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

Authority: 46 U.S.C. 2103, 3306; E.O.

12234, 45 FR 58801, 3 CFR, 1980 Comp., p.

277; 49 CFR 1.46.

§ 121.710 [Corrected]

15. In § 121.710, remove the words

‘‘part 160, subpart 160.041, of this

chapter’’ and add, in their place, the

words ‘‘approval series 160.041’’.

PART 122—OPERATIONS

16. The authority citation for part 122

continues to read as follows:

Authority: 46 U.S.C. 2103, 3306, 6101; E.O.

12234, 45 FR 58801, 3 CFR, 1980 Comp., p.

277; 49 CFR 1.46.

§ 122.604 [Corrected]

17. In § 122.604, in paragraph (a)

introductory text, remove the words ‘‘at

least 76 millimeters (3 inches) high’’; in

paragraph (d), add the words ‘‘and

numbers’’ after the word ‘‘letters’’ and

remove the words ‘‘in letters and

numbers at least 40 millimeters (1.5

inches) high’’; in paragraph (e)

introductory text add the words ‘‘and

numbers’’ after the word ‘‘letters’’ and

remove the words ‘‘in letters and

numbers at least 40 millimeters (1.5

inches) high’’.

SUBCHAPTER T—SMALL

PASSENGER VESSELS (UNDER 100

GROSS TONS)

PART 175—GENERAL PROVISIONS

18. The authority citation for part 175

continues to read as follows:

Authority: 46 U.S.C. 2103, 3306; 49 U.S.C.

App. 1804; 49 CFR 1.45, 1.46. Sec. 175.900

also issued under 44 U.S.C. 3507.

19. In § 175.400, in the definition for

‘‘High Speed Craft’’, in the equation ‘‘V

= 3.7 × displ 1667 h’’, add a decimal point

before the number ‘‘1667’’, and add, in

alphabetical order, a definition for

‘‘wood vessel’’ to read as follows:

§ 175.400 Definitions of terms used in this

subchapter.

* * * * *

Wood vessel means, for the purposes

of subdivision and lifesaving equipment

requirements in this subchapter, a

traditionally-built, plank-on-frame

vessel, where mechanical fasteners

(screws, nails, trunnels) area used to

maintain hull integrity.

* * * * *

PART 177—CONSTRUCTION AND

ARRANGEMENT

20. The authority citation for part 177

continues to read as follows:

Authority: 46 U.S.C. 2103, 3306; E.O.

12234, 45 FR 58801, 3 CFR, 1980 Comp., p.

277; 49 CFR 1.46.

21. In § 177.500, in paragraph (j)(1),

remove the last word ‘‘and’’ and add, in

its place, the word ‘‘or’’; and revise

paragraph (o)(1) to read as follows:

§ 177.500 Means of escape.

* * * * *

(o) * * *

(1) The space has a deck area less than

30 square meters (322 square feet);

* * * * *

PART 178—INTACT STABILITY AND

SEAWORTHINESS

22. The authority citation for part 178

continues to read as follows:

Authority: 43 U.S.C. 1333; 46 U.S.C. 2103,

3306; E.O. 12234, 45 FR 58801, 3 CFR, 1980

Comp., p. 277; 49 CFR 1.46.

§ 178.330 [Corrected]

23. In § 178.330(a)(4)(v), remove the

equation

‘‘Weight on Upper Deck = —————————————— × ———————— × 1.33’’

# of Passengers on Upper Deck Wt per Passenger

and add, in its place, the following equation:

‘‘Weight on Upper Deck = (# of Passengers on Upper Deck) × (Wt per Passenger) × 1.33’’.

PART 180—LIFESAVING EQUIPMENT

AND ARRANGEMENTS

24. The authority citation for part 180

continues to read as follows:

Authority: 46 U.S.C. 2104, 3306; E.O.

12234, 45 FR 58801, 3 CFR, 1980 Comp., p.

277; 49 CFR 1.46.

§ 180.130 [Corrected]

25. In § 180.130(b), remove the words

‘‘part 160, subparts 160.062 or 160.162,

of this chapter’’ and add, in their place,

the words ‘‘approval series 160.062 or

160.162’’.

§ 180.210 [Corrected]

26. In § 180.210(d), remove the words

‘‘complying with approval series

160.056’’ and add, in their place, the

words ‘‘approved under approval series

160.156’’.

PART 185—OPERATIONS

27. The authority citation for part 185

continues to read as follows:

Authority: 46 U.S.C. 2103, 3306, 6101; E.O.

12234, 45 FR 58801, 3 CFR, 1980 Comp., p.

277; 49 CFR 1.46.

§ 185.604 [Corrected]

28. In § 185.604, in paragraph (a)

introductory text, remove the words ‘‘at

least 76 millimeters (3 inches) high’’; in

paragraph (d), add the words ‘‘and

numbers’’ after the word ‘‘letters’’ and

remove the words ‘‘in letters and

numbers at least 40 millimeters (1.5

inches) high’’; and, in paragraph (e)

introductory text, add the words ‘‘and

numbers’’ after the word ‘‘letters’’ and

remove the words ‘‘in letters and

numbers at least 40 millimeters (1.5

inches) high’’.

Dated: December 1, 1997.

Joseph J. Angelo,

Acting Assistant Commandant for Marine

Safety and Environmental Protection.

[FR Doc. 97–31895 Filed 12–4–97; 8:45 am]

BILLING CODE 4910–14–M

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AC32

Endangered and Threatened Wildlife

and Plants; Determination of

Endangered Status for the Callippe

Silverspot Butterfly and the Behren’s

Silverspot Butterfly and Threatened

Status for the Alameda Whipsnake

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: The Fish and Wildlife Service

(Service) determines endangered status

pursuant to the Endangered Species Act

of 1973, as amended (Act) for the

callippe silverspot butterfly (Speyeria

callippe callippe) and Behren’s

silverspot butterfly (Speyeria zerene

behrensii) and threatened status for the

Alameda whipsnake (Alameda striped

racer) (Masticophis lateralis

euryxanthus). The callippe silverspot

butterfly is found at two sites on

grasslands in the San Francisco Bay
Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations 64307

area. Behren’s silverspot butterfly is

found within coastal terrace prairie at

one site in southern Mendocino County.

These butterflies are imperiled by

overcollecting, urban development,

alien plant invasion and competition,

and excessive livestock grazing. The

Alameda whipsnake occurs in the

northern coastal scrub and chaparral

habitats of Contra Costa and Alameda

counties. This snake and its associated

habitat are threatened by fire

suppression and related wildfire

problems associated with lack of fuel

reduction, urban development, genetic

isolation, and excessive livestock

grazing. This rule implements Federal

protection and recovery provisions

afforded by the Act for these animals.

DATES: Effective December 5, 1997.

ADDRESSES: The complete file for this

rule is available for public inspection,

by appointment, during normal business

hours, at the Sacramento Field Office,

U.S. Fish and Wildlife Service, 3310 El

Camino Ave., Suite 130, Sacramento,

California 95821.

FOR FURTHER INFORMATION CONTACT:

Mike Westphal or Diane Windham, staff

biologists, at the above address or by

telephone (916/979–2725).

SUPPLEMENTARY INFORMATION:

Background

The callippe silverspot butterfly

(Speyeria callippe) is a member of the

brush foot family (Nymphalidae). The

animal was described by J.A. Boisduval

(1852) from specimens collected during

the month of June by Pierre Lorquin in

San Francisco, California (dos Passos

and Grey 1947). It is a medium sized

butterfly with a wingspan of

approximately 5.5 centimeters (cm) (2.2

inches (in)). The upper wings are brown

with extensive black spots and lines,

and the basal areas are extremely

melanic (dark-colored). Wing

undersides are brown, orange-brown,

and tan with black lines and distinctive

black and bright silver spots. Basal areas

of the wings and body are densely

pubescent (hairy).

The discal area on the upper hind

wings of the callippe silverspot butterfly

is a darker, more extensive yellow than

on the related Lilian’s silverspot

butterfly (Speyeria callippe liliana). The

callippe silverspot butterfly is larger and

has a darker ground color with more

melanic areas on the basal areas of the

wings than Comstock’s silverspot

butterfly (Speyeria callippe comstocki),

another related taxon.

The callippe silverspot butterfly is

found in native grassland and associated

habitats (Thomas Reid Associates 1982;

Steiner 1990; Mattoon, in litt.,

November 22, 1992). The females lay

their eggs on the dry remains of the

larvae foodplant, Johnny jump-up (Viola

pedunculata), or on the surrounding

debris (Arnold 1981, Thomas Reid

Associates 1982). Within about 1 week

of hatching the larvae eat their egg

shells. The caterpillars wander a short

distance and spin a silk pad upon which

they pass the summer and winter. The

larvae are dark colored with many

branching sharp spines on their backs.

The caterpillars immediately seek out

the foodplant upon termination of their

diapause in the spring. In May, after

having gone through five instars, each

larva forms a pupa within a chamber of

leaves drawn together with silk. Adults

emerge in about 2 weeks and live for

approximately 3 weeks. Depending

upon environmental conditions, the

flight period of this single-brooded

butterfly ranges from mid-May to late

July. The adults exhibit hilltopping

behavior, a phenomenon in which

males and virgin or multiple-mated

females seek a topographic summit on

which to mate (Shields 1967).

Arnold (1983, 1985) conducted

taxonomic studies on the subspecies of

Speyeria callippe using wing characters.

He concluded that the species consisted

of 3 subspecies rather than the widely

recognized and accepted 16 subspecies.

Based on his study, the range of

Speyeria callippe callippe would extend

from Oregon to southern California and

east into the Great Basin (Arnold 1985).

A comprehensive analysis of this

species found that the original

classification remains more appropriate

and that subspecies callippe is restricted

to the San Francisco Bay region

(Hammond 1986; Murphy undated). The

Service recognizes the conclusions of

Hammond (1986) and the distribution of

the callippe silverspot butterfly as

described by Sterling Mattoon (S.

Mattoon, in litt., November 22, 1992).

The callippe silverspot butterfly is

known from 14 historic populations in

the San Francisco Bay region. The

historic range of the callippe silverspot

butterfly includes the inner Coast

Ranges on the eastern shore of San

Francisco Bay from northwestern Contra

Costa County south to the Castro Valley

area in Alameda County (S. Mattoon, in

litt., November 22, 1992). On the west

side of the Bay, it ranged from San

Francisco south to the vicinity of La

Honda in San Mateo County. Five

colonies, including the one located at

Twin Peaks in San Francisco have been

extirpated for a variety of reasons.

Currently, extant colonies are known

only from private land on San Bruno

Mountain in San Mateo County, and a

city park in Alameda County (S.

Mattoon, in litt., November 22, 1992).

Behren’s silverspot butterfly (Speyeria

zerene behrensii) is also a member of the

brush foot family (Nymphalidae).

William H. Edwards described this

taxon in 1869 based on an adult male

collected by an unknown lepidopterist

in Mendocino, California (Edwards

1869, dos Passos and Grey 1947). It is

a medium-sized butterfly with a

wingspan of approximately 5.5 cm (2.2

in). The upper surfaces are golden

brown with numerous black spots and

lines. Wing undersides are brown,

orange-brown, and tan with black lines

and distinctive silver and black spots.

