will be subject to listing could raise the value of the increased population pressure from the The callippe silverspot butterfly and animals within reptilian trade markets north by the approved 800-unit Franklin Behren’s silverspot butterfly are highly and increase the threat of unauthorized Canyon (392 ha (980 ac)) projects prized by insect collectors. Although no collection above current levels (K. (Mooers, 1996). Additional studies specifically document the McCloud, U.S. Fish and Wildlife developments are approved or proposed impact of the removal of individuals on Service, Law Enforcement Division, adjacent to the Sunol-Cedar population natural populations of either butterfly pers. comm., 1994 and 1996). Even in the rapidly growing areas near Dublin species, based on studies of another limited interest in the species among and Pleasanton in Alameda County. endangered nymphalid butterfly (Gall, reptile collectors could pose a serious These projects will increase human 1984a and 1984b) and a lycaenid threat to smaller populations of the disturbance from recreational use on butterfly (Duffey 1968), both butterflies snake. are vulnerable to impacts from regional and state parks, and as urban C. Disease or Predation development encroaches into the collection due to their isolated, possibly small populations. Butterfly collectors It appears that predation or disease do current open space buffers between have been observed on San Bruno not pose a significant threat to the existing developments and whipsnake Mountain (S. Stern, in litt., June 21, callippe silverspot butterfly or Behren’s habitat on public lands, the threat of 1994). Some of these specimens are silverspot butterfly. The potential predation and harassment from being traded for other butterfly taxa or impact of disease on the Alameda domestic and feral cats increases are being held by the collectors in whipsnake is unknown. (Coleman et al. 1997). Predation threats anticipation of their greater value A number of native and exotic are discussed in more detail under should the species be listed. The Service mammals and birds are known or likely factor C below. also is aware of reports that Behren’s to be predators of the Alameda The past and ongoing fragmentation silverspot butterfly is actively sought by whipsnake including the California of Alameda whipsnake habitat makes amateur lepidopterists. Both collecting kingsnake (Lampropeltis getula some populations of this species more from small colonies and scientific californiae), (Procyon lotor), vulnerable to extinction. The Tilden- studies that repeatedly handle and mark striped skunk (Mephitis mephitis), Briones and Oakland-Las Trampas individuals (particularly of females and (Didelphis virginianus), populations occupy a narrow, in years of low abundance) could (Canis latrans), (Vulpes interrupted band of ridgetop chaparral seriously damage the populations cinereoargenteus), and hawk (Buteo dividing the heavily urbanized through loss of individuals and the species). Urbanization can lead to Oakland/Berkeley region to the west resulting loss of genetic variability increased numbers and access to habitat from the rapidly urbanizing Highway within the population (Singer and by native predators, leading to increased 680 corridor to the east (USGS 1997). Wedlake 1981, Gall 1984b, Murphy levels of predation on native fauna Habitat patches with high ratios of edge 1988). Collection of females dispersing (Goodrich and Buskirk 1995). The to interior are known to provide less from a colony also can reduce the recent introduction of the value for some species than round or probability that new colonies will be (Vulpes vulpes), a species not native to square patches provide (Jimerson and founded. Collectors pose a threat this region of the State, poses an Hoover 1991; Saunders et al. 1991). In because they may be unable to recognize additional threat to the Alameda fragmented habitats, species most prone when they are depleting butterfly whipsnake. In situations where to extinction are those that depend on colonies below the thresholds of Alameda whipsnake habitat has become native vegetation, require combinations survival or recovery, especially when fragmented, isolated, and otherwise of different habitat types, require large they lack appropriate biological training degraded by human activities, increased territories, and exist at low densities or when they visit the area for a short predatory pressure may become (Saunders et al. 1991). Alameda period of time (Collins and Morris excessive, especially where alien whipsnakes have been shown to be 1985). species, such as rats (Rattus species), associated with native Diablan sage An extensive commercial trade has feral pigs (Sus scrofa), and feral and scrub, to forage in adjacent grasslands, been documented for the callippe domestic cats (Felis domestica) and and to migrate along riparian corridors. silverspot butterfly and the Behren’s (Canis familiaris) are introduced. While the home range of the Alameda silverspot butterfly, as well as for other These additional threats become whipsnake, estimated to vary between 2 imperiled and rare butterflies (U.S. particularly acute where urban and 9 ha (5 and 20 ac), is not large Attorney’s Office 1994, United States v. development immediately abuts compared to that of some animals, the Richard J. Skalski, Thomas W. Kral, and Alameda whipsnake habitat. A growing narrow habitats of the Tilden-Briones Marc L. Grinnell, Case No. CR932013, movement to maintain feral cats in and Oakland-Las Trampas populations, 1993). The Service is concerned that parklands is an additional potential 64314 Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations threats from predation on wildlife endangered species. Protection of listed also exacerbates the habitat (Coleman et al. 1997, Roberto 1995). species through CEQA is, therefore, at fragmentation problems, and greatly The EBRPD is currently facing public the discretion of the lead agency. The restricts the ability of these agencies to pressure to allow private individuals to CEQA provides that, when overriding conduct effective fire management maintain feral cats on park lands social and economic considerations can practices that have the potential to (DelVecchio 1997). Although the actual be demonstrated, project proposals may sustain suitable habitat for the Alameda impact of predation on Alameda go forward, even in cases where the whipsnake and prevent catastrophic whipsnakes under such situations has continued existence of the species may wildfires. not been studied, feral cats are know to be jeopardized, or where adverse E. Other Natural or Man-Made Factors prey on , including