Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations 3875

number 1018–0094. An agency may not

conduct or sponsor, and a person is not

required to respond to a collection of

information, unless it displays a

currently valid control number. For

additional information concerning

permit and associated requirements for

endangered species, see 50 CFR 17.62.

References Cited

A complete list of all references cited

herein is available upon request from

the Oregon State Fish and Wildlife

Office (see ADDRESSES section).

Author

The primary author of this final rule

is Dr. Andrew F. Robinson, Jr., U.S. Fish

and Wildlife Service, Oregon State

Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements,

Transportation.

Regulation Promulgation

Accordingly, we amend part 17,

subchapter B of chapter I, title 50 of the

Code of Federal Regulations, as follows:

PART 17—[AMENDED]

1. The authority citation for part 17

continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C.

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500; unless otherwise noted.

2. Amend § 17.12(h) by adding the

following, in alphabetical order under

FLOWERING PLANTS, to the List of

Endangered and Threatened Plants:

§ 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

Species

Historic range Family Status When

listed

Critical

habitat

Special

rules Scientific name Common name

*******

Flowering plants

*******

Plagiobothrys

hirtus.

Rough popcornflower U.S.A. (OR) ............... Boraginaceae ............ E 678 NA NA

*******

Dated: November 30, 1999.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 00–1562 Filed 1–24–00; 8:45 am]

BILLING CODE 4310–55–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AE53

Endangered and Threatened Wildlife

and Plants; Endangered Status for

‘‘Erigeron decumbens’’ var.

‘‘decumbens’’ (Willamette Daisy) and

Fender’s Blue Butterfly (‘‘Icaricia

icarioides fenderi’’) and Threatened

Status for ‘‘Lupinus sulphureus’’ ssp.

‘‘kincaidii’’ (Kincaid’s Lupine)

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: The U.S. Fish and Wildlife

Service (‘‘Service’’ or ‘‘we’’) determines

endangered status pursuant to the

Endangered Species Act (Act) of 1973,

as amended, for a plant and a butterfly,

Erigeron decumbens var. decumbens

(Willamette daisy) and Fender’s blue

butterfly (Icaricia icarioides fenderi),

and determines threatened status for a

plant, Lupinus sulphureus ssp. kincaidii

(Kincaid’s lupine). These species are

restricted primarily to native prairie in

the Willamette Valley of Oregon and are

known currently from a few small

remnants of a formerly widespread

distribution. In addition to its Oregon

occurrences, L. sulphureus ssp.

kincaidii is known also from two small

sites in southern Washington.

Commercial and/or residential

development, agriculture, silvicultural

practices, road improvement, overcollection, herbicide use, and naturally

occurring demographic and random

environmental events threaten these

three taxa. This final rule invokes the

Federal protection and recovery

provisions of the Act, as applicable for

these plant and butterfly species.

EFFECTIVE DATES: February 24, 2000.

ADDRESSES: You may inspect the

complete file for this rule, by

appointment, during normal business

hours at the U.S. Fish and Wildlife

Service, Oregon State Office, 2600 SE

98th Ave, Suite 100, Portland, Oregon

97266.

FOR FURTHER INFORMATION CONTACT: Dr.

Andrew F. Robinson, Jr., Botanist; or

Diana Hwang, Fish and Wildlife

Biologist, U.S. Fish and Wildlife Service

(see ADDRESSES section or telephone

503–231–6179, Facsimile 503–231–

6195).

SUPPLEMENTARY INFORMATION:

Background

Fender’s blue butterfly (Icaricia

icarioides fenderi), Lupinus sulphureus

ssp. kincaidii (Kincaid’s lupine), and

Erigeron decumbens var. decumbens

(Willamette daisy) are restricted

primarily to the Willamette Valley of

Oregon. The valley is a 209-kilometer

(km) (130 miles (mi)) long and 32–64-

km (20–40-mi) wide alluvial floodplain

with an overall northward gradient (Orr

et al. 1992). The valley is narrow and

flat at its southern end, widening and

becoming hilly near its northern end at

the confluence of the Willamette and

Columbia Rivers. We know of four sites

containing L. sulphureus ssp. kincaidii

approximately 60 km (38 mi) south of

the Willamette Valley and within the

Umpqua Valley of Douglas County,

Oregon. In addition to its Oregon

occurrences, L. sulphureus ssp.

kincaidii is known from two small sites

in Lewis County, southern Washington,

70 km (40 mi) north of the Willamette

Valley.

The alluvial soils of the Willamette

Valley and southern Washington host a

mosaic of grassland, woodland, and

forest communities. Fender’s blue

butterfly, Lupinus sulphureus ssp.

kincaidii, and Erigeron decumbens var.

decumbens occupy native grassland

habitats within the Willamette Valley.

Based on the limited available evidence,

most Willamette Valley grasslands are

early seral (one stage in a sequential

3876 Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations

progression) habitats, requiring natural

or human-induced disturbance for their

maintenance (Franklin and Dryness

1973). The vast majority of Willamette

Valley grasslands would likely be

forested if left undisturbed (Johannessen

et al. 1971). Important exceptions to this

successional pattern are grass balds on

valley hillsides that may be climax

grasslands due to the presence of deep,

fine-textured, self-mulching soils or

xeric (very dry) lithosoils (Franklin and

Dryness 1973).

Two native prairie types occur in the

Willamette Valley, wet prairie and

upland prairie. Fender’s blue butterfly

and Lupinus sulphureus ssp. kincaidii

are typically found in native upland

prairie with the dominant species being

Festuca rubra (red fescue) and/or

Festuca idahoensis (Idaho fescue) and

Calochortus tolmiei (Tolmie’s

mariposa), Silene hookeri (Hooker’s

catchfly), Fragaria virginiana

(broadpetal strawberry), Sidalcea

virgata (rose check-mallow), and

Lomatium spp. (common lomatium)

serving as herbaceous indicator species

(Hammond and Wilson 1993). These

dry, fescue prairies make up the

majority of habitat for Fender’s blue

butterfly and L. sulphureus ssp.

kincaidii. Although Fender’s blue

butterfly and L. sulphureus ssp.

kincaidii are occasionally found on

steep, south-facing slopes and barren

rocky cliffs, neither of these species are

capable of occupying the most xeric

oatgrass communities on these southfacing slopes.

The primary habitat for Erigeron

decumbens var. decumbens is native

wetland prairie. This habitat is

characterized by the seasonally wet

Deschampsia caespitosa (tufted

hairgrass) community that occurs in

low, flat regions of the Willamette

Valley where flooding creates anaerobic

and strongly reducing soil conditions.

This wet prairie community includes

Juncus spp. (rush) and Danthonia

californica (California oatgrass) as codominant native species, as well as the

introduced species Festuca

arundinaceae (tall fescue), Bromus

japonicus (Japanese brome) and

Anthoxanthum odoratum (sweet vernal

grass) (USFWS 1993). Another

endangered species, Lomatium

bradshawii (Bradshaw’s lomatium) also

grows in wet prairie habitat. Atypically,

two populations of E. decumbens var.

decumbens occur on top of a dry, stony

butte in an upland prairie.

The impact of humans on the

botanical communities of the

Willamette Valley dates back several

centuries to the Kalapooya Indians, who

cleared and burned lands used for

hunting and food gathering. Early

accounts by David Douglas in 1826

indicate extensive burning of the valley

floor, from its northern end at the falls

of the Willamette River to its southern

extremities near Eugene. Burned areas

were documented by Douglas as being

so complete as to limit the forage

available for his horse and to reduce

game availability (Douglas 1972).

Accounts by other early explorers

support Douglas’ observations and

suggest a pattern of annual burning by

the Kalapooya resulted in the

maintenance of extensive wet and dry

prairie grasslands (Johannessen et al.

1971). Although much of the woody

vegetation was prevented from

becoming established on the grasslands

by this treatment, the random survival

of young fire-resistant species such as

Quercus garryana (Oregon white oak)

accounted for the widely spaced trees

on the margins of the valley (Habeck

1961). After 1848, burning decreased

sharply through the efforts of settlers to

suppress large-scale fires. Consequently,

the open, park-like nature of the valley

floor was lost, replaced by agricultural

fields, dense oak and fir forests, and

scrub lands following logging.

The Willamette basin covers

approximately 2,600,000 hectares (ha)

(6,400,000 acres (ac)), which Lang

(1885) estimated to consist of one-sixth

prairie and five-sixths forest. We can

analyze the extent of the prairie

component through historical

information from land survey records.

Natural grasslands described by Federal

land surveyors in the 1850s were broken

down into three distinct types—oak

savannah, upland prairie, and wet

prairie (Habeck 1961). Of the estimated

409,000 ha (1,010,000 ac) of historic

native grasslands extant prior to 1850,

approximately 277,000 ha (685,000 ac)

appears to have consisted of upland

prairie and 132,000 ha (325,000 ac) of

wet prairie (E. Alverson, The Nature

Conservancy, Eugene, pers. comm.,

1994).

This extensive resource was rapidly

depleted through the conversion of

native prairie to agricultural use during

European settlement. Within 30 years of

passage of the Donation Land Act of

1850, European-American settlers, who

quickly subdivided their original land

grants to accommodate the rapid

increase in population, occupied most

prairie lands (Lang 1885). Settlers first

plowed the level, open tracts of prairie

(Lang 1885) and only boggy, flood-prone

areas prevented complete conversion of

the native grassland community to

cropped monocultures. After 1936, the

U.S. Army Corps of Engineers (Corps)

overcame limitations on development

that had been imposed by seasonal

flooding and a high water table by

initiating water projects to provide flood

control and security for expanded

agricultural activity.

Fender’s blue butterfly, Lupinus

sulphureus ssp. kincaidii, and Erigeron

decumbens var. decumbens likely once

occurred over a large distribution

throughout the historic native prairie.

Native prairie vegetation in the

Willamette Valley was decimated by the

rapid expansion of agriculture during

the 140-year period from the 1850s to

the present. Humans also began

suppressing the fire disturbance regime

on native prairie habitat. Fire

suppression allowed shrub and tree

species to overtake grasslands, while

agricultural practices hastened the

decline of native prairie species through

habitat loss and increased grazing

(Johannessen et al. 1971; Franklin and

Dyrness 1973). Fence rows and

intervening strips of land along

agricultural fields and roadsides served

as the only refugia from these forces of

change.

Although large prairie expanses

dominated by native species had been

lost by the early 1900’s, many remnant

grasslands with a large native species

component have been recently

identified. These remnants, often

dominated by nonnative species, also

support the only remaining occurrences

of native prairie species in the

Willamette Valley. Current estimates of

the remaining native upland prairie in

the Willamette Valley are less than 400

ha (988 ac) (Alverson, pers. comm.

1994). This estimate represents only

one-tenth of one percent of the original

upland prairie once available to

Fender’s blue butterfly and Lupinus

sulphureus ssp. kincaidii. Fender’s blue

butterfly and/or L. sulphureus ssp.

kincaidii and/or Erigeron decumbens

var. decumbens currently occupy

slightly more than one-half of this

upland prairie habitat (62 sites, 210 ha

(112.8 ac)). Within the remnant prairie

habitat, E. decumbens var. decumbens

occupies 28 sites across 116 ha (286 ac),

L. sulphureus ssp. kincaidii occupies 54

sites across 158 ha (370 ac), while

Fender’s blue butterfly occupies 32 sites

across 165 ha (408 ac). Similar losses

have occurred for wet prairie habitats,

but estimates of current acreage are not

available.

Fender’s Blue Butterfly

Fender’s blue butterfly is one of about

a dozen subspecies of Boisduval’s blue

butterfly (Icaricia icariodes). Icaricia

icarioides is found in western North

America; subspecies fenderi is restricted

to the Willamette Valley (Dornfeld 1980;

Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations 3877

R. H. T. Mattoni, University of

California, pers. comm. to C. Nagano

1997; J. Emmel, Hemet, California, pers.

comm. to C. Nagano 1997). Fender’s

blue butterfly was described by Ralph

W. Macey (1931) as Plebejus maricopa

fenderi based on specimens he had

collected in Yamhill County, Oregon.

The species maricopa is currently

considered to be a synonym of the

species icarioides (Miller and Brown

1981). The species icaricia has been

determined to be a member of the genus

Icaricia, rather than the genus Plebejus

(Miller and Brown 1981; R. H. T.

Mattoni, pers. comm. to C. Nagano

1997). Some researchers considered

subspecies fenderi to be a synonym of

the pardalis blue butterfly (Icaricia

icarioides pardalis), an inhabitant of the

central California Coast Range near San

Francisco (Downey 1975; Miller and

Brown 1981). We consider Fender’s blue

butterfly as a distinct taxon based on

adult characters and geographic

distribution (Dornfeld 1980; Hammond

and Wilson 1993; R. H. T. Mattoni and

J. Emmel, pers. comm. to C. Nagano

1997).