Basal areas of the wings and body are

densely pubescent.

Behren’s silverspot butterfly is similar

in appearance to two other subspecies of

Speyeria zerene (Howe 1975, Hammond

1980, McCorkle and Hammond 1988).

The Oregon silverspot butterfly

(Speyeria zerene hippolyta), federally

listed as threatened, has lighter basal

suffusion on the upper sides of the

wings than Behren’s silverspot butterfly.

Another related taxon, the endangered

Myrtle’s silverspot butterfly (Speyeria

zerene myrtleae) is larger in size and

also lighter in color than Speyeria

zerene behrensii.

Behren’s silverspot butterfly inhabits

coastal terrace prairie habitat. The life

history of Behren’s silverspot butterfly

is similar to the callippe silverspot

butterfly. The females lay their eggs in

the debris and dried stems of the larval

foodplant, violet (Viola adunca)

(McCorkle 1980, McCorkle and

Hammond 1988). Upon hatching, the

caterpillars wander a short distance and

spin a silk pad upon which they pass

the fall and winter. The larvae are darkcolored with many branching, sharp

spines on their backs. The caterpillars

immediately seek out the foodplant

upon termination of their diapause in

the spring. They pass through five

instars before forming a pupa within a

chamber of leaves that they draw

together with silk. The adults emerge in

about 2 weeks and live for

approximately 3 weeks. Depending

upon environmental conditions, the

flight period of this single-brooded

butterfly ranges from July to August.

Adult males patrol open areas in search

of newly emerged females.

The historic range of Behren’s

silverspot butterfly extends from the

mouth of the Russian River in Sonoma

County northward along the immediate

coast to southern Mendocino County in

the vicinity of Point Arena (S. Mattoon,

in litt., August 4, 1989). Six historic

populations are known from coastal

terrace prairie and associated habitats.
64308 Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations

The single extant population is located

on private land near Point Arena in

Mendocino County.

The Alameda whipsnake (Alameda

striped racer) (Masticophis lateralis

euryxanthus) is a member of the family

Colubridae (Stebbins 1985). It was

described by William J. Riemer (1954)

from a total of six specimens collected

in the vicinity of Berkeley, Alameda

County, and near Somersville, Contra

Costa County, and from Mount Diablo,

Contra Costa County, California. The

Alameda whipsnake is a slender, fastmoving, diurnal snake with a narrow

neck and a relatively broad head with

large eyes. The dorsal surface is colored

sooty black with a distinct yelloworange stripe down each side. The

anterior portion of the ventral surface is

orange-rufous colored, the midsection is

cream colored, and the posterior and tail

are pinkish. Adults range in length from

91 to 122 cm (3 to 4 feet (ft)).

The Alameda whipsnake inhabits the

inner Coast Ranges in western and

central Contra Costa and Alameda

counties (Jennings 1983, McGinnis

1992, Swaim 1994). Urban development

has fragmented the originally

continuous range of the whipsnake into

five populations centered in the (1)

Sobrante Ridge, Tilden/Wildcat

Regional Parks area to the Briones Hills,

in Contra Costa County (Tilden-Briones

population); (2) Oakland Hills, Anthony

Chabot area to Las Trampas Ridge, in

Contra Costa County (Oakland-Las

Trampas population); (3) Hayward Hills,

Palomares area to Pleasanton Ridge, in

Alameda County (Hayward-Pleasanton

Ridge population); (4) Mount Diablo

vicinity and the Black Hills, in Contra

Costa County (Mount Diablo-Black Hills

population); and (5) Wauhab Ridge, Del

Valle area to the Cedar Mountain Ridge,

in Alameda County (Sunol-Cedar

Mountain population). These

populations all occur on private or

public, non-Federal, land.

Due to the fragmentation of the range

of the Alameda whipsnake, little or no

interchange occurs among the five

populations. The ability of the

whipsnake to interchange among the

first three populations described above

is contingent on their dispersing over

the Caldecott Tunnel in Contra Costa

County and under Highway 580 in

Alameda County at the Eden Canyon

interchange, the Dublin Boulevard

undercrossing, or where San Lorenzo

Creek passes under the highway. The

ability of the Alameda whipsnake to

interchange between the HaywardPleasanton Ridge and Sunol-Cedar

Mountain populations depends on their

dispersing along Alameda Creek in

Alameda County and crossing under

Highway 680 where the creek passes

under the highway, or crossing under

the highway at Scott’s Corner along

Vallecitos Creek, or where two unnamed

tributaries to Arroyo de la Laguna cross

under Highway 680 north of Scott’s

Corner. The Mount Diablo-Black Hills

population has no path for dispersal to

any of the other populations.

The Alameda whipsnake is

distinguished from the chaparral

whipsnake (Masticophis lateralis

lateralis) by its sooty black dorsum, by

wider yellow-orange stripes that run

laterally down each side, the lack of a

dark line across the rostral, an

uninterrupted light stripe between the

rostral and eye, and the virtual absence

of spotting on the venter of the head and

neck.

The Alameda whipsnake is typically

found in northern coastal scrub, coastal

sage scrub and chaparral plant

communities (Ornduff 1974, Swaim

1994), but may also occur in adjacent

grasslands and oak and oak/bay

woodlands (Swaim 1994). They

demonstrate a preference for opencanopy stands and habitats with woody

debris and exposed rock outcrops, and

they tend to be found on southeast,

south, and southwest facing slopes

(Swaim 1994). This extremely fastmoving snake holds its head high off the

ground to peer over grass or rocks for

potential prey and is an active diurnal

predator. Its diet includes lizards, small

mammals, snakes, and nesting birds.

Radiotelemetry data suggest that

Alameda whipsnakes can occupy home

ranges varying in size from 1.9 to 8.7

hectares (ha) (5.0 to 21.5 acres (ac)).

Home ranges of marked snakes

overlapped (Swaim 1994). Some

animals were recorded to have moved

over 1.8 kilometers (km) (1 mile (mi))

while crisscrossing their areas

(McGinnis 1992).

Alameda whipsnakes breed from

March through June, with mating

appearing to occur near the hibernacula

of the female (Swaim 1994).

Whipsnakes lay clutches of 6 to 11 eggs,

May through July (Stebbins 1985), and

the young hatch and emerge in the latesummer to early-fall (Swaim 1994).

Previous Federal Action

A proposed rule to list the callippe

silverspot butterfly as endangered with

critical habitat was published on July 3,

1978 (43 FR 28938). The critical habitat

portion of this proposal was withdrawn

by the Service on March 6, 1979 (44 FR

12382) because of procedural and other

substantive changes in the Act by the

amendments of 1978. The Service again

published a proposed rule to designate

critical habitat for the callippe

silverspot butterfly on March 28, 1980

(45 FR 20503). The proposal to list the

callippe silverspot butterfly and the

reproposal of critical habitat were

withdrawn on September 30, 1980 (45

FR 64607) because the Act amendments

of 1978 required that the final rule for

the species be completed within 2 years

after the date of publication of the

proposal to list it as endangered or

threatened. This insect was listed as a

category 2 candidate species in the

Animal Notice of Review on May 22,

1984 (49 FR 21664) and January 6, 1989

(54 FR 554). Category 2 species were

those taxa for which the Service had

data that indicated listing was possibly

appropriate, but for which substantial

data on their biological vulnerability

and threats was not currently available

to support issuance of proposed listing

rules. The callippe silverspot butterfly

was listed as a category 1 species in the

Animal Notice of Review on November

21, 1991 (56 FR 58804), because of

increased threats from overcollecting

(see Factor B in the ‘‘Summary of

Factors Affecting the Species’’ section of

this rule). Category 1 species were those

taxa for which the Service had on file

sufficient information on biological

vulnerability and threats to support

proposed listing rules. As announced in

a notice published in the February 28,

1996, Federal Register (61 FR 7596), the

designation of multiple categories of

candidates has been discontinued, and

only former category 1 species are now

recognized as candidates for listing

purposes.

Ms. Dee Warenycia petitioned the

Service to list the callippe silverspot

butterfly as an endangered species in a

letter dated January 14, 1991, which was

received on January 22, 1991. The

Service completed a status review and

determined that sufficient information

existed to propose the species for

listing. The 12-month petition finding

was published on February 4, 1994,

with the proposed rule (59 FR 5377).

On March 20, 1975, Behren’s

silverspot butterfly was listed as one of

42 insects whose status was being

reviewed for listing as either

endangered or threatened by the Service

(40 FR 12691). This insect was listed as

a category 2 species in the Animal

Notice of Review on May 22, 1984 (49

FR 21664), and January 6, 1989 (54 FR

554). Dr. Dennis Murphy of Stanford

University petitioned the Service to list

Behren’s silverspot butterfly as an

endangered species in a letter dated

June 28, 1989, which was received on

June 29, 1989. The Service determined

that the petition contained substantial

information indicating that the action

requested may be warranted and
Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations 64309

published notice of the 90-day finding

on November 1, 1990 (55 FR 46080). It

was listed as a category 1 species in the

Animal Notice of Review on November

21, 1991 (56 FR 58804), on the basis of

significant increases in habitat loss and

threats occurring throughout its range.

The 12-month petition finding was

published with the proposed rule to list

the species on February 4, 1994 (59 FR

5377).

On September 18, 1985, the Service

published the Vertebrate Wildlife Notice

of Review (50 FR 37958) which

included the Alameda whipsnake as a

category 2 candidate species for possible

future listing as endangered or

threatened. The January 6, 1989, Animal

Notice of Review (54 FR 554) solicited

information on its status as a category 2

candidate species. The Alameda

whipsnake was moved to category 1 in

the November 21, 1991, Animal Notice

of Review (56 FR 58804) on the basis of

significant increases in habitat loss and

threats occurring throughout its range.

On February 4, 1994, the Service

published a proposed rule in the

Federal Register (59 FR 5377) to list the

Alameda whipsnake as an endangered

species.

The processing of this final rule

follows the Service’s listing priority

guidance published in the Federal

Register on December 5, 1996 (61 FR

64475). This guidance clarifies the order

in which the Service will process

rulemakings following two related

events—(1) the lifting, on April 26,

1996, of the moratorium on final listings

imposed on April 10, 1995 (Public Law

104–6), and (2) the restoration of

significant funding for listing through

passage of the Omnibus Budget

Reconciliation Act following severe

funding constraints imposed by a

number of continuing resolutions

between November 1995 and April

1996. Under this guidance, highest

priority (Tier 1) is given to processing

emergency listings, and second highest

priority (Tier 2) is given to resolving the

listing status of outstanding proposed

listings. The third highest priority (Tier

3) is assigned to resolving the

conservation status of candidate species

and processing administrative findings

on petitions to add species to the lists

or reclassify species from threatened to

endangered status. The lowest priority

(Tier 4) is given to processing critical

habitat determinations, delistings, and

other types of reclassifications.

Processing of this final rule is a Tier 2

action.

Summary of Comments and

Recommendations

In the February 4, 1994, proposed rule

(59 FR 5377) and associated

notifications, all interested parties were

requested to submit factual information

that might assist the Service in

determining whether these taxa warrant

listing. Appropriate State and Federal

agencies, county governments, scientific

organizations, and other interested

parties were contacted and requested to

comment. Notices of this proposal were

published in the San Francisco

Chronicle and San Mateo Times on

February 8, 1994, and the Oakland

Tribune on February 10, 1994.

