[Federal Register Volume 76, Number 72 (Thursday, April 14, 2011)]
[Proposed Rules]
[Pages 20918-20939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9028]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2010-0031; MO 92210-0-0008-B2]


Endangered and Threatened Wildlife and Plants; 12-Month Finding 
on a Petition To List Hermes Copper Butterfly as Endangered or 
Threatened

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 12-month petition finding.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
12-month finding on a petition to list Hermes copper butterfly 
(Hermelycaena [Lycaena] hermes) as endangered and to designate critical 
habitat under the Endangered Species Act of 1973, as amended (Act).
    After review of all available scientific and commercial 
information, we find that listing Hermes copper butterfly as endangered 
or threatened is warranted. Currently, however, listing Hermes copper 
butterfly is precluded by higher priority actions to amend the Lists of 
Endangered and Threatened Wildlife and Plants. Upon publication of this 
12-month petition finding, we will add Hermes copper butterfly to our 
candidate species list. We will develop a proposed rule to list Hermes 
copper butterfly as our priorities allow. We will make any 
determination on critical habitat during development of the proposed 
listing rule. During any interim period, we will address the status of 
the candidate taxon through our annual Candidate Notice of Review 
(CNOR).

DATES: The finding announced in this document was made on April 14, 
2011.

ADDRESSES: This finding is available on the Internet at http://www.regulations.gov at Docket Number FWS-R8-ES-2010-0031. Supporting 
documentation we used in preparing this finding is available for public 
inspection, by appointment, during normal business hours at the 
Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service, 6010 
Hidden Valley Road, Suite 101, Carlsbad, CA 92011. Please submit any 
new information, materials, comments, or questions concerning this 
finding to the above internet address or the mailing address listed 
under FOR FURTHER INFORMATION CONTACT.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad 
Fish

[[Page 20919]]

and Wildlife Office, U.S. Fish and Wildlife Service, 6010 Hidden Valley 
Road, Suite 101, Carlsbad, CA 92011; by telephone at 760-431-9440; or 
by facsimile at 760-431-9624. If you use a telecommunications device 
for the deaf (TDD), please call the Federal Information Relay Service 
(FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    Section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq.) requires 
that, for any petition to revise the Federal Lists of Threatened and 
Endangered Wildlife and Plants that contains substantial scientific or 
commercial information that listing a species may be warranted, we make 
a finding within 12 months of the date of receipt of the petition. In 
this finding, we determine whether the petitioned action is: (a) Not 
warranted, (b) warranted, or (c) warranted, but immediate proposal of a 
regulation implementing the petitioned action is precluded by other 
pending proposals to determine whether species are endangered or 
threatened, and expeditious progress is being made to add or remove 
qualified species from the Federal Lists of Endangered and Threatened 
Wildlife and Plants. Section 4(b)(3)(C) of the Act requires that we 
treat a petition for which the requested action is found to be 
warranted but precluded as though resubmitted on the date of such 
finding, that is, requiring a subsequent finding to be made within 12 
months. We must publish these 12-month findings in the Federal 
Register.

Previous Federal Actions

    On October 26, 2004, we received a petition dated October 25, 2004, 
from the Center for Biological Diversity (CBD) and David Hogan, 
requesting that Hermes copper butterfly be listed as endangered under 
the Act and that critical habitat be designated. Included in the 
petition was supporting information regarding the species' taxonomy, 
biology, ecology, historical and current distribution, status of 
population, and actual and potential threats affecting the species and 
its habitat.
    On August 8, 2006, we published a 90-day finding for Hermes copper 
butterfly in the Federal Register (71 FR 44966). The finding concluded 
that the petition and information in our files did not present 
substantial scientific or commercial information indicating that 
listing Hermes copper butterfly may be warranted. For a detailed 
history of Federal actions involving Hermes copper butterfly prior to 
the 2006 90-day finding, please see the August 8, 2006, Federal 
Register finding (71 FR 44966).
    On March 17, 2009, CBD and David Hogan filed a complaint for 
declaratory and injunctive relief challenging the Service's decision 
not to list Hermes copper butterfly as endangered or threatened under 
the Act. In a settlement agreement dated October 23, 2009, (Case No. 
09-0533 S.D. Cal.), the Service agreed to submit a new 90-day petition 
finding to the Federal Register by May 13, 2010, for Hermes copper 
butterfly. As part of the settlement agreement, we agreed to evaluate 
the October 25, 2004, petition filed by CBD and David Hogan, supporting 
information submitted with the petition, and information available in 
the Service's files, including information that has become available 
since the August 8, 2006, publication of the negative 90-day finding 
(71 FR 44966). If the 90-day finding determined that listing may be 
warranted, we agreed to submit a 12-month finding for Hermes copper 
butterfly to the Federal Register by April 15, 2011.
    On May 4, 2010, we published a 90-day finding in the Federal 
Register (75 FR 23654) that determined listing of Hermes copper 
butterfly as endangered or threatened may be warranted. This notice 
constitutes the 12-month finding on the October 25, 2004, petition to 
list Hermes copper butterfly as endangered.

Species Information

    It is our intent to discuss only those topics directly relevant to 
the listing of Hermes copper butterfly under the Act in this 12-month 
finding. For more information on the taxonomy, biology, and ecology of 
Hermes copper butterfly, please refer to the 90-day finding published 
in the Federal Register on May 4, 2010 (75 FR 23654). That document is 
available on the Internet at http://www.regulations.gov under docket 
number FWS-R8-ES-2010-0031.

Taxonomy and Species Description

    Hermes copper butterfly was first described as Chrysophanus hermes 
by Edwards (1870, p. 21). Scudder (1876, p. 125) placed this species in 
the genus Tharsalea based on the presence of hindwing tails. Freeman 
(1936, p. 279) placed Hermes copper butterfly in the genus Lycaena as 
L. hermes based on the assessment of the male genetalia, finding that 
L. hermes was distinctly a lycaenid and not typical of the other taxa 
of Tharsalea. Miller and Brown (1979, p. 22) erected a monotypic genus 
to accommodate Hermes copper butterfly as Hermelycaena hermes. This 
segregation appears to be supported by allozyme data presented by Pratt 
and Wright (2002, p. 223); although these authors did not recommend 
separate genus or subgenus placement (Pratt and Wright 2002, p. 225). 
The broadly based morphological assessment of Miller and Brown (1979) 
coupled with the more recent allozyme work of Pratt and Wright (2002) 
support recognition of Hermes copper butterfly as a distinct genus; 
however, Lycaena hermes is the name predominantly used in recent 
literature (Scott 1986, p. 392; Faulkner and Brown 1993, p. 120; Emmel 
1998, p. 832; Opler and Warren 2005, p. 22), and we recognize it as 
such for the purposes of this finding. Any data or information relevant 
to the taxonomic status of Hermes copper butterfly will be fully 
addressed in any proposed rule, and as such will be available for 
public comment. However, there is no question that as a unique species, 
Hermes copper butterfly is a listable entity under the Act.
    Hermes copper butterfly is a small, brightly-colored butterfly 
approximately 1 to 1.25 inches (2.5 to 3.2 centimeters (cm)) in length, 
with one tail on the hindwing. On the upperside, the forewing is brown 
with a yellow or orange area enclosing several black spots, and the 
hindwing has orange spots that may be merged into a band along the 
margin. On the underside, the forewing is yellow with four to six black 
spots, and the hindwing is bright yellow with three to six black spots 
(USGS 2006). Mean last instar (period between molts) larval body length 
is 0.6 inches (in) (15 millimeters (mm)) (Ballmer and Pratt 1988, p. 
4). Emmel and Emmel (1973, pp. 62, 63) provide a full description of 
the early stages of the species (eggs, larvae, and pupae).

Biology

    Females deposit single eggs on Rhamnus crocea (spiny redberry) in 
the early summer, often where a branch splits or on a leaf (Marschalek 
and Deutschman 2009, p. 401). Eggs overwinter, with larvae reported 
from mid-April to mid-May (Marschalek and Deutschman 2009, p. 400) 
followed by pupation on the host plant (Emmel and Emmel 1973, p. 63). 
Not much is known regarding larval biology, as this life stage is 
little-studied and extremely difficult to find in the field (Marschalek 
and Deutschman 2009, pp. 400, 401). Hermes copper butterflies have one 
flight period (termed univoltine) typically occurring in mid-May to 
early July, depending on weather conditions and elevation (Marschalek 
and Deutschman 2008, p. 100; Marschalek and Klein 2010, p. 5). 
Emergence appears to be influenced by weather;

[[Page 20920]]

however this relationship is not well understood. For example, weather 
conditions in the spring of 2010 were cool and moist and resulted in a 
late emergence; however, the spring of 2006 was hot and dry and also 
resulted in a late emergence period (Deutschman et al. 2010, p. 4). We 
have no information regarding the ability of immature life stages to 
undergo multiple-year diapause (a low metabolic rate resting stage) 
during years with poor conditions (Deutschman et al. 2010, p. 4). 
Multiple year diapause is rare and can occur in stages more advanced 
than the egg, such as pupae or larvae, after larvae have fed and 
accumulated energy reserves (Gullan and Cranston 2010, p. 169, Service 
2003, p. 8); it is less likely to occur with Hermes copper butterflies 
because they overwinter (diapause) as eggs.
    Deutschman et al. (2010, p. 8) used 145 Amplified Fragment Length 
Polymorphism (AFLP) markers to estimate fundamental Hermes copper 
butterfly population genetic parameters (i.e., polymorphism, expected 
heterozygosity, F<INF>ST</INF> values, and private alleles) that 
allowed them to evaluate the magnitude of genetic differentiation 
within and among sampled populations, an indicator of dispersal ability 
(gene flow). The AFLP process was able to detect genetic differences 
among individuals, even those captured within several meters of each 
other. Deutschman et al. (2010, pp. 8-17) indicated that butterflies 
can show differentiation even when close in proximity, presumably due 
to physical barriers. Alternately, butterflies sampled at locations 
that are not close have shown little differentiation, indicating that 
butterflies can also disperse long distances under the right 
conditions. Deutschman et al. (2010, pp. 8-17) sampled at one location 
(Wildwood Glen) before and after a fire and found genetically 
differentiated groups, indicating that Hermes copper butterfly 
individuals are capable of movement between populations. Landscape 
features may enhance or restrict dispersal which overall, may have 
several implications regarding population structure and dynamics 
(Deutschman et al. 2010, p. 16). Genetic differentiation of individuals 
from proximal locations could be a result of dispersal barriers, 
genetic drift, original colonizers, or a combination of factors 
(Deutschman et al. 2010, p. 16). The genetic similarity of widely 
geographically separate sample locations indicates that recolonization 
events by females occur at much further distances than implied by 
previous studies that suggest most individuals move less than 656 ft 
(200 m) (Marschalek and Deutschman 2008, p. 102; Marschalek and Klein 
2010, p. 7). Deutschman et al. (2010, p. 16) noted the majority of 
genetically similar individuals were territorial males, so it is 
possible Hermes copper butterfly exhibits sex-biased long-distance 
dispersal by females, as has been noted for other lycaenids (Robbins 
and Small 1981, pp. 312-313). In general, Hermes copper butterflies 
have limited directed movement ability (Marschalek and Klein 2010, p. 
1), though lyceanids can be dispersed by the wind (Robbins and Small 
1981 p. 312). Deutschman et al. (2010, p. 16) analysis also showed the 
genetic composition of individuals at any location exhibited a high 
degree of temporal variability, possibly due to biotic (drift, 
dispersal) and abiotic (landscape, fire regime) influences.

Habitat

    Hermes copper butterfly inhabits coastal sage scrub and southern 
mixed chaparral (Marschalek and Deutschman 2008, p. 98). Hermes copper 
butterfly larvae use only Rhamnus crocea as a host plant (Thorne 1963, 
p. 143; Emmel and Emmel 1973, p. 62). The range of R. crocea extends 
throughout coastal northern California, as far north as San Francisco 
(Consortium of California Herbaria 2010); however, Hermes copper 
butterfly has never been documented north of San Diego County (Carlsbad 
Fish and Wildlife Office (CFWO) GIS database). Therefore, some factor 
other than host plant availability apparently has historically limited 
or currently limits the range of the species. Researchers report adults 
are rarely found far from R. crocea (Thorne 1963, p. 143) and take 
nectar almost exclusively from Eriogonum fasciculatum (California 
buckwheat) (Marschalek and Deutschman 2008, p. 5). The densities of 
host plants and nectar sources required to support a Hermes copper 
population are not known. Recent research has not added much to 
Thorne's (1963, p. 143) basic description of Hermes copper butterfly 
habitat: ``It is very difficult to analyze the complex factors which 
determine why a certain plant has been successful in a given spot * * * 
In the case of Rhamnus crocea, the only consistent requirement seems to 
be a well-drained soil of better than average depth, yet not deep 
enough to support trees. Such soils occur along canyon bottoms and on 
hillsides with a northern exposure; therefore, it is in these 
situations that [Hermes copper butterfly] is generally found.''
    Hermes copper butterflies exhibit a preference for micro-sites 
within stands of Rhamnus crocea, which may be related to temperature 
because adults become active around 72 degrees Fahrenheit ([deg]F) (22 
degrees Celsius ([deg]C)) (Marschalek and Deutschman 2008, p. 5). 
Marschalek and Deutschman (2008, p. 3) recorded densities of Hermes 
copper butterflies on paired transects along edges and within the 
interior of host plant stands in rural areas. Their study indicates 
that Hermes copper butterfly densities are significantly higher near 
host plant stand edges than in the interior (Marschalek and Deutschman 
2008, p. 102). Adult males have a strong preference for openings in the 
vegetation, including roads and trails, specifically for the north and 
west sides of canopy openings (Marschalek and Deutschman 2008, p. 102). 
These areas capture the first morning light and reach the temperature 
threshold for activity more quickly than other areas (Deutschman et al. 
2010, p. 4). Hermes copper butterflies tend to remain inactive under 
conditions of heavy cloud cover and cooler weather (Marschalek and 
Deutschman 2008, p. 5). Across all four sites sampled by Marschalek and 
Deutschman, Hermes copper butterfly presence was positively associated 
with Eriogonum fasciculatum, but negatively associated with Adenostema 
fasciculatum (chamise) (Marschalek and Deutschman 2008, p. 102). 
Therefore, woody canopy openings with a northern exposure in stands of 
R. crocea and adjacent stands of Eriogonum fasciculatum appear to be 
components of suitable habitat for Hermes copper butterfly.
    Marschalek and Klein (2010) studied intra-habitat movement of 
Hermes copper butterflies using mark-release-recapture techniques. They 
found the highest median dispersal distance for a given site in a given 
year was 146 ft (44.5 m), and their maximum recapture distance was 0.7 
miles (mi) (1.1 kilometers (km)) (Marschalek and Klein 2010, p. 1). 
They also found no adult movement across non-habitat areas, such as 
type-converted grassland or riparian woodland (Marschalek and Klein 
2010, p. 6). Hermes copper butterfly is typically relatively sedentary 
(Marschalek and Klein 2010, p. 1), although winds may aid dispersal 
(Robbins and Small 1981, p. 312). Studies to date infer that most 
individuals typically move less than 656 ft. (200 m) (Marschalek and 
Deutschman 2008, p. 102, Marschalek and Klein 2010, pp. 725-726), 
supporting the assumption that Hermes copper butterflies are typically 
sedentary

[[Page 20921]]

compared to other butterfly species such as painted ladies--(Vanessa 
cardui). However, as discussed above, genetic research indicates that 
females may disperse longer distances than males (Deutschman et al. 
2010, p. 16) contradicting previous methods used such as mark-release-
recapture (Marschalek and Deutschman 2008, p. 102) that may not detect 
the movement of females and over sample territorial males. More 
information is needed to fully understand movement patterns of Hermes 
copper butterfly; however, dispersal is likely inhibited by lack of 
available habitat in many areas (Deutschman et al. 2010, p. 17).