Fender’s blue butterfly is small with

a wingspan of approximately 2.5

centimeters (cm) (1 inch (in)). The

upper wings of the males are brilliant

blue in color, and the borders and basal

areas are black. The upper wings of the

females are completely brown colored.

The undersides of the wings of both

sexes are creamish tan, with black spots

surrounded with a fine white border or

halo. The dark spots on the underwings

of male Fender’s blue butterflies are

small. In contrast, the dark spots on the

underwings of the pembina blue

butterfly (Icaricia icariodes pembina)

are surrounded with wide white haloes,

and the underside of the hindwings of

Boisduval’s blue butterfly (Icaricia

icariodes) is very pale whitish gray with

broad haloes around the black spots.

We do not know the precise historic

distribution of Fender’s blue butterfly

due to the limited information collected

on this subspecies prior to its

description in 1931 (Macy 1931).

Although Ralph W. Macy collected the

type specimens for this butterfly in

1929, only a limited number of

collections were made between the time

of the subspecies’ discovery and Macy’s

last observation on May 23, 1937, in

Benton County, Oregon (Hammond and

Wilson 1992a). A lack of information on

the identity of the butterfly’s host plant

caused researchers to focus their survey

efforts on common lupine species

known to occur in the vicinity of Macy’s

collections. As a result, no Fender’s blue

butterflies were observed during 20

years of widespread investigation.

Finally, Dr. Paul Hammond

rediscovered Fender’s blue butterfly in

1989 at McDonald Forest, Benton

County, Oregon, on an uncommon

species of lupine, Lupinus sulphureus

ssp. kincaidii. Recent surveys have

indicated that the insect is confined to

the Willamette Valley and currently

occupies 32 sites in Yamhill, Polk,

Benton, and Lane Counties (Hammond

and Wilson 1993; Schultz 1996). One

population at Willow Creek is found in

wet, Deschampsia-type prairie, while

the remaining sites are found on drier

upland prairies characterized by

Festuca spp. Fender’s blue butterflies

occupy sites located almost exclusively

on the western side of the valley, within

33 km (21 mi) of the Willamette River.

Although researchers have made only

limited observations of the early life

stages of Fender’s blue butterfly, the life

cycle of the species likely is similar to

other subspecies of Icaricia icarioides

(R. H. T. Mattoni, pers. comm. to C.

Nagano 1997; G. Pratt, Riverside,

California, pers. comm. to C. Nagano

1997; Hammond and Wilson 1993).

Adult butterflies lay their eggs on

perennial Lupinus sp. (Ballmer and

Pratt 1988), the food plant of the

caterpillar during May and June. Newly

hatched larvae feed for a short time,

reaching their second instar in the early

summer, at which point they enter an

extended diapause (maintaining a state

of suspended activity). Diapausing

larvae remain in the leaf litter at or near

the base of the host plant through the

fall and winter and may become active

again in March or April of the following

year. Some larvae may be able to extend

diapause for more than one season

depending upon the individual and

environmental conditions (R. H. T.

Mattoni pers. comm. to C. Nagano

1997). Once diapause is broken, the

larvae feed and grow through three to

four additional instars, enter their pupal

stage, and then emerge as adult

butterflies in April and May. Behavioral

observations of Fender’s blue butterfly

indicate the larvae are alert to potential

predators, with individuals dropping

from their feeding position on lupine

leaves to the base of the plant at the

slightest sign of disturbance (C. Schultz,

University of Washington, pers. comm.

1994). A Fender’s blue butterfly may

complete its life cycle in 1 year.

The larvae of many species of

lycaenid butterflies, including Icaricia

icarioides, possess specialized glands

that secrete a sweet solution sought by

some ant species who may actively

‘‘tend’’ and protect them from predators

and parasites (Ballmer and Pratt 1988;

G. Pratt, pers. comm. to C. Nagano

1997). Although ants tend other

subspecies of Boisduval’s blue butterfly

during their larval stage (Downey 1962,

1975; Thomas Reid Associates 1982; R.

H. T. Mattoni and G. Pratt, pers. comm.

to C. Nagano 1997), limited observations

of Fender’s blue butterfly larvae in the

field have failed to document such a

mutualistic association (Hammond

1994). However, this situation may be

due to the nocturnal activity patterns of

the Icaricia icarioides larvae, because it

appears that this species has an obligate

relationship with ants (G. Pratt, pers.

comm. to C. Nagano 1997). Schultz

(pers. comm. 1994) has observed

nonnative Argentine ants (Iridomyrmex

humilis) tending Fender’s blue butterfly

larvae during indoor rearing trials.

Of the 32 sites where Fender’s blue

butterfly occurs, Lupinus sulphureus

ssp. kincaidii co-occurs as a larval host

plant at 27 of these. The near absence

of the Fender’s blue butterfly at sites

without Lupinus sulphureus ssp.

kincaidii suggests that L. laxiflorus

(spurred lupine) and L. albicaulis (sickle

keeled lupine) may be secondary food

plants used by the insect (Hammond

and Wilson 1993). Occurrences where

Fender’s blue butterfly apparently does

not rely on L. sulphureus ssp. kincaidii

as its primary host plant have been

noted at Coburg Ridge where L.

laxiflorus is the sole host plant across

greater than 95 percent of the site

(Schultz in litt. 1998), two other sites

where L. laxiflorus is the primary food

plant (Schultz 1996), and an additional

two sites where L. laxiflorus co-occurs

with L. sulphureus ssp. kincaidii

(Hammond and Wilson 1993). Fender’s

blue butterfly also occupies six sites

where L. albicaulis is the primary food

plant; however, the butterfly is

declining at two of these sites.

At this time we have no information

to suggest that Lupinus albicaulis and/

or L. laxiflorus are inferior host plants

either physically or biochemically, or

that the oviposition behavior of the

Fender’s blue butterfly prefers L.

sulphureus ssp. kincaidii. It is possible

that the co-occurrence of these two

species is due to environmental factors

favoring L. sulphureus ssp. kincaidii

that also favor Fender’s blue butterfly.

However, this phenomenon of food

plant specificity has been documented

in other species of butterflies and moths

(Longcore et al. 1997). We may say,

however, that at the majority of sites

where Fender’s blue butterfly occurs, L.

sulphureus ssp. kincaidii serves as the

sole source for larval food and

oviposition sites and native wildflowers

for adult nectar. Research in

collaboration with Katrina Dlugosh

(Schultz in litt. 1998) indicates that

native wildflowers in the Willamette

3878 Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations

Valley prairies provide more nectar than

nonnative flowers and that Fender’s

blue butterfly population density is

positively correlated with the density of

native wildflowers. In Lane County, key

native flowers include Allium

amplectans, Calachortus tolmiei,

Camassia quamash, Eriophyllum

lanatum, and Sidalcea virgata (Schultz

in litt. 1998).

Lupinus Sulphureus ssp. Kincaidii

In 1924, C.P. Smith first described

Lupinus sulphureus ssp. kincaidii as L.

oreganus var. kincaidii from a collection

made in Corvallis, Oregon (Kuykendall

and Kaye 1993a). Phillips (1955)

transferred the taxon to a subspecies

status as L. sulphureus ssp. kincaidii.

Hitchcock et al. (1961) retained the

position noted by Phillips (1955), but

preferred the combination as a varietal

rank, L. sulphureus var. kincaidii.

Lupinus sulphureus ssp. kincaidii

occupies 48 sites throughout the

Willamette Valley. Four sites are in the

Umpqua Valley of Douglas County,

Oregon, and two sites are in southern

Washington. The latitudinal range of the

54 sites of L. sulphureus ssp. kincaidii

spans from Lewis County, Washington,

south to Douglas County, Oregon, and a

distance of 400 km (320 mi). This

distribution implies a close association

with native upland prairie sites that are

characterized by heavier soils with

mesic to slightly xeric soil moisture

levels. At the southern limit of its range,

the subspecies occurs on welldeveloped soils adjacent to serpentine

outcrops where the plant is often found

under scattered oaks (Kuykendall and

Kaye 1993a).

Lupinus sulphureus ssp. kincaidii is

easily distinguished from other

sympatric members of the genus

Lupinus with its low-growing habit and

unbranched inflorescence. Its aromatic

flowers have a slightly reflexed,

distinctly ruffled banner, and are

yellowish-cream colored, often showing

shades of blue on the keel. The upper

calyx lip is short, yet not obscured by

the reflexed banner when viewed from

above. The leaflets tend to a deep green

with an upper surface that is often

glabrous (smooth). The plants are 4 to 8

decimeters (dm) (16 to 32 in) tall, with

single to multiple unbranched flowering

stems and basal leaves that remain after

flowering (Kuykendall and Kaye 1993a).

Lupinus sulphureus ssp. kincaidii is a

long-lived perennial species, with a

maximum reported age of 25 years (M.

Wilson, Oregon State University, in litt.,

1993). Individual plants are capable of

spreading by rhizomes (horizontal

stems), producing clumps of plants

exceeding 20 meters (m) (66 feet (ft)) in

diameter (P. Hammond, independent

consultant, pers. comm. 1994). The long

rhizomes do not produce adventitious

roots (secondary roots growing from

stem tissue), apparently do not separate

from the parent clump, and the clumps

may be short-lived, regularly dying back

to the crown (Kuykendall and Kaye

1993a). L. sulphureus ssp. kincaidii is

pollinated by solitary bees and flies (P.

Hammond, pers. comm. 1994). Seed set

and seed production are low, with few

(but variable) numbers of flowers

producing fruit from year to year, and

each fruit containing an average of 0.3–

1.8 seeds (Liston et al. 1994). Seeds are

dispersed from fruits that open

explosively upon drying.

Erigeron Decumbens var. Decumbens

Thomas Nuttall (1840) based his

description of Erigeron decumbens on a

specimen he collected in the summer of

1835. The autonym E. decumbens var.

decumbens was automatically

established by Cronquist (1947) when

he described E. decumbens var.

robustior. Recent revisions of the

Erigeron genus (Strother and Ferlatte

1988, Nesom 1989) treat the plant as a

variety, E. decumbens var. decumbens. 

According to Strother and Ferlatte

(1988), Erigeron decumbens var.

decumbens is geographically limited to

the Willamette Valley and the

morphologically similar E. decumbens

var. robustior is restricted to Humboldt

and western Trinity Counties,

California. Intermediate specimens of

Erigeron from southern Oregon are

considered by Strother and Ferlatte

(1988) to be robust specimens of E.

eatonii var. plantagineus. 

Clark et al. (1993) reviewed

herbarium specimens and found a

historical distribution of Erigeron

decumbens var. decumbens throughout

the Willamette Valley. He found

frequent collections from the period

between 1881 and 1934, yet no

collections or observations from 1934 to

1980 (Clark et al. 1993). The species was

rediscovered in 1980 in Lane County,

Oregon, and has since been identified at

28 sites in Polk, Marion, Linn, Benton,

and Lane Counties, Oregon. With only

28 occurrences and 116 ha (286 ac) of

occupied habitat, E. decumbens var.

decumbens has the most restricted range

of the species being listed herein.

Erigeron decumbens var. decumbens

is a perennial herb, 15 to 60 mm (0.6 to

2.4 in) tall, with erect to sometimes

prostrate stems at the base. The basal

leaves often wither prior to flowering

and are mostly linear, 5 to 12 cm (2 to

5 in) long and 3 to 4 mm (0.1 to 0.2 in)

wide. Flowering stems produce two to

five heads, each of which is daisy-like,

with pinkish to pale blue ray flowers

and yellow disk flowers. Ray flowers

often fade to white with age (Siddall

and Chambers 1978). The

morphologically similar E. eatonii

occurs east of the Cascade Mountains,

while the sympatric species Aster hallii

flowers later in the summer. In its

vegetative state, Erigeron decumbens

var. decumbens can be confused with A.

hallii, but close examination reveals the

reddish stems of A. hallii in contrast to

the green stems of E. decumbens var.

decumbens (Clark et al. 1993).

As with many species in the family

Asteraceae, Erigeron decumbens var.

decumbens produces large quantities of

wind-dispersed seed. Flowering

typically occurs in June and July with

pollination carried out by syphrid flies

and solitary bees. Seeds are released in

July and August. Although the seeds are

wind-dispersed, the short stature of this

species likely prevents the long-distance

travel of many of these seeds. Erigeron

decumbens var. decumbens is capable

of vegetative spreading and is

commonly found in large clumps

scattered throughout a site (Clark et al.

1993).

Previous Federal Action

Erigeron decumbens var. decumbens

was initially included as a category 2

candidate in a Notice of Review (NOR)

published by us on December 15, 1980

(45 FR 82506). At that time, category 2

candidates were those species for which

we had information indicating that

listing may be appropriate, but for

which additional information was

needed to support the preparation of a

proposed rule. On November 28, 1983,

we published an NOR upgrading this

species to category 1 status (48 FR

53649). At that time, category 1 taxa

were those for which we had sufficient

data to support preparation of listing

proposals. Subsequently, E. decumbens

var. decumbens was reassigned category

2 candidacy in an NOR published on

September 27, 1985 (50 FR 39527). On

February 21, 1990, we published an

NOR (55 FR 6202) that reinstated E.

decumbens var. decumbens as a

category 1 candidate and also

designated Lupinus sulphureus ssp.

kincaidii as a category 2 candidate (55

FR 6121). We published an NOR on

February 28, 1996 (61 FR 7596), which

updated the candidate species list and

discontinued the use of categories.