During the comment period, the

Service received comments from 16

commenters. Six commenters supported

the listing of all three taxa. Five

commenters supported the listing of the

callippe silverspot. The East Bay

Regional Park District (EBRPD)

supported the listing of the Alameda

whipsnake. One commenter provided

information on conservation methods

for the callippe silverspot, but did not

express an opinion on the listing.

Letters from the City of Danville,

California Department of Parks and

Recreation (CDPR), and the U.S.

National Biological Survey (now the

Biological Resources Division of the

U.S. Geological Survey) provided

additional information on the Alameda

whipsnake but did not express an

opinion on the listing. No public

hearing was requested.

On November 1, 1996, the Service

published in the Federal Register (61

FR 56501) a notice reopening the

comment period for 30 days for these

taxa. The basis for this reopening was

the length of time that had elapsed since

closure of the initial comment period,

changing procedural and biological

circumstances, and the need to review

the best scientific information available

during the decision-making process.

Specifically, the Service requested

information regarding—(1) the known or

potential effects of fire suppression and

general fire management practices on

the Alameda whipsnake and its habitat;

(2) any other threats to these taxa; and

(3) the size, number, or distribution of

populations of these taxa. During the 30-

day reopened comment period, the

Service received comments from 10

entities and individuals. One

commenter stated that the listing of the

callippe silverspot butterfly would not

be beneficial. Two commenters

supported listing of all three taxa and

one commenter expressed no opinion

on the listing of all three taxa. The

remaining letters mentioned only the

Alameda whipsnake, with two

supporting the listing, one opposing the

listing, and three expressing no opinion.

In accordance with the Service policy

on peer review, published in the

Federal Register on July 1, 1994 (59 FR

34270), the opinions of three

independent scientists were also

solicited. No responses were received

from these specialists.

The Service has reviewed all of the

written comments described above. New

information received since publication

of the proposed rule is incorporated in

the ‘‘Background’’ and ‘‘Summary of

Factors Affecting the Species’’ sections

of this final rule. The issues raised in

comments received and the Service’s

responses are summarized as follows:

Issue 1: One commenter disagreed

that the Alameda whipsnake would not

be impacted by construction and

operation of the proposed Los Vaqueros

Reservoir. The commenter stated that

the snake would be adversely affected

by the reservoir project if there are

historic records of the snake from the

areas that would be inundated.

Service Response: The quarrying

operations for the Los Vaqueros project

will not be undertaken at the location

first proposed for the project, where an

Alameda whipsnake was observed

(Jones and Stokes 1992). The Service is

not aware of any records showing that

this species had ever occurred in the

inundation zone.

Issue 2: One commenter stated that

feral pigs (Sus scrofa) prey on snakes

and other wildlife.

Service Response: The Service has

incorporated this information in this

final rule.

Issue 3: One commenter believed that

commercial collecting of the Alameda

whipsnake was an overstated threat and

contended that this was incorrectly used

as a justification for not designating

critical habitat. Another commenter

stated that the location of the callippe

silverspot butterfly population at San

Bruno Mountain was well known to

butterfly collectors. He asserted that the

threat of collecting was not a

justification for determining that

designation of critical habitat is not

prudent for the callippe silverspot

butterfly.

Service Response: Under section

4(a)(3)(A) of the Act and 50 CFR 424.12,

the Secretary must designate critical

habitat if such designation is prudent

and determinable. Section 4(b)(2) of the

Act further states that any area may be

excluded from critical habitat if it is

determined that the benefits of such

exclusion outweigh the benefits of

specifying such area as part of the

critical habitat. In the case of the
64310 Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations

Alameda whipsnake and callippe

silverspot butterfly, the Service believes

that designation of critical habitat for

these species would confer little, if any,

conservation benefit to these species

beyond that provided by listing.

Application of the statute and its

regulations are described in more detail

in the ‘‘Critical Habitat’’ section of this

rule.

Issue 4: Several commenters

contended that the failure of the San

Bruno Mountain Habitat Conservation

Plan (HCP) is the primary cause of the

decline of the callippe silverspot

butterfly.

Service Response: In 1982, a Section

10(a)(1)(B) incidental take permit was

issued to the cities of Brisbane, Daly

City, South San Francisco, and the

County of San Mateo for the endangered

mission blue butterfly (Icaricia

icarioides missionensis), San Bruno

elfin butterfly (Incisalia mossii

bayensis), and San Francisco garter

snake (Thamnophis sirtalis tetrataenia).

This permit and HCP is described in the

‘‘Available Conservation Measures’’

section of this rule. The Service is not

aware of any documented evidence or

data showing that the callippe silverspot

butterfly is declining as a result of the

San Bruno Mountain HCP. However, the

HCP does not regulate collecting threats

to the callippe silverspot butterfly or

other butterfly species inhabiting San

Bruno Mountain. Listing the callippe

silverspot butterfly will provide this

species with regulatory protection from

collection and other impacts.

Issue 5: One commenter thought that

designation of San Bruno Mountain as

critical habitat for the callippe

silverspot butterfly would lead to

increased levels of environmental

review and greater protection for the

species.

Service Response: Critical habitat

extends additional protection to listed

species through section 7 of the Act by

requiring that Federal agencies ensure

that any actions they fund, authorize, or

carry out do not destroy or adversely

modify critical habitat. However,

because development activities on

callippe silverspot butterfly habitat on

San Bruno Mountain have already been

completed, designation of critical

habitat would not provide additional

benefits to the species. A section

10(a)(1)(B) HCP currently protects

habitat in the area.

Issue 6: One commenter was

concerned that particulate matter from

vehicle exhaust and quarry operations

may pose a significant threat to the

callippe silverspot butterfly.

Service Response: The adult and early

stages of the callippe silverspot butterfly

and other lepidopterans may be prone to

injury and mortality from dust because

their respiratory apparatus (spiracles)

are easily clogged. The Service is

concerned that high levels of dust from

quarry operations on San Bruno

Mountain may adversely affect the

butterflies in areas immediately

bordering this location.

Issue 7: One commenter claimed that

the three species are being used by

environmentalists as ‘‘roadblocks’’ to

economic uses of private property.

Another commenter stated that public

lands should be managed for

productivity and sustainability and that

the economic impact, customs,

traditions and culture of local

communities should be considered

during the listing process.

Service Response: Under section

4(a)(1)(A) of the Act, a listing

determination must be based solely on

the best scientific and commercial data

available. The legislative history of this

provision clearly states the intent of

Congress to ‘‘ensure’’ listing decisions

are ‘‘based solely on biological criteria

and to prevent non-biological

considerations from affecting such

decisions’’ (H.R. Rep. No. 97–835, 97th

Cong. 2d Sess. 19 (1982)). As further

stated in the legislative history, ‘‘* * *

economic considerations have no

relevance to determinations regarding

the status of species * * *.’’ Because

the Service is specifically precluded

from considering economic impacts,

either positive or negative, in a decision

on listing any species, the Service does

not evaluate or consider the economic

impacts of listing these species.

Section 2(a)(3) of the Act recognizes

that species of fish, wildlife, and plants

are of esthetic, ecological, educational,

historical, recreational, and scientific

value to the Nation and its people. The

Service recognizes that the species

included in this listing have esthetic,

ecological, education, historical and

scientific value.

Issue 8: One commenter thought it

would be prudent for the Service to

indicate the percentage of Alameda

whipsnake habitat lost since 1971, the

year the species was listed as

‘‘threatened’’ under the California

Endangered Species Act, to document

the level of protection afforded the

species with State listing.

Service Response: The Service

mapped Alameda whipsnake habitat

that was extant in 1970 and identified

areas where conversion and

encroachment into potential habitat had

occurred from then until 1996. To the

extent determinable from aerial

photographs and slides, projects

impacting habitat during the 1970–1996

period were mapped. Such projects

included road construction and

widening, subdivision construction and

expansion, and brush removal.

Approximately 25 projects in Alameda

County and 41 projects in Contra Costa

County either converted or encroached

upon chaparral in the 1970–1996

period. The extent of conversion and

encroachment ranged from

approximately 0.8 to 2.0 ha (2 to 5 ac)

to approximately 8 to 20 ha (20 to 50 ac)

for larger projects. Freeway construction

and residential and commercial

development have added dispersal

barriers measuring up to 4.8 km (3.0 mi)

wide. The Service’s conclusion, from

this review, was that regional

development has significantly

fragmented the remaining Alameda

whipsnake populations and that natural

genetic exchange between the five

remaining populations is unlikely.

A precise assessment of the amount of

habitat loss is difficult, because

Alameda whipsnakes are known to use

adjacent habitats at a high level

(McGinnis 1992), and may be found at

distances up to approximately 500

meters (1,640 feet) from scrub and

chaparral habitat and utilize riparian

habitat as a corridor (Swaim 1994). The

substantial amount of habitat loss

documented by the Service brings into

question the effectiveness of current

regulatory protection which is further

discussed under factor D in the

‘‘Summary of Factors’’ section of this

rule.

The issues raised in comments

received during the 30 days that the

comment period was reopened and the

Service’s responses to these issues are

summarized as follows:

Issue 9: Several commenters noted the

benefits of fuels management for snake

habitat maintenance and public safety.

One commenter noted the difficulty in

conducting prescribed burns near

residential communities. Another

commenter recommended that the

Service explicitly recognize the tradeoff

between protecting individual snakes

from mortality during fuels management

and the benefits of maintaining longterm suitable habitat conditions. The

commenter further noted that

restrictions on fuels treatment activities

should meet appropriate standards for

reasonableness, given the critical need

to provide for public safety.

Service Response: The subject of the

effects of fire suppression and general

fire management practices on the

Alameda whipsnake and its habitat was

a factor in deciding to reopen the

comment period. The Service is

concerned that fire suppression has had,

and continues to have, negative impacts
Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations 64311

on habitat for the Alameda whipsnake.

Fire suppression is discussed in depth

under factor E of the ‘‘Summary of

Factors’’ section of this rule. The

Service also recognizes the need for

efficient fire control in urban areas and

would work with appropriate

management agencies to develop fuels

management plans that protect the

public while affording the maximum

practicable conservation benefit to

Alameda whipsnakes.

Issue 10: One commenter expressed

concern that the proposed rule to list

these taxa may not have complied with

the regulatory policies announced by

the Department of the Interior on July 1,

1994. In particular, the commenter

expressed concern that the listing

proposal had not been subjected to peer

review, as required by the Notice of

Policy Statement published in the

Federal Register on that date (59 FR

34270).

Service Response: The proposed rule

to list these taxa was published on

February 4, 1994 (59 FR 5377),

predating the Service’s formal policy on

peer review made final on July 1, 1994

(59 FR 34270). However, the list of

interested parties to whom the Service

sent the proposed rule for comment

included several experts on the life

history, taxonomy, and ecology of the

taxa proposed for listing. During the

reopened comment period discussed

above in the ‘‘Previous Federal Actions’’

section, the opinions of three

independent specialists were solicited

in accordance with this policy. No

responses were received from these

specialists.

Issue 11: One commenter noted that

because California has experienced

severe fires during the past several

years, fire suppression may not be a

threat to the Alameda whipsnake.