yellow racers impacts are not mitigated to the point of Affecting Their Continued Existence (Hubbs 1951), a fast, diurnal snake insignificance. In addition, proposed closely related to the Alameda revisions to CEQA guidelines, if made The use of insecticides would whipsnake (Stebbins 1985). Predation final, may weaken protections for threaten the callippe silverspot butterfly pressure on Alameda whipsnakes may threatened, endangered, and other and the Behren’s silverspot butterfly if increase from maintained colonies of sensitive species. use occurred in proximity to occupied feral cats in Alameda whipsnake The CEQA and CESA afford the habitat. Silverspot butterfly larvae are habitat. Alameda whipsnake some conservation extremely sensitive to pesticides, and benefits. The animal was listed as a even the accumulation of runoff in the D. The Inadequacy of Existing threatened species by the State of soil after spraying has proven lethal to Regulatory Mechanisms California in 1971 (CDFG 1987). the larvae of members of the The callippe silverspot butterfly and Although these State laws provide a Speyeria (Mattoon et al. 1971). Behren’s silverspot butterfly are not measure of protection to the species, However, the Service is not aware of specifically protected under any resulting in the formulation of plans to apply insecticides or pesticides Federal, State or local law. The mitigation measures to reduce or offset on or near the habitat occupied by either California Endangered Species Act impacts for projects proposed in certain of these two species. (CESA) does not provide protection to areas of Alameda whipsnake habitat, Livestock grazing could threaten the insects (sections 2062, 2067 and 2068, these laws are not adequate to protect two butterfly species if it occurs at Fish and Game Code). Although the San the species in all cases. Further, only harmful levels, such that the vegetation Bruno Mountain HCP provides State, and not Federal, agencies are is overgrazed and the foodplants and protection from habitat destruction, required to consult under CESA. In nectar sources of these butterflies are butterfly collectors have been observed response to a comment on the proposed eliminated or greatly reduced in on San Bruno Mountain (S. Stern, in rule, the Service mapped Alameda abundance. Grazing animals can also litt., June 21, 1994) and unauthorized whipsnake habitat that was extant in trample the larval foodplants and adult collection remains an ongoing threat. 1970 and identified areas where nectar sources. Significant reduction or The extent of illegal trade in these and conversion and encroachment into loss of these food sources could threaten other butterfly species and the potential suitable habitat has occurred since the the population viability of these threat poaching poses to small State listed the Alameda whipsnake as butterflies. However, some livestock populations is discussed in detail under threatened in 1971. Based upon this grazing could keep other plants from factor B above. analysis, the Service has determined outcompeting the butterflies’ host The California Environmental Quality that approximately 25 projects in plants. Act (CEQA) requires a full public Alameda County, and approximately 41 McGinnis (1992) has suggested that disclosure of the potential projects in Contra Costa County, either grazing has impacted the habitat of the environmental impact of proposed converted or encroached upon suitable Alameda whipsnake in many areas east projects. The public agency with habitat from 1970 to 1996. The extent of of the Coast Range. Livestock grazing primary authority or jurisdiction over conversion and encroachment ranged that significantly reduces or eliminates the project is designated as the lead from approximately 2 to 5 ac to shrub and grass cover can be agency and is responsible for approximately 20 to 50 ac for larger detrimental to this snake. Many snake conducting a review of the project and projects. Although some of these species, including the Alameda consulting with other agencies projects were required to set aside and whipsnake, avoid such open areas concerned with resources affected by preserve suitable habitat for the because of the increased danger from the project. Section 15065 of the CEQA Alameda whipsnake as open space or as predators and the lack of prey guidelines requires a finding of mitigation for habitat losses associated (McGinnis 1992). significance if a project has the potential with the project, many of these The invasion of California’s native to ‘‘reduce the number or restrict the preserved areas remain threatened by grassland and coastal prairie by alien range of a rare or endangered plant or fire suppression practices and plants has adversely affected native animal.’’ Species that are eligible for catastrophic wildfire for the reasons flora and fauna. Numerous non-native listing as rare, threatened, or identified and discussed in factor E species have invaded these plant endangered but are not so listed are below. communities (Heady 1988, Heady et al. given the same protection as those With appropriate management, areas 1988). Introduced alien plants, such as species that are officially listed with the of open space managed by the EBRPD, iceplant (Carprobrotus sp.), gum trees State. Once significant impacts are East Bay Municipal Utilities District (Eucalyptus spp.), and gorse (Ulex identified, the lead agency has the (EBMUD), and Mount Diablo State Park, europaeus), often outcompete and option to require mitigation for effects conservation strategies for Alameda supplant native vegetation. In the through changes in the project or to whipsnake may be developed. Although absence of control and eradication decide that overriding considerations these public lands include substantial programs, invasive alien plants may make mitigation infeasible. In the latter areas occupied by the whipsnake, the eliminate the remaining native plants, case, projects may be approved that quality of the habitat continues to including the host plants of Behren’s cause significant environmental decline because of surrounding urban and callippe silverspot butterflies. damage, such as destruction of encroachment. Urban encroachment Adequate levels of Viola species are Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations 64315 especially critical for the long term temperature stability (stenothermy) than around most of the perimeter of the Park survival of populations of these has been documented in any other (J. Ferreira, pers. comm. 1996). The butterflies (S. Mattoon, in litt., August 4, species of snake under natural urban-parkland interface has 1989, and November 22, 1992). Non- conditions (Swaim 1994). Alameda necessitated that CDPR, with CDFFP, native plants may also replace native whipsnakes apparently can maintain develop and implement a wildfire vegetation in habitat for the Alameda this high, stable body temperature by management plan and program. whipsnake, potentially degrading the using open and partially open and/or According to a MOU with CDPR, the habitat and reducing the prey base. low growing shrub communities that CDFFP is the designated lead agency on Radiotelemetry data indicate that provide cover from predators while fire management in Mount Diablo State Alameda whipsnakes tend to avoid providing a mosaic of sunny and shady Park and, therefore, has the final dense stands of eucalyptus (Swaim areas between which Alameda decision on how to manage each fire on 1994). whipsnakes can move to regulate their CDPR lands (CDPR and CDFFP 1995). Periodic fires can be an important body temperatures (Swaim 1994). Tall, The CDPR drafted the Mount Diablo factor in maintaining the grassland and shaded stands of vegetation, such as Wildfire Management Plan for the Park coastal prairie habitat of the callippe poison oak (Toxicodendron in 1987. This plan originally sought to silverspot butterfly and the Behren’s diversilobum), coyote brush (Baccharis reduce the high levels of livestock silverspot butterfly. Without fire, pilularis), or other vegetation may not grazing on parklands to an ‘‘interpretive succession will eliminate the foodplants provide the optimum temperature level’’ to manage more successfully for of the larvae of the two butterflies gradient for Alameda whipsnakes. wildlife values (J. Ferreira, pers. comm. (Orsak 1980, Hammond and McCorkle Survey data show that Alameda 1996). Local ranchers who grazed cattle 1984). Periodic cool, fast-moving fires whipsnakes are less likely to be found on or adjacent to parklands were appear important for the maintenance of where these plant species create a opposed to this plan and gained the the habitat of these two species. Dead closed canopy (Swaim 1994). support of local fire agencies to grass and other vegetation from previous In addition, many of the native coastal continue grazing because grazing was years may not decay quickly enough scrub and chaparral plant species seen as a form of fire management (J. and may gradually accumulate to form require periodic fires to stimulate new Ferreira, pers. comm. 1996). a thick layer of thatch that smothers sprouting, seedling recruitment, and In 1995, grazing pressure was violets. The larvae of the silverspot seed dispersal (Parker 1987; Keeley significantly reduced and CDPR took a butterflies may survive fires that move 1987, 1992). The natural fire frequency new approach in fire management rapidly through grassland habitats, necessary to provide this stimulus in planning by revising the Mount Diablo whereas hotter, slow-moving brush and this habitat type is debated by scientists Wildfire Management Plan. The revised woodland fires may kill them (Orsak but ranges from 10 to 30 years (Keeley plan was developed in coordination 1980, Hammond and McCorkle 1984). In and Keeley 1987, Rundel 1987). with CDFFP and outlines addition, under windy conditions, fast- Therefore, depending on the rate of fuel presuppression, suppression, and fire moving grassland fires burn in patches accumulation, prescribed burns can be management programs (CDPR and that leave ‘‘islands’’ of unburned habitat conducted in areas where fires have CDFFP 1995). These programs identify where any butterflies present are not been suppressed with a frequency of 10 areas for prescribed burns, fire breaks to harmed. to 30 years (J. Ferreira, CDPR, pers. be maintained, and unique cultural The Alameda whipsnake is threatened comm. 1996). resources, rare and endangered plants, directly and indirectly by the effects of The California Department of Forestry and structures. Rare and endangered fire suppression. Fire suppression and Fire Protection (CDFFP) has animal species (including the Alameda exacerbates the effects of wildfires primary authority for wildfire whipsnake) are not specifically through the buildup of fuel (underbrush management in the State of California. identified in the plan. The ultimate and woody debris), creating conditions Where joint jurisdiction exists, such as decision on ‘‘initial attack’’ of any given for slow-moving, hot fires as described with regional or State park lands, a fire occurrence still lies with CDFFP, above. The highest intensity fires occur memorandum of understanding (MOU) which generally prefers to suppress fires in the summer and early fall when is often developed. Through these on Mount Diablo. In addition, CDFFP accumulated fuel is abundant and dry. MOUs, consideration of cultural, has been concerned about conducting During this period, hatchling and adult esthetic, and natural resources, can be prescribed burns due to the proximity of Alameda whipsnakes are aboveground addressed during planning and the urban-parkland interface (J. Ferreira, (Swaim 1994), and populations are implementation of wildfire pers. comm., 1996). likely to sustain the heaviest losses from management. However, CDFFP has the Encroaching urban development has fires. The development of a closed scrub final decision on wildfire management. necessitated the implementation of canopy also results in a buildup of The policy of the CDFFP for rigorous fire suppression practices in flammable fuels over time (Parker 1987, unprescribed fires, such as those and around suitable habitat areas for the Rundel 1987). Fire suppression has led resulting from lightning strikes, is to put Alameda whipsnake by land to the encroachment of nonindigenous them out immediately (B. Harrington, management agencies to protect people and ornamental trees into grassland CDFFP, pers. comm. 1996). Similarly, and property. The EBRPD guidelines habitats, further increasing flammable while CDFFP is engaging in some state that opportunities for prescribed fuel loads in and around Alameda prescribed burn programs, they remain burning on their lands is limited whipsnake habitat. hesitant to fully endorse prescribed because of the urban-parkland interface Fire suppression can alter the burning, especially where there is an and the risk of the fire escaping control structure of snake habitat by allowing urban-parkland interface (CDFFP 1989; lines (EBRPD 1992). Another obstacle plants to establish a closed canopy J. Di Donato, EBRPD, pers. comm. 1996). the regional climatic conditions (Parker 1987) that will tend to create The CDPR has management required to conduct prescribed burning relatively cool conditions. Alameda responsibilities for Mount Diablo State