Erigeron decumbens var. decumbens

was retained as a candidate species (a

candidate was defined as any taxa

meeting the definition of former

category 1 species). Lupinus sulphureus

ssp. kincaidii and other former category

2 candidates were not retained as

Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations 3879

candidates. Since that NOR was

published, we have reevaluated the

available information and determined

that listing is warranted for L.

sulphureus ssp. kincaidii.

Fender’s blue butterfly was initially

assigned to category 3A taxa in the NOR

published on January 6, 1989 (54 FR

572). The best available information at

that time indicated that this butterfly

was likely extinct because the

subspecies had last been observed in

1937. Category 3A taxa were taxa for

which we had pervasive evidence of

extinction, however, if rediscovered,

such taxa might be reconsidered for

listing. The rediscovery of this butterfly

in May 1989 prompted us to change the

status of the subspecies to a category 2

candidate in the NOR published on

November 21, 1991 (56 FR 58830). In

the NOR published on February 28,

1996 (61 FR 7596), we retained Fender’s

blue butterfly as a candidate for listing.

On January 27, 1998, we published a

proposed rule (63 FR 3863) to list the

Fender’s blue butterfly (Icaricia

icarioides fenderi), Lupinus sulphureus

ssp. kincaidii (Kincaid’s lupine), and

Erigeron decumbens var. decumbens

(Willamette daisy) under the Act.

The processing of this final rule

conforms with our Listing Priority

Guidance published in the Federal

Register on October 22, 1999 (64 FR

57114). The guidance clarifies the order

in which we will process rulemakings.

Highest priority is processing

emergency listing rules for any species

determined to face a significant and

imminent risk to its well-being (Priority

1). Second priority (Priority 2) is

processing final determinations on

proposed additions to the lists of

endangered and threatened wildlife and

plants. Third priority is processing new

proposals to add species to the lists. The

processing of administrative petition

findings (petitions filed under section 4

of the Act) is the fourth priority. The

processing of critical habitat

determinations (prudency and

determinability decisions) and proposed

or final designations of critical habitat

will no longer be subject to

prioritization under the Listing Priority

Guidance. This final rule is a Priority 2

action and is being completed in

accordance with the current Listing

Priority Guidance.

Summary of Comments and

Recommendations

In the January 27, 1998, proposed rule

(63 FR 3863) and associated

notifications, all interested parties were

requested to submit factual reports or

information that might contribute to the

development of a final listing decision.

Appropriate State agencies, county

governments, city governments, Federal

agencies, scientific organizations,

private landowners, industrial

landowners and other interested parties

were contacted and requested to

comment. Newspaper notices inviting

public comments were published in the

Oregonian on February 25–27, 1998,

and the Eugene Register Guard on

February 26–27, 1998. Following the

publication of the proposed rule, we

received 29 written comments during

the comment period.

Five commenters opposed, and 24

favored the listing of Erigeron

decumbens var. decumbens and Icaricia

icarioides fenderi as endangered and

Lupinus sulphureus ssp. kincaidii as

threatened. Several commenters

provided information on the status of,

and threats to, various populations of

Erigeron decumbens var. decumbens,

Icaricia icarioides fenderi, and Lupinus

sulphureus ssp. kincaidii that updated

the information presented in the

proposed rule. We incorporated that

information into the Background and

Summary of Factors Affecting the

Species sections of this final rule, and

we took it into consideration in the

listing determination. We grouped

comments questioning or opposing the

proposed rule into issues that are

discussed below.

Issue 1: One commenter stated that

the information presented in the

proposed rule was not accurate for his

area and raised questions regarding the

accuracy of data in other areas.

Our Response: We reviewed all the

data concerning information regarding

the area in question. On March 10, 1998,

we sent three detailed maps depicting

the location of Lupinus sulphureus ssp.

kincaidii at the site and information we

had on this locality to the commenter.

These maps showed the historical

locations of butterflies and L.

sulphureus ssp. kincaidii in the area in

question.

In our letter to the landowner, we

sought clarification on the status of the

population that is/was apparently on

the commenter’s land. Upon receipt of

the letter, the landowner called us and

informed us that he did not know the

status of the population in question but

could check later that summer.

On November 24, 1998, we contacted

the landowner. The landowner

informed us that a fence in the area

where Lupinus sulphureus ssp.

kincaidii occurred had been moved

approximately 15 feet north. The area

between the old fence and the new

fence where L. sulphureus ssp. kincaidii

had occurred was plowed. However, he

thought that a couple L. sulphureus ssp.

kincaidii plants occurred along the new

fenceline but that the tall grass would

probably eliminate them very shortly.

Issue 2: Two commenters opposed

listing the Fender’s blue butterfly

because the butterfly has 360 acres to

live on and all food they need if Lupinus

sulphureus ssp. kincaidii is protected by

listing.

Our Response: About 30 percent of

the Fender’s blue butterfly occurs at

seven sites across 52 ha (128 ac) of

habitat where Lupinus sulphureus ssp.

kincaidii is not present and thus a

substantial portion of the butterflies

would not be protected by listing the

plant. Although one purpose of the Act

is to conserve ecosystems upon which

endangered and threatened species

depend, its listing provisions apply only

to species rather than ecosystems (16

U.S.C. 1533).

Issue 3: Two commenters opposed the

listing of the three species because it

was not stated how much of the

2,600,000 ha (6,400,000 ac) of the

Willamette Basin would be affected by

this listing action. Commenters

expressed concern that farm acreage

would be taken out of production

through this listing action and farm

profits would be lost.

Our Response: The listing of the two

plants and the butterfly will impact only

those habitat hectares (acres) currently

occupied by the species. Within this

available habitat, Erigeron decumbens

var. decumbens occupies 28 sites across

116 ha (286 ac), L. sulphureus ssp.

kincaidii occupies 54 sites across 158 ha

(370 ac), while Fender’s blue butterfly

occupies 32 sites across 165 ha (408 ac).

The Fender’s blue butterfly and L.

sulphureus ssp. kincaidii co-occur at 25

sites across 113 ha (279 ac), and the E.

decumbens var. decumbens co-occurs

with both the butterfly and L.

sulphureus ssp. kincaidii on 1 upland

site across 49.5 ha (122 ac). Thus, the

total area that would be impacted by the

listing of these three species is 276 ha

(684 ac), not 2,600,000 ha (6,400,000

ac).

Recovery planning for the species

may include recommendations for land

acquisition or easements involving

private landowners. Some of these areas

may be unoccupied prairie habitat.

These efforts would be undertaken only

with the voluntary cooperation of the

landowner. In the majority of cases,

private landowners are not prevented

from using their land in the manner

originally intended. Within the

Willamette Valley wetland prairies,

there are 26 sites across 116 ha (286 ac)

where Erigeron decumbens var.

decumbens occurs and that would

require Federal regulatory agencies,

3880 Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations

primarily the Corps, to ensure that

certain actions on these sites, including

the issuance of wetland permits under

section 404 of the Clean Water Act, are

not likely to jeopardize the continued

existence of this species. In some cases,

the Corps may require that private

landowners who apply for permits

reduce the scope or extent of their

proposed fill project if the fill would

adversely affect E. decumbens var.

decumbens.

Landowners will be able to use

occupied Fender’s blue butterfly habitat

(165 ha (407 ac)) as long as the use does

not involve the take of the butterfly. The

Act and its implementing regulations set

forth a series of prohibitions and

exceptions that apply to endangered

wildlife, including prohibition of take

(16 U.S.C. 1538). Take includes harass,

harm, pursue, hunt, shoot, wound, kill,

trap, capture, or collect; or to attempt

any of these (16 U.S.C. 1532). Permits

may be issued to carry out otherwise

prohibited activities involving

endangered wildlife under certain

circumstances. If certain requirements

are met, these permits are available for

incidental take in connection with

otherwise lawful activities.

Executive Order 12630, Government

Actions and Interference with

Constitutionally Protected Property

Rights, require that a Taking Implication

Assessment (TIA) be conducted ‘‘as a

part of the final rulemaking to evaluate

the risk of and strategies for avoidance

of the taking of private property.’’

However, the Attorney General’s

guidelines state that TIAs used to

analyze the potential for Fifth

Amendment ‘‘taking claims’’ are to be

prepared after, rather than before, an

agency makes a restricted discretionary

decision. In enacting the Act, Congress

required the Department to list a species

based solely upon scientific and

commercial data indicating whether or

not the species is in danger of

extinction. We may not withhold a

listing based upon economic concerns.

Therefore, even though a TIA may be

required, a TIA for a listing action is

finalized only after the final

determination is made regarding

whether to list the species.

Peer Review

In accordance with interagency policy

published on July 1, 1994 (59 FR

34270), we solicited the expert opinions

of appropriate and independent

specialists regarding pertinent scientific

or commercial biological and ecological

data for Erigeron decumbens var.

decumbens, Fenders blue butterfly, and

Lupinus sulphureus ssp. kincaidii. We

solicit such a review to ensure that

listing decisions are based upon

scientifically sound data, assumptions,

and analyses, including input of

appropriate experts and specialists.

Comments provided by Cathy L.

Maxwell, Dr. Robert Michael Pyle,

Cheryl B. Schultz, and Dr. Mark Wilson,

Associate Professor of Botany and Plant

Pathology at Oregon State University

were incorporated into the final rule.

Cathy L. Maxwell; Dr. Robert Michael

Pyle; Cheryl B. Schultz; Dr. Mark

Wilson; David Brittell, Assistant

Director, Wildlife Management Program,

Washington Department of Fish and

Wildlife; and Diane S. Doss,

Conservation Chair, Washington Native

Plant Society, supported our position

that Erigeron decumbens var.

decumbens and Fender’s blue butterfly

were endangered and Lupinus

sulphureus ssp. kincaidii was

threatened throughout their limited

range in the Willamette Valley of

western Oregon and Boistfort Valley,

Lewis County, Washington.

Summary of Factors Affecting the

Species

Section 4 of the Endangered Species

Act and regulations (50 CFR Part 424)

issued to implement the listing

provisions of the Act set forth the

procedures for adding species to the

Federal lists. A species may be

determined to be an endangered or

threatened species due to one or more

of the five factors described in section

4(a)(1). These factors and their

application to Fender’s blue butterfly

( Icaricia icarioides fenderi), Lupinus

sulphureus ssp. kincaidii (Kincaid’s

lupine), and Erigeron decumbens var.

decumbens (Willamette daisy) are as

follows:

A. The present or threatened

destruction, modification, or

curtailment of its habitat or range. Over

the last 140 years, humans have

extensively altered native prairie in the

Willamette Valley (see Background

section of this final rule), which has

resulted in a loss of greater than 99

percent of the only known habitat area

for the Fender’s blue butterfly, Lupinus

sulphureus ssp. kincaidii, and Erigeron

decumbens var. decumbens (E.

Alverson, pers. comm. 1994).

Within the 88 remnants of native

prairie occupied by these species in the

Willamette Valley, the Fender’s blue

butterfly occurs at 32 sites (Hammond

and Wilson 1993, Schultz 1996),

Lupinus sulphureus ssp. kincaidii

occurs at 54 sites (Kuykendall and Kaye

1993a), and Erigeron decumbens var.

decumbens occurs at 28 sites (Clark et

al. 1993). Fender’s blue butterfly and L.

sulphureus ssp. kincaidii are found in

close association, occurring together at a

total of 26 sites. Erigeron decumbens

var. decumbens co-occurs with L.

sulphureus ssp. kincaidii at only one

site and with Fender’s blue butterfly at

only this same site, Baskett Butte.

Typically these sites are small, with

extirpation likely in the near future.

Activities that destroy, modify, or

curtail the habitat of L. sulphureus ssp.

kincaidii, E. decumbens var.

decumbens, and Fender’s blue butterfly

are discussed below.

The immediacy of the threat of habitat

loss in the last remaining 88 remnants

of native prairie occupied by these

species has been well documented.

Habitat at 80 percent of the sites (68

sites) is rapidly disappearing due to

agriculture practices, development

activities, forestry practices, grazing,

roadside maintenance, and commercial

Christmas tree farming.