Range and Population Distribution Status

    Hermes copper butterfly is endemic to the southern California 
region, primarily occurring in San Diego County, California (Thorne 
1963, p. 143). All records of Hermes copper butterflies in the United 
States are within San Diego County, with most occurrences concentrated 
in the southwest portion of the County (Marschalek and Klein 2010, p. 
4). Notable exceptions to the ``southwestern distribution pattern'' are 
two old museum specimens collected in north San Diego County, one from 
the vicinity of the community of Bonsall in 1934, and another from the 
vicinity of the community of Pala in 1932. Historical data indicate 
Hermes copper butterflies ranged from the vicinity of the community of 
Pala, California, in northern San Diego County (CFWO GIS database) to 
approximately 18 mi (29 km) south of Santo Tomas in Baja California, 
Mexico, and from Pine Valley in eastern San Diego County to Mira Mesa, 
Kearny Mesa, and Otay Mesa in western San Diego County (Thorne 1963, 
pp. 143, 147). They have never been recorded immediately adjacent to 
the coast, and have not been found east of the western slopes of the 
Cuyamaca Mountains above approximately 4,264 ft (1,300 m) (Marschalek 
and Klein 2010, p. 4).
    The distribution of Hermes copper butterfly in Mexico is not well-
known and researchers have not explored this area (Marschalek and Klein 
2010, p. 4). Of the two museum specimens from Mexico, one collected in 
1936 was labeled ``12 miles north of Ensenada,'' and another collected 
in 1983 was labeled ``Salsipuedes'' (Marschalek and Klein 2010, p. 4). 
Assuming older specimens were usually collected relatively close to 
roads that existed at the time (Thorne 1963, p. 145), these Mexican 
locations probably were collected from approximately the same location, 
which is a popular surf destination known as Salsipuedes, located 
approximately 12 mi (19 km) north of Ensenada off the Esconica Tijuana-
Ensenada (coastal highway to Ensenada). The known distribution in 
Mexico of Rhamnus crocea is relatively contiguous with that in the 
U.S., extending to approximately 190 mi (312 km) south of the border 
into Mexico along the western Baja California Peninsula (Little 1976, 
p. 150). Hermes copper butterflies have been recorded as far south into 
Mexico as 18 mi ( 29 km) south of Santo Tomas, which is approximately 
half the distance of the extent of Rhamus crocea's Mexican range; 
(Thorne 1963, p. 143). As stated in our 2006, 90-day finding (71 FR 
44969; August 8, 2006), there have been recent discoveries (post-1993) 
of extant populations within the species' known historical range in the 
United States. These include Black Mountain, Crestridge and two 
populations on the San Diego National Wildlife Refuge. However, there 
is still uncertainty as to the distribution of Hermes copper butterfly 
within the known historical range because we have very little 
information on the status of the species in Mexico.
    A species' range can be defined at varying relevant scales of 
resolution, from maximum geographic range capturing all areas within 
the outermost record locations (coarsest scale, hereafter called 
``known historical range''), to the scale of individual population 
distributions (finest scale, hereafter called ``population 
distributions''). This concept was discussed by Thorne (1963, p. 143): 
``However within this range [Hermes copper butterfly] distribution is 
limited to pockets where the larval food plant occurs, so that the 
total area where the insect actually flies is probably not more than a 
fraction of one percent of the maximum area.''
    To more precisely determine the historical range of Hermes copper 
butterfly, we entered all Hermes copper butterfly observation records 
that had information about collection location in our GIS database, and 
mapped all observed and museum specimen records with an appropriate 
level of detail and location description. To better determine the 
geographic locations of historical Hermes copper butterfly records 
mapped by Thorne (1963, p. 147), we overlaid a transparent image of his 
map on Google Earth imagery, and scaled it appropriately to ensure that 
geographic features and community locations corresponded with those of 
the imagery. Examination of Thorne's (1963 p. 147) map expanded the 
known historical range as described by Deutschman et al. (2010, p. 3) 
to the southeast in the vicinity of the community of Pine Valley and 
Corte Madera Valley. The resulting known historical range of Hermes 
copper butterfly within the United States can be described as comprised 
of a narrow northern portion within the Central Valley and Central 
Coast ecoregions, north of Los Penasquitos Canyon and Scripps Poway 
Parkway (latitude midway between the northernmost record location and 
the international border), and a wider southern portion encompassing 
the Southern Coast, Southern Valley, and Southern Foothills ecoregions 
(see Figure 1 and Table 1 below; San Diego County Plant Atlas 2010). 
Although the distribution of Hermes copper butterfly populations in 
Mexico is not well understood, United States populations minimally 
encompass half the species' known historical latitudinal range. The 
results of our population distribution analysis indicate areas in the 
United States most likely to harbor possible extant undiscovered Hermes 
copper butterfly populations within the known historical range are 
primarily limited to a relatively narrow area within the southern 
portion of the range bordered on the north and south by the 2003 Cedar 
Fire and 2007 Harris Fire perimeters, and on the west and east roughly 
by Sycuan Peak and Long Valley (see Figure 1 and Table 1 below).

                                 Table 1--All Known Hermes Copper Butterfly Populations in the United States and Mexico
--------------------------------------------------------------------------------------------------------------------------------------------------------
                     Population name                                                        Extant in
     Map No.          (other names)          Last  observed           Presumed status         2000 *       Fire                Extirpated why?
--------------------------------------------------------------------------------------------------------------------------------------------------------
1................  Elfin Forest (Onyx   2002....................  Unknown................           Y         2007  ....................................
                    Ridge)..
2................  Rancho Santa Fe      2004....................  Extirpated.............           Y         2007  Fire, Development.
                    (Del Dios).
3................  Black Mountain.....  2004....................  Unknown................           Y   ..........  ....................................
4................  Van Dam Peak         2003....................  Extirpated.............           Y   ..........  Isolation (Development).
                    (Meadowbrook).
5................  Lopez Canyon.......  2008....................  Extant.................           Y   ..........  ....................................

[[Page 20922]]

 
6................  Sycamore Canyon....  2003....................  Extirpated.............           Y         2003  Fire.
7................  North Santee         2005....................  Unknown................           Y         2003  ....................................
                    (Fanita Ranch).
8................  Mission Trails       2010....................  Extant.................           Y         2003  ....................................
                    (Mission Gorge,
                    Mission Dam).
9................  Crestridge.........  2007....................  Extirpated ***.........           Y         2003  Fire.
10...............  Anderson Truck       2003....................  Extirpated.............           Y         2003  Fire.
                    Trail.
11...............  Alpine (Wright's     2010....................  Extant.................           Y   ..........  ....................................
                    Field).
12...............  North McGinty        2010....................  Extant.................           Y   ..........  ....................................
                    Mountain.
13...............  South McGinty        2010....................  Extant.................           Y   ..........  ....................................
                    Mountain.
14...............  Los Montanas.......  2010....................  Extant.................           Y   ..........  ....................................
15...............  Rancho San Diego...  2009....................  Extant.................           Y         2007  ....................................
16...............  San Miguel Mountain  2006....................  Extirpated.............           Y         2007  Fire.
17...............  Rancho Jamul.......  2007....................  Extirpated.............           Y   2003, 2007  Fire.
18...............  North Jamul........  2004....................  Unknown................           Y         2003  ....................................
19...............  East McGinty         2001....................  Unknown................           Y   ..........  ....................................
                    Mountain.
20...............  Loveland Reservoir.  2010....................  Extant.................           Y   ..........  ....................................
21...............  Sycuan Peak........  2010....................  Extant.................           Y   ..........  ....................................
22...............  Skyline Truck Trail  2010....................  Extant.................           Y   ..........  ....................................
                    (Lawson Valley).
23...............  Lyons Peak.........  2003....................  Unknown................           Y         2007  ....................................
24...............  Hollenbeck Canyon..  2007....................  Extirpated.............           Y   2003, 2007  Fire.
25...............  Dulzura (Near        2005....................  Extirpated.............           Y   2003, 2007  Fire.
                    Marron Valley
                    Road).
26...............  Lawson Valley        2010....................  Extant.................           Y   2006, 2007  ....................................
                    (Lawson Peak).
27...............  Hidden Glen          2008....................  Extant.................           Y   ..........  ....................................
                    (Japutal Valley,
                    Lyons Valley Road).
28...............  Willows (Viejas      2003....................  Extirpated.............           Y         2003  Fire.
                    Grade Road).
29...............  North Guatay         2004....................  Unknown................           Y         2003  ....................................
                    Mountain.
30...............  North Descanso       2010....................  Extant.................           Y         2003  ....................................
                    (Wildwood Glen,
                    Descanso).
31...............  South Descanso       2010....................  Extant.................           Y         2003  ....................................
                    (Roberts Ranch).
32...............  Japutal (Japutal     2009....................  Extant.................           Y   ..........  ....................................
                    Valley).
33...............  South Guatay         2008....................  Extant.................           Y   ..........  ....................................
                    Mountain.
34...............  Hartley Peak         2010....................  Extant.................           Y         2007  ....................................
                    (Portrero).
35...............  Pala...............  1932....................  Extirpated.............  ...........  ..........  Unknown.
36...............  Bonsall............  1934....................  Extirpated.............  ...........  ..........  Unknown.
37...............  San Elijo Hills      1979....................  Extirpated.............  ...........  ..........  Development.
                    (San Marcos Creek,
                    San Elijo Road and
                    Questhaven Road).
38...............  Lake Hodges........  1982....................  Extirpated.............  ...........        2007  Fire.
39...............  Sabre Springs        2001....................  Extirpated.............           Y   ..........  Development.
                    (Poway Road and
                    395).
40...............  Miramar............  1996....................  Extirpated.............  ...........  ..........  Development.
41...............  Mira Mesa..........  Prior to 1963...........  Extirpated.............  ...........  ..........  Development.
42...............  Cowles Mountain      1973....................  Extirpated.............  ...........  ..........  Isolation.
                    (Big Rock Road
                    Park).
43...............  Kearny Mesa........  1939....................  Extirpated.............  ...........  ..........  Development.
44...............  Mission Valley       1908....................  Extirpated.............  ...........  ..........  Development.
                    (Fairmont Canyon,
                    Canyons near
                    Mission Valley).
45...............  San Diego State      1957....................  Extirpated.............  ...........  ..........  Development.
                    University (San
                    Diego State
                    College).
46...............  El Monte (El Monte   1960....................  Extirpated.............  ...........  ..........  Fire, Development.
                    Park, El Monte
                    Road).
47...............  Pine Valley........  Pre-1963................  Unknown.
48...............  Corte Madera.......  Pre-1963................  Unknown.
49...............  Tecate Peak........  1980....................  Extirpated.............  ...........        2007  Fire.
50...............  Deerhorn Valley....  1970....................  Extirpated.............  ...........        2007  Fire.
51...............  Dictionary Hill....  1962....................  Extirpated.............  ...........  ..........  Isolation (Development).
52...............  Otay Mountain        1979....................  Extirpated.............  ...........  2003, 2007  Fire.
                    (Little Cedar
                    Canyon, Otay
                    foothill).
53...............  South Otay Mesa....  Pre-1920................  Extirpated.............  ...........  ..........  Development.
54...............  Salsipuedes (12      1983....................  Unknown.
                    miles North of
                    Ensenada) **.
55...............  Santo Tomas (18      Pre-1920................  Unknown.
                    miles south of
                    Santo Tomas) **.
56...............  South Santee.......  1967....................  Extirpated.............  ...........  ..........  Development.
57...............  North Ensenada       1936....................  Unknown.
                    (Bajamar) **.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Populations with last observation prior to 2000 have lower geographic accuracy.
** Map Nos. 54, 55, and 57 are populations in Mexico that are not represented on Figure 1 in this document.
*** Extirpation was a result of high mortality from fire, followed by reduced population density. Only one male was observed in 2007, and none after
  that.


[[Page 20923]]

[GRAPHIC] [TIFF OMITTED] TP14AP11.000

    To evaluate the status of Hermes copper butterfly's current range 
and populations, we considered all available historical data and recent 
research results, including record locations (CFWO GIS databases), 
monitoring data, (Marschalek and Deutschman 2008; Marschalek and Klein 
2010), movement data (Marschalek and Deutschman 2009; Marschalek and 
Klein 2010), and data from a recent distribution study (Deutschman et 
al. 2010). To estimate the geographic population distribution of Hermes 
copper butterfly, we used all occurrence records and mapped areas 
within approximately 0.6 mi (1 km) of known observation sites. This 
distance is greater than the average recapture distance recorded by 
Marschalek and Klein (2010, p. 1), but just under the maximum recorded 
recapture distance, an approximate within-population movement distance 
further supported by Deutschman et al.'s (2010, p. 26) genetic data 
(see Habitat section above). Locations within approximately 1.2 mi (2 
km) (where 0.6 mi (1 km) movement distances overlapped) were considered 
part of the same population, unless topographic or genetic information 
indicated the possibility of barriers to movement. We used recent fire 
footprint data and aerial GIS information, in addition to the 
information referenced above, to determine which Hermes copper 
butterfly populations may be extant, extirpated, or of unknown status. 
A Hermes copper population was considered to be ``extant'' if the 
species was recorded based on recent survey records and not affected by 
recent fires. A Hermes copper population was considered to be 
extirpated if the area had been developed and no habitat remained, a 
fire footprint encompassed the area and subsequent surveys were 
negative, or if the record was very old with no recent detections. In 
some instances, we had no recent information to make a determination on 
Hermes copper butterfly's current status and it was therefore 
classified as ``unknown.'' See Figure 1 and Table 1 above for a list of 
populations and information used to determine population status.
    In summarizing the results of our analysis of Hermes copper 
butterfly's current range and population distributions (see Figure 1 
and Table 1 above), we estimated there were at least 57 known separate 
historical populations throughout the species' range since the species 
was first described. In the year 2000, 35 populations were thought to 
be extant. Since that time, 11 populations have been extirpated (2 by 
development, 1 by fire and development, 8 by fire alone) and 7 are of 
unknown status. As of 2011, of the 57 known populations, 17 Hermes 
copper butterfly populations are extant, 28 populations are believed to 
have been extirpated, and 12 populations are of unknown status. In the 
northern portion of the range, most remaining suitable habitat is 
limited to the relatively isolated and fragmented undeveloped lands 
between the cities of San Marcos, Carlsbad, and Escondido and the 
community of Rancho Santa Fe, and the habitat ``islands'' containing 
the Black Mountain and Van Dam Peak observation locations; however, no 
new populations have been discovered. In the southern portion of the 
range, all extant populations except Lopez Canyon and the southern 
portion of Mission Trails Park (both isolated from other extant 
populations by development and fire) are within

[[Page 20924]]

relatively well-connected undeveloped lands east of the City of El 
Cajon between the 2003 Cedar Fire and 2007 Harris Fire perimeters (see 
Figure 1 and Table 1 above). The Mission Trails Park population remains 
extant even after approximately 74 percent of the population area 
burned in 2003, presumably because burned areas were recolonized (after 
host plant and nectar sources regrew) by Hermes copper butterflies from 
nearby unburned areas. The best information available leads us to 
conclude that the northern portion of the species' known historical 
range has contracted or may no longer exist, and we estimate that 
approximately 27 percent of the populations within the southern portion 
of the species' known historical U.S. range that were extant in 2000 
have been extirpated (see Figure 1 and Table 1 above; Map <greek-i>s 6, 
9, 10, 16, 17, 24, 25, 28). Further investigation is needed to 
accurately determine the status of Hermes copper butterfly in Mexico 
(Marschalek and Klein 2010, p. 2). Klein (2010a, p. 1) visited the 
Salsipuedes location in the first week of June 2005 for approximately 
30 minutes. He did not observe any Hermes copper butterflies; however, 
he described the habitat as having a ``decent number of [Rhamnus 
crocea], a large amount of Eriogonum fasciculatum,'' and said he felt 
the area was ``very good'' for Hermes copper butterfly (Klein 2010, p. 
1).