Service Response: Several areas of

California, particularly southern

California, have recently experienced

wildfires. Within the range of the

Alameda whipsnake, however, there

have been few large wildfires within the

last 10 years with the notable exception

of the Oakland Hills firestorm of 1991.

Although this fire occurred within the

range of the species, the burned areas

were mostly located in developed

portions of the Oakland Hills that did

not contain habitat suitable for the

whipsnake. Fire suppression practices

that do not include controlled burning

can lead to severe fires that damage both

urban and wildlife areas, whereas

controlled burning can benefit both

wildlife habitat and reduce the risk of

catastrophes such as the 1991 fire. Fire

suppression is discussed in detail under

factor E of the ‘‘Summary of Factors’’

section of this rule.

Issue 12: One commenter was

concerned over the method by which

information was gathered on private

property.

Service Response: The Service is not

aware of any information that was

gathered without the permission of the

property owner. Information was

obtained from Environmental Impact

Reports or Statements that are required

under the California Environmental

Quality Act (CEQA) or National

Environmental Protection Act, reports

and data summaries prepared by State

agencies and independent scientists,

information submitted during public

comment periods, and other information

published in the scientific journals or

available in student dissertations.

Issue 13: One commenter stated that

the Service did not use sound scientific

information as indicated by its use of

phrases such as ‘‘may be threatened.’’

Service Response: Section 4(b)(a)(A)

of the Act requires that listing

determinations be based on the best

scientific and commercial data

available. The Service has relied on the

best available scientific and commercial

data in making this listing

determination. The data upon which

this determination is based were

collected by the petitioners and

qualified scientists. The phrase ‘‘may be

threatened,’’ in particular, is used to

indicate that a potential threat may

become an actual one in the foreseeable

future. The Service believes that it is

sound and responsible science to

acknowledge a lack of absolute certainty

when that is the case.

Issue 14: One commenter asked what

scientific information was used to

determine what constitutes

‘‘inappropriate grazing levels.’’

Service Response: The final rule

includes livestock grazing as one of

many factors affecting the species, and

ranks it as a contributing factor, rather

than as a major factor. Indeed, this final

rule states that some grazing could help

to keep other plants from outcompeting

the butterflies’ host plants. Studies on

Alameda whipsnakes that have been

equipped with radiotelemetry units

have shown that the whipsnake forages

in grassland between stands of scrub.

Livestock grazing that significantly

reduces or eliminates plant cover in

these grasslands would lead to an

increased loss of snakes and their prey

to other predators. The Service believes

that livestock grazing, if appropriately

managed, can benefit both the Alameda

whipsnake and the two species of

butterflies.

Issue 15: One commenter stated that

involvement of State and local

governments, as well as all types of land

users, should be required prior to listing

a species.

Service Response: To solicit

comments from the public, a notice of

the February 4, 1994, proposed rule (59

FR 5377) was published in the San

Francisco Chronicle and San Mateo

Times on February 8, 1994, and in the

Oakland Tribune on February 10, 1994.

In addition, appropriate State agencies,

county governments, Federal agencies,

scientific organizations, and other

interested parties were contacted and

requested to comment. On November 1,

1996 (61 FR 56501), the Service

reopened for public comment the

proposed listing of the three species

with a closing date of December 2, 1996,

to allow further comments from the

public.

Issue 16: One commenter stated that

the expense of amending the San Bruno

Mountain HCP to permit incidental take

of callippe silverspot butterflies would

preclude other habitat management

activities.

Service Response: The Service will

work with the permit holders involved

in the San Bruno Mountain HCP to

ensure that the process of amending

their Section 10(a)(1)(B) permit will not

cause undue diversion of funding from

other habitat management activities.

Summary of Factors Affecting the

Species

After a thorough review and

consideration of all information

available, the Service has determined

that the callippe silverspot butterfly

(Speyeria callippe callippe) and

Behren’s silverspot butterfly (Speyeria

zerene behrensii) should be classified as

endangered species, and the Alameda

whipsnake (Masticophis lateralis

euryxanthus) should be classified as a

threatened species. Procedures found at

section 4(a)(1) of the Act and regulations

(50 CFR part 424) implementing the

listing provisions of the Act were

followed. A species may be determined

to be endangered or threatened due to

one or more of the five factors described

in section 4(a)(1). These factors and

their application to the callippe

silverspot butterfly (Speyeria callippe

callippe), Behren’s silverspot butterfly

(Speyeria zerene behrensii), and

Alameda whipsnake (Masticophis

lateralis euryxanthus) are as follows:

A. The Present or Threatened

Destruction, Modification, or

Curtailment of Habitat or Range

The primary causes of the decline in

the callippe silverspot butterfly and
64312 Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations

Behren’s silverspot butterfly is the loss

and degradation of habitat from human

activities, including off-road vehicle

use, trampling by hikers and

equestrians, inappropriate levels of

livestock grazing, and invasive exotic

vegetation. Off-road vehicles and

uncontrolled off-trail foot traffic pose a

threat to the colonies of the two

butterfly species. These activities could

harass, injure, or kill individuals of the

two species by trampling or crushing

the early life stages, the foodplants of

the larvae, or the adults’ nectar sources.

The Behren’s silverspot butterfly also is

imperiled by residential and

commercial development.

The callippe silverspot butterfly was

once considerably more widespread in

the San Francisco Bay area, and at least

five populations of this species have

been eliminated by urban development

and other causes. The species was

known historically from 14 sites in San

Mateo, Alameda, Sonoma, and Solano

counties, only 2 of which are still

extant. One of the known extant

populations of the callippe silverspot

butterfly is located in a city park in

Alameda County. This colony is small

and likely to be imperiled by

anthropogenic and natural causes (S.

Mattoon, in litt., November 22, 1992).

The population at San Bruno Mountain

in San Mateo County is largely

protected against further loss of habitat,

which will remain undeveloped in

perpetuity by virtue of the San Bruno

Mountain HCP (Thomas Reid Associates

1982; S. Mattoon, in litt., November 22,

1992). However, overcollection of

specimens by lepidopterists at San

Bruno Mountain and at sites where

hybrids can be found in Solano County

continues to pose a threat (see Factor B).

Behren’s silverspot butterfly has been

extirpated from a significant portion of

its former range, which extended from

the mouth of the Russian River in

Sonoma County north to southern

Mendocino County. One of the six

historically known colonies was

eliminated by a housing development

(S. Mattoon, in litt., August 7, 1989).

Currently, this species is known from a

single locality near Point Arena in

Mendocino County (Sally DeBecker,

Pacific Gas and Electric, in litt., 1990).

The site is subject to grazing by

livestock. Although no development

plans have been proposed for this site,

urban development is occurring in the

vicinity. No specimens have been

observed at the sites of the other

historically known colonies since 1987.

The current threats to the habitat of

the Alameda whipsnake are urban

development and associated impacts

due to increased population densities,

inappropriate grazing practices, and

alteration of suitable habitat from fire

suppression (see factor E below for a full

discussion of the effects of fire

suppression on Alameda whipsnake

habitat). The central and western

portions of Alameda and Contra Costa

counties are highly urbanized and

continue to be subject to increased

urbanization. Habitat fragmentation

from urban development and associated

highway and road construction has led

to isolation of the five populations by

wholly preventing or severely reducing

movement of individuals between areas

of suitable habitat as described earlier in

this rule. These activities have also

reduced the total amount of suitable

habitat available for the Alameda

whipsnake. Swaim (1994) listed 55

historical localities for this species, of

which only 25 are considered to be

extant.

McGinnis (1992) documented

colonies scattered throughout the range

of the snake that are likely to be

adversely impacted by various

residential developments. In addition,

the Service has identified numerous

housing developments that threaten the

Alameda whipsnake populations. Some

housing developments in Alameda

County will further fragment habitat

areas of the Hayward-Pleasanton Ridge

population. These developments

include the proposed 200 ha (500 ac)

Schaefer Ranch Project with

approximately 474 homes, and the 58 ha

(146 ac) Hansen Ranch Project, both of

which could potentially impact suitable

habitat for the Alameda whipsnake. The

Schaefer Ranch contains suitable habitat

and the adjacent Hansen Ranch is in

close proximity to an Alameda

whipsnake sighting (California

Department of Fish and Game (CDFG),

in litt., February 13, 1996). In addition,

the proposed dedication of

approximately 64 ha (161 ac) of the

Schaefer Ranch project to the EBRPD

will increase public use and associated

recreational impacts to habitat of the

Alameda whipsnake. The proximity of

urban development will also increase

the likelihood of predation from

domestic and feral cats to EBRPD lands

that are otherwise protected from

development (DelVecchio 1997) (see

factor C below).

Two other proposed projects to the

south affect the Hayward-Pleasanton

Ridge population. The 632 ha (1,580 ac)

Hayward 1900 project and the 156 ha

(391 ac) Bailey Ranch are adjacent

housing developments along Walpert

Ridge in Hayward (Planning

Collaborative 1995, City of Hayward

1996). Both the Walpert Ridge and the

Bailey Ranch sites have habitat

occupied by the Alameda whipsnake

(McGinnis 1992). In addition,

contiguous habitat exists between

known occupied habitat to the west and

east of the Bailey Ranch and Hayward

1900 development projects. Although

Bailey Ranch has proposed mitigation to

offset impacts to the Alameda

whipsnake, both developments will

further impact and fragment the

Hayward-Pleasanton Ridge population.

Hayward 1900 has proposed open space

but is planning to construct trails and

vineyards in the proposed open space

(Planning Collaborative 1995).

Vineyards, associated agricultural land

uses, and trails could eliminate and

fragment whipsnake habitat and further

restrict the movement of snakes.

Within the Oakland-Las Trampas

population, several proposed

developments may impact Alameda

whipsnakes and their habitat. Several of

these proposed projects are located

contiguous to the east side of Las

Trampas Regional Wilderness and

contain habitat known to be occupied

by Alameda whipsnakes. The proposed

9 ha (22 ac) Rossmoor Neighborhood

Nine Project would result in the direct

loss of snake habitat and could

potentially impact mitigation habitat

previously provided to offset impacts

from an earlier phase of the project

(CDFG, in litt., November 25, 1995). The

proposed expansion of the Oakland Zoo

could potentially impact suitable snake

habitat (K. Swaim and S. McGinnis,

Hayward State University, pers. comm.,

1996). Some of these projects have, or

may, set aside suitable habitat for the

Alameda whipsnake, preserved either as

open space or as mitigation for habitat

losses associated with the project.

Although these proposed developments

may mitigate for impacts to Alameda

whipsnakes, the undeveloped hillsides

that support chaparral growth will be

subject to increased fire suppression

due to the close proximity of urban

development. This fire suppression will

result in habitat degradation and an

increased probability of catastrophic

wildfires as discussed under factor E

below.

The Mount Diablo-Black Hills,

Tilden-Briones, and Sunol-Cedar

populations are indirectly threatened by

urban development. The Mount DiabloBlack Hills population will be adversely

affected by the urban expansion of the

cities of Pittsburg, Oakley, Brentwood,

and Antioch. These cities are projected

to expand by over 40,000 units, which

will result in increased visitation and
Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations 64313

associated impacts to nearby EBRPD

parks and Mt. Diablo State Park.