Agricultural Activities

Agricultural activities likely impact at

least 12 prairie remnants. Five of these

remnants are wetland prairies occupied

by Erigeron decumbens var. decumbens,

seven are upland prairies of which six

are occupied by Lupinus sulphureus

ssp. kincaidii, and two are occupied by

Fender’s blue butterfly. In one case, a

wheat field boundary adjustment near

Buell in Polk County (Mill Creek Road

South) is likely to lead to loss of a

population of Fender’s blue butterfly

and L. sulphureus ssp. kincaidii

(Hammond 1994). By 1996, this

boundary adjustment was implemented

with a diminished population of L.

sulphureus ssp. kincaidii and Fender’s

blue butterfly still present. No Fender’s

blue butterflies, however, were observed

at this site in 1997 (Hammond, pers.

comm. 1997). The majority of the

habitat supporting populations of each

of these species are habitat remnants,

such as small habitat patches remaining

after other habitat loss has occurred.

Small habitat patches that occur along

State and county roadsides face greater

threats from agriculture than those

occurring along non-roadside areas. In

past decades, many roadside habitats

were less disturbed, but today roadside

stretches of habitats adjoining grass seed

farms are now being disked and/or

sprayed with herbicides to kill all

roadside vegetation (A. Robinson, U.S.

Fish and Wildlife Service, pers. obs.

1997). Grass seed farms commonly use

herbicide spraying to create bare soil to

prevent the spread of weeds from

roadsides into the grass seed fields.

Many of these roadside areas are

inhabited by populations of E.

decumbens var. decumbens.

Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations 3881

Development

Urban development has caused

additional loss of prairie habitat (Clark

et al. 1993; Hammond and Wilson

1992a, 1992b 1992c, 1994, 1996;

Kuykendall and Kaye 1993a; Liston et

al. 1994; Schultz, 1996; Sidall and

Chambers 1978). Destruction of upland

prairie habitat occupied by Fender’s

blue butterfly and Lupinus sulphureus

ssp. kincaidii at several sites since 1992

has caused the butterflies at these sites

to either completely die out or to be

reduced to low, non-viable numbers.

Future losses for 47 prairie remnants are

projected as a result of urban

development (Hammond 1994, 1996),

which is the largest single factor

currently threatening the survival of

these prairie species. Nineteen of these

remnants are wetland prairies

supporting Erigeron decumbens var.

decumbens, and the other 28 are upland

prairie remnants supporting populations

of Fender’s blue butterfly and/or L.

sulphureus ssp. kincaidii.

Examples of this type of threat are the

Dallas-Oakdale Avenue sites 1 and 2

covering about 2 ha (5 ac) occupied by

Fender’s blue butterfly and Lupinus

sulphureus ssp. kincaidii near the town

of Dallas in Polk County. These sites are

expected to be lost due to planned

housing development (Hammond 1996).

The loss of native prairie habitat is

further exemplified by the destruction

of a site supporting 6,000 plants in Lane

County, formerly the largest occurrence

of Erigeron decumbens var. decumbens,

plowed under in 1986 prior to the

development of an industrial and

residential site (Kagan and Yamamoto

1987). Construction of a single driveway

resulted in the loss of one site occupied

by Fender’s blue butterfly and L.

sulphureus ssp. kincaidii in Kings

Valley (Hammond 1994). Future

highway construction potentially

threatens the Nielson Road site of E.

decumbens var. decumbens located in a

highway expansion corridor in Lane

County (USFWS 1994). The populations

of Fender’s blue butterfly and L.

sulphureus ssp. kincaidii at Wren in

Benton County occur at 2 sites and

cover about 9 ha (22 ac). Only a portion

of the populations (7.4 ha) (18 ac) occur

on land owned by The Nature

Conservancy (TNC). Heavy clearing and

mowing activities on private lands

adjacent to the TNC property has caused

the decline of the lupine and is reducing

the butterfly population at the Wren site

to a non-viable state (Hammond and

Wilson 1993). At the Willow Creek

Main site, owned by TNC, Fender’s blue

butterfly and L. sulphureus ssp.

kincaidii occur together. This site is

actively managed for the benefit of the

species, and the lands are considered

relatively secure from development

threats. Although this TNC site is

considered a secure habitat area,

extensive damage to habitat occupied by

Fender’s blue butterfly and L.

sulphureus ssp. kincaidii occurred in

1996 during high-voltage power-line

repair work conducted on a utility

corridor easement. Two other

moderately sized habitat patches

occupied by E. decumbens var.

decumbens face habitat loss from trash

dumping (at the Grande Ronde site) and

urbanization (at the west Eugene site)

(Clark et al. 1993).

Forestry Practices

Silvicultural activities for timber

production have threatened 6 percent (5

sites) of the remaining 88 prairie

occurrences. The Coburg Ridge area-2

site in Lane County is the largest site

occupied by Fender’s blue butterfly and

is among the best examples of remnant

upland native prairie in the Willamette

Valley (Hammond 1994). Native species

were severely damaged, however, by the

application of grass-specific herbicide

that eliminated grasses and severely

damaged other herbaceous species prior

to tree planting activities.

Approximately 4 ha (10 ac) were

sprayed with herbicide. The saddle

section of Coburg Ridge (area-2) that

received aerial application of the

herbicide is used by Fender’s blue

butterfly due to the presence of Lupinus

laxiflorus, an alternate host plant, but

this site does not contain L. sulphureus

ssp. kincaidii (Schultz 1996). Loss of

such alternate host plant sites further

limits the habitat that is available to

support Fender’s blue butterfly.

Additional tree-planting efforts by an

adjacent Coburg Ridge landowner

threaten to alter a different portion of

the grassland in area-2, which has

displayed the highest levels of butterfly

activity on Coburg Ridge in previous

years (Schultz 1996). This site received

spot herbicide application during the

planting efforts, rather than the aerial

broadcast method of the first case;

therefore, the immediate effects to the

habitat were not as severe. However,

tree saplings were planted and as the

trees grow they will eventually shade

out the native prairie species, resulting

in the loss of butterfly habitat.

Herbicide spraying associated with

reforestation, after logging, has also

altered habitat and caused a decline of

a Lupinus sulphureus ssp. kincaidii

population on Bureau of Land

Management (BLM) properties. At the

BLM Letitia Creek Site, L. sulphureus

ssp. kincaidii is located within a timber

sale unit proposed for future harvest at

the beginning of year 2020. The

Callahan Ridge BLM site is located on

the boundary between timber available

for harvest and a non-commercial rocky

area that has been withdrawn from the

timber base. No timber harvest has been

scheduled for the timber portion of this

site for the next 30 years. The Letitia

Creek area, where plants of L.

sulphureus ssp. kincaidii are located,

was impacted when the jeep trail

running along the ridge was renovated

and the surrounding forest selectively

logged. Renovation of the jeep road

destroyed most of the plants along the

road and only a small portion of the

original population remains. The other

large occurrence of the butterfly and L.

sulphureus ssp. kincaidii is in Benton

County on McDonald State Forest and

adjacent private lands that could be

similarly affected by surrounding

silvicultural operations.

Grazing

Grazing currently impacts 13 of the

occupied habitat patches, with 5 of

these being wetlands occupied by

Erigeron decumbens var. decumbens.

Most of the habitat at the Oak Ridge

south site, in Yamhill County, occupied

by Fender’s blue butterfly and Lupinus

sulphureus ssp. kincaidii, has been lost

due to heavy grazing (Hammond 1996).

Another site of L. sulphureus ssp.

kincaidii, covering about 4.6 ha (11 ac)

at Crabtree Hill in Lane County, is being

damaged by extensive livestock grazing.

The Crabtree Hill population of 6,000

plants is the largest known L.

sulphureus ssp. kincaidii population. At

Boistfort Cemetery, cattle grazing

remains as a threat to the L. sulphureus

ssp. kincaidii population on the

cemetery hill. Cattle at the Boistfort site

had full access to the cemetery hill in

the mid-1980s when cattle trails crisscrossed the hill and few lupines were

observed (Maxwell in litt. 1998). In

1986, Maxwell estimated the plants on

the cemetery hill to be 50 to 60

individuals (Maxwell in litt. 1998). In

1991, after cattle were removed from the

site, Maxwell inventoried the cemetery

hill and estimated 1,685 individuals of

L. sulphureus ssp. kincaidii, with 58

plants located on the west-facing side of

the hill where there was no evidence of

cattle grazing, but where horses

occurred (Maxwell in litt. 1998).

Subsequent inventories at the cemetery

site recorded similar numbers of

individuals as the 1991 data, with

minimal increases and decreases that

could be accounted for by sampling

error and environmental fluctuation.

These data suggest that the removal of

cattle from the hillside has helped to

3882 Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations

increase the size of the L. sulphureus

ssp. kincaidii population (Maxwell in

litt. 1998). Lupinus sulphureus ssp.

kincaidii on the west-facing part of the

hill where horses continue to occur,

however, show evidence of trampling,

and populations have not experienced a

similar upward trend (Maxwell in litt.

1998).

Roadside Maintenance

Another common threat to these

species is roadside maintenance

activities. At least 34 sites occur along

roadsides and are impacted by

maintenance activities. Five of these are

wetland areas supporting Erigeron

decumbens var. decumbens. Twentynine are upland sites (Lupinus

sulphureus ssp. kincaidii occurs at 27

sites and Fender’s blue butterfly occurs

at 11 sites). Populations of Fender’s blue

butterfly and L. sulpheureus ssp.

kincaidii were recently lost due to road

maintenance activities at the Oak Ridge

north site. When planned developments

are completed on the Oak Ridge south

site, the butterfly and lupine will

essentially be extirpated from the Oak

Ridge area (Hammond 1996). Two sites

on Oregon Department of

Transportation (ODOT) property and

one site on land owned by the City of

Corvallis receive only limited protection

and could potentially be impacted by

future development and highway

maintenance activities. Publicly owned

roadside sites receive varying degrees of

protection on a district-by-district basis.

Although some roadside sites have been

marked as no-spray zones by the Native

Plant Society of Oregon, this protective

measure is not always effective. The

roadside portion of a L. sulphureus ssp.

kincaidii population in Kings Valley

continues to receive herbicide

application during roadside weed

control activities, despite efforts to

restrict spraying. Other roadside sites

receive only sporadic protection during

herbicide application. Privately

managed roadside occurrences are also

impacted by maintenance activities.

Extensive mowing at the Wren sites in

Benton County and Fir Butte Road

roadside sites in Lane County have

caused declines in Fender’s blue

butterfly and L. sulphureus ssp.

kincaidii populations (Hammond 1994).

With frequent weed control efforts

ongoing, as well as highway and

driveway construction, small roadside

occurrences of Fender’s blue butterfly,

Lupinus sulphureus ssp. kincaidii, and

Erigeron decumbens var. decumbens are

unlikely to persist. For example, another

sensitive species, Delphinium

leucophaeum, in Boistfort Valley, Lewis

County, Washington, has been damaged

by roadside herbicide spraying by the

County. The spraying swath is

sometimes 0.9 to 1.2 m (3 to 4 ft.) wide.

Several D. leucophaeum plants were

damaged by spray in 1991 (Maxwell in

litt. 1998). Botanists met with the

roadside management crew in May of

1991 to point-out and discuss no-spray

zones where D. leucophaeum occur.

Since then, D. leucophaeum plants have

been lost twice because of landowners

spraying the roadsides to control weedy

nonnative species that invade their

pastures and fields (Maxwell in litt.

1998). The L. sulphureus ssp. kincaidii

population within the Boistfort Valley

does not occur along the roadsides, but

along a path that leads up to a pioneer

cemetery. Since monitoring began in

1991, a 3-m (1-ft) wide strip has been

sprayed with herbicides along the path

and steps leading up to the cemetery.

Some of the Lupinus sulphureus ssp.

kincaidii plants are damaged by the

annual spraying (Maxwell in litt. 1998).

Between 1994 and 1996, Fender’s

blue butterfly populations disappeared

from (or were considered no longer

viable) at least seven small roadside

sites (Liberty Road, Monmouth Falls

City Road, Fern Corner, Grant Creek,

and McTimmonds Valley in Polk

County, and two sites at Wren), and

populations at many of the remaining

roadside sites continue to decline.

Between 1990 and 1992, three sites

occupied by both Fender’s blue butterfly

and L. sulphureus ssp. kincaidii were

lost in the McTimmond’s Valley to the

expansion of Christmas tree farming

operations (Hammond 1994).

Conversion of these three sites

destroyed approximately 3 ha (7 ac) of

habitat along roadside and private land

that comprised the nucleus of two

Fender’s blue butterfly populations and

a substantial number of L. sulphureus

ssp. kincaidii plants. The two roadside

occurrences of the butterfly that remain

nearby are no longer considered viable

due to the loss of the source butterfly

populations and considerable numbers

of L. sulphureus ssp. kincaidii plants.

We do not know if the two roadside

occurrences still exist, but if they do,

they are not expected to persist for more

than a few additional years (Hammond

1994).

In summary, habitat loss from a wide

variety of causes (e.g., urbanization,

agriculture, silvicultural practices, and

roadside maintenance) is a severe

problem faced by Fender’s blue

butterfly, Lupinus sulphureus ssp.

kincaidii, and Erigeron decumbens var.

decumbens at a majority of occupied

sites. Land development and alteration

in the Willamette Valley has been so

extensive that almost all of the

occurrences of the three species on the

valley floor have essentially been

relegated to small patches of habitat.