Summary of Information Pertaining to Five Factors

    Section 4 of the Act (16 U.S.C. 1533) and implementing regulations 
(50 CFR part 424) set forth procedures for adding species to, removing 
species from, or reclassifying species on the Federal Lists of 
Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of 
the Act, a species may be determined to be endangered or threatened 
based on any of the following five factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    In making this finding, information pertaining to Hermes copper 
butterfly in relation to the five factors provided in section 4(a)(1) 
of the Act is discussed below.
    In considering whether a species warrants listing under any of the 
five factors, we look beyond the species' exposure to a potential 
threat or aggregation of threats under any of the factors, and evaluate 
whether the species responds to those potential threats in a way that 
causes actual impact to the species. The identification of threats that 
might impact a species negatively is not sufficient to compel a finding 
that the species warrants listing. The information must include 
evidence indicating that the threats are operative and, either singly 
or in aggregation, affect the status of the species. Threats are 
significant if they drive, or contribute to, the risk of extinction of 
the species, such that the species warrants listing as endangered or 
threatened, as those terms are defined in the Act.

Factor A. The Present or Threatened Destruction, Modification, or 
Curtailment of Its Habitat or Range

    Here we describe the primary threats that result in Hermes copper 
butterfly habitat destruction and modification, describe how those 
threats interact to cause long-term or permanent range curtailment, and 
provide an assessment of the likelihood of those threats continuing 
into the foreseeable future.
Development
    The current distribution of Hermes copper butterfly habitat in San 
Diego County is largely due to previous urban development within 
coastal and interior San Diego County which resulted in the loss and 
fragmentation of Hermes copper butterfly habitat (CalFlora 2010; 
Consortium of California Herbaria 2010; San Diego Plant Atlas 2010). Of 
the 28 known extirpated Hermes copper butterfly populations, loss and 
fragmentation of habitat as a result of development has contributed to 
the extirpation of 14 populations (50 percent) (see Background section 
above and, Table 1 above, and Factor E discussion below). Since the 
year 2000, occupied habitats containing Hermes copper butterfly's host 
plant, Rhamnus crocea, in Rancho Santa Fe and Sabre Springs were lost 
due to urban development. In the City of San Marcos, one R. crocea 
stand near Jacks Pond was lost to development (Anderson 2010a, pp. 1, 
2) and another R. crocea stand was significantly reduced in the 
vicinity of Palomar College (Anderson 2010b, pp. 1, 2). The R. crocea 
stand in Lopez Canyon is currently found within a relatively small 
preserve (roughly rectangular area 0.4 mi (0.6 km) by 0.5 mi (0.8 km)) 
that is contiguous with suitable Hermes copper butterfly habitat in Del 
Mar Mesa where development is ongoing. This stand of R. crocea is 
likely all that remains of what was once a wider distribution, 
encompassing the community of Mira Mesa and the western portion of 
Miramar Naval Air Station (per Thorne's 1963 map, p. 147).
    Although a significant amount of habitat has been lost due to 
development throughout the range of Hermes copper butterfly within the 
United States, the remaining currently occupied population areas are 
protected from destruction by development due to their presence on 
federally owned lands, on lands conserved under regional habitat 
conservation plans, or on lands subject to local resource protection 
ordinances in San Diego County (approximately 66 percent of the total 
area currently occupied by Hermes copper butterfly populations occurs 
on federal and non-federal conserved lands; see Figure 1 above) and the 
remaining 34 percent of occupied habitat occurs on lands subject to 
local resource protection ordinances in San Diego County. Our GIS 
analysis indicates that of the total conserved area discussed above (66 
percent of all occupied areas), approximately 27 percent (encompassing 
portions of 10 populations) is located within established regional 
habitat conservation plan preserve lands (see Factor D San Diego 
Multiple Species Conservation Program (MSCP) discussion below), 
approximately 38 percent (encompassing portions of 7 populations) falls 
within U.S. Forest Service lands, and approximately 1 percent 
(encompassing portions of 3 populations) falls within Bureau of Land 
Management (BLM) land. These lands are therefore afforded protection 
from development. Additionally, as described in Factor D below, the 
County of San Diego now has in place two ordinances that restrict new 
development or other proposed projects within sensitive habitats. The 
Biological Mitigation Ordinance of the County of San Diego Subarea Plan 
(County of San Diego, 1998b, Ord. Nos. 8845, 9246) regulates 
development within coastal sage scrub and mixed chaparral habitats that 
currently support portions of 10 extant Hermes copper butterfly 
populations on non-Federal land within the boundaries of the County's 
MSCP subarea plan. The County of San Diego Resource Protection 
Ordinance (County of San Diego 2007) restricts development within 
coastal sage scrub and mixed chaparral habitats that currently support 
all extant Hermes copper butterfly populations on non-Federal lands 
throughout the county. These ordinances provide some regulatory 
measures of protection for the

[[Page 20925]]

remaining 34 percent of extant Hermes copper butterfly habitat 
throughout the species occupied range. Although past development in 
occupied Hermes copper butterfly habitat resulted in a substantial 
number of extirpations of Hermes copper butterfly populations, 
restrictions are in place to limit development and the corresponding 
destruction and modification of Hermes copper butterfly habitat in the 
future. Therefore, we do not believe future development alone will 
significantly reduce or fragment remaining Hermes copper butterfly 
habitat on non-federal lands. However, as discussed below under 
``Habitat Fragmentation,'' we believe that the combined impacts of 
existing development, limited future small-scale development, existing 
dispersal barriers, and megafires could further fragment Hermes copper 
butterfly habitat and threaten the species. Within U.S. Forest Service 
lands, we anticipate that future development, if any, will be limited, 
and the Forest Service has incorporated measures to address threats to 
Hermes copper butterfly and its habitat as it implements specific 
activities within forest lands (see Factor D below for additional 
discussion). The very limited number of Hermes copper butterfly 
populations within BLM lands are unlikely to face future development 
pressure. Therefore, we conclude that Hermes copper butterfly is not 
currently threatened by habitat loss due to future development alone.
Wildfire
    The historical fire regime in southern California likely was 
characterized by many small lightning-ignited fires in the summer and a 
few, infrequent large fires in the fall of varying fire intensity 
(Keeley and Fotheringham 2003, p. 242-243). These infrequent, large, 
high-intensity wildfires, so-called ``megafires'' (greater than 123,553 
ac (50,000 ha) in size), burned the landscape long before Europeans 
settled the Pacific coast (Keeley and Zedler 2009, p. 90). As such, 
modern fire regimes in southern California ``have much in common with 
historical regimes'' (Keeley and Zedler 2009, p. 69). While some 
researchers claim that the fire regime of chaparral growing in adjacent 
Baja California is not affected by megafires due to a lack of fire 
suppression activities (cf. Minnich and Chou 1997, Minnich 2001), 
Keeley and Zedler (2009, p. 86) believe that the fire regime in Baja 
California similarly consists of ``small fires punctuated at periodic 
intervals by large fire events.'' The current fire regime in southern 
California consists of numerous small fires that are periodically 
impacted by megafires that are generally driven by extreme ``Santa 
Ana'' weather conditions of high temperatures, low humidity, and strong 
erratic winds (Keeley and Zedler 2009, p. 90). The primary difference 
between the current fire regime and historical fire regimes in southern 
California is that human-induced or anthropogenic ignitions have 
increased the frequency of fires, and in particular, megafires, far 
above historical levels. While this change may not have demonstrably 
affected the nectar sources of Hermes copper butterfly in San Diego 
County, especially within chaparral (Franklin et al. 2004, p. 701), 
frequent fires open up the landscape, particularly coastal sage scrub, 
making the habitat more vulnerable to invasive, nonnative plants 
(Keeley et al. 2005, p. 2117). However the primary concern with 
frequent megafires is the Hermes copper butterfly mortality associated 
with these extensive and intense events (see Factor E discussion below) 
which precludes recolonization of burned areas by Hermes copper 
butterfly.
    The significance of this concern can be seen in the current 
distribution of the species in southern California. Analysis of GIS 
information indicates approximately 66 percent of the extant 
occurrences are found within the footprint of the 1970 Laguna Fire, 
which Minnich and Chou (1997, p. 240) reported last burned in 1920. In 
contrast, the areas north and south of the extant Hermes copper 
butterfly occurrences reburned several times between 2001 and 2007 
(Keeley et al. 2009, pp. 287, 293). We examined maps of current high 
fire threat areas in San Diego County based on recent reports by the 
Forest Area Safety Task Force (Jones 2008, p. 1; SANDAG 2010, p. 1). 
Areas identified as most vulnerable include all occupied and 
potentially occupied Hermes copper butterfly habitats in San Diego 
County within the species' known historical range, with the exception 
of Black Mountain, Van Dam Peak, Lopez Canyon, and the unburned 
southern portion of Mission Trails Park. In light of the recent spate 
of drought-influenced wildfires in southern California, especially the 
2007 fires, a future megafire affecting most or all of the area burned 
by the Laguna Fire in 1970 (40-year chaparral) is likely to occur and 
would pose a significant threat to Hermes copper butterfly in the 
United States because it would encompass the majority of extant 
populations (see Factor E below for direct mortality effects 
discussion).
    As described in our August 8, 2006, 90-day finding (71 FR 44966), 
Rhamnus crocea are ``obligate resprouters'' after fires and are 
resilient to frequent burns (Keeley 1998, p. 258). Additionally, 
although Keeley and Fotheringham (2003, p. 244) indicated that 
continued habitat disturbance, such as fire, will result in conversion 
of native shrublands to nonnative grasslands, Keeley (2004, p. 7) also 
noted that invasive, nonnative plants will not typically displace 
obligate resprouting plant species in mesic shrublands that burn once 
every 10 years. Therefore, because R. crocea is an obligate resprouter, 
it will likely recover in those areas that retain this burn frequency. 
Specific information regarding Hermes copper butterfly's primary nectar 
source (Eriogonum fasciculatum (California buckwheat)) is less 
understood. Eriogonum fasciculatum is a facultative seeder and high 
proportions of this nectar source are likely killed by fire, and 
densities are reduced the following year within burned areas (Zedler et 
al. 1983, p. 814); however, E. fasciculatum does show minimal 
resprouting capability (approximately 10 percent) if individuals are 
young (Keeley 2006, p. 375). The extent of invasion of nonnative plants 
and type conversion in areas specifically inhabited by Hermes copper 
butterfly are unknown. However, information clearly indicates that 
wildfire results in at least temporary reductions in suitable habitat 
for Hermes copper butterfly and may result in lower densities of E. 
fasciculatum (Zedler et al. 1983, p. 814; Keeley 2006, p. 375; 
Marschalek and Klein 2010, p. 728). In areas where R. crocea is capable 
of resprouting, the quantity of E. fasciculatum nectar source necessary 
to support a persisting Hermes copper butterfly population may be 
temporarily unavailable due to recent fire impacts. If areas are 
repeatedly burned, E. fasciculatum will not have the time necessary to 
become reestablished, rendering the habitat unsuitable for Hermes 
copper butterfly (Marschalek and Klein 2010, p. 728). Increased fire 
frequency may also pose a threat to Hermes copper butterfly through 
loss of host plant and nectar source habitat, and fire management plans 
are not expected to provide protection from megafires such as those 
that occurred in 2003 and 2007. Based on the above, we consider 
wildfire, specifically megafires that encompass vast areas and are 
increasing in frequency, a significant threat to Hermes copper 
butterfly.
Habitat Fragmentation
    Habitat fragmentation can result in smaller, more vulnerable Hermes 
copper butterfly populations (see Factor E discussion below). The 
presence of suitable habitat on which Hermes

[[Page 20926]]

copper butterflies depend often determines the size and range of the 
local population. Wildfires and past development have caused habitat 
fragmentation that separates populations and inhibits movement by 
creating a gap in area that Hermes copper butterflies are not capable 
of traversing. The connectivity of habitat occupied by a butterfly 
population is not defined by host plant distribution at the scale of 
host plant stands or patches, but rather by adult butterfly movement 
that results in interbreeding (see Service 2003, pp. 22, 162-165). Any 
loss of resource contiguity on the ground that does not affect 
butterfly movement, such as burned vegetation, may degrade habitat, but 
may not fragment habitat. Therefore, in order for habitat to be 
fragmented, movement must be prevented by a barrier, or the distance 
between remaining host plants where larvae develop must be greater than 
adult butterflies will move to mate or deposit eggs. Genetic analysis 
(Deutschman et al. 2010; p. 16) indicates that butterflies can show 
differentiation even when close in proximity, presumably due to 
physical barriers that may be a result of development or a landscape 
feature (i.e., the three McGinty Mountain sites that are on opposite 
sides of the mountain may be separated by topography). Alternately, 
sampling locations that are not close have shown little genetic 
differentiation, indicating that butterflies can also disperse long 
distances under the right conditions. Sampling at one location before 
and after a fire found genetically differentiated groups. Deutschman et 
al. (2010, p. 16) concluded their findings supported the idea that 
Hermes copper butterfly individuals are capable of long-distance 
movement, but developed areas and natural landscape features may 
enhance or restrict dispersal. It is important to note that although 
movement may be possible, the habitat must be suitable at the time 
Hermes copper butterflies arrive to ensure successful recolonization.
    As described in our 90-day finding published in 2010 (75 FR 23658, 
May 4, 2010) Hermes copper butterfly habitat has become fragmented by 
both past urban development (permanently) and wildfires. Comparison of 
Hermes copper butterfly occurrences and host plant distribution with 
mapped wildfire perimeters indicates that wildfires cause short-term 
fragmentation of habitat, and, historically, Hermes copper butterfly 
habitat in San Diego County has been fragmented and lost due to the 
progression of development over the last 50 years. Analysis of the 
Hermes copper butterfly populations indicates that in the northern 
portion of the U.S. range, the habitat has been fragmented (and lost) 
permanently by development and further fragmented temporally by 
wildfires, resulting in extirpation of at least four Hermes copper 
butterfly populations (see Table 1 above). As described in the 
Background section above and Factor E below, two historical Hermes 
copper butterfly populations (Rancho Santa Fe and Van Dam Peak) in the 
northern portion of the range have been lost since the year 2000, 
presumably because the habitat became isolated to an extent that 
connectivity with other populations was lost. Neither the Rancho Santa 
Fe habitat area nor Van Dam Peak habitat area is expected to be 
recolonized because the distance to the next nearest source population 
(13 mi (20 km) and 7 mi (11 km), respectively) exceeds the dispersal 
capability of the species. In the southern portion of the range, Lopez 
Canyon and the extant portion of Mission Trails Park are both isolated 
(7 mi (11 km) separation) from other extant populations by development 
and burned areas that are no longer likely occupied. Although the 
Mission Trails Park population remains extant this population was 
likely reduced up to 74 percent by the 2003 fire, and remaining 
unburned habitat is surrounded by development, functionally isolating 
it from any potential source populations thought to be extant (see 
Figure 1 above). While we do not expect future development alone to 
threaten Hermes copper butterfly habitat, we believe that the combined 
impacts attributable to wildfire and small scale development may 
fragment habitat further and hence, threaten the species' continued 
existence. Based on the above, we consider habitat fragmentation, due 
to the combined impact of existing development, possible future 
(limited) development, existing dispersal barriers, and megafires, a 
significant threat to Hermes copper butterfly.
Summary of Factor A
    Based on the above information, we consider Hermes copper butterfly 
to be threatened by the present or threatened destruction, 
modification, or curtailment of the species habitat or range. 
Specifically, we consider Hermes copper butterfly threatened by habitat 
fragmentation and wildfire. The combination of habitat fragmentation 
(as a result of past and potential limited future urban development), 
existing dispersal barriers, and megafires (that encompass vast areas 
and are increasing in frequency) that fragment, limit, and degrade 
Hermes copper butterfly habitat threaten the species with extirpation 
throughout its range. These threats are evidenced by the loss and 
isolation of many populations throughout the range; those remaining 
extant populations fall within areas of high megafire risk. Thus, we 
consider threats under this factor to be significant.