Specific developments such as the 115-

unit Clayton Ranch (412 ha (1,030 ac))

and 5,200-unit Cowell Ranch (1,709 ha

(4,272 ac)) will expose the eastern flank

of the Mt. Diablo-Black Hills population

to these indirect impacts of

urbanization. The Mt. Diablo-Black Hills

population is also subject to increased

urban impacts on the south side from

the proposed Dougherty Valley (2,400

ha (6,000 ac)) and Tassajara Valley

(1,600 ha, (4,000 ac)) projects, which

total over 17,000 units. The TildenBriones population will be subject to

increased population pressure from the

north by the approved 800-unit Franklin

Canyon (392 ha (980 ac)) projects

(Mooers, 1996). Additional

developments are approved or proposed

adjacent to the Sunol-Cedar population

in the rapidly growing areas near Dublin

and Pleasanton in Alameda County.

These projects will increase human

disturbance from recreational use on

regional and state parks, and as urban

development encroaches into the

current open space buffers between

existing developments and whipsnake

habitat on public lands, the threat of

predation and harassment from

domestic and feral cats increases

(Coleman et al. 1997). Predation threats

are discussed in more detail under

factor C below.

The past and ongoing fragmentation

of Alameda whipsnake habitat makes

some populations of this species more

vulnerable to extinction. The TildenBriones and Oakland-Las Trampas

populations occupy a narrow,

interrupted band of ridgetop chaparral

dividing the heavily urbanized

Oakland/Berkeley region to the west

from the rapidly urbanizing Highway

680 corridor to the east (USGS 1997).

Habitat patches with high ratios of edge

to interior are known to provide less

value for some species than round or

square patches provide (Jimerson and

Hoover 1991; Saunders et al. 1991). In

fragmented habitats, species most prone

to extinction are those that depend on

native vegetation, require combinations

of different habitat types, require large

territories, and exist at low densities

(Saunders et al. 1991). Alameda

whipsnakes have been shown to be

associated with native Diablan sage

scrub, to forage in adjacent grasslands,

and to migrate along riparian corridors.

While the home range of the Alameda

whipsnake, estimated to vary between 2

and 9 ha (5 and 20 ac), is not large

compared to that of some animals, the

narrow habitats of the Tilden-Briones

and Oakland-Las Trampas populations,

less than 1.6 km (1 mi) wide in some

places, may impose a significant

constraint on the species. Few

individuals have been captured during

trapping studies conducted over

thousands of trap days, indicating that

Alameda whipsnakes may be sparse

even in suitable habitat (Swaim 1994).

These factors may combine to cause

Alameda whipsnakes to be vulnerable to

extinction in small habitat patches

resulting from habitat fragmentation.

B. Overutilization for Commercial,

Recreational, Scientific or Educational

Purposes

The callippe silverspot butterfly and

Behren’s silverspot butterfly are highly

prized by insect collectors. Although no

studies specifically document the

impact of the removal of individuals on

natural populations of either butterfly

species, based on studies of another

endangered nymphalid butterfly (Gall,

1984a and 1984b) and a lycaenid

butterfly (Duffey 1968), both butterflies

are vulnerable to impacts from

collection due to their isolated, possibly

small populations. Butterfly collectors

have been observed on San Bruno

Mountain (S. Stern, in litt., June 21,

1994). Some of these specimens are

being traded for other butterfly taxa or

are being held by the collectors in

anticipation of their greater value

should the species be listed. The Service

also is aware of reports that Behren’s

silverspot butterfly is actively sought by

amateur lepidopterists. Both collecting

from small colonies and scientific

studies that repeatedly handle and mark

individuals (particularly of females and

in years of low abundance) could

seriously damage the populations

through loss of individuals and the

resulting loss of genetic variability

within the population (Singer and

Wedlake 1981, Gall 1984b, Murphy

1988). Collection of females dispersing

from a colony also can reduce the

probability that new colonies will be

founded. 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 when they visit the area for a short

period of time (Collins and Morris

1985).

An extensive commercial trade has

been documented for the callippe

silverspot butterfly and the Behren’s

silverspot butterfly, as well as for other

imperiled and rare butterflies (U.S.

Attorney’s Office 1994, United States v.

Richard J. Skalski, Thomas W. Kral, and

Marc L. Grinnell, Case No. CR932013,

1993). The Service is concerned that

issuance of a final rule for these animals

that is not effective immediately upon

publication will result in greatly

intensified level of collecting and

commercial trade in the callippe

silverspot butterfly and Behren’s

silverspot butterfly. Because of the

immediate threat posed by these ongoing activities, the Service finds that

good cause exists for this rule to take

effect immediately upon publication in

accordance with 5 U.S.C. 553(d)(3).

The Alameda whipsnake does not

appear to be particularly popular among

reptile collectors; however, Federal

listing could raise the value of the

animals within reptilian trade markets

and increase the threat of unauthorized

collection above current levels (K.

McCloud, U.S. Fish and Wildlife

Service, Law Enforcement Division,

pers. comm., 1994 and 1996). Even

limited interest in the species among

reptile collectors could pose a serious

threat to smaller populations of the

snake.

C. Disease or Predation

It appears that predation or disease do

not pose a significant threat to the

callippe silverspot butterfly or Behren’s

silverspot butterfly. The potential

impact of disease on the Alameda

whipsnake is unknown.

A number of native and exotic

mammals and birds are known or likely

to be predators of the Alameda

whipsnake including the California

kingsnake (Lampropeltis getula

californiae), raccoon (Procyon lotor),

striped skunk (Mephitis mephitis),

opossum (Didelphis virginianus), coyote

(Canis latrans), gray fox (Vulpes

cinereoargenteus), and hawk (Buteo

species). Urbanization can lead to

increased numbers and access to habitat

by native predators, leading to increased

levels of predation on native fauna

(Goodrich and Buskirk 1995). The

recent introduction of the red fox

(Vulpes vulpes), a species not native to

this region of the State, poses an

additional threat to the Alameda

whipsnake. In situations where

Alameda whipsnake habitat has become

fragmented, isolated, and otherwise

degraded by human activities, increased

predatory pressure may become

excessive, especially where alien

species, such as rats (Rattus species),

feral pigs (Sus scrofa), and feral and

domestic cats (Felis domestica) and

dogs (Canis familiaris) are introduced.

These additional threats become

particularly acute where urban

development immediately abuts

Alameda whipsnake habitat. A growing

movement to maintain feral cats in

parklands is an additional potential
64314 Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations

threats from predation on wildlife

(Coleman et al. 1997, Roberto 1995).

The EBRPD is currently facing public

pressure to allow private individuals to

maintain feral cats on park lands

(DelVecchio 1997). Although the actual

impact of predation on Alameda

whipsnakes under such situations has

not been studied, feral cats are know to

prey on reptiles, including yellow racers

(Hubbs 1951), a fast, diurnal snake

closely related to the Alameda

whipsnake (Stebbins 1985). Predation

pressure on Alameda whipsnakes may

increase from maintained colonies of

feral cats in Alameda whipsnake

habitat.

D. The Inadequacy of Existing

Regulatory Mechanisms

The callippe silverspot butterfly and

Behren’s silverspot butterfly are not

specifically protected under any

Federal, State or local law. The

California Endangered Species Act

(CESA) does not provide protection to

insects (sections 2062, 2067 and 2068,

Fish and Game Code). Although the San

Bruno Mountain HCP provides

protection from habitat destruction,

butterfly collectors have been observed

on San Bruno Mountain (S. Stern, in

litt., June 21, 1994) and unauthorized

collection remains an ongoing threat.

The extent of illegal trade in these and

other butterfly species and the potential

threat poaching poses to small

populations is discussed in detail under

factor B above.

The California Environmental Quality

Act (CEQA) requires a full public

disclosure of the potential

environmental impact of proposed

projects. The public agency with

primary authority or jurisdiction over

the project is designated as the lead

agency and is responsible for

conducting a review of the project and

consulting with other agencies

concerned with resources affected by

the project. Section 15065 of the CEQA

guidelines requires a finding of

significance if a project has the potential

to ‘‘reduce the number or restrict the

range of a rare or endangered plant or

animal.’’ Species that are eligible for

listing as rare, threatened, or

endangered but are not so listed are

given the same protection as those

species that are officially listed with the

State. Once significant impacts are

identified, the lead agency has the

option to require mitigation for effects

through changes in the project or to

decide that overriding considerations

make mitigation infeasible. In the latter

case, projects may be approved that

cause significant environmental

damage, such as destruction of

endangered species. Protection of listed

species through CEQA is, therefore, at

the discretion of the lead agency. The

CEQA provides that, when overriding

social and economic considerations can

be demonstrated, project proposals may

go forward, even in cases where the

continued existence of the species may

be jeopardized, or where adverse

impacts are not mitigated to the point of

insignificance. In addition, proposed

revisions to CEQA guidelines, if made

final, may weaken protections for

threatened, endangered, and other

sensitive species.

The CEQA and CESA afford the

Alameda whipsnake some conservation

benefits. The animal was listed as a

threatened species by the State of

California in 1971 (CDFG 1987).

Although these State laws provide a

measure of protection to the species,

resulting in the formulation of

mitigation measures to reduce or offset

impacts for projects proposed in certain

areas of Alameda whipsnake habitat,

these laws are not adequate to protect

the species in all cases. Further, only

State, and not Federal, agencies are

required to consult under CESA. In

response to a comment on the proposed

rule, the Service mapped Alameda

whipsnake habitat that was extant in

1970 and identified areas where

conversion and encroachment into

suitable habitat has occurred since the

State listed the Alameda whipsnake as

threatened in 1971. Based upon this

analysis, the Service has determined

that approximately 25 projects in

Alameda County, and approximately 41

projects in Contra Costa County, either

converted or encroached upon suitable

habitat from 1970 to 1996. The extent of

conversion and encroachment ranged

from approximately 2 to 5 ac to

approximately 20 to 50 ac for larger

projects. Although some of these

projects were required to set aside and

preserve suitable habitat for the

Alameda whipsnake as open space or as

mitigation for habitat losses associated

with the project, many of these

preserved areas remain threatened by

fire suppression practices and

catastrophic wildfire for the reasons

identified and discussed in factor E

below.

With appropriate management, areas

of open space managed by the EBRPD,

East Bay Municipal Utilities District

(EBMUD), and Mount Diablo State Park,

conservation strategies for Alameda

whipsnake may be developed. Although

these public lands include substantial

areas occupied by the whipsnake, the

quality of the habitat continues to

decline because of surrounding urban

encroachment. Urban encroachment

also exacerbates the habitat

fragmentation problems, and greatly

restricts the ability of these agencies to

conduct effective fire management

practices that have the potential to

sustain suitable habitat for the Alameda

whipsnake and prevent catastrophic

wildfires.

E. Other Natural or Man-Made Factors

Affecting Their Continued Existence

The use of insecticides would

threaten the callippe silverspot butterfly

and the Behren’s silverspot butterfly if

use occurred in proximity to occupied

habitat. Silverspot butterfly larvae are

extremely sensitive to pesticides, and

even the accumulation of runoff in the

soil after spraying has proven lethal to

the larvae of members of the genus

Speyeria (Mattoon et al. 1971).