Agricultural and urban development

activities occurring on the valley floor

have not affected three hilltop areas

(Baskett Slough National Wildlife

Refuge, Coburg Ridge, and McDonald

State Forest) because of their

topography. Only 20 of the 88 remnant

prairie sites that are occupied by 1 or

more of these species are currently not

threatened with habitat destruction.

However, these 20 sites are threatened

by herbivory, competition by nonnative

weedy species, and/or plant succession

(see Factor E of this final rule for

additional discussion). As habitat loss

continues on these prairie remnants,

populations of all 3 species in these 68

areas are likely to be extirpated. At least

14 of 32 sites occupied by Fender’s blue

butterfly, 49 of 54 sites occupied by L.

sulphureus ssp. kincaidii, and 24 of 28

sites occupied by E. decumbens var.

decumbens occur on private lands and

are expected to be lost in the near future

unless conservation actions are

implemented. The threat of extinction

for these species is high, given the

expected continuing extirpation of small

populations, the continued habitat loss

on moderate and large sites, and the

continuing degradation of habitat, even

on secure sites.

B. Overutilization for commercial,

recreational, scientific, or educational

purposes. Rare butterflies, such as

Fender’s blue butterfly are highly prized

by insect collectors. We know of no

studies of the impact of such removal of

individuals from natural populations of

Fender’s blue butterfly. However,

studies of another lycaenid butterfly

(Duffey 1968) and an endangered

nymphalid butterfly (Gall, 1984a and

1984b) suggest it is likely that Fender’s

blue butterfly could be adversely

affected by collection because of its

small and isolated populations. An

international commercial trade of

butterfly species that are proposed for

listing, as well as other imperiled or rare

butterflies, exists (C. Nagano, J.

Mendoza, and C. Schroeder, USFWS,

pers. obs., 1992–1997), and we know of

specimens of Fender’s blue butterfly

that have recently been offered for trade

(C. Nagano, pers. obs.). Some collectors

and dealers closely monitor our listing

activities, and have stockpiled rare

butterflies in anticipation of their

designation as endangered or threatened

species (C.D. Nagano and J. Mendoza,

pers. obs., 1992). Collecting from small

colonies or repeated handling and

marking (particularly of females and in

years of low abundance) could seriously

Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations 3883

damage the populations through loss of

individuals and genetic variability (Gall

1984b; Murphy 1988; Singer and

Wedlake 1981). Collection of females

dispersing from a colony also can

reduce the probability that new colonies

will be founded. Butterfly collectors

pose a threat because they may be

unable to recognize when they are

depleting butterfly colonies below the

thresholds of survival or recovery,

especially when they lack appropriate

biological training or the area is visited

for a short period of time (Collins and

Morris 1985).

The 1989 rediscovery of this insect

generated a great deal of publicity and

interest, which in turn increased

demand by collectors. Therefore,

remaining populations of Fender’s blue

butterfly face strong pressure from some

members of the collecting community.

Collectors who highly prize rare

butterflies often take all wild specimens

obtainable for use in trade (U.S.

Department of Justice, in litt. 1993).

Because many of the Fender’s blue

butterfly populations occur along public

roadsides, the species is easily acquired.

The extremely limited numbers and

distribution of many of the remaining

populations makes this species

vulnerable to extinction due to

collection.

No current evidence exists of

horticultural collection or other

overutilization for scientific purposes

for either Erigeron decumbens var.

decumbens or Lupinus sulphureus ssp.

kincaidii. However, the potential threat

posed by collecting for personal

herbarium specimens may be

significant, particularly where

populations are small, due to the

species’ rarity and the relative

accessibility of roadside populations.

C. Disease or predation. Although

most lepidopteran larvae suffer

significant mortality from parasitoid

attack, no instances of parasitism

(Hammond and Wilson 1993) or disease

(R.H.T. Mattoni, pers. comm. to C.

Nagano 1997) have been documented

for Fender’s blue butterfly. Predation of

adult Fender’s blue butterflies by crab

spiders has been observed on at least

two occasions (Schultz in litt. 1998).

The white and/or yellow crab spiders

hide in the flowers of Lupinus

sulphureus ssp. kincaidii, and in a

variety of species that the Fender’s blue

butterfly uses for nectar, such as Allium

amplectans (Schultz in litt. 1998).

Under normal circumstances, predation

likely was not a significant threat, but

because the species has been reduced to

such low levels, predation may

significantly impact the persistence of

remaining populations.

Lupinus sulphureus ssp. kincaidii

evidently hosts a number of herbivorous

and parasitic insect species. Gallforming insects attack unopened flowers

and the bases of woody stems. Weevils

lay eggs in the developing floral

embryos, and their offspring stimulate

the fruit to produce callous tissue as a

food source. Misdirection of the

developing fruit by weevil larvae

effectively prevents viable seed

formation in the parasitized fruits

(Kuykendall and Kaye 1993b). Weevil

damage at some sites (e.g., Willow

Creek) can be high, with some plants

suffering 90 percent loss of mature fruits

(E. Alverson, pers. comm. 1994).

Herbivory has been documented at all

three Fern Ridge Reservoir sites. Loss of

floral parts through herbivory can also

significantly reduce reproduction.

Larvae of the silvery blue butterfly

(Glaucopsyche lygdamus) graze flowers

for pollen and in doing so effectively

destroy them. At the Fir Butte site,

silvery blue butterfly larvae cause

significant seed damage, as well as

pollen damage to L. sulphureus ssp.

kincaidii. They often chew through

maturing pods, devour some or all of the

seeds, then move on to the next pod

(Schultz in litt. 1998). Silvery blue

larvae can reach high population

densities at some of the sites and may

reduce the fecundity of L. sulphureus

ssp. kincaidii, but do not appear to

cause the death of mature individual

plants (C. Schultz, pers. comm. 1994).

On July 14, 1991, at the Boistfort Prairie

site, pods of L. sulphureus ssp. kincaidii

were observed with larvae feeding on

them, and ants were feeding on the

juices excreted from the larvae (Maxwell

in litt. 1998). In a sample of 10 L.

sulphureus ssp. kincaidii plants, 5

damaged pods were observed (Maxwell

in litt. 1998). In 1992, adult silvery blue

butterflies were positively identified as

being present, and the caterpillars of the

blues were observed feeding on L.

sulphureus ssp. kincaidii. In 1993,

damage to L. sulphureus ssp. kincaidii

pods was observed again, but less than

in the previous 2 years (Maxwell in litt.

1998). Under normal circumstances,

insect herbivory likely was not a

significant threat, but because the

species has been reduced to such low

levels, herbivory may significantly

impact the persistence of remaining

populations.

Evidence of insect herbivory on

Erigeron decumbens var. decumbens is

limited. Insect species collected on E.

decumbens var. decumbens in 1993

included sap-sucking insects

(Hemiptera), a bruchid beetle, thrips,

and mites (Clark et al. 1993). Other

threats from herbivory include

consumption of E. decumbens var.

decumbens by cattle. However, no

plants were found in areas currently or

recently grazed during surveys

conducted in 1986 (Kagan and

Yamamoto 1987), and only one site was

observed to support E. decumbens var.

decumbens in the presence of cattle in

1993 (Clark et al. 1993).

D. The inadequacy of existing

regulatory mechanisms. In 1963, the

protection of natural botanical resources

by the State of Oregon was initiated

with the passage of the Oregon

Wildflower Law (ORS 564.010–

564.040). This law was designed to

protect specific showy botanical groups

including lilies, shooting stars, orchids,

and rhododendrons from collection and

trade by horticulturists interested in the

cultivation of these species. It also

prohibits the collection of wildflowers

from ‘‘within 500 feet of the centerline

of any public highway’’ (ORS 564.020

(2)). Although protective in spirit, the

Oregon Wildflower Law carries minimal

penalties and is rarely enforced. We

doubt that this law is effective in

protecting Lupinus sulphureus ssp.

kincaidii and Erigeron decumbens var.

decumbens populations.

In 1987, Oregon Senate Bill 533 was

passed to augment the legislative

actions available for the protection of

the State’s threatened and endangered

species, both plant and animal. This

bill, known as the Oregon Endangered

Species Act, mandates responsibility for

threatened and endangered species in

Oregon to two State agencies—the

Oregon Department of Agriculture

(ODA) for plant species (ORS 564.105)

and the Oregon Department of Fish and

Wildlife (ODFW) for ‘‘wildlife’’ species

(ORS 496.172). As re-authorized in 1995

(HB 2120), the Oregon Endangered

Species Act does not include

invertebrate animals in the definition of

‘‘wildlife.’’ Therefore, Fender’s blue

butterfly receives no protection under

the Oregon Endangered Species Act.

The Oregon Natural Heritage Program is

the only State agency ‘‘which tracks

locations of and works to protect the

rare, threatened and endangered

invertebrates of Oregon’’ (Oregon

Natural Heritage Program 1993). The

Heritage program has created a Sensitive

Species invertebrate list, which includes

Fender’s blue butterfly as a ‘‘priority 1

species.’’ Priority 1 species are ‘‘taxa

that are threatened or endangered

throughout their range’’ (Oregon Natural

Heritage Program 1993). The program

can assist planning agencies in

managing lands for the benefit of rare

invertebrate taxa, but it has no

regulatory authority over rare

3884 Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations

invertebrates (Jimmy Kagan, Oregon

Natural Heritage Program, pers. comm.

1997).

The Oregon Endangered Species Act

directs the ODA to maintain a strong

program to conserve and protect native

plant species classified by the State as

threatened or endangered. Erigeron

decumbens var. decumbens, as a Statelisted endangered species, and Lupinus

sulphureus ssp. kincaidii, as a Statelisted threatened species, receive

protection on State-managed lands

under the Oregon Endangered Species

Act. The ODA is able to regulate the

import, export, or trafficking of Statelisted plant species when they are in

transit (under ORS 564.1200). The

ODA’s ability to protect plant

populations, by restricting take under

the Oregon Endangered Species Act, is

limited to ‘‘land owned or leased by the

state, or for which the state holds a

recorded easement’’ (ORS 564.115).

‘‘Nothing in ORS 564.100 to 564.130 is

intended . . . to require the owner of

any commercial forest land or other

private land to take action to protect a

threatened species or endangered

species’’ on their lands (ORS 564.135

(1)). As a result, populations of L.

sulphureus ssp. kincaidii and E.

decumbens var. decumbens on private

lands receive minimal protection from

their State status as endangered or

threatened.

ODOT owns and manages roadside

habitat where Lupinus sulphureus ssp.

kincaidii and Erigeron decumbens var.

decumbens are present. The Oregon

Endangered Species Act requires the

protection of these State-listed species

on this State-managed land. In

conjunction with Oregon State

University researchers and the Native

Plant Society of Oregon, ODOT has

responded by providing road crews with

maps of these areas and instructions to

avoid herbicide use in these areas.

Lupinus sulphureus ssp. kincaidii,

Erigeron decumbens var. decumbens,

and Fender’s blue butterflies receive

protection within the boundaries of the

Service’s National Wildlife Refuges. All

three species occur together only at

Baskett Slough National Wildlife

Refuge, where habitat for the benefit of

these species is actively managed.

The BLM and the Forest Service (FS)

manage lands occupied by Lupinus

sulphureus ssp. kincaidii. On lands

managed by the BLM, this species

receives some protection through a

general conservation agreement that

applies to all Federal candidate species

on BLM properties. The population of L.

sulphureus ssp. kincaidii that occurs in

the Umpqua National Forest is not

covered under any conservation

agreement.

On Corps lands, discretion for the

protection and management of Statelisted and Federal candidate species lies

at the local level. Funds may be

available in some years to proactively

manage these species. Lupinus

sulphureus ssp. kincaidii, Erigeron

decumbens var. decumbens, and

Fender’s blue butterfly have received

habitat protection, as well as support for

research activity from the Corps through

allocation of personnel and supplies to

these projects. This protection and

cooperation is voluntary for candidate

species and is dependent on the

continuation of sufficient funding.

Populations of Erigeron decumbens

var. decumbens occur in seasonally

flooded wet prairies with hydric soils

(Clark et al. 1993). Under section 404 of

the Clean Water Act (CWA), the Corps

regulates the discharge of fill into waters

of the United States, including

navigable waters, wetlands (e.g., wet

prairies), and other waters (33 CFR parts

320–330). The CWA requires project

proponents to obtain a permit from the

Corps prior to undertaking many

activities (e.g., grading, discharge of soil

or other fill material) that would result

in the filling of wetlands subject to the

Corps’ jurisdiction. The Corps

published nationwide permit number 26

(NWP 26) to address fill of isolated or

headwater wetlands. Under the 1996

reauthorization of NWP 26 (61 FR

65873), the Corps may automatically

approve project proposals that involve

the fill of wetlands less than 0.13 ha

(0.33 ac) in size. Filling areas between

0.13 ha and 0.4 ha (0.33–1 ac) requires

only notification to the Corps. When

placement of fill would adversely

modify between 0.4 and 1.2 ha (1 and

3 ac) of wetland, the Corps circulates a

pre-discharge notification to us and

other interested parties for comment to

determine whether an individual permit

should be required for the proposed fill

activity and associated impacts.