Factor B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    We found two Internet postings (accessed in June 2004) offering to 
sell specimens of Hermes copper butterfly (Martin 2004, pers. comm.). 
We found no evidence that Hermes copper butterflies, whole or in parts, 
were being used in a commercial ``butterfly essence'' process (Morning 
Star Essences 2006, pers. comm.) and we have no other information to 
indicate that other commercial business activities are a threat to 
Hermes copper butterfly. Neither of these previously viewed Web sites 
offered Hermes copper butterfly for sale during a more recent search 
(November 22, 2010), nor did we locate any additional commercially 
available specimens. We found no other information to indicate Hermes 
copper butterfly is used for commercial, scientific, or educational 
purposes. Therefore, based on our review of the best available 
scientific and commercial information, we do not consider 
overutilization for commercial, recreational, scientific, or 
educational purposes a current threat to Hermes copper butterfly.

Factor C. Disease or Predation

Disease
    We evaluated the potential of disease to threaten Hermes copper 
butterfly rangewide and found no information indicating disease to be 
current threat to Hermes copper butterfly.
Predation
    Predation (including parasitism) is a factor that is known to cause 
mortality in butterflies, and therefore could potentially threaten any 
butterfly species. Faulkner and Klein (2005, p. 26) stated that ``no 
papers have reported any parasites or predators for the Hermes copper 
butterfly, though they obviously exist.'' Birds may consume Hermes 
copper butterfly larvae, although we are not aware of any data that 
indicate bird predation is a significant threat to Hermes copper 
butterfly. Furthermore, heavy predation of adult insects and their 
progeny is a common ecological phenomenon, and most species have 
evolved under

[[Page 20927]]

conditions where high mortality due to natural enemies has shaped their 
evolution (see Ehrlich et al. 1988). However, we found no information 
to indicate predation to be current threat to Hermes copper butterfly.
    Therefore, based on our review of the best available scientific and 
commercial information, we do not consider disease or predation a 
current threat to Hermes copper butterfly.

Factor D. The Inadequacy of Existing Regulatory Mechanisms

    The Act requires us to examine the adequacy of existing regulatory 
mechanisms, with respect to threats, that may ameliorate the danger of 
Hermes copper butterfly becoming either endangered or threatened. 
Existing regulatory mechanisms that may have an effect on potential 
threats to Hermes copper butterfly can be placed into two general 
categories: (1) Federal mechanisms, and (2) State and local mechanisms.
Federal Mechanisms
    There are five primary Federal regulatory mechanisms that we 
discuss below: the National Forest Management Act (16 U.S.C. 1600 et 
seq.); the Federal Land Policy and Management Act; the Sikes Act as 
amended (16 U.S.C. 670a et seq.); the Healthy Forests Restoration Act 
of 2003 (16 U.S.C. 6501 et seq.); and the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.).
    Under the National Forest Management Act of 1976, the U.S. Forest 
Service (Forest Service) is required to prepare a comprehensive land 
and natural resource management plan for each unit of the Forest 
Service, in accordance with NEPA's procedural requirements, to guide 
the maintenance and use of resources within national forests. The plans 
require an interdisciplinary approach, including a provision providing 
for diversity for plant and animal communities (16 U.S.C. 
1604(g)(3)(B)). The Forest Service is currently operating under the 
transition provisions of the 2000 Planning Rule (65 FR 67514; November 
9, 2000) as an interim measure until a new planning rule is issued (see 
74 FR 67059; December 18, 2009). The 2000 rule allows forests to 
develop, revise and amend forest plans using the procedures of the 1982 
Rule (47 FR 43037; September 30, 1982). All existing forest plans have 
been developed using the 1982 Planning Rule procedures, including the 
Cleveland National Forest Plan.
    In preparing the Cleveland National Forest (CNF) Plan, the Forest 
Service evaluated and identified Hermes copper butterfly as a species 
of concern and then evaluated this species relative to its potential of 
risk from Forest Service activities and plan decisions in its 2005 
Final Environmental Impact Statement (USFS 2005). Hermes copper 
butterfly, along with 148 other species, was defined as a ``species-at-
risk'' (USFS 2005, Appendix B, p. 36), requiring a further individual 
viability assessment. The subsequent threat category identified for 
Hermes copper butterfly was ``5'' or ``Uncommon, narrow endemic, 
disjunct, or peripheral in the plan area with substantial threats to 
persistence or distribution from Forest Service activities'' (USFS 
2005, Appendix B, p. 43). The specific threat associated with Hermes 
copper butterfly and Forest Service management activities is described 
as ``Prescribed fire or fuel reduction projects in habitat (affecting 
host plant, Rhamnus crocea)'' (USFS 2005, Appendix B, p. 52). There are 
approximately 7,860 acres (ac) (3,181 hectares (ha)) of extant Hermes 
copper butterfly habitat (encompassing 7 populations) within the CNF 
and approximately 2,100 ac (850 ha) of Hermes copper butterfly habitat 
that has been extirpated or is of unknown status. The Forest Service 
incorporates measures into its planning efforts to address identified 
threats as it implements specific activities on forest lands. As an 
example, in 2007, measures were included to protect Hermes copper 
butterfly habitat ahead of the Horsethief Fuels Reduction Project 
(Jennings 2007, pers. comm.). Although the proposed project has not yet 
been implemented, the recommendations of flagging and avoidance of all 
R. crocea bushes are standard management measures for relevant CNF 
activities (Winter 2010, pers. comm.).
    The CNF has also initiated two projects for restoration of habitat 
at Barber Mountain related to impacts from the Harris Fire (Metz 2010, 
pers. comm.). In an effort to restore nectar and host plants at this 
site, seeds from both Eriogonum fasciculatum and Rhamnus crocea plants 
have been collected locally and E. fasciculatum seeds have already been 
planted (Metz 2010, pers. comm.).
    Because fires, particularly recent wildfires (megafires), have been 
identified as a factor affecting the distribution of this species, the 
CNF has been monitoring Hermes copper butterfly populations in burned 
and unburned areas of CNF to assist in monitoring the recovery and 
management of this species on its lands (HDR and E2M, 2009, p. 1). As 
part of the Forest Service's approach to management of Hermes copper 
butterfly and its habitat, the Forest Service commissioned a 2009 
survey to determine the current status of Hermes copper butterfly 
populations at eight locations in the Descanso Ranger District of the 
CNF. A total of 16 Hermes copper butterflies were observed at 12 
locations at 5 study sites (HDR and E2M, 2009, p. 11). The 2009 study 
concluded that the low number of observations were reflective of the 
on-going recovery of Hermes copper butterfly habitats from the effects 
of wildfires, the precipitation pattern in Hermes copper butterfly 
habitat in 2009, and host plant health (HDR and E2M, 2009, p. 25).
    Previous monitoring surveys conducted on CNF lands include a 2005 
survey for assessment of recolonization at Viejas Mountain, an area 
impacted by the Cedar Fire in 2003, in which no Hermes copper 
butterflies were observed (Klein 2005, pers. comm.). Additionally, a 
2005 survey at Barber Mountain, an area that had not recently burned, 
revealed 95 specimens of Hermes copper butterflies (Faulkner 2005, 
pers. comm.), while a wider 2008 survey of the area after the Witch 
Fire in 2007 found scattered populations with only two sites containing 
more than a single specimen (Faulkner 2008 pers. comm.). Locations were 
marked for revegetation with Eriogonum fasciculatum and Rhamnus crocea 
in an attempt to extend the unburned chaparral habitat so as to expand 
the existing Hermes copper butterfly populations or establish new 
populations (Faulkner 2008, pers. comm.).
    Recent fire events appear to have negatively affected the current 
occupancy of Hermes copper butterfly at the surveyed locations on CNF 
lands. The 2009 survey results indicate that of the study sites 
affected by fires in 2003 and 2007, Hermes copper butterfly was only 
found at one site (North Descanso), an area located on the southern 
edge of the area affected by the 2003 Cedar Fire and adjacent to 
unburned private lands, which the authors speculate contain a source 
population of Hermes copper butterflies (HDR and E2M, 2009, p. 25). The 
current monitoring, management efforts, and conservation measures 
implemented and planned by the Forest Service indicate that the CNF is 
actively working towards conservation of Hermes copper butterfly and 
its habitat.
    The Federal Land Policy and Management Act of 1976 (FLPMA) governs 
the management of public lands under the jurisdiction of the BLM. The 
legislative goals of FLPMA are to establish public land policy; to 
establish guidelines for its [BLM's]

[[Page 20928]]

administration; and to provide for the management, protection, 
development and enhancement of the public lands. While FLPMA generally 
directs that public lands be managed on the basis of multiple use, the 
statute also directs that such lands be managed to ``protect the 
quality of scientific, scenic, historical, ecological, environmental, 
air and atmospheric, water resource, and archeological values; * * * [ 
to] preserve and protect certain public lands in their natural 
condition; [and to] provide food and habitat for fish and wildlife * * 
*.'' (43 U.S.C. 1701(a)(8)). Although the BLM has a multiple-use 
mandate under the FLPMA which allows for grazing, mining, and off-road 
vehicle use, the BLM also has the ability under the FLPMA to establish 
and implement special management areas such as Areas of Critical 
Environmental Concern, wilderness areas, research areas, etc. BLM's 
South Coast Resource Management Plan covers the San Diego County area. 
Approximately 1 percent, or 411 ac (166 ha) of the total Hermes copper 
butterfly habitat occupied by extant populations (3 populations in this 
case) occur within the BLM owned lands. An additional approximately 289 
ac (117 ha) of Hermes copper butterfly habitat that supported 
populations believed to have been extirpated or that are of unknown 
status (encompassing 3 populations) also occurs on BLM lands. Hermes 
copper butterfly was a species considered but not addressed in the 
BLM's South Coast Resource Management Plan (SCRMP; BLM 1994, p. 76) but 
many components of Hermes copper butterfly habitat (coastal sage scrub 
and chaparral) are contained within the SCRMP planning area, and 
receive some regulatory protection under the plan. Approximately half 
of Hermes copper butterfly habitat supporting extant populations on BLM 
lands, a 201 ac (81 ha) portion of the Descanso South population (see 
Table 1 and Figure 1 above; Map <greek-i>31) falls within the Pine 
Creek Wilderness Area and therefore benefits from BLM's wilderness 
protection policies. The Pine Creek Wilderness Area is managed in 
accordance with the provisions of the Wilderness Act of 1964 (16 U.S.C. 
1131 et seq.). The Wilderness Act of 1964 strictly limits use of 
wilderness areas, imposing restrictions on use of vehicles, new 
developments, chainsaw use, mountain bike use, leasing, and mining, in 
order to protect the natural habitats of the areas, maintain species 
diversity, and enhance biological values. Lands acquired by BLM within 
wilderness area boundaries become part of the designated wilderness 
area and are managed in accordance with all provisions of the 
Wilderness Act and applicable laws. We believe existing BLM regulations 
provide adequate protection from the threat of development described in 
Factor A above, but not from mortality and habitat fragmentation due to 
megafire as described in Factors A above and E below. However, megafire 
is not a threat that is susceptible to reduction or elimination by 
regulatory mechanisms.
    The Sikes Act requires the Department of Defense to develop and 
implement integrated natural resources management plans (INRMPs) for 
military installations across the United States. We are not aware of 
any currently extant Hermes copper butterfly populations on military 
installations; however there are historical Hermes copper butterfly 
observation locations and potential Hermes copper butterfly habitat 
(see Table 1 and Figure 1 above, Map <greek-i>40) on Miramar Naval Air 
Station and the adjacent Mission Gorge Recreational Facility (MGRF) 
(also known as Admiral Baker Field). Through the 2002 Naval Base San 
Diego INRMP, which is currently under revision, the Navy manages its 
open space areas using an ecosystem-level approach that includes 
invasive species removal, habitat restoration and enhancement, and 
natural resource inventories (Stathos 2010, pers. comm.). In the 2002 
INRMP, the Navy identified the following focus areas for management 
actions: Wildlife conservation and management, rare wildlife species, 
exotic vegetation control, habitat restoration, and fire management 
(U.S. Navy 2002, section 3, pp. 37-40 and 45-47). Hermes copper 
butterfly is not identified as a rare species in the INRMP; however, 
some existing management recommendations and actions may also be 
beneficial to Hermes copper butterfly, if it is rediscovered on Navy 
lands. The INRMPs are reviewed every year by military installations and 
modified as needed, and are reviewed at least every 5 years with the 
Service and States.
    The Healthy Forests Restoration Act of 2003 includes the first 
meaningful statutory incentive for the U.S. Forest Service and the 
Bureau of Land Management to give consideration to prioritized fuel 
reduction projects identified by local communities. In order for a 
community to take advantage of this opportunity, a Community Wildfire 
Protection Plan (CWPP) must be prepared. The process of developing a 
CWPP can help a community identify and clarify priorities for the 
protection of life, property and critical infrastructure in the 
wildland-urban interface (WUI) (Fire Safe Council of San Diego County 
2011). See our discussion of CWPPs below under the State and Local 
Regulations subsection. Combined, the Healthy Forests Restoration Act 
and the Community Wildfire Protection Plan emphasize the need for 
federal, state and local agencies to work collaboratively with 
communities in developing hazardous fuel reduction projects, and place 
priority on treatment areas identified by the communities themselves in 
a CWPP (Fire Safe Council of San Diego County 2011). While these 
regulations reduce the impact of wildfire to some extent, especially 
with regard to human property and safety, the impact of megafires on 
wildlands is not a threat that is susceptible to elimination by such 
regulatory mechanisms.
    All Federal agencies are required to adhere to the National 
Environmental Policy Act (NEPA) of 1970 for projects they fund, 
authorize, or carry out. The Council on Environmental Quality's 
regulations for implementing NEPA (40 CFR parts 1500-1518) state that 
in their environmental impact statements agencies shall include a 
discussion on the environmental impacts of the various project 
alternatives (including the proposed action), any adverse environmental 
effects which cannot be avoided, and any irreversible or irretrievable 
commitments of resources involved (40 CFR part 1502). NEPA itself is a 
disclosure law that provides an opportunity for the public to submit 
comments on the particular project and propose other conservation 
measures that may directly benefit listed species; however, it does not 
require subsequent minimization or mitigation measures by the Federal 
agency involved. Although Federal agencies may include conservation 
measures for listed species as a result of the NEPA process, Hermes 
copper butterfly may be provided indirect protections due to its co-
occurrence with listed species. Any such measures are typically 
voluntary in nature and are not required by the statute. Additionally, 
activities on non-Federal lands are subject to NEPA if there is a 
Federal nexus.
    As stated above, land and resource management plans prepared by the 
Forest Service and BLM must be developed in accordance with NEPA 
requirements and, as noted above, the Forest Service prepared an 
environmental impact statement for its 2005 Land Management Plans 
(including the Cleveland National Forest Plan) and will be required to 
meet NEPA requirements in preparing its revised plan. Similarly, the 
U.S. Navy must meet the procedural