However, the Service is not aware of

plans to apply insecticides or pesticides

on or near the habitat occupied by either

of these two species.

Livestock grazing could threaten the

two butterfly species if it occurs at

harmful levels, such that the vegetation

is overgrazed and the foodplants and

nectar sources of these butterflies are

eliminated or greatly reduced in

abundance. Grazing animals can also

trample the larval foodplants and adult

nectar sources. Significant reduction or

loss of these food sources could threaten

the population viability of these

butterflies. However, some livestock

grazing could keep other plants from

outcompeting the butterflies’ host

plants.

McGinnis (1992) has suggested that

grazing has impacted the habitat of the

Alameda whipsnake in many areas east

of the Coast Range. Livestock grazing

that significantly reduces or eliminates

shrub and grass cover can be

detrimental to this snake. Many snake

species, including the Alameda

whipsnake, avoid such open areas

because of the increased danger from

predators and the lack of prey

(McGinnis 1992).

The invasion of California’s native

grassland and coastal prairie by alien

plants has adversely affected native

flora and fauna. Numerous non-native

species have invaded these plant

communities (Heady 1988, Heady et al.

1988). Introduced alien plants, such as

iceplant (Carprobrotus sp.), gum trees

(Eucalyptus spp.), and gorse (Ulex

europaeus), often outcompete and

supplant native vegetation. In the

absence of control and eradication

programs, invasive alien plants may

eliminate the remaining native plants,

including the host plants of Behren’s

and callippe silverspot butterflies.

Adequate levels of Viola species are
Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations 64315

especially critical for the long term

survival of populations of these

butterflies (S. Mattoon, in litt., August 4,

1989, and November 22, 1992). Nonnative plants may also replace native

vegetation in habitat for the Alameda

whipsnake, potentially degrading the

habitat and reducing the prey base.

Radiotelemetry data indicate that

Alameda whipsnakes tend to avoid

dense stands of eucalyptus (Swaim

1994).

Periodic fires can be an important

factor in maintaining the grassland and

coastal prairie habitat of the callippe

silverspot butterfly and the Behren’s

silverspot butterfly. Without fire,

succession will eliminate the foodplants

of the larvae of the two butterflies

(Orsak 1980, Hammond and McCorkle

1984). Periodic cool, fast-moving fires

appear important for the maintenance of

the habitat of these two species. Dead

grass and other vegetation from previous

years may not decay quickly enough

and may gradually accumulate to form

a thick layer of thatch that smothers

violets. The larvae of the silverspot

butterflies may survive fires that move

rapidly through grassland habitats,

whereas hotter, slow-moving brush and

woodland fires may kill them (Orsak

1980, Hammond and McCorkle 1984). In

addition, under windy conditions, fastmoving grassland fires burn in patches

that leave ‘‘islands’’ of unburned habitat

where any butterflies present are not

harmed.

The Alameda whipsnake is threatened

directly and indirectly by the effects of

fire suppression. Fire suppression

exacerbates the effects of wildfires

through the buildup of fuel (underbrush

and woody debris), creating conditions

for slow-moving, hot fires as described

above. The highest intensity fires occur

in the summer and early fall when

accumulated fuel is abundant and dry.

During this period, hatchling and adult

Alameda whipsnakes are aboveground

(Swaim 1994), and populations are

likely to sustain the heaviest losses from

fires. The development of a closed scrub

canopy also results in a buildup of

flammable fuels over time (Parker 1987,

Rundel 1987). Fire suppression has led

to the encroachment of nonindigenous

and ornamental trees into grassland

habitats, further increasing flammable

fuel loads in and around Alameda

whipsnake habitat.

Fire suppression can alter the

structure of snake habitat by allowing

plants to establish a closed canopy

(Parker 1987) that will tend to create

relatively cool conditions. Alameda

whipsnakes have a higher mean active

body temperature (33.4 degrees

centigrade) and a higher degree of body

temperature stability (stenothermy) than

has been documented in any other

species of snake under natural

conditions (Swaim 1994). Alameda

whipsnakes apparently can maintain

this high, stable body temperature by

using open and partially open and/or

low growing shrub communities that

provide cover from predators while

providing a mosaic of sunny and shady

areas between which Alameda

whipsnakes can move to regulate their

body temperatures (Swaim 1994). Tall,

shaded stands of vegetation, such as

poison oak (Toxicodendron

diversilobum), coyote brush (Baccharis

pilularis), or other vegetation may not

provide the optimum temperature

gradient for Alameda whipsnakes.

Survey data show that Alameda

whipsnakes are less likely to be found

where these plant species create a

closed canopy (Swaim 1994).

In addition, many of the native coastal

scrub and chaparral plant species

require periodic fires to stimulate new

sprouting, seedling recruitment, and

seed dispersal (Parker 1987; Keeley

1987, 1992). The natural fire frequency

necessary to provide this stimulus in

this habitat type is debated by scientists

but ranges from 10 to 30 years (Keeley

and Keeley 1987, Rundel 1987).

Therefore, depending on the rate of fuel

accumulation, prescribed burns can be

conducted in areas where fires have

been suppressed with a frequency of 10

to 30 years (J. Ferreira, CDPR, pers.

comm. 1996).

The California Department of Forestry

and Fire Protection (CDFFP) has

primary authority for wildfire

management in the State of California.

Where joint jurisdiction exists, such as

with regional or State park lands, a

memorandum of understanding (MOU)

is often developed. Through these

MOUs, consideration of cultural,

esthetic, and natural resources, can be

addressed during planning and

implementation of wildfire

management. However, CDFFP has the

final decision on wildfire management.

The policy of the CDFFP for

unprescribed fires, such as those

resulting from lightning strikes, is to put

them out immediately (B. Harrington,

CDFFP, pers. comm. 1996). Similarly,

while CDFFP is engaging in some

prescribed burn programs, they remain

hesitant to fully endorse prescribed

burning, especially where there is an

urban-parkland interface (CDFFP 1989;

J. Di Donato, EBRPD, pers. comm. 1996).

The CDPR has management

responsibilities for Mount Diablo State

Park, where a considerable portion of

the suitable whipsnake habitat occurs.

Residential development has occurred

around most of the perimeter of the Park

(J. Ferreira, pers. comm. 1996). The

urban-parkland interface has

necessitated that CDPR, with CDFFP,

develop and implement a wildfire

management plan and program.

According to a MOU with CDPR, the

CDFFP is the designated lead agency on

fire management in Mount Diablo State

Park and, therefore, has the final

decision on how to manage each fire on

CDPR lands (CDPR and CDFFP 1995).

The CDPR drafted the Mount Diablo

Wildfire Management Plan for the Park

in 1987. This plan originally sought to

reduce the high levels of livestock

grazing on parklands to an ‘‘interpretive

level’’ to manage more successfully for

wildlife values (J. Ferreira, pers. comm.

1996). Local ranchers who grazed cattle

on or adjacent to parklands were

opposed to this plan and gained the

support of local fire agencies to

continue grazing because grazing was

seen as a form of fire management (J.

Ferreira, pers. comm. 1996).

In 1995, grazing pressure was

significantly reduced and CDPR took a

new approach in fire management

planning by revising the Mount Diablo

Wildfire Management Plan. The revised

plan was developed in coordination

with CDFFP and outlines

presuppression, suppression, and fire

management programs (CDPR and

CDFFP 1995). These programs identify

areas for prescribed burns, fire breaks to

be maintained, and unique cultural

resources, rare and endangered plants,

and structures. Rare and endangered

animal species (including the Alameda

whipsnake) are not specifically

identified in the plan. The ultimate

decision on ‘‘initial attack’’ of any given

fire occurrence still lies with CDFFP,

which generally prefers to suppress fires

on Mount Diablo. In addition, CDFFP

has been concerned about conducting

prescribed burns due to the proximity of

the urban-parkland interface (J. Ferreira,

pers. comm., 1996).

Encroaching urban development has

necessitated the implementation of

rigorous fire suppression practices in

and around suitable habitat areas for the

Alameda whipsnake by land

management agencies to protect people

and property. The EBRPD guidelines

state that opportunities for prescribed

burning on their lands is limited

because of the urban-parkland interface

and the risk of the fire escaping control

lines (EBRPD 1992). Another obstacle

the regional climatic conditions

required to conduct prescribed burning

safely. Although the EBRPD has

developed prescribed burning plans and

strategies to manage their lands,

implementation of these plans has been
64316 Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations

hindered by the close proximity of

adjacent residential and commercial

development areas (J. Di Donato, pers.

comm., 1996). Although the EBRPD is in

the process of updating their prescribed

burn program in response to the 1991

Oakland Hills firestorm, the public does

not fully endorse prescribed burning

(EBRPD 1995).

The breeding of closely related

individuals can cause genetic problems

in small populations, particularly the

expression of deleterious genes (known

as inbreeding depression). Both the

callippe silverspot butterfly and the

Behren’s silverspot butterfly exist only

as very small, isolated populations (S.

Mattoon, in litt., August 4, 1989, and

November 22, 1992). Alameda

whipsnakes tend to be relatively rare

even in suitable habitat as is indicated

by trapping studies that show low

capture rates and relatively high

recapture rates (about 3 captures, 1

recapture per 1,000 trap days) (Swaim

1994). Individuals and populations

possessing deleterious genetic material

are less able to adapt to changes in

environmental conditions, even

relatively minor changes. Further, small

populations are vulnerable to the effects

of genetic drift (the loss of genetic

variability). This phenomenon also

reduces the ability of individuals and

populations to successfully respond to

environmental stresses. Overall, these

factors influence the survivability of

smaller, genetically isolated populations

of each of the three species listed

herein.

The callippe silverspot butterfly,

Behren’s silverspot butterfly, and the

Alameda whipsnake are all vulnerable

to the effects of habitat fragmentation.

Subdivision of natural land into smaller

blocks of suitable habitat is often the

result of human activities such as urban

development, road construction, fire

management policies, and inappropriate

livestock grazing practices. Further

reduction of population size and genetic

interchange among populations through

isolation, genetic drift, and inbreeding

depression, may result in less vigorous

and adaptable populations of these three

species listed herein. Small, isolated

populations are vulnerable to extinction

from random fluctuations in population

size or variations in population

characteristics (e.g., sex ratios) caused

by annual weather patterns, food

availability, and other factors. Because

most of the populations of these species

are isolated from other conspecific

populations, natural recolonization from

other populations is unlikely or

impossible, and the vulnerability of

each population to natural events is

high.

An additional threat to the San Bruno

Mountain population of the callippe

silverspot butterfly is the high level of

dust from quarry operations in the

vicinity. Adult and early stages of the

taxon may be prone to injury and

mortality from dust because their

respiratory apparatus (spiracles) are

easily clogged.

The Service has carefully assessed the

best scientific and commercial

information regarding past, present, and

future threats faced by these species in

determining this final rule. Based on

this evaluation, the preferred action is to

list the callippe silverspot butterfly and

Behren’s silverspot butterfly as

endangered species, and the Alameda

whipsnake as a threatened species. The

current range restrictions of these

species make them increasingly

vulnerable to threats described above

under factors A through E.