safely. Although the EBRPD has whipsnakes have a higher mean active Park, where a considerable portion of developed prescribed burning plans and body temperature (33.4 degrees the suitable whipsnake habitat occurs. strategies to manage their lands, centigrade) and a higher degree of body Residential development has occurred implementation of these plans has been 64316 Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations hindered by the close proximity of An additional threat to the San Bruno range, the Mount Diablo-Black Hills adjacent residential and commercial Mountain population of the callippe population is threatened by a high development areas (J. Di Donato, pers. silverspot butterfly is the high level of potential for catastrophic wildfire, comm., 1996). Although the EBRPD is in dust from quarry operations in the development and its associated impacts, the process of updating their prescribed vicinity. Adult and early stages of the and inappropriate grazing practices. burn program in response to the 1991 taxon may be prone to injury and Because of the location of public lands Oakland Hills firestorm, the public does mortality from dust because their and the potential for improved fire and not fully endorse prescribed burning respiratory apparatus (spiracles) are grazing management on parklands, this (EBRPD 1995). easily clogged. population is a good candidate for The breeding of closely related The Service has carefully assessed the recovery, if urbanization threats can be individuals can cause genetic problems best scientific and commercial controlled. The Sunol-Cedar Mountain in small populations, particularly the information regarding past, present, and population is threatened by expression of deleterious genes (known future threats faced by these species in development and inappropriate grazing as inbreeding depression). Both the determining this final rule. Based on practices. Overall, the Oakland-Las callippe silverspot butterfly and the this evaluation, the preferred action is to Trampas and Hayward-Pleasanton Ridge Behren’s silverspot butterfly exist only list the callippe silverspot butterfly and populations are the most immediately as very small, isolated populations (S. Behren’s silverspot butterfly as imperiled with habitat fragmentation Mattoon, in litt., August 4, 1989, and endangered species, and the Alameda becoming prevalent enough to November 22, 1992). Alameda whipsnake as a threatened species. The compromise their long-term viability. whipsnakes tend to be relatively rare current range restrictions of these In the proposed rule (59 FR 5377), the even in suitable habitat as is indicated species make them increasingly Service proposed to list the Alameda by trapping studies that show low vulnerable to threats described above whipsnake as endangered based capture rates and relatively high under factors A through E. primarily on the threats of urbanization recapture rates (about 3 captures, 1 Urban development threatens both the and invasive alien vegetation. The recapture per 1,000 trap days) (Swaim callippe silverspot butterfly and Service has reevaluated the available 1994). Individuals and populations Behren’s silverspot butterfly. One of the information, including information possessing deleterious genetic material two known extant colonies of the provided during the public comment are less able to adapt to changes in callippe silverspot butterfly is period, regarding threats to the species. environmental conditions, even imminently imperiled, and both Urbanization and the negative effects of relatively minor changes. Further, small colonies are threatened by structural changes in both the native populations are vulnerable to the effects overcollection. The single known and alien vegetative component of of genetic drift (the loss of genetic population of Behren’s silverspot whipsnake habitat continue to threaten variability). This phenomenon also butterfly is similarly threatened. the survival of the Alameda whipsnake. reduces the ability of individuals and Available habitat and population levels However, these threats are not now of populations to successfully respond to are depleted to the extent that these sufficient magnitude to create a danger environmental stresses. Overall, these butterflies are near the brink of of extinction throughout all, or a factors influence the survivability of extinction. Because the callippe significant portion, of the range of the smaller, genetically isolated populations silverspot butterfly and Behren’s species. The Service now concludes that of each of the three species listed silverspot butterfly are in danger of the failure to implement appropriate fire herein. extinction throughout all or a significant management practices on public lands The callippe silverspot butterfly, portion of their ranges, these species fit to sustain suitable Alameda whipsnake Behren’s silverspot butterfly, and the the definition of endangered as defined habitat, coupled with the rate of loss of Alameda whipsnake are all vulnerable by the Act. suitable habitat on private lands, make to the effects of habitat fragmentation. All five remaining populations of the it likely that the Alameda whipsnake Subdivision of natural land into smaller Alameda whipsnake are threatened by a will become in danger of extinction blocks of suitable habitat is often the variety of factors. Each of these throughout all, or a significant portion, result of human activities such as urban populations consist of several to of its range in the foreseeable future. development, road construction, fire numerous subpopulations with varying Because the Alameda whipsnake is management policies, and inappropriate degrees of connectivity between them. likely to become an endangered species livestock grazing practices. Further In the western portion of the species’ within the foreseeable future, this reduction of population size and genetic range, the Tilden-Briones population is species fits the definition of threatened interchange among populations through threatened by a high potential for as defined by the Act. isolation, genetic drift, and inbreeding catastrophic wildfire and urban depression, may result in less vigorous development. However, the remaining Critical Habitat and adaptable populations of these three habitat, regional parklands, and Critical habitat is defined in section 3 species listed herein. Small, isolated municipal watersheds in this area of the Act as: (i) the specific areas populations are vulnerable to extinction overlap to the extent that a regional within the geographical area occupied from random fluctuations in population preserve may be possible. The Oakland- by a