Individual Corps permits are required

for discharge of material that would fill

or adversely modify greater than 1.2 ha

(3 ac) of wetlands. The review process

for individual permits is more rigorous

than for nationwide permits. Unlike

nationwide permits, a cumulative

analysis of wetland impacts is required

for individual permit applications.

Resulting permits may include special

conditions that require potential

avoidance or mitigation for

environmental impacts. On nationwide

permits, the Corps has discretionary

authority to require an individual

permit if the Corps believes that

resources are sufficiently important,

regardless of the wetland’s size. In

practice, however, the Corps generally

does not require an individual permit

when a project qualifies for a

nationwide permit unless a threatened

or endangered species or other

significant resources would be adversely

affected by the proposed activity. When

a listed species may be affected,

consultation requirements of section 7

of the Act do pertain to the Corps’

regulatory process.

Disking and some other farming,

ranching, and silvicultural practices can

degrade or destroy wetland habitat

without a permit from the Corps

because these activities are exempt from

regulation under the CWA (33 CFR

323.4(a)). The discontinuous

configuration of the existing wet prairies

further obscures these wetland losses.

Occurrences of Lupinus sulphureus ssp.

kincaidii and Fender’s blue butterfly in

upland (non-wetland) areas receive no

protection under section 404 of the

CWA.

The primary inadequacies in existing

regulatory mechanisms pertain to

populations of Fender’s blue butterflies,

Lupinus sulphureus ssp. kincaidii, and

Erigeron decumbens var. decumbens

that occur on private lands. Privately

owned lands where populations of these

species occur constitute a significant

portion of the range of these species and

play a substantial role in their

continued existence.

E. Other natural or manmade factors

affecting its continued existence. The

small and fragmented populations

characteristic of the remaining Fender’s

blue butterfly, Lupinus sulphureus ssp.

kincaidii, and Erigeron decumbens var.

decumbens constitute a factor in

affecting the continued existence of

these taxa. Small populations are more

vulnerable to all the natural and

manmade factors that would not likely

negatively influence relatively large and

contiguous populations. Generally, the

direct and indirect effects of small

population size on most species, plant

and animal, include loss of connectivity

for dispersal, a decrease in genetic

exchange, a resultant loss of population

viability and vigor, and a hastening

towards extinction (Gilpin and Soule ́

1986).

Although few large sites (greater than

10 ha (25 ac)) are secure from habitat

loss, large sites currently support

relatively stable populations of Fender’s

blue butterflies, Lupinus sulphureus

ssp. kincaidii, and Erigeron decumbens

var. decumbens and provide the greatest

potential for long-term persistence of

the species if the current condition of

these sites can be sustained or

improved. The only large site occupied

Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations 3885

by all of the species and that is

considered relatively secure from

habitat loss is Baskett Slough National

Wildlife Refuge in Polk County,

although the habitat condition is

declining from invasion by nonnative

weedy species (Hammond 1994, 1996;

Hammond and Wilson 1993; Schultz

1994). The two remaining large butterfly

sites (Coburg Ridge area-1 and 2, and

McDonald State Forest 1) and the one

remaining large L. sulphureus ssp.

kincaidii site (McDonald State Forest 1)

are not considered secure because these

sites face loss or degradation of habitat

through adjacent silviculture operations,

ecological succession to shrub and

forest, and competition from nonnative

weedy species (Hammond 1994,

Kuykendall and Kaye 1993a).

Erigeron decumbens var. decumbens

occupies three large sites. One site on

Corps property and another on TNC

property are being managed to benefit

native prairie species and are relatively

secure. The third site occurs on private

land and is not managed for native

prairie species and is not protected from

habitat loss.

The sites with small acreage where

these three taxa occur, such as roadside

and fence line/boundaries, face an

immediate threat of destruction from a

variety of disturbances. These

disturbances include development,

agriculture, silvicultural practices,

roadside maintenance, and herbicide

application. Of the 54 sites occupied by

Lupinus sulphureus ssp. kincaidii, 45

occur on less than 3.4 ha (8.3 ac). On

sites where Fender’s blue butterflies are

found to co-occur with L. sulphureus

ssp. kincaidii, a similar pattern is

suggested, with 24 of the 32 populations

occurring on parcels of 3.4 ha (8.3 ac)

or less. Of the 28 sites occupied by

Erigeron decumbens var. decumbens, 20

are less than 3.4 ha (8.3 ac).

Given the impact of such habitat

losses on these small habitat patches,

the extirpation of most of the small

Fender’s blue butterfly populations is

anticipated within the next 5 years.

Lupinus sulphureus ssp. kincaidii may,

however, survive for a longer time in

these small sites. Nonetheless, because

of the extensive habitat loss caused by

development and agriculture, the

extirpation of L. sulphureus ssp.

kincaidii on the 45 small sites is also

anticipated in the future. Similarly,

these habitat losses are expected to also

cause the extirpation of the 20 small

populations of Erigeron decumbens var.

decumbens. Should these smaller

populations disappear, only large

habitat sites will be left. Only eight sites

of Fender’s blue butterfly (75 percent

reduction), nine sites of L. sulphureus

ssp. kincaidii (74 percent reduction),

and eight sites of E. decumbens var.

decumbens (72 percent reduction) will

remain.

The importance of these small

populations, particularly for the

Fender’s blue butterfly, lies in their

potential to serve as stepping stones

between larger neighboring populations.

The loss of these populations and the

accompanying potential habitat would

severely compromise the ability of

Lupinus sulphureus ssp. kincaidii and

Erigeron decumbens var. decumbens or

the Fender’s blue butterfly to disperse

from larger sites (Hammond and Wilson

1993, Schultz 1996). Larger populations

would become more isolated and

extinction-prone as opportunities for

migration and/or recolonization are

limited.

A less visible threat to the smaller

populations is a decrease in vigor and

viability. For the Fender’s blue butterfly,

small numbers and localized

populations increase the risk of loss

through random genetic or demographic

factors. (Gilpin and Soule ́ 1986,

Kuykendall and Kaye 1993b, Lacy 1992,

Hammond and Wilson 1993). Nineteen

of the 32 Fender’s blue butterfly sites

contain an estimated 50 or fewer

individuals. The threat of extinction due

to naturally occurring genetic or

demographic events can play a

significant role in the instability of the

species as a whole. The isolation of

these small populations due to habitat

fragmentation limits the potential for

dispersal and migration and the

resultant exchange of genetic material.

Small, isolated populations with no

opportunity of rescue from neighboring

populations more easily become nonviable and/or extirpated.

This pattern of extinction and recolonization of connected colonies of

butterflies has been disrupted by the

extensive fragmentation of remaining

habitat and the disruption of the

disturbance regimes that have

maintained them. The remnant

populations, now small in numbers, are

either unconnected or exchange

individuals to a very limited degree.

With their limited dispersal abilities,

low numbers, and dwindling habitat, a

majority of the remaining populations of

Fender’s blue butterfly likely face

permanent extirpation.

The effects of random environmental

events are magnified in small

populations. For instance, one small

population of Erigeron decumbens var.

decumbens previously found on Finley

National Wildlife Refuge was lost due to

erosion from a natural change in a

waterway course (Meinke 1980). Large

fluctuations in Fender’s blue butterfly

populations have been correlated with

random variations in weather

conditions from year to year (Shultz

1996). These large fluctuations make

Fender’s blue butterfly extremely

susceptible to loss of habitat and host

plants due to human-caused disturbance

or invasive nonnative plants. Maxwell

(in litt. 1998) observed fluctuations in

the inventory counts for both Lupinus

sulphureus ssp. kincaidii and

Delphinium leucophacum over a 4-year

period on the Boistfort Prairie. Lupinus

sulphureus ssp. kincaidii counts ranged

from 742 to 2,266 plants and strong

evidence existed that these fluctuations

in numbers were closely tied to weather

patterns (Maxwell in litt. 1998). The

timing of spring rains is very critical for

production of above-ground biomass for

these two species. In years with lower

than average precipitation, these plant

species may not even appear.

A serious long-term threat to all

Fender’s blue butterfly, Lupinus

sulphureus ssp. kincaidii, and Erigeron

decumbens var. decumbens sites is the

change in community structure due to

plant succession. Continuing plant

succession has been documented on 70

of the 88 relic prairie sites occupied by

1 or more of these species. Invasion by

alien plant species has been

documented at 37 of these 88 prairie

sites. The natural transition of grassland

to forest in the absence of disturbance

such as fire will lead to the eventual

loss of these prairie sites unless they are

actively managed (Clark et al. 1993;

Franklin and Dyrness 1973; Hammond

and Wilson 1993; Johannsesen et al.

1971; Kuykendall and Kaye 1993a). The

presence of tall, fast-growing nonnative

species speeds the conversion of upland

native prairie to dense, rank grasslands

and shrub lands. Invasive woody

species of concern include nonnative

plants such as Rubus discolor

(Himalayan blackberry) and Cytisus

scoparius (Scotch broom), and the

native species Toxicodendron

diversiloba (poison oak). Nonnative

weedy herbaceous species include

Cirsium arvense (Canada thistle).

Nonnative grass species aggressive

enough to suppress L. sulphureus ssp.

kincaidii and E. decumbens var.

decumbens include Holcus lanatus

(velvet grass), Dactylis glomerata

(orchard grass), Brachypodium

sylvaticum (false-brome), and

Arrhenatherum elatius (tall oat-grass)

(Hammond 1996).

At prairie remnant roadside sites, the

degree of the threat of succession varies,

depending on the vegetation control

employed by each county. Many

Fender’s blue butterfly populations are

close to local extinction at small

3886 Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations

roadside sites. Populations along the

roadside generally have low numbers of

individuals because habitat, often

degraded, can be invaded by nonnative

grasses. This situation usually leads to

succession by shrubs and trees

(Hammond 1996). For instance, one

roadside site at Oak Ridge previously

considered stable has declined since

1992 because large thickets of Rubus

ssp. (blackberry) and Cytisus scoparius

have invaded the site (Hammond 1996).

Non-roadside prairie remnant sites in

general face the greatest threat from

succession/weed expansion and

invasion due to a lack of disturbance

that disrupts successional progress. For

instance, otherwise secure habitat on

one Corps site has been heavily invaded

by the nonnative plant Arrhenatherum

elatius. The Fender’s blue butterfly

population on this site is becoming

extremely small (Schultz 1996). Prime

habitat occupied by Erigeron

decumbens var. decumbens at the

Baskett Butte site is rapidly being

overtaken by native woody plants,

nonnative grasses and trees (Hammond

1996). Approximately 25 percent of the

large Coburg Ridge site occupied by

Fender’s blue butterfly and Lupinus

sulphureus ssp. kincaidii is threatened

by the profuse shrub growth of Cytisus

scoparius (Hammond 1996). Regardless

of the size of the site, invasion by

nonnative plants is a threat at all sites

occupied by any of the three species

addressed in this rule.

Compounding the threat of nonnative

plant species is the control of weedy

nonnative species by herbicides.

Twenty-three Lupinus sulphureus ssp.

kincaidii plants on the west side of the

Boistfort Cemetery hill site were

damaged by herbicide spray applied by

a helicopter to eradicate Scotch broom

and Canada thistle (Maxwell in litt.

1998). The application of pesticides and

biological control agents to control

insect pests, such as gypsy moths, is

also a threat to Fender’s blue butterfly.

The potential threat from use of gypsy

moth control agents on habitats

occupied by the Fender’s blue butterfly

should not be dismissed even though

the sensitivity of Fender’s blue butterfly

larvae to specific insecticides is not

known (Hammond 1994). The use of

microbial insecticides, such as Bacillus

thuringiensis (Bt), has been shown to

have significant residual toxic impacts

on native butterflies. This negative

impact is evident under field

conditions, even with heavy rain and

ultraviolet light exposure (Scriber and

Gage 1995).

Summary

Natural and human-caused factors

threaten the remaining populations of

Fender’s blue butterflies, Lupinus

sulphureus ssp. kincaidii, and Erigeron

decumbens var. decumbens. As a result

of their small size, nearly all of the

populations are threatened by either

nonnative species, natural succession,

or demographic and genetic factors.

Populations of Fender’s blue butterfly at

all 32 sites currently are threatened by

at least 1 of these factors. All 28 sites of

E. decumbens var. decumbens and all

54 sites of L. sulphureus ssp. kincaidii

are threatened by these factors. The

encroachment of nonnative plants, the

successional advance of tree and shrub

species, and other naturally occurring

random events will, if unchecked, lead

to further reductions in population size

and number leading to reduced

population viability and, ultimately, the

extinction of these three native prairie

species.