Urban development threatens both the

callippe silverspot butterfly and

Behren’s silverspot butterfly. One of the

two known extant colonies of the

callippe silverspot butterfly is

imminently imperiled, and both

colonies are threatened by

overcollection. The single known

population of Behren’s silverspot

butterfly is similarly threatened.

Available habitat and population levels

are depleted to the extent that these

butterflies are near the brink of

extinction. Because the callippe

silverspot butterfly and Behren’s

silverspot butterfly are in danger of

extinction throughout all or a significant

portion of their ranges, these species fit

the definition of endangered as defined

by the Act.

All five remaining populations of the

Alameda whipsnake are threatened by a

variety of factors. Each of these

populations consist of several to

numerous subpopulations with varying

degrees of connectivity between them.

In the western portion of the species’

range, the Tilden-Briones population is

threatened by a high potential for

catastrophic wildfire and urban

development. However, the remaining

habitat, regional parklands, and

municipal watersheds in this area

overlap to the extent that a regional

preserve may be possible. The OaklandLas Trampas population is threatened

by a high potential for catastrophic

wildfire and the effects of habitat

fragmentation and urban development.

The Hayward-Pleasanton Ridge

population is the most susceptible to

extirpation. This population is scattered

in distribution and is, therefore, more

vulnerable to the effects of development

and subsequent habitat fragmentation.

In the eastern portion of the species’

range, the Mount Diablo-Black Hills

population is threatened by a high

potential for catastrophic wildfire,

development and its associated impacts,

and inappropriate grazing practices.

Because of the location of public lands

and the potential for improved fire and

grazing management on parklands, this

population is a good candidate for

recovery, if urbanization threats can be

controlled. The Sunol-Cedar Mountain

population is threatened by

development and inappropriate grazing

practices. Overall, the Oakland-Las

Trampas and Hayward-Pleasanton Ridge

populations are the most immediately

imperiled with habitat fragmentation

becoming prevalent enough to

compromise their long-term viability.

In the proposed rule (59 FR 5377), the

Service proposed to list the Alameda

whipsnake as endangered based

primarily on the threats of urbanization

and invasive alien vegetation. The

Service has reevaluated the available

information, including information

provided during the public comment

period, regarding threats to the species.

Urbanization and the negative effects of

structural changes in both the native

and alien vegetative component of

whipsnake habitat continue to threaten

the survival of the Alameda whipsnake.

However, these threats are not now of

sufficient magnitude to create a danger

of extinction throughout all, or a

significant portion, of the range of the

species. The Service now concludes that

the failure to implement appropriate fire

management practices on public lands

to sustain suitable Alameda whipsnake

habitat, coupled with the rate of loss of

suitable habitat on private lands, make

it likely that the Alameda whipsnake

will become in danger of extinction

throughout all, or a significant portion,

of its range in the foreseeable future.

Because the Alameda whipsnake is

likely to become an endangered species

within the foreseeable future, this

species fits the definition of threatened

as defined by the Act.

Critical Habitat

Critical habitat is defined in section 3

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. ‘‘Conservation’’ means the use
Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations 64317

of all methods and procedures needed

to bring the species to the point at

which listing under the Act is no longer

necessary.

Section 4(a)(3) of the Act, as

amended, and implementing regulations

(50 CFR 424.12) require that, to the

maximum extent prudent and

determinable, the Secretary designate

critical habitat at the time the species is

determined to be endangered or

threatened. Service regulations (50 CFR

424.12(a)) state that critical habitat is

not determinable if information

sufficient to perform required analyses

of the impacts of the designation is

lacking or if the biological needs of the

species are not sufficiently known to

permit identification of an area as

critical habitat. Section 4(b)(2) of the

Act requires the Service to consider

economic and other relevant impacts of

designating a particular area as critical

habitat on the basis of the best scientific

data available. The Secretary may

exclude any area from critical habitat if

he determines that the benefits of such

exclusion outweigh the conservation

benefits, unless to do such would result

in the extinction of the species. Service

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.

The Callippe Silverspot and Behren’s

Silverspot Butterflies

As discussed under factor B in the

‘‘Summary of Factors Affecting the

Species’’ section above, an extensive

international commercial trade has been

documented to exist for butterflies in

general (Collins and Morris 1985) and

for threatened or endangered species of

butterflies in particular, which are

accorded higher value because of the

formal recognition of their rarity (United

States v. Richard J. Skalski, Thomas W.

Kral, and Marc L. Grinnell, Case No.

CR932013, 1993). This trade includes

several species of the genus Speyeria,

including the callippe silverspot

butterfly which was illegally collected

after the species was proposed for

listing under the Act, the Myrtle’s

silverspot butterfly (Speyeria zerene

myrtleae), and the Oregon silverspot

butterfly (S. zerene hippolyta), the last

two of which are listed federally

subspecies that are similar in

appearance to the Behren’s silverspot

butterfly (S. zerene behrensii) included

in this rule (Howe 1975, Hammond

1980, McCorkle and Hammond 1988).

Illegal collecting has been observed at

one of the two remaining sites for the

callippe silverspot butterfly (S. Stern, in

litt., 1994).

The Service is also aware of reports

that Behren’s silverspot butterfly is

actively sought by collectors. The fact

that this species is not yet a commodity

in illegal trade is likely attributable to

the lack of specific knowledge of the

location of its sole remaining

population. Trade in these specimens is

not limited to the occasional adult

butterfly, but can include dozens of

individuals and hundreds of larvae

(United States v. Richard J. Skalski,

Thomas W. Kral, and Marc L. Grinnell,

Case No. CR932013, 1993). The effects

that even limited collecting can have on

small populations are discussed in

detail under factor B in the ‘‘Summary

of Factors Affecting the Species’’ section

above. Because of the increased value of

listed species, the illicit commercial

trade in the callippe silverspot butterfly

and Behren’s silverspot butterfly would

be likely to increase upon listing.

Although the San Bruno Mountain

locality is purportedly known to

collectors (see issue 3 under the

‘‘Summary of Comments and

Recommendations’’ section above), this

is a large area (340 ha (850 ac)) and

precise maps and descriptions of critical

habitat, such as those which would

appear in the Federal Register if critical

habitat was designated, are not now

available to the general public. The

specific localities of the two other

localities of the callippe or silverspot

butterflies are not well known, but they

are near roads or trails and could be

easily accessed by the public if precise

locality information is provided.

In addition, neither the callippe

silverspot butterfly nor the Behren’s

silverspot butterfly would receive any

benefit from the designation of critical

habitat beyond that provided by listing.

Critical habitat only applies to activities

on Federal lands and activities on

private lands involving Federal

authorization or funding. All known

populations of these species occur on

non-Federal land. The only Federal land

within the historical range of Behren’s

silverspot butterfly is a small parcel at

the U.S. Coast Guard lighthouse at Point

Arena. Although this installation is in

close proximity to the only known site

for this species, no specific records

document any historical occurrence at

this site. The habitat at this site, and

elsewhere within the historical range of

the species, is presumed to be currently

unsuitable for the species. No activity

involving a Federal action currently

occurs on the sole site where the species

remains. Even if a future Federal project

were to occur in the area, it would

require consultation with the Service

pursuant to section 7 of the Act before

it could be implemented. Because this

butterfly exists only as a single, small

population, any future activity

involving a Federal action that would

adversely modify critical habitat, that is,

would appreciably diminish the value

of the critical habitat for the survival

and recovery of the species, would also

likely jeopardize the species’ continued

existence.

Colonies of the callippe silverspot

butterfly are known only to exist at two

sites, both of which are privately

owned. The callippe silverspot butterfly

was considered during the formulation

of the San Bruno Mountain HCP under

the provisions of a section 10(a)(1)(B) of

the Act. This HCP, in which the callippe

silverspot butterfly was designated as a

species of concern, permanently

protects approximately 92 percent of its

habitat on San Bruno Mountain. The

HCP also includes management

activities, funded by development

projects, that benefit the butterfly

including annual monitoring of the

colonies on the site (V. Harris, in litt.,

1996). Habitat for the other known

population is partially protected in a

city park in Alameda County. No

Federal actions, authorizations, or

licensing currently occurs on this site.

Although there are scattered Federal

landholdings throughout the historical

range of the callippe silverspot butterfly,

there are no historical collections of this

species from any Federal lands. Because

of the extensive urbanization within its

historical range, no suitable habitat

remains for the species other than at the

two sites at which it is currently known

to persist (Orsak 1980; Steiner 1990; S.

Mattoon, in litt., 1992). Federal agency

involvement, therefore, is not likely to

occur on either of the two sites at which

the callippe silverspot butterfly persists.

Even if a future Federal project were to

occur at either site, it would require

consultation with the Service pursuant

to section 7 of the Act before it could

be implemented. Because only two

small populations of this butterfly

remain, any future activity involving a

Federal action that would adversely

modify critical habitat, that is, would

appreciably diminish the value of the

critical habitat for the survival and

recovery of the species, would also

likely jeopardize the species’ continued

existence.

Critical habitat designation in areas

outside of the currently occupied

territory of the callippe silverspot

butterfly also would serve no purpose
64318 Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations

because these areas are highly urbanized

and essentially have no practical value

for the survival and recovery of the

species. In addition, activities within

these areas are very unlikely to involve

a Federal action which would trigger

section 7 consultation. Furthermore, in

the unlikely event that an activity

involving a Federal action is proposed

in one of these areas, it is very unlikely

that the Service would determine that

the activity would appreciably diminish

the value of the area for the survival and

recovery of the species because these

areas essentially have no such value to

the species currently. Critical habitat

designation in areas outside of the

currently occupied territory of the

Behren’s silverspot butterfly also would

serve little purpose because activities

within these areas are very unlikely to

involve a Federal action which would

trigger section 7 consultation.

The Service finds, therefore, that

designation of critical habitat for the

callippe silverspot butterfly and the

Behren’s silverspot butterfly is not

prudent because doing so would make

these butterflies more vulnerable to

incidents of collection further

contributing to their decline.

Designation of critical habitat for the

callippe silverspot butterfly and the

Behren’s silverspot butterfly is also not

prudent because it would confer no

benefit to the species beyond that

provided by listing.

Alameda Whipsnake

As discussed earlier, the historical

range of the whipsnake has been

fragmented by urbanization into five

populations, each of which is effectively

isolated from the others. The core of

each of these five populations is

comprised of relatively large expanses

of public, non-Federal lands, which

comprise about 80 percent of known

whipsnake habitat. Although these

public lands are protected from

development, other threats to the

whipsnake remain, including the

negative effects of fire suppression on

the structure of whipsnake habitat, the

indirect effects of urban development

(e.g., increased recreational use of the

public lands, increased predation by

pets, etc.), and other factors discussed in

the ‘‘Summary of Factors Affecting the

Species’’ section above. The Service is

not aware of any Federal lands within

the range of the Alameda whipsnake,

and activities involving a Federal action

are not likely to occur on the public,

non-Federal lands.

Private lands comprise the other 20

percent of known whipsnake habitat.

There is a remote possibility of Federal

agency involvement on these lands in

the form of insurance provided by the

Department of Housing and Urban

Development (HUD) for housing loans.

Such actions within whipsnake habitat,

however, are likely to be rare. In

addition, urban development will only

occur along the periphery of the core

areas of whipsnake populations.