[[Page 20929]]

requirements of NEPA in developing its INRMPs.
State and Local Mechanisms
    The California Environmental Quality Act (CEQA) (Public Resources 
Code 21000-21177) and the CEQA Guidelines (California Code of 
Regulations, Title 14, Division 6, Chapter 3, sections 15000-15387) 
requires State and local agencies to identify the significant 
environmental impacts of their actions and to avoid or mitigate those 
impacts, if feasible. CEQA applies to projects proposed to be 
undertaken or requiring approval by State and local government agencies 
and the lead agency must complete the environmental review process 
required by CEQA, including conducting an initial study to identify the 
environmental impacts of the project and determine whether the 
identified impacts are ``significant.'' If significant impacts are 
determined, then an environmental impact report must be prepared to 
provide State and local agencies and the general public with detailed 
information on the potentially significant environmental effects (CERES 
2010). ``Thresholds of Significance'' are comprehensive criteria used 
to define environmental significant impacts based on quantitative and 
qualitative standards and include impacts to biological resources such 
as candidate, sensitive, or special status species identified in local 
or regional plans, policies, or regulations, or by the California 
Department of Fish and Game (CDFG) or the Service; or impacts to any 
riparian habitat or other sensitive natural community identified in 
local or regional plans, policies, regulations or by the CDFG or 
Service (Appendix G, CEQA 2010). Defining these significance thresholds 
helps ensure a ``rational basis for significance determinations'' and 
provides support to the final determination and appropriate revisions 
or mitigation actions to a project in order to develop a mitigated 
negative declaration rather than an environmental impact report 
(Governor's Office of Planning and Research, 1994, p. 5).
    The County of San Diego has developed the Guidelines for 
Determining Significance and Report Format and Content Requirements--
Biological Resources (Guidelines) (County of San Diego, 2010) to review 
discretionary projects and environmental documents pursuant to the 
CEQA. The Guidelines provide guidance for evaluating adverse 
environmental effects that a proposed project may have on biological 
resources and are consulted during the evaluation of any biological 
resource pursuant to CEQA. Included in the specific guidelines, under 
Special Species Status, is a determination as to whether a project will 
impact occupied Hermes copper butterfly habitat. Section 4.1 K (p. 14) 
of the guidelines states:
    ``Though not state or federally listed, the Hermes copper meets the 
definition of endangered under CEQA Sec. 15380 because its `survival 
and reproduction in the wild are in immediate jeopardy from one or more 
causes, including loss of habitat, change in habitat, overexploitation, 
predation, competition, disease, or other factors.' The County's 
determination that the Hermes copper meets the definition of endangered 
under CEQA is based on the loss of Hermes copper populations by 
development and wildfire, and the review of published and unpublished 
literature. Interim guidelines for surveying, assessing impacts, and 
designing mitigation for Hermes copper are provided in Attachment C of 
the Report Format and Content Requirements--Biological Resources.'' 
(County of San Diego, 2010, p. 14).
    The newly added Hermes copper butterfly section of the guidelines 
offers a proactive requirement for project review under CEQA that can 
provide a specific protective measure to the species and its habitat.
    The San Diego Multiple Species Conservation Program (MSCP) is a 
subregional habitat conservation plan (HCP) and Natural Community 
Conservation Plan (NCCP) made up of several subarea plans that have 
been in place for more than a decade. Under the umbrella of the MSCP, 
each of the 12 participating jurisdictions is required to prepare a 
subarea plan that implements the goals of the MSCP within that 
particular jurisdiction. The MSCP covers 582,243 ac (235,625 ha) and 
the County of San Diego Subarea Plan covers 252,132 ac (102,035 ha) of 
unincorporated county lands in the southwestern portion of the MSCP 
plan area. The County subarea plan is implemented in part by the 
Biological Mitigation Ordinance (BMO), which outlines specific project 
design criteria and species and habitat protection and mitigation 
requirements for projects within subarea boundaries (see MSCP Subarea 
Plan, County of San Diego 2007, and Biological Mitigation Ordinance 
(Ord. Nos. 8845, 9246), County of San Diego 1998b). All projects within 
the County's subarea plan boundaries must comply with both the MSCP 
requirements and the County's policies under CEQA. Hermes copper 
butterfly is not a covered species under any MSCP subarea plans; 
however, the protections afforded by the BMO indirectly benefit the 
species by establishing mitigation ratios and project development 
conditions that restrict development within coastal sage scrub and 
mixed chaparral habitats. Of the 17 currently extant Hermes copper 
butterfly populations, the BMO affords some indirect protection to the 
10 that fall all or partially within the County's subarea plan 
boundaries.
    The County of San Diego Resource Protection Ordinance (RPO) (County 
of San Diego 2007) applies to all non-federal lands within the County 
located within and outside of the County of San Diego subarea plan 
boundaries. The RPO imposes restrictions on development to reduce 
impacts to natural resources including sensitive habitat lands. 
Sensitive habitat lands are those that support unique vegetation 
communities or those that are either necessary to support a viable 
population of sensitive species, are critical to the proper functioning 
of a balanced natural ecosystem, or which serve as a functioning 
wildlife corridor (County of San Diego, 2007, p. 3). They can include 
areas that contain maritime succulent scrub, southern coastal bluff 
scrub, coastal and desert dunes, calcicolous scrub, and maritime 
chaparral, among others. Impacts to RPO sensitive habitat lands, which 
include lands with potential host and nectar plant habitat for Hermes 
copper butterfly (i.e., scrub and chaparral), are only allowed when all 
feasible measures have been applied to reduce impacts and when 
mitigation provides an equal or greater benefit to the affected species 
(County of San Diego, 2007, p. 13).
    The California Department of Forestry and Fire Protection (CAL 
FIRE) is an emergency response and resource protection department. CAL 
FIRE protects lives, property and natural resources from fire, and 
protects and preserves timberlands, wildlands, and urban forests. The 
CAL FIRES's varied programs work together to plan protection strategies 
incorporating concepts of the National Fire Plan, the California Fire 
Plan, individual CAL FIRE Unit Fire Plans, and Community Wildfire 
Protection Plans (CWPPs). Fire Plans outline the fire situation within 
each CAL FIRE Unit, and CWPPs do the same for communities (CALFIRE 
2011a, p. 1; County of San Diego 2011a). Each plan identifies 
prevention measures to reduce risks, informs and involves the local 
communities in the area, and provides a framework to diminish potential 
wildfire losses and implement all applicable fire management 
regulations and policies (CALFIRE 2011b; County of San Diego 2011a). 
Planning includes other state, federal

[[Page 20930]]

and local government agencies as well as Fire Safe Councils (CALFIRE 
2011a, p. 1). Cooperative efforts via contracts and agreements between 
state, federal, and local agencies are essential to respond to wildland 
fires (CALFIRE 2011a, p. 1). Because of these types of cooperative 
efforts, fire engines and crews from many different agencies may 
respond at the scene of an emergency (CALFIRE 2011a, p. 1); however 
CALFIRE typically takes the lead with regard to planning for megafire, 
prevention, management, and suppression, and CAL FIRE is in charge of 
incident command during a wildfire. The San Diego County Fire Authority 
(SDCFA), local governments, and CAL FIRE cooperatively protect 1.42 
million acres of land with 54 fire stations throughout San Diego County 
(County of San Diego 2011b, p. 1). Wildfire management plans and 
associated actions can help to reduce the impacts of wildfire on 
natural resources, including Hermes copper butterfly, but their first 
priority is human health and safety. While these plans and associated 
measures ameliorate the impacts of wildfire to some extent, especially 
with regard to human property and safety, the impact of megafires on 
wildlands is not a threat that is susceptible to elimination by such 
regulatory mechanisms.
Summary of Factor D
    In summary, we considered the adequacy of existing regulatory 
mechanisms to protect Hermes copper butterfly. On Forest Service lands, 
the Cleveland National Forest Plan addresses the conservation of 
natural resources, including Hermes copper butterfly, and specific 
management practices have been identified and are being implemented to 
conserve existing populations of Hermes copper butterfly and its 
habitat. Approximately 1 percent of Hermes copper butterfly habitat 
occurs on BLM lands and is afforded some protection through the South 
Coast Management Plan and Wilderness Area designation through 
management of habitat areas for listed and other sensitive species and 
land use limitation. Although the Navy has not recorded extant 
populations of Hermes copper butterfly on their lands in San Diego 
County, we believe the management measures identified in their INRMP 
for the Mission Gorge Recreational Facility provides an adequate 
protective mechanism for existing coastal sage habitat suitable for 
Hermes copper butterfly. Hermes copper butterfly and its habitat may 
also receive protection under NEPA as land management plans, INRMPs, 
and activity level plans are developed on Forest Service, BLM and U.S. 
Navy lands either occupied by or that contain suitable habitat for the 
species.
    On State and county lands occupied by Hermes copper butterfly or 
containing its habitat, we believe the requirements of CEQA and the two 
County ordinances are adequate regulatory mechanisms that protect the 
species and its habitat from development related impacts. The 
Biological Mitigation Ordinance of the County of San Diego Subarea Plan 
and the County of San Diego Resource Protection Ordinance impose 
restrictions on development within coastal sage scrub and mixed 
chaparral habitats that support half of the historical distribution of 
Hermes copper butterfly populations. Although Federal, State, and local 
regulatory mechanisms help to reduce wildfire impacts, primarily to 
property and human safety, they do not adequately protect Hermes copper 
butterfly from direct mortality or habitat fragmentation due to 
megafires. However, we do not consider the impact of megafire on 
wildlands to be a threat that is susceptible to elimination by 
regulatory mechanisms.
    Therefore, based on our review of the best available scientific and 
commercial information, we do not consider the inadequacy of existing 
regulatory mechanisms to be a threat to Hermes copper butterfly.

Factor E. Other Natural or Manmade Factors Affecting the Species' 
Continued Existence

Wildfire
    As discussed in the Background section and Factor A discussions 
above, wildfire can result in temporal loss of Hermes copper butterfly 
habitat. However, the most significant threat posed by wildfire to 
Hermes copper butterfly is the direct loss (i.e., mortality) of 
butterflies associated with extensive and intense fire events. The 
magnitude of this threat is increased by the periodic occurrence of 
megafires, which are typically created by extreme ``Santa Ana'' weather 
conditions of high temperatures, low humidity, and strong erratic winds 
(see Background section and Factor A's wildfire discussion above; 
Keeley and Zedler 2009, p. 90). Human-induced or anthropogenic 
ignitions have increased the frequency of fire far above historical 
levels (Keeley and Fotheringham 2003, p. 240). Recolonization of burned 
areas by Hermes copper butterfly can be precluded when fires, and 
particularly megafires, occur too frequently. The significance of this 
concern can be seen in the current distribution of the species in 
southern California; analysis of GIS information indicates 
approximately 66 percent of the extant occurrences are found within the 
footprint of the 1970 Laguna Fire, which Minnich and Chou (1997, p. 
240) reported last burned in 1920. In contrast, the areas north and 
south of the extant Hermes copper butterfly occurrences burned several 
times from 2001 to 2007 (Keeley et al. 2009, pp. 287, 293). A single 
megafire burning most or all of the 40-year old chaparral in the 
footprint of the Laguna fire would likely imperil the species in the 
United States (see Figure 1 above). Additionally, as discussed in the 
Background section above, the 2003 Otay and Cedar fires and the 2007 
Harris and Witch fires in particular have negatively impacted the 
species, resulting in or contributing to the extirpation of 9 of 35 
populations (see Table 1 above).
    It is well-documented that wildfires that occur in occupied Hermes 
copper butterfly habitat result in loss of Hermes copper butterflies 
(Klein and Faulkner 2003, pp. 96, 97; Marschalek and Klein 2010, pp. 4, 
5). The butterflies rarely survive wildfire because life stages of the 
butterfly inhabit host plant foliage, and Rhamnus crocea typically 
burns to the ground and resprouts from stumps (Deutschman et al. 2010, 
p. 8; Marschalek and Klein 2010, p. 8). This results in at least the 
temporal loss of both the habitat (until the R. crocea and nectar 
source regrowth occurs) and the presence of butterflies (occupancy) in 
the area. Wildfires can also leave patches of unburned occupied habitat 
that are functionally isolated (e.g., further than the dispersal 
distance of the butterfly) from other occupied habitat. Furthermore, 
large fires can eliminate source populations before previously burned 
habitat can be recolonized, and can result in long-term or permanent 
loss of butterfly populations. For example, in Mission Trails Park the 
7,303 ac (2596 ha) ``Assist <greek-i>59'' Fire in 1981 and the smaller 
126 ac (51 ha) ``Assist <greek-i>14'' Fire in 1983 (no significant 
overlap between fires), resulted in an approximate 18-year extirpation 
of the Mission Trails Park Hermes copper butterfly population (Klein 
and Faulkner 2003, pp. 96, 97). More recent examples include 
extirpations of the monitored Crestridge, Rancho Jamul, Anderson Road, 
Hollenbeck Canyon, and San Miguel Mountain populations, as well as 
other less-monitored populations (Marschalek and Klein 2010, pp. 4, 5; 
Deutschman et al. 2010, p. 36). After the 2003 Cedar Fire, Hermes 
copper butterfly records at the

[[Page 20931]]