species, at the time it is listed in size or variations in population Las Trampas population is threatened accordance with the Act, on which are characteristics (e.g., sex ratios) caused by a high potential for catastrophic found those physical or biological by annual weather patterns, food wildfire and the effects of habitat features (I) essential to the conservation availability, and other factors. Because fragmentation and urban development. of the species and (II) that may require most of the populations of these species The Hayward-Pleasanton Ridge special management considerations or are isolated from other conspecific population is the most susceptible to protection and; (ii) specific areas populations, natural recolonization from extirpation. This population is scattered outside the geographical area occupied other populations is unlikely or in distribution and is, therefore, more by a species at the time it is listed, upon impossible, and the vulnerability of vulnerable to the effects of development a determination that such areas are each population to natural events is and subsequent habitat fragmentation. essential for the conservation of the high. In the eastern portion of the species’ species. ‘‘Conservation’’ means the use Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations 64317 of all methods and procedures needed in this rule (Howe 1975, Hammond occurs on the sole site where the species to bring the species to the point at 1980, McCorkle and Hammond 1988). remains. Even if a future Federal project which listing under the Act is no longer Illegal collecting has been observed at were to occur in the area, it would necessary. one of the two remaining sites for the require consultation with the Service Section 4(a)(3) of the Act, as callippe silverspot butterfly (S. Stern, in pursuant to section 7 of the Act before amended, and implementing regulations litt., 1994). it could be implemented. Because this (50 CFR 424.12) require that, to the The Service is also aware of reports butterfly exists only as a single, small maximum extent prudent and that Behren’s silverspot butterfly is population, any future activity determinable, the Secretary designate actively sought by collectors. The fact involving a Federal action that would critical habitat at the time the species is that this species is not yet a commodity adversely modify critical habitat, that is, determined to be endangered or in illegal trade is likely attributable to would appreciably diminish the value threatened. Service regulations (50 CFR the lack of specific knowledge of the of the critical habitat for the survival 424.12(a)) state that critical habitat is location of its sole remaining and recovery of the species, would also not determinable if information population. Trade in these specimens is likely jeopardize the species’ continued sufficient to perform required analyses not limited to the occasional adult existence. of the impacts of the designation is butterfly, but can include dozens of Colonies of the callippe silverspot lacking or if the biological needs of the individuals and hundreds of larvae butterfly are known only to exist at two species are not sufficiently known to (United States v. Richard J. Skalski, sites, both of which are privately permit identification of an area as Thomas W. Kral, and Marc L. Grinnell, owned. The callippe silverspot butterfly critical habitat. Section 4(b)(2) of the Case No. CR932013, 1993). The effects was considered during the formulation Act requires the Service to consider that even limited collecting can have on of the San Bruno Mountain HCP under economic and other relevant impacts of small populations are discussed in the provisions of a section 10(a)(1)(B) of designating a particular area as critical detail under factor B in the ‘‘Summary the Act. This HCP, in which the callippe habitat on the basis of the best scientific of Factors Affecting the Species’’ section silverspot butterfly was designated as a data available. The Secretary may above. Because of the increased value of species of concern, permanently exclude any area from critical habitat if listed species, the illicit commercial protects approximately 92 percent of its he determines that the benefits of such trade in the callippe silverspot butterfly habitat on San Bruno Mountain. The exclusion outweigh the conservation and Behren’s silverspot butterfly would HCP also includes management benefits, unless to do such would result be likely to increase upon listing. activities, funded by development in the extinction of the species. Service Although the San Bruno Mountain projects, that benefit the butterfly regulations (50 CFR 424.12(a)(1)) state locality is purportedly known to including annual monitoring of the that designation of critical habitat is not collectors (see issue 3 under the colonies on the site (V. Harris, in litt., prudent when one or both of the ‘‘Summary of Comments and 1996). Habitat for the other known following situations exist—(1) The Recommendations’’ section above), this population is partially protected in a species is threatened by taking or other is a large area (340 ha (850 ac)) and city park in Alameda County. No human activity, and identification of precise maps and descriptions of critical Federal actions, authorizations, or critical habitat can be expected to habitat, such as those which would licensing currently occurs on this site. increase the degree of threat to the appear in the Federal Register if critical Although there are scattered Federal species, or (2) such designation of habitat was designated, are not now landholdings throughout the historical critical habitat would not be beneficial available to the general public. The range of the callippe silverspot butterfly, to the species. specific localities of the two other there are no historical collections of this localities of the callippe or silverspot species from any Federal lands. Because The Callippe Silverspot and Behren’s butterflies are not well known, but they of the extensive urbanization within its Silverspot Butterflies are near roads or trails and could be historical range, no suitable habitat As discussed under factor B in the easily accessed by the public if precise remains for the species other than at the ‘‘Summary of Factors Affecting the locality information is provided. two sites at which it is currently known Species’’ section above, an extensive In addition, neither the callippe to persist (Orsak 1980; Steiner 1990; S. international commercial trade has been silverspot butterfly nor the Behren’s Mattoon, in litt., 1992). Federal agency documented to exist for butterflies in silverspot butterfly would receive