We have carefully assessed the best

scientific and commercial information

available regarding the past, present,

and future threats faced by these species

in developing this final rule. Threats to

Fender’s blue butterfly are more

imminent than threats to Lupinus

sulphureus kincaidii because the

butterfly has a unique biology and

shorter lifespan. Fender’s blue butterfly

will exhibit more rapid declines in

numbers and in the face of threats will

be extirpated more quickly at any one

location than either of the two plant

species. Because of the longer lifespan

of a perennial plant, small numbers of

L. sulphureus ssp. kincaidii plants are

likely to persist longer in any given

habitat than are small numbers of

butterflies. The threats to Erigeron

decumbens var. decumbens are more

imminent than threats to L. sulphureus

ssp. kincaidii because of the small

number of E. decumbens var.

decumbens populations. Also, many of

the E. decumbens var. decumbens

populations grow along roadsides

adjacent to agricultural development

(especially grass seed farms) where

herbicide spraying to create bare soil is

common practice. Based on our

evaluation of all the available

information, Fender’s blue butterfly and

E. decumbens var. decumbens are

presently in danger of extinction

throughout all or a significant portion of

their respective ranges, while L.

sulphureus ssp. kincaidii is likely to

become endangered within the

foreseeable future. Therefore, we find

that listing of Fender’s blue butterfly

(Icaricia icarioides fenderi) and E.

decumbens var. decumbens (Willamette

daisy) as endangered is appropriate, and

listing of L. sulphureus ssp. kincaidii

(Kincaid’s lupine) as threatened is

appropriate.

Critical Habitat

Critical habitat is defined in section

3(5)(A) of the Act as (i) the specific areas

within the geographical area occupied

by a species, at the time it is listed in

accordance with the Act, on which are

found those physical or biological

features (I) essential to the conservation

of the species and (II) that may require

special management considerations or

protection; and (ii) specific areas

outside the geographical area occupied

by a species at the time it is listed, upon

a determination that such areas are

essential for the conservation of the

species. The term ‘‘conservation’’ means

the use of all methods and procedures

needed to bring the species to the point

at which listing under the Act is no

longer necessary (16 U.S.C.

1532(3)(5)(A)).

Our regulations (50 CFR 424.12(a)(1))

state that designation of critical habitat

is not prudent when one or both of the

following situations exist—(1) The

species is threatened by taking or other

human activity and identification of

critical habitat can be expected to

increase the degree of threat to the

species, or (2) such designation of

critical habitat would not be beneficial

to the species.

In the proposed rule, we indicated

that designation of critical habitat was

not prudent for Fender’s blue butterfly

( Icaricia icarioides fenderi), Lupinus

sulphureus ssp. kincaidii (Kincaid’s

lupine), and Erigeron decumbens var.

decumbens (Willamette daisy) because

of a concern that publication of precise

maps and descriptions of critical habitat

in the Federal Register could increase

the vulnerability of these species to

incidents of collection and/or

vandalism. We also indicated that

designation of critical habitat was not

prudent because we believed the limited

benefit provided by designation was

outweighed by the increase in threats

from collection and/or vandalism.

In the last few years, a series of court

decisions have overturned our

determinations regarding a variety of

species that designation of critical

habitat would not be prudent (e.g.,

Natural Resources Defense Council v.

U.S. Department of the Interior 113 F.

3d 1121 (9th Cir. 1997); Conservation

Council for Hawaii v. Babbitt, 2 F. Supp.

2d 1280 (D. Hawaii 1998)). Based on the

standards applied in those judicial

opinions, we have reexamined the

question of whether critical habitat for

Fender’s blue butterfly (Icaricia

Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations 3887

icarioides fenderi), Lupinus sulphureus

ssp. kincaidii (Kincaid’s lupine), and

Erigeron decumbens var. decumbens

(Willamette daisy) would be prudent.

Due to the small number of

populations, Fender’s blue butterfly

(Icaricia icarioides fenderi), Lupinus

sulphureus ssp. kincaidii (Kincaid’s

lupine), and Erigeron decumbens var.

decumbens (Willamette daisy) are

vulnerable to unrestricted collection,

vandalism, or other disturbance. We

remain concerned that these threats

might be exacerbated by the publication

of critical habitat maps and further

dissemination of locational information.

However, we have examined the

evidence available for Fender’s blue

butterfly (Icaricia icarioides fenderi),

Lupinus sulphureus ssp. kincaidii

(Kincaid’s lupine), and Erigeron

decumbens var. decumbens (Willamette

daisy) and have not found specific

evidence of taking, vandalism,

collection, or trade of these species or

any similarly situated species.

Consequently, consistent with

applicable regulations (50 CFR

424.12(a)(1)(i)) and recent case law, we

do not expect that the identification of

critical habitat will increase the degree

of threat to these species of taking or

other human activity.

In the absence of a finding that critical

habitat would increase threats to a

species, if there are any benefits to

critical habitat designation, then a

prudent finding is warranted. In the

case of these species, there may be some

benefits to designation of critical

habitat. The primary regulatory effect of

critical habitat is the section 7

requirement that Federal agencies

refrain from taking any action that

destroys or adversely modifies critical

habitat. While a critical habitat

designation for habitat currently

occupied by these species would not be

likely to change the section 7

consultation outcome because an action

that destroys or adversely modifies such

critical habitat would also be likely to

result in jeopardy to the species, there

may be instances where section 7

consultation would be triggered only if

critical habitat is designated. Examples

could include unoccupied habitat or

occupied habitat that may become

unoccupied in the future. There may

also be some educational or

informational benefits to designating

critical habitat. Therefore, we find that

critical habitat designation is prudent

for Fender’s blue butterfly (Icaricia

icarioides fenderi), Lupinus sulphureus

ssp. kincaidii (Kincaid’s lupine), and

Erigeron decumbens var. decumbens

(Willamette daisy).

The Final Listing Priority Guidance

for FY 2000 (64 FR 57114) states that the

processing of critical habitat

determinations (prudency and

determinability decisions) and proposed

or final designations of critical habitat

will no longer be subject to

prioritization under the Listing Priority

Guidance. Critical habitat

determinations, which were previously

included in final listing rules published

in the Federal Register, may now be

processed separately, in which case

stand-alone critical habitat

determinations will be published as

notices in the Federal Register. We will

undertake critical habitat

determinations and designations during

FY 2000 as allowed by our funding

allocation for that year. As explained in

detail in the Listing Priority Guidance,

our listing budget is currently

insufficient to allow us to immediately

complete all of the listing actions

required by the Act. Deferral of the

critical habitat designation for Fender’s

blue butterfly (Icaricia icarioides

fenderi), Lupinus sulphureus ssp.

kincaidii (Kincaid’s lupine), and

Erigeron decumbens var. decumbens

(Willamette daisy) will allow us to

concentrate our limited resources on

higher priority critical habitat and other

listing actions, while allowing us to put

in place protections needed for the

conservation of Fender’s blue butterfly

(Icaricia icarioides fenderi), Lupinus

sulphureus ssp. kincaidii (Kincaid’s

lupine), and Erigeron decumbens var.

decumbens (Willamette daisy) without

further delay. However, because we

have successfully reduced, although not

eliminated, the backlog of other listing

actions, we anticipate in FY 2000 and

beyond giving higher priority to critical

habitat designation, including

designations deferred pursuant to the

Listing Priority Guidance, such as the

designation for these species, than we

have in recent fiscal years.

We plan to employ a priority system

for deciding which outstanding critical

habitat designations should be

addressed first. We will focus our efforts

on those designations that will provide

the most conservation benefit, taking

into consideration the efficacy of critical

habitat designation in addressing the

threats to the species, and the

magnitude and immediacy of those

threats. We will develop a proposal to

designate critical habitat for the

Fender’s blue butterfly (Icaricia

icarioides fenderi), Lupinus sulphureus

ssp. kincaidii (Kincaid’s lupine), and

Erigeron decumbens var. decumbens

(Willamette daisy) as soon as feasible,

considering our workload priorities.

Unfortunately, for the immediate future,

most of Region 1’s listing budget must

be directed to complying with

numerous court orders and settlement

agreements, as well as due and overdue

final listing determinations (like the one

at issue in this case).

Available Conservation Measures

Conservation measures provided to

species listed as endangered or

threatened under the Act include

recognition, recovery actions,

requirements for Federal protection, and

prohibitions against certain activities.

Recognition through listing encourages

and results in conservation actions by

Federal, State, and private agencies,

groups, and individuals. The Act

provides for possible land acquisition

and cooperation with the States and

requires that recovery actions be carried

out for all listed species. The protection

required of Federal agencies and the

prohibitions against taking and harm of

animals and certain activities involving

listed plants are discussed, in part,

below.

Section 7(a)(2) of the Act, as

amended, requires Federal agencies to

evaluate their actions with respect to

any species that is proposed or listed as

endangered or threatened and with

respect to its critical habitat, if any is

being designated. Regulations

implementing this interagency

cooperation provision of the Act are

codified at 50 CFR Part 402. If a species

is listed, section 7(a)(2) requires Federal

agencies to ensure that activities they

authorize, fund, or carry out, are not

likely to jeopardize the continued

existence of such a species or to destroy

or adversely modify its critical habitat.

If a Federal action is likely to adversely

affect a listed species or its critical

habitat, the responsible Federal agency

must enter into formal consultation with

us.

The Federal Highway Administration

provides partial funding for State

highway maintenance. Therefore, any

roadside habitat supporting Erigeron

decumbens var. decumbens, Lupinus

sulphureus ssp. kincaidii, and/or

Fender’s blue butterfly populations

would be subject to section 7

consultation on any federally funded

maintenance activities. Also, if the U.S.

Department of Housing and Urban

Development, a Federal agency, is

involved in the issuance of housing

loans on private property supporting

occurrences of E. decumbens var.

decumbens, L. sulphureus ssp.

kincaidii, or Fender’s blue butterfly,

such loans would be subject to review

under section 7 of the Act. The BLM,

FS, and Corps manage lands that are

3888 Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations

known to contain existing populations

of E. decumbens var. decumbens, L.

sulphureus ssp. kincaidii, and Fender’s

blue butterfly. In these cases,

consultation requirements placed upon

Federal agencies by the Act would be

required for actions that may affect

these species. Furthermore,

opportunities for land acquisition,

conservation agreements, and other

recovery strategies would be bolstered

by listing these species as endangered or

threatened.

Active management of native prairie

remnants is being carried out by the

Portland District Corps, our Western

Oregon National Wildlife Refuge

complex, Eugene District BLM, and the

Washington and Oregon field offices of

TNC. In 1997, the Corps initiated an

attempt to create two new Lupinus

sulphureus ssp. kincaidii populations

from seed collected from five areas

around Fern Ridge Reservoir. One site

was adjacent to the Green Oaks site at

Fern Ridge, and the other is at Row

Point at Dorena Reservoir. Both are on

Corps lands and both are protected.

Thirty-nine seedlings resulted at Row

Point and 200 seedlings survived at

Green Oak in 1998.

We have conducted research at

Baskett Slough National Wildlife Refuge

on the effects of prescribed fire, fire

suppression, mowing, and herbicide on

native and nonnative prairie species

including Lupinus sulphureus ssp.

kincaidii and Erigeron decumbens var.

decumbens and Fender’s blue

butterflies. We have also controlled tall

oatgrass in Fender’s blue butterfly

habitat and completed demographic

studies of E. decumbens var.

decumbens. In addition to efforts

directed at managing and rehabilitating

the remnant prairie habitat on Baskett

Butte, we have been involved in projects

to restore prairie habitat in former farm

fields on Baskett Slough and William L.

Finley National Wildlife Refuges. At the

William L. Finley Refuge, the

population of E. decumbens var.

decumbens that was lost to erosion

during the 1980s along a cut bank of

Muddy Creek was located less than 0.5

km (0.3 mi) from a field that was retired

from cultivation for the purpose of a

prairie restoration project. The current

intent is to reestablish Erigeron

decumbens var. decumbens on this

restored prairie. Also, Bald Top Knoll of

the William L. Finley National Wildlife

Refuge has been identified as a potential

restoration site for the Willamette Valley

dry prairie ecotype.

Management of the six prairie

remnants in the west Eugene wetlands

of Lane County on BLM lands includes

control of nonnative invasive species,

primarily blackberry, tansy ragwort,

meadow knapweed, and Scotch broom.

BLM will use methods such as tractor

mowing, hand pulling or cutting, and

will remove native hardwoods and/or

conifers needed to maintain these

prairie remnants. As part of the West

Eugene Wetlands Acquisition Program,

BLM will acquire additional habitat

supporting sensitive Willamette Valley

prairie species as opportunities occur.