regularly monitored Crestridge population, once considered the largest 
and most robust population within the species' range (Klein and 
Faulkner 2003, p. 86), were limited to presumably the same male for a 
6-day period in 2005, and another single male observed in 2007 
(Marschalek and Klein 2010, p. 4; Deutschman et al. 2010, p. 33). 
Marschalek (2010a, p. 2) described how when his study ``colonies'' in 
the Rancho Jamul population were extirpated by fire in 2003, he 
discovered additional occupied habitat on the other side of a nearby 
firebreak in 2004; however the remaining population distribution was 
extirpated in the 2007 Harris Fire (Marschalek 2010a, p. 1). Data 
indicate all historical populations burned in both the 2003 and 2007 
fires were extirpated except North Descanso, where record locations 
were within a narrow extension of the fire perimeter surrounded on 
three sides by unburned habitat (see Table 1 and Figure 1 above). We 
know this habitat was recolonized because genetic research determined 
the colonizing individuals were not related to those collected before 
the fire (Deutschman et al. 2010, p. 26). These facts underscore the 
importance of having available Hermes copper butterfly source 
populations to recolonize habitat after fire. As discussed in the 
Background section above, of the 35 known Hermes copper butterfly 
populations in 2000, 1 northern Hermes copper butterfly population and 
8 southern populations are believed to have been extirpated by fire or 
a combination of fire and development since 2003 (see Table 1 above).
    As discussed above under Factor A, we examined maps of current high 
fire threat areas in San Diego County based on recent reports by the 
Forest Area Safety Task Force (Jones 2008; SANDAG 2010). Areas 
identified as most vulnerable include all occupied and potentially 
occupied Hermes copper butterfly habitats in San Diego County within 
the species' known historical range, with the exception of Black 
Mountain, Van Dam Peak, Lopez Canyon, and the unburned southern portion 
of Mission Trails Park. Nineteen potential source populations for 
recolonization of habitats burned in the past 10 years (extant or of 
unknown status) fall within a contiguous area that has not recently 
burned (southeastern populations in Figure 1), and where the threat of 
fire is considered high (SANDAG 2010). All except 3 of these potential 
source populations (North Descanso, Hartley Peak, and North Guatay 
Mountain) also fall within the 174,026 ac (70,426 ha) 1970 Laguna Fire 
perimeter (similar in size to the 2003 and 2007 fires), and the 3 that 
do not fall within the Laguna Fire perimeter fall partially within the 
2003 and 2007 fire perimeters. This analysis of current fire danger and 
fire history illustrates the potential for permanent loss of the 
majority, if not all, remaining butterfly populations should another 
large fire occur prior to recolonization of burned habitats (per 
discussion above, recolonization may not occur for up to 18 years). As 
discussed by Marschalek and Klein (2010, p. 9) and Deutschman et al. 
(2010, p. 42), there is a risk that one or more wildfires could 
extirpate the majority of extant Hermes copper butterfly populations. 
Based on the above, we consider wildfire, specifically megafires that 
encompass vast areas and are increasing in frequency, a significant 
threat to Hermes copper butterfly.
Vulnerability of Small and Isolated Populations
    Small population size, low population numbers, and population 
isolation are not necessarily independent factors that threaten a 
species. Typically, it is the combination of small size and number and 
isolation of populations in conjunction with other threats (such as the 
present or threatened destruction and modification of the species' 
habitat or range) that may significantly increase the probability of 
species' extinction.
    Population isolation renders smaller populations more vulnerable to 
stochastic extirpation. Small populations and isolation could also 
subject Hermes copper butterfly to genetic drift and restricted gene 
flow that may decrease genetic variability over time and could 
adversely affect species' viability (Allee 1931, pp. 12-37; Stephens et 
al. 1999, pp. 185-190; Dennis 2002, pp. 389-401). The best available 
scientific information indicates adult Hermes copper butterfly 
densities have been reduced to low or no detectability, or occupancy 
has been entirely eliminated in some burned areas (for example 
Crestridge, see Factor A discussion above), and habitat has been 
fragmented and isolated by development (Deutschman et al. 2010, p. 33). 
As discussed in the Background section and Factor A discussion above, 
most remaining northern habitats are limited to the relatively isolated 
and fragmented undeveloped lands between the cities of San Marcos, 
Carlsbad, and Escondido and the community of Rancho Santa Fe. The 
nearest occupied Hermes copper butterfly location (Mission Trails) to 
the habitat ``islands'' containing the Black Mountain and Van Dam Peak 
observation locations are approximately 9 mi (14 km) and 7 mi (11 km) 
away, respectively, and separated by highly developed areas. Future 
recolonization of Hermes copper butterfly to these areas, which appear 
to contain suitable habitat, is not likely due to their isolation. One 
population isolated by development was extirpated due to the 2007 Witch 
Fire (Rancho Santa Fe), and a second isolated population was extirpated 
for unknown reasons (Van Dam Peak). As discussed above under Factor A, 
neither the Rancho Santa Fe habitat area nor the Van Dam Peak habitat 
area is expected to be recolonized because the distance to the next 
nearest source population exceeds the dispersal capability of the 
species. In the southern portion of the range, Lopez Canyon and the 
extant portion of Mission Trails Park are both isolated from other 
extant populations by development and burned areas that are no longer 
likely occupied. Although the Mission Trails Park population remains 
extant this population was likely reduced up to 74 percent by the 2003 
fire, and remaining unburned habitat is surrounded by development, 
functionally isolating it from any potential source populations thought 
to be extant (see Figure 1 above). Therefore, we consider the effects 
of restricted geographical range, population isolation, and reduced 
population size a significant threat to Hermes copper butterfly.
Global Climate Change
    Evaluations by Parmesan and Galbraith (2004, pp. 1-2, 29-33) 
indicate whole ecosystems may be shifting northward and upward in 
elevation, or are otherwise being altered by differing climate 
tolerance among species within communities. Climate change may be 
causing changes in the arrangement and community composition of 
occupied habitat patches. Current climate change predictions for 
terrestrial areas in the Northern Hemisphere and the southwestern 
United States indicate warmer air temperatures, more intense 
precipitation events, and increased summer drying (Field et al. 1999, 
pp. 1-3; Hayhoe et al. 2004, p. 12422; Cayan et al. 2005, p. 6; 
Intergovernmental Panel on Climate Change (IPCC) 2007, p. 11). However, 
predictions of climatic conditions for smaller subregions, such as San 
Diego County, remain less certain. Tabor and Williams (2010, p. 562) 
summarized the four major sources of uncertainty in downscaled climate 
projections: (1) Uncertainties in future greenhouse gas emissions and 
atmospheric composition (scenario uncertainty); (2) uncertainties in

[[Page 20932]]

modeling the climate response (Global Circulation Model uncertainty); 
(3) uncertainties in the observational data sets used as the basemap 
for the debiasing procedure (historical observational uncertainty); and 
(4) uncertainty over the validity of assumptions underlying the change-
factor approach (change-factor uncertainty). These uncertainties are a 
general phenomenon of climate model downscaling and they can be 
substantial, especially the first two (Tabor and Williams 2010, pp. 
562, 564). Thus, discretion is necessary when using downscaled climate 
projections, because downscaling Global Circulation Models to the 
finest available resolution may produce misleading results (Tabor and 
Williams 2010, p. 564). Southern California has a unique and globally 
rare Mediterranean climate. Summers are typically dry and hot while 
winters are cool, with minimal rainfall averaging about 10 inches per 
year. The maritime influence of the Pacific Ocean combined with the 
coastal and inland mountain ranges creates an inversion layer typical 
of Mediterranean-like climates, particularly in southern California. 
These conditions also create microclimates, where the weather can be 
highly variable within small geographic areas at the same time. These 
microclimates are difficult to model and make it even more difficult to 
predict meaningful changes in climate for this region, specifically for 
small local areas, and the resultant impact on the Hermes copper 
butterfly and its habitat.
    We evaluated the available historical weather data and the species 
biology to determine the likelihood of effects assuming the climate has 
been and will continue to change. The typical effect of a warmer 
climate, as observed with Hermes copper butterfly in lower, warmer 
elevation habitats compared to higher, cooler elevations, is an earlier 
flight season by several days (Thorne 1963, p. 146; Marschalek and 
Deutschman 2008, p. 98). Marschalek and Klein (2010, p. 2) noted that 
past records suggest a slightly earlier flight season in recent years 
compared to the 1960s. The earliest published day of flight prior to 
1963, after ``30 years of extensive collecting,'' was May 20 (Thorne 
1963, pp. 143, 146), but adults began flying on May 16 and May 12 in 
2003 and 2004, respectively (Marschalek and Deutschman 2008, p. 100), 
and were reported as early as April 29 in 2003, and May 14 in 2008 
(CFWO GIS database). The record early observation on April 29, 2003, 
was from Fortuna Mountain in Mission Trails Park, a well-collected 
population with records dating back to 1958, including collections by 
Thorne (called ``Mission Gorge'' or ``Mission Dam'' on museum specimen 
labels) where May 21 was the earliest documented record from the 1960s 
and early 1970s (before climate change trends were reasonably 
detectable as described by the IPCC (2007, pp. 2, 4)). The historical 
temperature trend in Hermes copper butterfly habitats for the month of 
April (when larvae are typically developing and pupating) from 1957 to 
2006 can be calculated with relatively high confidence (p values from 
0.001 to 0.05). The rate of temperature change has been an increase of 
0.04 to 0.07 [deg]F (0.07 to 0.13 [deg]C) per year (Climate Wizard 
2010), a total increase of which could explain the earlier than average 
flight seasons. The latest published observation date (presumed end of 
flight season) of an adult prior to 1970 was on July 30, 1967 (museum 
specimen collected by Thorne at ``Suncrest''); however, the latest 
observation date from monitoring and data and other records in the past 
10 years was on July 2 in 2010, despite an uncharacteristically late 
start to the flight season (May 29). Shorter flight seasons are also 
consistent with higher average temperatures, as a higher metabolism in 
these exothermic short-lived invertebrates typically results in faster 
growth and earlier death. Nevertheless, given the temporal and 
geographical availability of their widespread perennial host plant, and 
exposure to extremes of climate throughout their known historical range 
(Thorne 1963, p. 144), Hermes copper butterfly and its host and nectar 
plants are not likely to be negatively affected throughout the majority 
of the species' range by phenological shifts in development of a few 
days (unlike species such as Edith's checkerspot (Euphydryas editha) 
that depend on annual host plants; Service 2003, pp. 63, 64). While it 
is possible the species' climatic tolerance, such as temperature 
thresholds for activity (see Background section above), could result in 
a change in the species niche and distribution of suitable habitat as 
the climate changes, predicting any such changes would be speculative 
because we do not understand what currently limits the species' range 
to a much smaller geographic area than its host plant. Based on the 
above, we do not consider global climate change a current threat to 
Hermes copper butterfly.
Mexico Populations
    Although wildfire and isolation of small populations may be threats 
to Hermes copper butterfly and its habitat in Mexico, especially near 
the U.S. border where the human population and development is most 
concentrated (see for example National Aeronautics and Space 
Administration's 2010 October 24 update wildfire satellite imagery that 
includes Baja California, Mexico), these threats are likely of less 
magnitude because there is far less development in the more remote 
areas of Baja California that may support Hermes copper butterfly. We 
are not aware of any conservation activities related to Hermes copper 
butterfly in Mexico.
Summary of Factor E
    In summary, we consider Hermes copper butterfly threatened by other 
natural or manmade factors affecting the species' continued existence. 
Specifically, Hermes copper butterfly is threatened with extirpation 
due to wildfire (megafire), restricted geographical range, and 
population isolation. The loss of populations, due to megafires and 
population fragmentation and isolation, inhibits the ability of Hermes 
copper butterfly to rebound from stochastic events such as megafires. 
These threats are evidenced by the loss of populations in the north and 
south of the U.S. range and subsequent isolation of other populations 
throughout the range. The remaining extant populations fall within a 
restricted area bounded by development and face high megafire risk. 
Thus, we consider threats under this factor to be significant.

Finding

    As required by the Act, we conducted a review of the status of the 
species and considered the five factors in assessing whether Hermes 
copper butterfly is endangered or threatened throughout all or a 
significant portion of its range. We examined the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by Hermes copper butterfly. We reviewed the 
petition, information available in our files, other available published 
and unpublished information, and we consulted with Hermes copper 
butterfly experts and other Federal, State, and local jurisdictions.
    This status review identified threats to Hermes copper butterfly 
attributable primarily to ``megafires'' (large wildfires) and small and 
isolated populations (Factor E), and to a lesser extent, habitat loss 
due to increased wildfire frequency and due to fragmentation resulting 
from the combined impacts of existing development, possible future 
(limited) development, existing dispersal barriers, and megafires 
(Factor A). The primary

[[Page 20933]]

threats to the species are mortality from wildfire and small population 
size. These threats increase the risk of extirpation of Hermes copper 
butterfly populations rangewide. Hermes copper butterfly occupies 
scattered areas of sage scrub and chaparral habitat in an arid region 
susceptible to wildfires of increasing frequency and size. The 
likelihood that the species will be burned by catastrophic wildfires, 
combined with the isolation and small size of extant populations makes 
Hermes copper butterfly particularly vulnerable to population 
extirpation rangewide. Therefore, we find that there are threats of 
sufficient imminence, intensity, or magnitude to indicate that Hermes 
copper butterfly is in danger of extinction (endangered), or likely to 
become endangered within the foreseeable future (threatened), 
throughout its range or a significant portion of its range based on the 
threats described above.
    On the basis of the best scientific and commercial information 
available, we find that the petitioned action to list Hermes copper 
butterfly is warranted. We will make a determination on the status of 
the species as endangered or threatened when we do a proposed listing 
determination. However, as explained in more detail below, immediate 
proposal of a regulation to implement this finding is precluded by 
higher priority listing actions, and we are making expeditious progress 
to add or remove qualified species from the Lists of Endangered and 
Threatened Wildlife and Plants.
    We reviewed the available information to determine if the existing 
and foreseeable threats render Hermes copper butterfly at risk of 
extinction now such that issuing an emergency regulation temporarily 
listing the species under section 4(b)(7) of the Act is warranted. We 
determined that issuing an emergency regulation temporarily listing the 
species is not warranted at this time, because the threat of extinction 
is not immediate. However, if at any time we determine that issuing an 
emergency regulation temporarily listing the species is warranted, we 
will initiate such action at that time.

Listing Priority Number

    The Service adopted guidelines on September 21, 1983 (48 FR 43098) 
to establish a rational system for utilizing available resources for 
the highest priority species when adding species to the Lists of 
Endangered or Threatened Wildlife and Plants or reclassifying species 
listed as threatened to endangered status. The system places the 
greatest emphasis on taxonomic distinctiveness by assigning priority in 
descending order to monotypic genera (genus with one species), full 
species, and subspecies.
    Using the Service's LPN guidance, we assign each candidate an LPN 
of 1 to 12, depending on the magnitude of threats (high vs. moderate to 
low), immediacy of threats (imminent or nonimminent), and taxonomic 
status of the species (in order of priority: Monotypic genus (a species 
that is the sole member of a genus), species, or part of a species 
(subspecies, distinct population segment, or significant portion of the 
range)). The lower the listing priority number, the higher the listing 
priority (that is, a species with an LPN of 1 would have the highest 
listing priority).
    Under the Service's guidelines, the magnitude of threat is the 
first criterion we look at when establishing a listing priority. The 
guidance indicates that species with the highest magnitude of threat 
are those species facing the greatest threats to their continued 
existence. These species receive the highest listing priority. The 
threats that Hermes copper butterfly faces are high in magnitude 
because the major threats (particularly mortality due to wildfire and 
increased wildfire frequency) occur throughout all of the species' 
range and are likely to result in adverse impacts to the status of the 
species. Based on an evaluation of all known historical populations, 
approximately 49 percent are believed to have been extirpated. 
Historical records indicate that development has isolated and modified 
habitats in the northern portion of the U.S. range. The isolation of 
these habitats has inhibited the species' ability to recolonize after 
stochastic events such as wildfires. When a wildfire passes through an 
occupied area, it is highly likely that all individuals or eggs, if 
present, within the area are killed (see discussion under Factor E: 
Wildfire above). As populations become more isolated from other 
occupied areas, their ability to recolonize after such events is lost. 
As described in the discussions of wildlife under Factors A and E 
above, wildfires are increasing in frequency and magnitude which 
increases the potential for isolation of populations and, in turn, 
increases the risk of extirpation rangewide.
    Under our LPN guidelines, the second criterion we consider in 
assigning a listing priority is the immediacy of threats. This 
criterion is intended to ensure that the species that face actual, 
identifiable threats are given priority over those for which threats 
are only potential or that are intrinsically vulnerable but are not 
known to be presently facing such threats. Hermes copper butterfly 
faces actual, identifiable threats as discussed under Factors A and E 
of this finding, including the threat of a large, high-intensity 
wildfire (megafire) capable of killing Hermes copper butterfly 
populations and destroying or modifying the species' habitat in a way 
that would cause a rangewide reduction in populations; however, the 
impact of wildfire to Hermes copper butterfly and its habitat occurs on 
a sporadic basis and we do not have the ability to predict when 
wildfires will occur. While we conclude that listing Hermes copper 
butterfly is warranted, an immediate proposal to list this species is 
precluded by other higher priority listings, which we address below.
    The third criterion in our LPN guidance is intended to devote 
resources to those species representing highly distinctive or isolated 
gene pools as reflected by taxonomy. Hermes copper butterfly is a valid 
taxon at the species level. Hermes copper butterfly faces high 
magnitude, non-imminent threats, and is a valid taxon at the species 
level. Thus, in accordance with our LPN guidance (48 FR 43098, 
September 21, 1983), we have assigned Hermes copper butterfly an LPN of 
5.
    As a result of our analysis of the best available scientific and 
commercial information, we assigned Hermes copper butterfly a Listing 
Priority Number of 5, based on species level taxonomic classification 
and high magnitude but nonimminent threats. Hermes copper butterfly is 
threatened by megafires, habitat fragmentation, and the effects of 
restricted range and small population size throughout all of the known 
populations in the United States. The effect of past habitat 
fragmentation is considered irreversible and has continuing impacts 
over the range of the species. The threat of wildfire continues to 
exist throughout the species range; however, the impact of wildfire on 
Hermes copper butterfly and its habitat occurs on a sporadic basis and 
we do not have the ability to predict when wildfires will occur. While 
we conclude that listing Hermes copper butterfly is warranted, an 
immediate proposal to list this species is precluded by other higher 
priority listings, which we address below.
    We will continue to monitor the threats to Hermes copper butterfly, 
and the species' status on an annual basis, and should the magnitude or 
the imminence of the threats change, we will revisit our assessment of 
the LPN.
    Work on a proposed listing determination for Hermes copper

[[Page 20934]]

butterfly is precluded by work on higher priority listing actions with 
absolute statutory, court-ordered, or court-approved deadlines and 
final listing determinations for those species that were proposed for 
listing with funds from Fiscal Year 2011. This work includes all the 
actions listed in the tables below under expeditious progress.