any involvement, therefore, is not likely to general (Collins and Morris 1985) and benefit from the designation of critical occur on either of the two sites at which for threatened or endangered species of habitat beyond that provided by listing. the callippe silverspot butterfly persists. butterflies in particular, which are Critical habitat only applies to activities Even if a future Federal project were to accorded higher value because of the on Federal lands and activities on occur at either site, it would require formal recognition of their rarity (United private lands involving Federal consultation with the Service pursuant States v. Richard J. Skalski, Thomas W. authorization or funding. All known to section 7 of the Act before it could Kral, and Marc L. Grinnell, Case No. populations of these species occur on be implemented. Because only two CR932013, 1993). This trade includes non-Federal land. The only Federal land small populations of this butterfly several species of the genus Speyeria, within the historical range of Behren’s remain, any future activity involving a including the callippe silverspot silverspot butterfly is a small parcel at Federal action that would adversely butterfly which was illegally collected the U.S. Coast Guard lighthouse at Point modify critical habitat, that is, would after the species was proposed for Arena. Although this installation is in appreciably diminish the value of the listing under the Act, the Myrtle’s close proximity to the only known site critical habitat for the survival and silverspot butterfly (Speyeria zerene for this species, no specific records recovery of the species, would also myrtleae), and the Oregon silverspot document any historical occurrence at likely jeopardize the species’ continued butterfly (S. zerene hippolyta), the last this site. The habitat at this site, and existence. two of which are listed federally elsewhere within the historical range of Critical habitat designation in areas subspecies that are similar in the species, is presumed to be currently outside of the currently occupied appearance to the Behren’s silverspot unsuitable for the species. No activity territory of the callippe silverspot butterfly (S. zerene behrensii) included involving a Federal action currently butterfly also would serve no purpose 64318 Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations because these areas are highly urbanized the form of insurance provided by the detail under factor B in the ‘‘Summary and essentially have no practical value Department of Housing and Urban of Factors Affecting the Species’’ section for the survival and recovery of the Development (HUD) for housing loans. above. Because of the likelihood for an species. In addition, activities within Such actions within whipsnake habitat, increase in the value of a species upon these areas are very unlikely to involve however, are likely to be rare. In listing, any current illicit commercial a Federal action which would trigger addition, urban development will only trade in the Alameda whipsnake would section 7 consultation. Furthermore, in occur along the periphery of the core likely increase with this listing. the unlikely event that an activity areas of whipsnake populations. Because of the expected rarity of involving a Federal action is proposed Because of the need for an active fire Federal agency involvement and the low in one of these areas, it is very unlikely management program in the form of conservation value of lands on which that the Service would determine that prescribed burns to maintain the Federal involvement is most likely to the activity would appreciably diminish necessary habitat structure for the occur, the Service finds that critical the value of the area for the survival and whipsnake, areas slated for habitat designation is not prudent for recovery of the species because these development in this urban-wildland the Alameda whipsnake due to lack of areas essentially have no such value to interface do not offer suitable long-term any significant benefit beyond that the species currently. Critical habitat habitat potential for the whipsnake and, conferred by listing. Moreover, the designation in areas outside of the therefore, cannot be considered to be publication of precise maps and currently occupied territory of the habitat essential to the conservation of descriptions of critical habitat in the Behren’s silverspot butterfly also would the species nor habitat requiring special Federal Register would make this snake serve little purpose because activities management considerations. Even if more vulnerable to incidents of within these areas are very unlikely to Federal involvement in the form of collection further contributing to its involve a Federal action which would housing loans were to occur in these decline. Any benefit which might be trigger section 7 consultation. areas, it would require consultation derived from the designation of critical The Service finds, therefore, that with the Service pursuant to section 7 habitat for the Alameda whipsnake is designation of critical habitat for the of the Act before it could be outweighed by the increased threat of callippe silverspot butterfly and the implemented. The potential for the collection. Behren’s silverspot butterfly is not involvement of other Federal agencies Available Conservation Measures prudent because doing so would make within the historical range of the these butterflies more vulnerable to Alameda whipsnake is discussed in the Conservation measures provided to incidents of collection further ‘‘Available Conservation Measures’’ species listed as endangered or contributing to their decline. section below. threatened under the Act include Designation of critical habitat for the Critical habitat designation outside of recognition, recovery actions, callippe silverspot butterfly and the the areas where the Alameda whipsnake requirements for Federal protection, and Behren’s silverspot butterfly is also not currently occurs also would serve no prohibitions against certain activities. prudent because it would confer no purpose because these areas are not Recognition through listing encourages benefit to the species beyond that essential for the survival and recovery of and results in conservation actions by provided by listing. the species. The Service believes that Federal, State, and private agencies, sufficient occupied habitat remains groups, and individuals. The Act Alameda Whipsnake which, if managed for greater benefits provides for possible land acquisition As discussed earlier, the historical for the Alameda whipsnake, would and cooperation with the States and range of the whipsnake has