At the Boistfort Cemetery, extensive

Canada thistle patches at the base of the

south side of the hill near Lupinus

sulphureus ssp. kincaidii were pulled

by TNC volunteers in 1993. On June 25,

1994, TNC volunteers pulled Canada

thistle and cut scotch broom on the

north side of the hill. Volunteers did

weed control by hand at this private site

to aid the landowner and in turn reduce

herbicide use thus helping to preserve

rare plant populations.

On the TNC Willow Creek Natural

Area, seedlings of Lupinus sulphureus

ssp. kincaidii were introduced initially

in 1995, then again in the fall of 1996,

the spring of 1997, and the spring of

1998. TNC plans to continue monitoring

through the year 2000 to evaluate how

successful these efforts were.

The Act and its implementing

regulations set forth a series of general

prohibitions and exceptions that apply

to all endangered and threatened plants.

The prohibitions of section 9(a)(2) of the

Act, implemented by 50 CFR 17.61 for

endangered plants and 50 CFR 17.71 for

threatened plants, apply. These

prohibitions, in part, make it illegal for

any person subject to the jurisdiction of

the United States to import or export,

transport in interstate or foreign

commerce in the course of a commercial

activity, sell or offer for sale in interstate

or foreign commerce, or remove and

reduce the species to possession from

areas under Federal jurisdiction. In

addition, for plants listed as

endangered, the Act prohibits the

malicious damage or destruction of the

plants on areas under Federal

jurisdiction and the removal, cutting,

digging up, or damaging or destroying of

such plants in knowing violation of any

State law or regulation, or in the course

of a violation of State criminal trespass

law (see 16 U.S.C. 1538 (a)(2)(B)).

Section 4(d) of the Act allows for the

provision of such protection to

threatened species through regulation.

This protection may apply to Lupinus

sulphureus ssp. kincaidii in the future if

a special regulation is issued after

opportunity for public notice and

comment. Seeds from cultivated

specimens of threatened plants are

exempt from these prohibitions

provided that their containers are

marked ‘‘Of Cultivated Origin.’’ Certain

exceptions to the prohibitions apply to

agents of the Service and State

conservation agencies.

The Act and 50 CFR 17.62, 17.63, and

17.72 also provide for the issuance of

permits to carry out otherwise

prohibited activities involving

endangered and threatened plants under

certain circumstances. Such permits are

available for scientific purposes and to

enhance the propagation or survival of

the species. For threatened plants,

permits also are available for botanical

or horticultural exhibition, educational

purposes, or special purposes consistent

with the purposes of the Act. It is

anticipated that few trade permits

would ever be sought or issued because

Lupinus sulphureus ssp. kincaidii and

Erigeron decumbens var. decumbens are

not common in cultivation or in the

wild.

The Act and implementing

regulations also set forth a series of

general prohibitions and exceptions that

apply to all endangered wildlife. These

prohibitions, in part, make it illegal for

any person subject to the jurisdiction of

the United States to take (includes

harass, harm, pursue, hunt, shoot,

wound, kill, trap, capture, collect; or to

attempt any of these), import or export,

ship in interstate commerce in the

course of commercial activity, or sell or

offer for sale in interstate or foreign

commerce any listed species. It also is

illegal to possess, sell, deliver, carry,

transport, or ship any such wildlife that

has been taken illegally. Certain

exceptions apply to agents of the

Service and State conservation agencies.

Permits may be issued to carry out

otherwise prohibited activities

involving endangered wildlife under

certain circumstances. Regulations

governing permits are codified at 50

CFR 17.22 and 17.23. Such permits are

available for scientific purposes, to

enhance the propagation or survival of

the species, and/or for incidental take in

connection with otherwise lawful

activities.

Our policy, as published in the

Federal Register on July 1, 1994 (59 FR

34272), is to identify to the maximum

extent practicable at the time a species

is listed, those activities that would or

would not constitute a violation of

section 9 of the Act. The intent of this

policy is to increase public awareness of

the effect of the listing on proposed and

ongoing activities within the range of a

species. Erigeron decumbens var.

decumbens and Lupinus sulphureus

ssp. kincaidii are known to occur on

Federal lands under the jurisdiction of

the Service, Corps, BLM, or FS. With

issuance of this final rule, these species

Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations 3889

on Federal lands are protected from

collection. Erigeron decumbens var.

decumbens is protected from malicious

damage or destruction on Federal land

under section 9 of the Act. In

appropriate cases, collection of these

species could be allowed through the

issuance of a Federal permit. We are not

aware of any otherwise lawful activities

being conducted or proposed on private

land that will be affected by this listing

and result in a violation of section 9 for

these plants.

With issuance of this final rule,

Fender’s blue butterfly receives more

extensive protection under the Act than

described for Erigeron decumbens var.

decumbens, and Lupinus sulphureus

ssp. kincaidii. Section 9 prohibits the

take of any listed wildlife species by any

person subject to the jurisdiction of the

United States. We believe that, based on

the best available information, the

following actions would not be

violations of section 9:

(1) Possession, delivery, or movement,

including interstate transport involving

no commercial activity, dead specimens

of Fender’s blue butterfly that were

collected prior to the date of publication

in the Federal Register of this final

regulation adding this taxon to the list

of endangered species;

(2) Actions that may affect Fender’s

blue butterfly and are authorized,

funded, or carried out by a Federal

agency when the action is conducted in

accordance with incidental take

statements included in biological

opinions issued under section 7 of the

Act;

(3) Land actions or management

carried out under a habitat conservation

plan approved by us pursuant to section

10(a)(1)(B) of the Act; and

(4) Scientific research carried out

under a permit issued by us pursuant to

section 10(a)(1)(A) of the Act.

Potential activities involving Fender’s

blue butterfly that would likely be

considered a violation of section 9

include, but are not limited to, the

following:

(1) Take of Fender’s blue butterfly

without a permit pursuant to section

10(a)(1)A) or an incidental take permit

pursuant to section 10(a)(1)(B) of the

Act (this includes harassing, harming,

pursuing, hunting, shooting, wounding,

killing, trapping, capturing, or

collecting, or attempting any of these

actions);

(2) Possessing, selling, delivering,

carrying, transporting, or shipping

illegally taken specimens of Fender’s

blue butterfly;

(3) Release of chemical or biological

control agents that attack, damage, or

kill any stage of this taxon, if not

approved through section 7

consultation;

(4) In areas where Fender’s blue

butterfly occurs, the removal or

destruction of the food plants being

utilized by Fender’s blue butterfly,

defined as Lupinus sulphureus ssp.

kincaidii, Erigeron decumbens var.

decumbens, Lupinus. albicaulis, and

Lupinus. laxiflorus; and

(5) Destruction or alteration of

Fender’s blue butterfly habitat by

grading, leveling, plowing, mowing,

burning, herbicide or pesticide spraying,

intensively grazing, or otherwise

disturbing grasslands that result in the

death or injury of adult Fender’s blue

butterflies and/or their larvae or eggs,

through significant impairment of the

species’ essential breeding, foraging,

sheltering, or other essential life

functions.

You may direct questions regarding

whether specific activities risk a

violation of section 9 to the State

Supervisor of our Oregon State Office

(see ADDRESSES section). Requests for

copies of the regulations concerning

listed plant and animal species and

general inquiries regarding prohibitions

and permits may be addressed to the

U.S. Fish and Wildlife Service,

Endangered Species Permits, 911 N.E.

11th Avenue, Portland, Oregon 97232–

4181 (telephone 503–231–2063; FAX

503–231–6243).

National Environmental Policy Act

We have determined that

Environmental Assessments and

Environmental Impact Statements, as

defined under the authority of the

National Environmental Policy Act of

1969, need not be prepared in

connection with regulations adopted

pursuant to section 4(a) of the

Endangered Species Act of 1973, as

amended. A notice outlining our

reasons for this determination was

published in the Federal Register on

October 25, 1983 (48 FR 49244).

Paperwork Reduction Act

This rule does not contain any new

collections of information other than

those already approved under the

Paperwork Reduction Act, 44 U.S.C.

3501 et seq., and assigned Office of

Management and Budget clearance

number 1018–0094. An agency may not

conduct or sponsor, and a person is not

required to respond to, collection of

information, unless it displays a

currently valid control number. For

additional information concerning

permit and associated requirements for

endangered plant species, see 50 CFR

17.62 and 17.63.

Executive Order 12866

This rule has not been reviewed by

the Office of Management and Budget

under Executive Order 12866.

References Cited

You may request a complete list of all

references cited herein, as well as

others, from the Oregon State Office (see

ADDRESSES above).

Author

The primary author of this final rule

is Dr. Andrew F. Robinson, Jr., Fish and

Wildlife Biologist (see ADDRESSES

section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements,

Transportation.

Final Regulation Promulgation

For the reasons outlined in the

preamble, we amend part 17, subchapter

B of chapter I, title 50 of the Code of

Federal Regulations, as set forth below:

PART 17—[AMENDED]

1. The authority citation for part 17

continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C.

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500, unless otherwise noted.

2. Amend § 17.11(h) by adding the

following, in alphabetical order under

INSECTS, to the List of Endangered and

Threatened Wildlife:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Species

Historic range

Vertebrate population where endangered or threatened

Status When listed Critical habitat

Special

rules Common name Scientific name

INSECTS

3890 Federal Register / Vol. 65, No. 16 / Tuesday, January 25, 2000 / Rules and Regulations

Species

Historic range

Vertebrate population where endangered or threatened

Status When listed Critical habitat

Special

rules Common name Scientific name

*******

Butterfly, Fender’s

blue.

Icaricia icarioides

fenderi.

U.S.A. (OR) ............ NA ........................... E NA NA

*******

3. Amend § 17.12(h) by adding the

following, in alphabetical order, under

FLOWERING PLANTS, to the List of

Endangered and Threatened Plants:

§ 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

Species

Historic range Family Status When listed Critical habitat

Special

rules Scientific name Common name

FLOWERING PLANTS

*******

Erigeron decumbens

var. decumbens.

Willamette daisy ..... U.S.A. (OR) ............ Asteraceae ............. E NA NA

*******

Lupinus sulphureus

ssp. kincaidii.

Kincaid’s lupine ...... U.S.A. (OR, WA) .... Fabaceae ................ T NA NA

Lupinus oreganus

var. kincaidii =

synonym.

Lupinus sulphureus

var. kincaidii =

synonym.

*******

Dated: January 5, 2000.

Rowan W. Gould,

Acting Director, Fish and Wildlife Service.

[FR Doc. 00–1561 Filed 1–24–00; 8:45 am]

BILLING CODE 4310–55–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 660

[Docket No. 991229356–9356–01; 121799F]

RIN 0648–AN36

Fisheries off West Coast States and in

the Western Pacific; Coastal Pelagic

Species Fisheries; Annual

Specifications

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final harvest guidelines.

SUMMARY: NMFS announces the annual

harvest guidelines for Pacific sardine

and Pacific mackerel in the exclusive

economic zone (EEZ) off the Pacific

coast. The Coastal Pelagic Species

Fishery Management Plan (FMP) and its

implementing regulations require NMFS

to establish annual harvest guidelines

for Pacific sardine and Pacific mackerel

based on a formulas appearing in the

FMP. The intended effect of this action

is to establish allowable harvest levels

for coastal pelagic species off the Pacific

coast.

DATES: Effective January 1, 2000.

Comments are invited until February 24,

2000.

ADDRESSES: Submit comments on the

annual specifications to Rodney R.

McInnis, Acting Regional

Administrator, Southwest Region,

(Regional Administrator), NMFS, 501

West Ocean Blvd., Suite 4200, Long

Beach, CA 90802–4213. The reports

Stock Assessment of Sardine for 1999

with Management Recommendations for

2000 and Status of the Pacific Mackerel

Resource and Fishery in 1999 are

available from this same address.

FOR FURTHER INFORMATION CONTACT:

James J. Morgan, Southwest Region,

NMFS, (562) 980–4030.

SUPPLEMENTARY INFORMATION: The FMP,

which was partially approved by the

Secretary of Commerce on June 10,

1999, and implemented by publication

of a final rule in the Federal Register on

December 15, 1999 (64 FR 69888),

divides managed species into the

categories of actively managed and

monitored. Harvest guidelines of

actively managed species (Pacific

sardine and Pacific mackerel) are based

on formulas applied to current biomass

estimates. Harvest guidelines for

monitored species (jack mackerel,

northern anchovy, and market squid),

which are underutilized or managed

primarily by California, are not based on

current biomass estimates. Nonetheless,

the FMP includes a constant allowable

biological catch (ABC) for each

monitored species based on long-term

yields. If an ABC for a monitored

species is reached, it would be

designated an actively managed species;

at that time, the Pacific Fishery

Management (Council) would review

the condition of the resource and

recommend necessary management

action. Except for northern anchovy,

this is the first year of managing coastal

pelagic species under this FMP.

At a public meeting each year, the

biomass for each actively managed

species is presented by the Council’s

Coastal Pelagic Species Management

Team (Team) to the Council’s Coastal

Pelagic Species Advisory Subpanel

(Subpanel). At that time, the biomass,