Preclusion and Expeditious Progress

    Preclusion is a function of the listing priority of a species in 
relation to the resources that are available and the cost and relative 
priority of competing demands for those resources. Thus, in any given 
fiscal year (FY), multiple factors dictate whether it will be possible 
to undertake work on a listing proposal or whether promulgation of such 
a proposal is precluded by higher priority listing actions.
    The resources available for listing actions are determined through 
the annual Congressional appropriations process. The appropriation for 
the Listing Program is available to support work involving the 
following listing actions: Proposed and final listing rules; 90-day and 
12-month findings on petitions to add species to the Lists of 
Endangered and Threatened Wildlife and Plants (Lists) or to change the 
status of a species from threatened to endangered; annual 
``resubmitted'' petition findings on prior warranted-but-precluded 
petition findings as required under section 4(b)(3)(C)(i) of the Act; 
critical habitat petition findings; proposed and final rules 
designating critical habitat; and litigation-related, administrative, 
and program-management functions (including preparing and allocating 
budgets, responding to Congressional and public inquiries, and 
conducting public outreach regarding listing and critical habitat). The 
work involved in preparing various listing documents can be extensive 
and may include, but is not limited to: Gathering and assessing the 
best scientific and commercial data available and conducting analyses 
used as the basis for our decisions; writing and publishing documents; 
and obtaining, reviewing, and evaluating public comments and peer 
review comments on proposed rules and incorporating relevant 
information into final rules. The number of listing actions that we can 
undertake in a given year also is influenced by the complexity of those 
listing actions; that is, more complex actions generally are more 
costly. The median cost for preparing and publishing a 90-day finding 
is $39,276; for a 12-month finding, $100,690; for a proposed rule with 
critical habitat, $345,000; and for a final listing rule with critical 
habitat, $305,000.
    We cannot spend more than is appropriated for the Listing Program 
without violating the Anti-Deficiency Act (see 31 U.S.C. 
1341(a)(1)(A)). In addition, in FY 1998 and for each fiscal year since 
then, Congress has placed a statutory cap on funds that may be expended 
for the Listing Program, equal to the amount expressly appropriated for 
that purpose in that fiscal year. This cap was designed to prevent 
funds appropriated for other functions under the Act (for example, 
recovery funds for removing species from the Lists), or for other 
Service programs, from being used for Listing Program actions (see 
House Report 105-163, 105th Congress, 1st Session, July 1, 1997).
    Since FY 2002, the Service's budget has included a critical habitat 
subcap to ensure that some funds are available for other work in the 
Listing Program (``The critical habitat designation subcap will ensure 
that some funding is available to address other listing activities'' 
(House Report No. 107-103, 107th Congress, 1st Session, June 19, 
2001)). In FY 2002 and each year until FY 2006, the Service has had to 
use virtually the entire critical habitat subcap to address court-
mandated designations of critical habitat, and consequently none of the 
critical habitat subcap funds have been available for other listing 
activities. In some FYs since 2006, we have been able to use some of 
the critical habitat subcap funds to fund proposed listing 
determinations for high-priority candidate species. In other FYs, while 
we were unable to use any of the critical habitat subcap funds to fund 
proposed listing determinations, we did use some of this money to fund 
the critical habitat portion of some proposed listing determinations so 
that the proposed listing determination and proposed critical habitat 
designation could be combined into one rule, thereby being more 
efficient in our work. At this time, for FY 2011, we do not know if we 
will be able to use some of the critical habitat subcap funds to fund 
proposed listing determinations.
    We make our determinations of preclusion on a nationwide basis to 
ensure that the species most in need of listing will be addressed first 
and also because we allocate our listing budget on a nationwide basis. 
Through the listing cap, the critical habitat subcap, and the amount of 
funds needed to address court-mandated critical habitat designations, 
Congress and the courts have in effect determined the amount of money 
available for other listing activities nationwide. Therefore, the funds 
in the listing cap, other than those needed to address court-mandated 
critical habitat for already listed species, set the limits on our 
determinations of preclusion and expeditious progress.
    Congress identified the availability of resources as the only basis 
for deferring the initiation of a rulemaking that is warranted. The 
Conference Report accompanying Public Law 97-304 (Endangered Species 
Act Amendments of 1982), which established the current statutory 
deadlines and the warranted-but-precluded finding, states that the 
amendments were ``not intended to allow the Secretary to delay 
commencing the rulemaking process for any reason other than that the 
existence of pending or imminent proposals to list species subject to a 
greater degree of threat would make allocation of resources to such a 
petition [that is, for a lower-ranking species] unwise.'' Although that 
statement appeared to refer specifically to the ``to the maximum extent 
practicable'' limitation on the 90-day deadline for making a 
``substantial information'' finding (see 16 U.S.C. 1533(b)(3)(A)), that 
finding is made at the point when the Service is deciding whether or 
not to commence a status review that will determine the degree of 
threats facing the species, and therefore the analysis underlying the 
statement is more relevant to the use of the warranted-but-precluded 
finding, which is made when the Service has already determined the 
degree of threats facing the species and is deciding whether or not to 
commence a rulemaking.
    In FY 2011, on March 18, 2010, Congress passed a continuing 
resolution which provides funding at the FY 2010 enacted level through 
April 8, 2011. Until Congress appropriates funds for FY 2011 at a 
different level, we will fund listing work based on the FY 2010 amount. 
Thus, at this time in FY 2011, the Service anticipates an appropriation 
of $22,103,000 based on FY 2010 appropriations. Of that, the Service 
must dedicate $11,632,000 for determinations of critical habitat for 
already listed species. Also $500,000 is appropriated for foreign 
species listings under the Act. The Service thus has $9,971,000 
available to fund work in the following categories: compliance with 
court orders and court-approved settlement agreements requiring that 
petition findings or listing determinations be completed by a specific 
date; section 4 (of the Act) listing actions with absolute statutory 
deadlines; essential litigation-related, administrative, and listing 
program-management functions; and high-priority listing actions for 
some of our

[[Page 20935]]

candidate species. In FY 2010, the Service received many new petitions 
and a single petition to list 404 species. The receipt of petitions for 
a large number of species is consuming the Service's listing funding 
that is not dedicated to meeting court-ordered commitments. Absent some 
ability to balance effort among listing duties under existing funding 
levels, it is unlikely that the Service will be able to initiate any 
new listing determinations for candidate species in FY 2011.
    In 2009, the responsibility for listing foreign species under the 
Act was transferred from the Division of Scientific Authority, 
International Affairs Program, to the Endangered Species Program. 
Therefore, starting in FY 2010, we used a portion of our funding to 
work on the actions described above for listing actions related to 
foreign species. In FY 2011, we anticipate using $1,500,000 for work on 
listing actions for foreign species, which reduces funding available 
for domestic listing actions; however, currently only $500,000 has been 
allocated for this function. Although there are no foreign species 
issues included in our high-priority listing actions at this time, many 
actions have statutory or court-approved settlement deadlines, thus 
increasing their priority. The budget allocations for each specific 
listing action are identified in the Service's FY 2011 Allocation Table 
(part of our administrative record).
    For the above reasons, funding a proposed listing determination for 
the Hermes copper butterfly is precluded by court-ordered and court-
approved settlement agreements, listing actions with absolute statutory 
deadlines, work on final listing determinations for those species that 
were proposed for listing with funds from FY 2011, and work on proposed 
listing determinations for those candidate species with a higher 
listing priority (i.e., candidate species with LPNs of 1 to 4).
    Based on our September 21, 1983, guidelines for assigning an LPN 
for each candidate species (48 FR 43098), we have a significant number 
of species with a LPN of 2. Using these guidelines, we assign each 
candidate an LPN of 1 to 12, depending on the magnitude of threats 
(high or moderate to low), immediacy of threats (imminent or 
nonimminent), and taxonomic status of the species (in order of 
priority: monotypic genus (a species that is the sole member of a 
genus); species; or part of a species (subspecies, distinct population 
segment, or significant portion of the range)). The lower the listing 
priority number, the higher the listing priority (that is, a species 
with an LPN of 1 would have the highest listing priority).
    Because of the large number of high-priority species, we have 
further ranked the candidate species with an LPN of 2 by using the 
following extinction-risk type criteria: International Union for the 
Conservation of Nature and Natural Resources (IUCN) Red list status/
rank; Heritage rank (provided by NatureServe); Heritage threat rank 
(provided by NatureServe); and species currently with fewer than 50 
individuals, or 4 or fewer populations. Those species with the highest 
IUCN rank (critically endangered); the highest Heritage rank (G1); the 
highest Heritage threat rank (substantial, imminent threats); and 
currently with fewer than 50 individuals, or fewer than 4 populations, 
originally comprised a group of approximately 40 candidate species 
(``Top 40''). These 40 candidate species have had the highest priority 
to receive funding to work on a proposed listing determination. As we 
work on proposed and final listing rules for those 40 candidates, we 
apply the ranking criteria to the next group of candidates with an LPN 
of 2 and 3 to determine the next set of highest priority candidate 
species. Finally, proposed rules for reclassification of threatened 
species to endangered are lower priority, because as listed species, 
they are already afforded the protections of the Act and implementing 
regulations. However, for efficiency reasons, we may choose to work on 
a proposed rule to reclassify a species to endangered if we can combine 
this with work that is subject to a court-determined deadline.
    With our workload so much bigger than the amount of funds we have 
to accomplish it, it is important that we be as efficient as possible 
in our listing process. Therefore, as we work on proposed rules for the 
highest priority species in the next several years, we are preparing 
multi-species proposals when appropriate, and these may include species 
with lower priority if they overlap geographically or have the same 
threats as a species with an LPN of 2. In addition, we take into 
consideration the availability of staff resources when we determine 
which high-priority species will receive funding to minimize the amount 
of time and resources required to complete each listing action.
    As explained above, a determination that listing is warranted but 
precluded must also demonstrate that expeditious progress is being made 
to add and remove qualified species to and from the Lists of Endangered 
and Threatened Wildlife and Plants. As with our ``warranted-but-
precluded'' finding, the evaluation of whether progress in adding 
qualified species to the Lists has been expeditious is a function of 
the resources available for listing and the competing demands for those 
funds. (Although we do not discuss it in detail here, we are also 
making expeditious progress in removing species from the list under the 
Recovery program in light of the resource available for delisting, 
which is funded by a separate line item in the budget of the Endangered 
Species Program. So far during FY 2011, we have completed one delisting 
rule; see 76 FR 3029.) Given the limited resources available for 
listing, we find that we are making expeditious progress in FY 2011. 
This progress includes preparing and publishing the following 
determinations:

                                        FY 2011 Completed Listing Actions
----------------------------------------------------------------------------------------------------------------
    Publication date               Title                   Actions                        FR pages
----------------------------------------------------------------------------------------------------------------
10/6/2010...............  Endangered Status for    Proposed Listing,        75 FR 61664-61690.
                           the Altamaha             Endangered.
                           Spinymussel and
                           Designation of
                           Critical Habitat.
10/7/2010...............  12-Month Finding on a    Notice of 12-month       75 FR 62070-62095.
                           Petition to list the     petition finding, Not
                           Sacramento Splittail     warranted.
                           as Endangered or
                           Threatened.
10/28/2010..............  Endangered Status and    Proposed Listing,        75 FR 66481-66552.
                           Designation of           Endangered (uplisting).
                           Critical Habitat for
                           Spikedace and Loach
                           Minnow.
11/2/2010...............  90-Day Finding on a      Notice of 90-day         75 FR 67341-67343.
                           Petition to List the     Petition Finding, Not
                           Bay Springs Salamander   substantial.
                           as Endangered.
11/2/2010...............  Determination of         Final Listing,           75 FR 67511-67550.
                           Endangered Status for    Endangered.
                           the Georgia Pigtoe
                           Mussel, Interrupted
                           Rocksnail, and Rough
                           Hornsnail and
                           Designation of
                           Critical Habitat.

[[Page 20936]]

 
11/2/2010...............  Listing the Rayed Bean   Proposed Listing,        75 FR 67551-67583.
                           and Snuffbox as          Endangered.
                           Endangered.
11/4/2010...............  12-Month Finding on a    Notice of 12-month       75 FR 67925-67944.
                           Petition to List         petition finding,
                           Cirsium wrightii         Warranted but
                           (Wright's Marsh          precluded.
                           Thistle) as Endangered
                           or Threatened.
12/14/2010..............  Endangered Status for    Proposed Listing,        75 FR 77801-77817.
                           Dunes Sagebrush Lizard.  Endangered.
12/14/2010..............  12-Month Finding on a    Notice of 12-month       75 FR 78029-78061.
                           Petition to List the     petition finding,
                           North American           Warranted but
                           Wolverine as             precluded.
                           Endangered or
                           Threatened.
12/14/2010..............  12-Month Finding on a    Notice of 12-month       75 FR 78093-78146.
                           Petition to List the     petition finding,
                           Sonoran Population of    Warranted but
                           the Desert Tortoise as   precluded.
                           Endangered or
                           Threatened.
12/15/2010..............  12-Month Finding on a    Notice of 12-month       75 FR 78513-78556.
                           Petition to List         petition finding,
                           Astragalus microcymbus   Warranted but
                           and Astragalus           precluded.
                           schmolliae as
                           Endangered or
                           Threatened.
12/28/2010..............  Listing Seven Brazilian  Final Listing,           75 FR 81793-81815.
                           Bird Species as          Endangered.
                           Endangered Throughout
                           Their Range.
1/4/2011................  90-Day Finding on a      Notice of 90-day         76 FR 304-311.
                           Petition to List the     Petition Finding, Not
                           Red Knot subspecies      substantial.
                           Calidris canutus
                           roselaari as
                           Endangered.
1/19/2011...............  Endangered Status for    Proposed Listing,        76 FR 3392-3420.
                           the Sheepnose and        Endangered.
                           Spectaclecase Mussels.
2/10/2011...............  12-Month Finding on a    Notice of 12-month       76 FR 7634-7679.
                           Petition to List the     petition finding,
                           Pacific Walrus as        Warranted but
                           Endangered or            precluded.
                           Threatened.
2/17/2011...............  90-Day Finding on a      Notice of 90-day         76 FR 9309-9318.
                           Petition to List the     Petition Finding,
                           Sand Verbena Moth as     Substantial.
                           Endangered or
                           Threatened.
2/22/2011...............  Determination of         Final Listing,           76 FR 9681-9692.
                           Threatened Status for    Threatened.
                           the New Zealand-
                           Australia Distinct
                           Population Segment of
                           the Southern
                           Rockhopper Penguin.
2/22/2011...............  12-Month Finding on a    Notice of 12-month       76 FR 9722-9733.
                           Petition to List         petition finding,
                           Solanum conocarpum       Warranted but
                           (marron bacora) as       precluded.
                           Endangered.
2/23/2011...............  12-Month Finding on a    Notice of 12-month       76 FR 991-1003.
                           Petition to List         petition finding, Not
                           Thorne's Hairstreak      warranted.
                           Butterfly as
                           Endangered.
2/23/2011...............  12-Month Finding on a    Notice of 12-month       76 FR 10166-10203.
                           Petition to List         petition finding,
                           Astragalus hamiltonii,   Warranted but
                           Penstemon flowersii,     precluded & Not
                           Eriogonum soredium,      Warranted.
                           Lepidium ostleri, and
                           Trifolium friscanum as
                           Endangered or
                           Threatened.
2/24/2011...............  90-Day Finding on a      Notice of 90-day         76 FR 10299-10310.
                           Petition to List the     Petition Finding, Not
                           Wild Plains Bison or     substantial.
                           Each of Four Distinct
                           Population Segments as
                           Threatened.
2/24/2011...............  90-Day Finding on a      Notice of 90-day         76 FR 10310-10319.
                           Petition to List the     Petition Finding, Not
                           Unsilvered Fritillary    substantial.
                           Butterfly as
                           Threatened or
                           Endangered.
3/8/2011................  12-Month Finding on a    Notice of 12-month       76 FR 12667-12683.
                           Petition to List the     petition finding,
                           Mt. Charleston Blue      Warranted but
                           Butterfly as             precluded.
                           Endangered or
                           Threatened.
3/8/2011................  90-Day Finding on a      Notice of 90-day         76 FR 12683-12690.
                           Petition to List the     Petition Finding,
                           Texas Kangaroo Rat as    Substantial.
                           Endangered or
                           Threatened.
3/10/2011...............  Initiation of Status     Notice of Status Review  76 FR 13121-31322.
                           Review for Longfin
                           Smelt.
3/15/2011...............  Withdrawal of Proposed   Proposed rule            76 FR 14210-14268.
                           Rule to List the Flat-   withdrawal.
                           tailed Horned Lizard
                           as Threatened.
3/22/2011...............  12-Month Finding on a    Notice of 12-month       76 FR 15919-15932.
                           Petition to List the     petition finding,
                           Berry Cave Salamander    Warranted but
                           as Endangered.           precluded.
4/1/2011................  90-Day Finding on a      Notice of 90-day         76 FR 18138-18143.
                           Petition to List the     Petition Finding,
                           Spring Pygmy Sunfish     Substantial.
                           as Endangered.
4/5/2011................  12-Month Finding on a    Notice of 12-month       76 FR 18684-18701.
                           Petition to List the     petition finding, Not
                           Bearmouth                Warranted and
                           Mountainsnail, Byrne     Warranted but
                           Resort Mountainsnail,    precluded.
                           and Meltwater Lednian
                           Stonefly as Endangered
                           or Threatened.
4/5/2011................  90-Day Finding on a      Notice of 90-day         76 FR 18701-18706.
                           Petition To List the     Petition Finding,
                           Peary Caribou and        Substantial.
                           Dolphin and Union
                           population of the
                           Barren-ground Caribou
                           as Endangered or
                           Threatened.
----------------------------------------------------------------------------------------------------------------