been ensure the survival and provide for the requires recovery actions be carried out fragmented by urbanization into five recovery of the species. for all listed species. The protection populations, each of which is effectively Any potential conservation benefit required of Federal agencies and isolated from the others. The core of from designation of critical habitat for prohibitions against taking are each of these five populations is the Alameda whipsnake is undermined discussed, in part, below. comprised of relatively large expanses by the risk of overcollection. The Section 7(a) of the Act, as amended, of public, non-Federal lands, which demand for live reptiles as collectibles requires Federal agencies to evaluate comprise about 80 percent of known and exotic pets has increased rapidly in their actions with respect to any species whipsnake habitat. Although these recent years and the high level of that is proposed or listed as endangered public lands are protected from demand by reptile collectors often or threatened. Regulations development, other threats to the encourages smuggling of wild-caught implementing this interagency whipsnake remain, including the specimens (U.S. Fish and Wildlife cooperation provision of the Act are negative effects of fire suppression on Service 1996). While the Alameda codified at 50 CFR part 402. Section the structure of whipsnake habitat, the whipsnake has not been particularly 7(a)(2) requires Federal agencies to indirect effects of urban development popular among reptile collectors in the insure that activities they authorize, (e.g., increased recreational use of the past, the act of listing increases the fund, or carry out are not likely to public lands, increased predation by attractiveness and value of listed jeopardize the continued existence of pets, etc.), and other factors discussed in entities to collectors, thereby potentially such a species or to destroy or adversely the ‘‘Summary of Factors Affecting the increasing the threat of unauthorized modify its critical habitat. If a Federal Species’’ section above. The Service is collection (K. McCloud, pers. comm. action may affect a listed species or its not aware of any Federal lands within 1994, 1996). The identification of critical habitat, the responsible Federal the range of the Alameda whipsnake, localities of the whipsnake through agency must enter into formal and activities involving a Federal action designation of critical habitat would consultation with the Service. are not likely to occur on the public, exacerbate the threat of overcollection As noted previously, HUD may insure non-Federal lands. because many areas in which the housing loans in areas that presently Private lands comprise the other 20 whipsnake occurs are readily accessible support the Alameda whipsnake. Such percent of known whipsnake habitat. by road or public trail. The effects that actions are likely to be rare but these There is a remote possibility of Federal even limited collecting can have on loans would be subject to review by the agency involvement on these lands in small populations are discussed in Service under section 7 of the Act. Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations 64319

Other Federal agencies that possibly enhancement), implement annual can apply to agents of the Service and could be affected if these animals are monitoring of its population, and allow State conservation agencies. listed would include the Army Corps of for adaptive management to conserve It is the policy of the Service Engineers and the Department of the species. However, no specific published in the Federal Register on Transportation (Federal Highways provisions were included in the HCP to July 1, 1994 (59 FR 34272), to identify, Administration). Both agencies protect the callippe silverspot butterfly to the maximum extent practicable at cooperate in projects within the from poachers. the time a species is listed, those historical range of the Alameda The listing of the callippe silverspot activities that would or would not whipsnake. The projects, however, are butterfly, Behren’s silverspot butterfly, constitute a violation of section 9 of the typically confined to waterways and and the Alameda whipsnake will also Act. The intent of this policy is increase highways both of which occur in low- bring sections 5 and 6 of the Act into public awareness of the effect of this lying areas that no longer provide effect. Section 5 authorizes acquisition listing on proposed and ongoing suitable habitat for the whipsnake. Such of lands by the Secretary of the Interior activities within a species’ range. areas are surrounded by intense urban (and Secretary of Agriculture in certain With respect to the callippe silverspot development and are, in combination cases) for the purposes of conserving butterfly or Behren’s silverspot with the urban areas, the primary endangered and threatened species. butterfly, the Service believes that landscape components that have already Pursuant to section 6, the Service would neither observing the species (without effectively isolated the five core be able to grant funds to affected states capture) nor light to moderate grazing of populations of the whipsnake. for management actions aiding in its habitat by livestock would likely Involvement by the Army Corps of protection and recovery of these result in a violation of section 9. Engineers or the Federal Highway animals. With respect to the callippe silverspot Administration in the core areas that Listing the callippe silverspot butterfly or Behren’s silverspot comprise the remaining habitat for the butterfly and the Behren’s silverspot butterfly, the following actions likely whipsnake is highly unlikely since butterfly as endangered and the would be considered a violation of these areas are comprised primarily of Alameda whipsnake as threatened section 9: steep mountainous terrain where provides for the development of (1) Capture or collection of adults or projects that impact regulated wetlands, recovery plans for them. Such plans will any other life history stages; (2) Collection, damage, or destruction flood control projects, and highway bring together State and Federal efforts of foodplants (Viola species) or other construction projects rarely occur. No for conservation of the animals. The nectar sources within the species range; populations of the callippe silverspot plans will establish a framework for butterfly, Behren’s silverspot butterfly, and, agencies to coordinate activities and (3) Destruction of the species’ or Alameda whipsnake are known to cooperate with each other in occupied habitat by actions including, occur on property owned by the