Because of the need for an active fire

management program in the form of

prescribed burns to maintain the

necessary habitat structure for the

whipsnake, areas slated for

development in this urban-wildland

interface do not offer suitable long-term

habitat potential for the whipsnake and,

therefore, cannot be considered to be

habitat essential to the conservation of

the species nor habitat requiring special

management considerations. Even if

Federal involvement in the form of

housing loans were to occur in these

areas, it would require consultation

with the Service pursuant to section 7

of the Act before it could be

implemented. The potential for the

involvement of other Federal agencies

within the historical range of the

Alameda whipsnake is discussed in the

‘‘Available Conservation Measures’’

section below.

Critical habitat designation outside of

the areas where the Alameda whipsnake

currently occurs also would serve no

purpose because these areas are not

essential for the survival and recovery of

the species. The Service believes that

sufficient occupied habitat remains

which, if managed for greater benefits

for the Alameda whipsnake, would

ensure the survival and provide for the

recovery of the species.

Any potential conservation benefit

from designation of critical habitat for

the Alameda whipsnake is undermined

by the risk of overcollection. The

demand for live reptiles as collectibles

and exotic pets has increased rapidly in

recent years and the high level of

demand by reptile collectors often

encourages smuggling of wild-caught

specimens (U.S. Fish and Wildlife

Service 1996). While the Alameda

whipsnake has not been particularly

popular among reptile collectors in the

past, the act of listing increases the

attractiveness and value of listed

entities to collectors, thereby potentially

increasing the threat of unauthorized

collection (K. McCloud, pers. comm.

1994, 1996). The identification of

localities of the whipsnake through

designation of critical habitat would

exacerbate the threat of overcollection

because many areas in which the

whipsnake occurs are readily accessible

by road or public trail. The effects that

even limited collecting can have on

small populations are discussed in

detail under factor B in the ‘‘Summary

of Factors Affecting the Species’’ section

above. Because of the likelihood for an

increase in the value of a species upon

listing, any current illicit commercial

trade in the Alameda whipsnake would

likely increase with this listing.

Because of the expected rarity of

Federal agency involvement and the low

conservation value of lands on which

Federal involvement is most likely to

occur, the Service finds that critical

habitat designation is not prudent for

the Alameda whipsnake due to lack of

any significant benefit beyond that

conferred by listing. Moreover, the

publication of precise maps and

descriptions of critical habitat in the

Federal Register would make this snake

more vulnerable to incidents of

collection further contributing to its

decline. Any benefit which might be

derived from the designation of critical

habitat for the Alameda whipsnake is

outweighed by the increased threat of

collection.

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 recovery actions be carried out

for all listed species. The protection

required of Federal agencies and

prohibitions against taking are

discussed, in part, below.

Section 7(a) 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. Regulations

implementing this interagency

cooperation provision of the Act are

codified at 50 CFR part 402. Section

7(a)(2) requires Federal agencies to

insure 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 may affect a listed species or its

critical habitat, the responsible Federal

agency must enter into formal

consultation with the Service.

As noted previously, HUD may insure

housing loans in areas that presently

support the Alameda whipsnake. Such

actions are likely to be rare but these

loans would be subject to review by the

Service under section 7 of the Act.
Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations 64319

Other Federal agencies that possibly

could be affected if these animals are

listed would include the Army Corps of

Engineers and the Department of

Transportation (Federal Highways

Administration). Both agencies

cooperate in projects within the

historical range of the Alameda

whipsnake. The projects, however, are

typically confined to waterways and

highways both of which occur in lowlying areas that no longer provide

suitable habitat for the whipsnake. Such

areas are surrounded by intense urban

development and are, in combination

with the urban areas, the primary

landscape components that have already

effectively isolated the five core

populations of the whipsnake.

Involvement by the Army Corps of

Engineers or the Federal Highway

Administration in the core areas that

comprise the remaining habitat for the

whipsnake is highly unlikely since

these areas are comprised primarily of

steep mountainous terrain where

projects that impact regulated wetlands,

flood control projects, and highway

construction projects rarely occur. No

populations of the callippe silverspot

butterfly, Behren’s silverspot butterfly,

or Alameda whipsnake are known to

occur on property owned by the Federal

government.

One of the two known extant

populations of the callippe silverspot

butterfly is protected by the San Bruno

Mountain HCP (USFWS permit number

PRT 2–9818). In 1982, a Section 10(a)

incidental take permit was issued to the

cities of Brisbane, Daly City, South San

Francisco, and the County of San Mateo,

for the endangered mission blue

butterfly, San Bruno elfin butterfly, and

San Francisco garter snake. The permit

allows for the loss of animals and

habitat through urban development of

approximately 344 ha (850 ac) of San

Bruno Mountain. The HCP permanently

protects about 1,114 ha (2,752 ac) of

natural habitat at this site. The

conference report on the 1982

amendments to the Act indicates that

Congress intended HCPs to encompass

both listed and unlisted species,

especially unlisted species that may

later require protection. Although the

callippe silverspot butterfly was not

included as a ‘‘covered’’ species in the

Section 10(a) permit, the HCP included

specific provisions for the butterfly in

the event it did become listed by the

Service. These provisions protect 92

percent of the species’ habitat at the site

through various mechanisms (such as

landowner obligations for land

dedications, open space set-asides,

mitigation measures, and habitat

enhancement), implement annual

monitoring of its population, and allow

for adaptive management to conserve

the species. However, no specific

provisions were included in the HCP to

protect the callippe silverspot butterfly

from poachers.

The listing of the callippe silverspot

butterfly, Behren’s silverspot butterfly,

and the Alameda whipsnake will also

bring sections 5 and 6 of the Act into

effect. Section 5 authorizes acquisition

of lands by the Secretary of the Interior

(and Secretary of Agriculture in certain

cases) for the purposes of conserving

endangered and threatened species.

Pursuant to section 6, the Service would

be able to grant funds to affected states

for management actions aiding in

protection and recovery of these

animals.

Listing the callippe silverspot

butterfly and the Behren’s silverspot

butterfly as endangered and the

Alameda whipsnake as threatened

provides for the development of

recovery plans for them. Such plans will

bring together State and Federal efforts

for conservation of the animals. The

plans will establish a framework for

agencies to coordinate activities and

cooperate with each other in

conservation efforts. The plans will set

recovery priorities and estimate costs of

various tasks necessary to accomplish

them. They also will describe sitespecific management actions necessary

to achieve conservation of the species.

Listing of the Alameda whipsnake

will likely result in the increased ability

of public land agencies to promote

management plans that address the need

to manage for Alameda whipsnakes,

including, but not limited to, increased

ability to conduct prescribed burns,

manage predators, control feral pigs and

other feral animals, regulate recreational

use, and develop educational programs

for the benefit of the Alameda

whipsnake.

The Act and implementing

regulations found at 50 CFR 17.21 for

endangered species and 17.31 for

threatened species set forth a series of

prohibitions and exceptions that apply

to all endangered wildlife and to

threatened wildlife not covered by a

special rule. These prohibitions, in part,

make it illegal for any person subject to

the jurisdiction of the United States to

take, import or export, transport in

interstate or foreign commerce in the

course of commercial activity, or sell or

offer for sale in interstate or foreign

commerce any such species. It also is

illegal to possess, sell, deliver, carry,

transport, or ship any such wildlife that

was illegally taken. Certain exceptions

can apply to agents of the Service and

State conservation agencies.

It is the policy of the Service

published in the Federal Register on

July 1, 1994 (59 FR 34272), 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 increase

public awareness of the effect of this

listing on proposed and ongoing

activities within a species’ range.

With respect to the callippe silverspot

butterfly or Behren’s silverspot

butterfly, the Service believes that

neither observing the species (without

capture) nor light to moderate grazing of

its habitat by livestock would likely

result in a violation of section 9.

With respect to the callippe silverspot

butterfly or Behren’s silverspot

butterfly, the following actions likely

would be considered a violation of

section 9:

(1) Capture or collection of adults or

any other life history stages;

(2) Collection, damage, or destruction

of foodplants (Viola species) or other

nectar sources within the species range;

and,

(3) Destruction of the species’

occupied habitat by actions including,

but not limited to, road, street or

highway construction; subdivision

construction; application of herbicides

or other chemical agents; brush removal;

or off-road vehicle use.

With respect to the Alameda

whipsnakes, the following actions likely

would be considered a violation of

section 9:

(1) Unauthorized collecting or

handling of whipsnakes;

(2) Destruction or degradation of

occupied whipsnake habitat by actions

including, but not limited to, road

construction, road widening,

subdivision construction, brush

removal, or off-road vehicle use; and,

(3) Destruction or degradation of

occupied whipsnake habitat by

livestock grazing if conducted following

notification by the Service that such

grazing constitutes ‘‘take’’ of

whipsnakes.

Permits may be issued to carry out

otherwise prohibited activities

involving endangered and threatened

animal species under certain

circumstances. Regulations governing

permits are found in 50 CFR 17.22,

17.23, and 17.32. For endangered

species, such permits are available for

scientific purposes, to enhance the

propagation or survival of the species, to

alleviate economic hardship in certain

circumstances, and/or for incidental

take in connection with otherwise
64320 Federal Register / Vol. 62, No. 234 / Friday, December 5, 1997 / Rules and Regulations

lawful activities. For threatened species

there are also permits for zoological

exhibition, educational purposes or

other purposes consistent with the

purposes of the Act. Further information

regarding regulations and requirements

for permits may be obtained from the

U.S. Fish and Wildlife Service,

Endangered Species Permits, 911 N.E.

11th Avenue, Portland, Oregon 97232–

4181 (telephone 503/231–2063,

facsimile 503/231–6243).

National Environmental Policy Act

The Fish and Wildlife Service has

determined that an Environmental

Assessment, 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 the

Service’s reasons for this determination

was published in the Federal Register

on October 25, 1983 (48 FR 49244).

Required Determinations

The Service has examined this

regulation under the Paperwork

Reduction Act of 1995 and found it to

contain no information collection

requirements.

References Cited

A complete list of all references cited

in this rule are available upon request

from the Sacramento Field Office (see

ADDRESSES section).

Authors

The primary authors of this final rule

are Mike Westphal, Sheila Larsen and

Diane Windham, Sacramento Field

Office (see ADDRESSES section).

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements,

Transportation.

Proposed Regulations Promulgation

Accordingly, Part 17, Subchapter B of

Chapter I, Title 50 of the Code of

Federal Regulations, is amended 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

REPTILES to the List of Endangered and

Threatened Wildlife:

3. 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

REPTILES

* * * * * * *

Whipsnake, Alameda

(=striped racer, Alameda).

Masticophis lateralis

euryxanthus.

U.S.A. (CA) ............. NA ........................... T 628 NA NA

* * * * * * *

INSECTS

* * * * * * *

Butterfly, Behren’s

silverspot.

Speyeria zerene

behrensii.

U.S.A. (CA) ............. NA ........................... E 628 NA NA

Butterfly, callippe

silverspot.

Speyeria callippe

callippe.

U.S.A. (CA) ............. NA ........................... E 628 NA NA

* * * * * * *

Dated: November 18, 1997.

Jamie Rappaport Clark,

Director, U.S. Fish and Wildlife Service.

[FR Doc. 97–31836 Filed 12–4–97; 8:45 am]

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