    Our expeditious progress also includes work on listing actions that 
we funded in FY 2010 and FY 2011 but have not yet been completed to 
date. These actions are listed below. Actions in the top section of the 
table are being conducted under a deadline set by a court. Actions in 
the middle section of the table are being conducted to meet statutory 
timelines, that is, timelines required under the Act. Actions in the 
bottom section of the table are high-priority listing actions. These 
actions include work primarily on species with an LPN of 2, and, as 
discussed above, selection of these species is partially based on 
available staff resources, and when appropriate, include species with a 
lower priority if they overlap geographically or have the same threats 
as the species with the high priority. Including these species together 
in the same proposed rule results in considerable savings in time and 
funding, when compared to preparing separate proposed rules for each of 
them in the future.

       Actions Funded in FY 2010 and FY 2011 But Not Yet Completed
------------------------------------------------------------------------
             Species                               Action
------------------------------------------------------------------------
           Actions Subject to Court Order/Settlement Agreement
------------------------------------------------------------------------
Mountain plover \4\..............  Final listing determination.

[[Page 20937]]

 
Hermes copper butterfly \3\......  12-month petition finding.
4 parrot species (military macaw,  12-month petition finding.
 yellow-billed parrot, red-
 crowned parrot, scarlet macaw)
 \5\.
4 parrot species (blue-headed      12-month petition finding.
 macaw, great green macaw, grey-
 cheeked parakeet, hyacinth
 macaw) \5\.
4 parrots species (crimson         12-month petition finding.
 shining parrot, white cockatoo,
 Philippine cockatoo, yellow-
 crested cockatoo) \5\.
Utah prairie dog (uplisting).....  90-day petition finding.
------------------------------------------------------------------------
                    Actions With Statutory Deadlines
------------------------------------------------------------------------
Casey's june beetle..............  Final listing determination.
6 Birds from Eurasia.............  Final listing determination.
5 Bird species from Colombia and   Final listing determination.
 Ecuador.
Queen Charlotte goshawk..........  Final listing determination.
5 species southeast fish           Final listing determination.
 (Cumberland darter, rush darter,
 yellowcheek darter, chucky
 madtom, and laurel dace) \4\.
Ozark hellbender \4\.............  Final listing determination.
Altamaha spinymussel \3\.........  Final listing determination.
3 Colorado plants (Ipomopsis       Final listing determination.
 polyantha (Pagosa Skyrocket),
 Penstemon debilis (Parachute
 Beardtongue), and Phacelia
 submutica (DeBeque Phacelia))
 \4\.
Salmon crested cockatoo..........  Final listing determination.
6 Birds from Peru & Bolivia......  Final listing determination.
Loggerhead sea turtle (assist      Final listing determination.
 National Marine Fisheries
 Service) \5\.
2 mussels (rayed bean (LPN = 2),   Final listing determination.
 snuffbox No LPN) \5\.
CA golden trout \4\..............  12-month petition finding.
Black-footed albatross...........  12-month petition finding.
Mojave fringe-toed lizard \1\....  12-month petition finding.
Kokanee--Lake Sammamish            12-month petition finding.
 population \1\.
Cactus ferruginous pygmy-owl \1\.  12-month petition finding.
Northern leopard frog............  12-month petition finding.
Tehachapi slender salamander.....  12-month petition finding.
Coqui Llanero....................  12-month petition finding/Proposed
                                    listing.
Dusky tree vole..................  12-month petition finding.
5 WY plants (Abronia ammophila,    12-month petition finding.
 Agrostis rossiae, Astragalus
 proimanthus, Boechere (Arabis)
 pusilla, Penstemon gibbensii)
 from 206 species petition.
Leatherside chub (from 206         12-month petition finding.
 species petition).
Frigid ambersnail (from 206        12-month petition finding.
 species petition) \3\.
Platte River caddisfly (from 206   12-month petition finding.
 species petition) \5\.
Gopher tortoise--eastern           12-month petition finding.
 population.
Grand Canyon scorpion (from 475    12-month petition finding.
 species petition).
Anacroneuria wipukupa (a stonefly  12-month petition finding.
 from 475 species petition) \4\.
3 Texas moths (Ursia furtiva,      12-month petition finding.
 Sphingicampa blanchardi, Agapema
 galbina) (from 475 species
 petition).
2 Texas shiners (Cyprinella sp.,   12-month petition finding.
 Cyprinella lepida) (from 475
 species petition).
3 South Arizona plants (Erigeron   12-month petition finding.
 piscaticus, Astragalus
 hypoxylus, Amoreuxia gonzalezii)
 (from 475 species petition).
5 Central Texas mussel species (3  12-month petition finding.
 from 475 species petition).
14 parrots (foreign species).....  12-month petition finding.
Striped newt \1\.................  12-month petition finding.
Fisher--Northern Rocky Mountain    12-month petition finding.
 Range \1\.
Mohave ground squirrel \1\.......  12-month petition finding.
Puerto Rico harlequin butterfly    12-month petition finding.
 \3\.
Western gull-billed tern.........  12-month petition finding.
Ozark chinquapin (Castanea pumila  12-month petition finding.
 var. ozarkensis) \4\.
HI yellow-faced bees.............  12-month petition finding.
Giant Palouse earthworm..........  12-month petition finding.
Whitebark pine...................  12-month petition finding.
OK grass pink (Calopogon           12-month petition finding.
 oklahomensis) \1\.
Ashy storm-petrel \5\............  12-month petition finding.
Honduran emerald.................  12-month petition finding.
Southeastern pop snowy plover &    90-day petition finding.
 wintering pop. of piping plover
 \1\.
Eagle Lake trout \1\.............  90-day petition finding.
Smooth-billed ani \1\............  90-day petition finding.
32 Pacific Northwest mollusks      90-day petition finding.
 species (snails and slugs) \1\.
42 snail species (Nevada & Utah).  90-day petition finding.
Peary caribou....................  90-day petition finding.
Spring Mountains checkerspot       90-day petition finding.
 butterfly.
Spring pygmy sunfish.............  90-day petition finding.
Bay skipper......................  90-day petition finding.
Spot-tailed earless lizard.......  90-day petition finding.
Eastern small-footed bat.........  90-day petition finding.
Northern long-eared bat..........  90-day petition finding.
Prairie chub.....................  90-day petition finding.
10 species of Great Basin          90-day petition finding.
 butterfly.
6 sand dune (scarab) beetles.....  90-day petition finding.

[[Page 20938]]

 
Golden-winged warbler \4\........  90-day petition finding.
404 Southeast species............  90-day petition finding.
Franklin's bumble bee \4\........  90-day petition finding.
2 Idaho snowflies (straight        90-day petition finding.
 snowfly & Idaho snowfly) \4\.
American eel \4\.................  90-day petition finding.
Gila monster (Utah population)     90-day petition finding.
 \4\.
Arapahoe snowfly \4\.............  90-day petition finding.
Leona's little blue \4\..........  90-day petition finding.
Aztec gilia \5\..................  90-day petition finding.
White-tailed ptarmigan \5\.......  90-day petition finding.
San Bernardino flying squirrel     90-day petition finding.
 \5\.
Bicknell's thrush \5\............  90-day petition finding.
Chimpanzee.......................  90-day petition finding.
Sonoran talussnail \5\...........  90-day petition finding.
2 AZ Sky Island plants             90-day petition finding.
 (Graptopetalum bartrami & Pectis
 imberbis) \5\.
I'iwi \5\........................  90-day petition finding.
------------------------------------------------------------------------
                      High-Priority Listing Actions
------------------------------------------------------------------------
19 Oahu candidate species \2\ (16  Proposed listing.
 plants, 3 damselflies) (15 with
 LPN = 2, 3 with LPN = 3, 1 with
 LPN = 9).
19 Maui-Nui candidate species \2\  Proposed listing.
 (16 plants, 3 tree snails) (14
 with LPN = 2, 2 with LPN = 3, 3
 with LPN = 8).
2 Arizona springsnails \2\         Proposed listing.
 (Pyrgulopsis bernadina (LPN =
 2), Pyrgulopsis trivialis (LPN =
 2)).
Chupadera springsnail \2\          Proposed listing.
 (Pyrgulopsis chupaderae (LPN =
 2)).
8 Gulf Coast mussels (southern     Proposed listing.
 kidneyshell (LPN = 2), round
 ebonyshell (LPN = 2), Alabama
 pearlshell (LPN = 2), southern
 sandshell (LPN = 5), fuzzy
 pigtoe (LPN = 5), Choctaw bean
 (LPN = 5), narrow pigtoe (LPN =
 5), and tapered pigtoe (LPN =
 11)) \4\.
Umtanum buckwheat (LPN = 2) and    Proposed listing.
 white bluffs bladderpod (LPN =
 9) \4\.
Grotto sculpin (LPN = 2) \4\.....  Proposed listing.
2 Arkansas mussels (Neosho mucket  Proposed listing.
 (LPN = 2) & rabbitsfoot (LPN =
 9)) \4\.
Diamond darter (LPN = 2) \4\.....  Proposed listing.
Gunnison sage-grouse (LPN = 2)     Proposed listing.
 \4\.
Coral Pink Sand Dunes Tiger        Proposed listing.
 Beetle (LPN = 2) \5\.
Miami blue (LPN = 3) \3\.........  Proposed listing.
Lesser prairie chicken (LPN = 2).  Proposed listing.
4 Texas salamanders (Austin blind  Proposed listing.
 salamander (LPN = 2), Salado
 salamander (LPN = 2), Georgetown
 salamander (LPN = 8), Jollyville
 Plateau (LPN = 8)) \3\.
5 SW aquatics (Gonzales Spring     Proposed listing.
 Snail (LPN = 2), Diamond Y
 springsnail (LPN = 2), Phantom
 springsnail (LPN = 2), Phantom
 Cave snail (LPN = 2), Diminutive
 amphipod (LPN = 2)) \3\.
2 Texas plants (Texas golden       Proposed listing.
 gladecress (Leavenworthia
 texana) (LPN = 2), Neches River
 rose-mallow (Hibiscus dasycalyx)
 (LPN = 2)) \3\.
4 AZ plants (Acuna cactus          Proposed listing.
 (Echinomastus erectocentrus var.
 acunensis) (LPN = 3), Fickeisen
 plains cactus (Pediocactus
 peeblesianus fickeiseniae) (LPN
 = 3), Lemmon fleabane (Erigeron
 lemmonii) (LPN = 8), Gierisch
 mallow (Sphaeralcea gierischii)
 (LPN = 2)) \5\.
FL bonneted bat (LPN = 2) \3\....  Proposed listing.
3 Southern FL plants (Florida      Proposed listing.
 semaphore cactus (Consolea
 corallicola) (LPN = 2),
 shellmound applecactus (Harrisia
 (=Cereus) aboriginum
 (=gracilis)) (LPN = 2), Cape
 Sable thoroughwort (Chromolaena
 frustrata) (LPN = 2)) \5\.
21 Big Island (HI) species \5\     Proposed listing.
 (includes 8 candidate species--5
 plants & 3 animals; 4 with LPN =
 2, 1 with LPN = 3, 1 with LPN =
 4, 2 with LPN = 8).
12 Puget Sound prairie species (9  Proposed listing.
 subspecies of pocket gopher
 (Thomomys mazama ssp.) (LPN =
 3), streaked horned lark (LPN =
 3), Taylor's checkerspot (LPN =
 3), Mardon skipper (LPN = 8))
 \3\.
2 TN River mussels (fluted         Proposed listing.
 kidneyshell (LPN = 2), slabside
 pearlymussel (LPN = 2)) \5\.
Jemez Mountain salamander (LPN =   Proposed listing.
 2) \5\.
------------------------------------------------------------------------
\1\ Funds for listing actions for these species were provided in
  previous FYs.
\2\ Although funds for these high-priority listing actions were provided
  in FY 2008 or 2009, due to the complexity of these actions and
  competing priorities, these actions are still being developed.
\3\ Partially funded with FY 2010 funds and FY 2011 funds.
\4\ Funded with FY 2010 funds.
\5\ Funded with FY 2011 funds.


[[Page 20939]]

    We have endeavored to make our listing actions as efficient and 
timely as possible, given the requirements of the relevant law and 
regulations, and constraints relating to workload and personnel. We are 
continually considering ways to streamline processes or achieve 
economies of scale, such as by batching related actions together. Given 
our limited budget for implementing section 4 of the Act, these actions 
described above collectively constitute expeditious progress.
    The Hermes copper butterfly will be added to the list of candidate 
species upon publication of this 12-month finding. We will continue to 
monitor the status of this species as new information becomes 
available. This review will determine if a change in status is 
warranted, including the need to make prompt use of emergency listing 
procedures.
    We intend that any proposed classification of the Hermes copper 
butterfly will be as accurate as possible. Therefore, we will continue 
to accept additional information and comments from all concerned 
governmental agencies, the scientific community, industry, or any other 
interested party concerning this finding.

References Cited

    A complete list of references cited is available on the internet at 
http://www.regulations.gov and upon request from the Carlsbad Fish and 
Wildlife Office (see ADDRESSES).

Authors

    The primary authors of this notice are the staff members of the 
Carlsbad Fish and Wildlife Office.

Authority

    The authority for this action is section 4 of the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: March 29, 2011.
Rowan W. Gould,
Acting Director, Fish and Wildlife Service.
[FR Doc. 2011-9028 Filed 4-13-11; 8:45 am]
BILLING CODE 4310-55-P