Federal conservation efforts. The plans will set but not limited to, road, street or government. recovery priorities and estimate costs of highway construction; subdivision One of the two known extant various tasks necessary to accomplish construction; application of herbicides populations of the callippe silverspot them. They also will describe site- or other chemical agents; brush removal; butterfly is protected by the San Bruno specific management actions necessary or off-road vehicle use. Mountain HCP (USFWS permit number to achieve conservation of the species. With respect to the Alameda PRT 2–9818). In 1982, a Section 10(a) Listing of the Alameda whipsnake whipsnakes, the following actions likely incidental take permit was issued to the will likely result in the increased ability would be considered a violation of cities of Brisbane, Daly City, South San of public land agencies to promote section 9: Francisco, and the County of San Mateo, management plans that address the need (1) Unauthorized collecting or for the endangered mission blue to manage for Alameda whipsnakes, handling of whipsnakes; butterfly, San Bruno elfin butterfly, and including, but not limited to, increased (2) Destruction or degradation of San Francisco garter snake. The permit ability to conduct prescribed burns, occupied whipsnake habitat by actions allows for the loss of animals and manage predators, control feral pigs and including, but not limited to, road habitat through urban development of other feral animals, regulate recreational construction, road widening, approximately 344 ha (850 ac) of San use, and develop educational programs subdivision construction, brush Bruno Mountain. The HCP permanently for the benefit of the Alameda removal, or off-road vehicle use; and, protects about 1,114 ha (2,752 ac) of whipsnake. (3) Destruction or degradation of natural habitat at this site. The The Act and implementing occupied whipsnake habitat by conference report on the 1982 regulations found at 50 CFR 17.21 for livestock grazing if conducted following amendments to the Act indicates that endangered species and 17.31 for notification by the Service that such Congress intended HCPs to encompass threatened species set forth a series of grazing constitutes ‘‘take’’ of both listed and unlisted species, prohibitions and exceptions that apply whipsnakes. especially unlisted species that may to all endangered wildlife and to Permits may be issued to carry out later require protection. Although the threatened wildlife not covered by a otherwise prohibited activities callippe silverspot butterfly was not special rule. These prohibitions, in part, involving endangered and threatened included as a ‘‘covered’’ species in the make it illegal for any person subject to animal species under certain Section 10(a) permit, the HCP included the jurisdiction of the United States to circumstances. Regulations governing specific provisions for the butterfly in take, import or export, transport in permits are found in 50 CFR 17.22, the event it did become listed by the interstate or foreign commerce in the 17.23, and 17.32. For endangered Service. These provisions protect 92 course of commercial activity, or sell or species, such permits are available for percent of the species’ habitat at the site offer for sale in interstate or foreign scientific purposes, to enhance the through various mechanisms (such as commerce any such species. It also is propagation or survival of the species, to landowner obligations for land illegal to possess, sell, deliver, carry, alleviate economic hardship in certain dedications, open space set-asides, transport, or ship any such wildlife that circumstances, and/or for incidental mitigation measures, and habitat was illegally taken. Certain exceptions take in connection with otherwise 64320 Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations lawful activities. For threatened species Required Determinations Federal Regulations, is amended as set there are also permits for zoological The Service has examined this forth below: exhibition, educational purposes or regulation under the Paperwork other purposes consistent with the Reduction Act of 1995 and found it to PART 17Ð[AMENDED] purposes of the Act. Further information contain no information collection 1. The authority citation for Part 17 regarding regulations and requirements requirements. for permits may be obtained from the continues to read as follows: References Cited U.S. Fish and Wildlife Service, Authority: 16 U.S.C. 1361–1407; 16 U.S.C. Endangered Species Permits, 911 N.E. A complete list of all references cited 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 11th Avenue, Portland, Oregon 97232– in this rule are available upon request 625, 100 Stat. 3500, unless otherwise noted. 4181 (telephone 503/231–2063, from the Sacramento Field Office (see facsimile 503/231–6243). ADDRESSES section). 2. Amend § 17.11(h) by adding the National Environmental Policy Act following in alphabetical order under Authors REPTILES to the List of Endangered and The Fish and Wildlife Service has The primary authors of this final rule Threatened Wildlife: determined that an Environmental are Mike Westphal, Sheila Larsen and 3. Amend § 17.11(h) by adding the Assessment, as defined under the Diane Windham, Sacramento Field following in alphabetical order under authority of the National Environmental Office (see ADDRESSES section). Policy Act of 1969, need not be Endangered and threatened species, INSECTS to the List of Endangered and prepared in connection with regulations Exports, Imports, Reporting and Threatened Wildlife: adopted pursuant to section 4(a) of the recordkeeping requirements, § 17.11 Endangered and threatened Endangered Species Act of 1973, as Transportation. wildlife. amended. A notice outlining the Service’s reasons for this determination Proposed Regulations Promulgation * * * * * was published in the Federal Register Accordingly, Part 17, Subchapter B of (h) * * * on October 25, 1983 (48 FR 49244). Chapter I, Title 50 of the Code of

Species Vertebrate popu- Historic range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habitat rules

REPTILES

******* Whipsnake, Alameda Masticophis lateralis U.S.A. (CA) ...... NA ...... T 628 NA NA (=striped racer, Al- euryxanthus. ameda).

******* INSECTS

******* Butterfly, Behren's Speyeria zerene U.S.A. (CA) ...... NA ...... E 628 NA NA silverspot. behrensii. Butterfly, callippe Speyeria callippe U.S.A. (CA) ...... NA ...... E 628 NA NA silverspot. callippe.

*******

Dated: November 18, 1997. Jamie Rappaport Clark, Director, U.S. Fish and Wildlife Service. [FR Doc. 97–31836 Filed 12–4–97; 8:45 am] BILLING CODE 4310±55±P