We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in theADDRESSESsection. Include the docket number “FAA-2006-22518; Directorate Identifier 2006-NM-092-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, tohttp://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD.

Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in theFederal Registerpublished on April 11, 2000 (65 FR 19477-78), or you may visithttp://dms.dot.gov.

You may examine the AD docket on the Internet athttp://dms.dot.gov, or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in theADDRESSESsection. Comments will be available in the AD docket shortly after the Docket Management System receives them.

We have received a report indicating that an operator discovered crease beam cracking due to fatigue on two Model 747 airplanes during inspections specified in the 747 Supplemental Structural Inspection Document. This condition, if not detected and corrected, could cause in-flight depressurization and inability of the structure to sustain flight loads.

We have reviewed Boeing Alert Service Bulletin 747-53A2591, dated April 6, 2006. The service bulletin describes procedures for performing repetitive detailed inspections for cracking of the crease beam and adjacent intercostals, stringers, frames, and skin panels; and related investigative and corrective actions if cracking is found. Related investigative actions include performing a surface high-frequency eddy current (HFEC) inspection for cracking of the adjacent skin panel fastener locations, including all skin fasteners common to the crease beam in the areas between the next fuselage frame directly forward and aft of the crack location. Corrective actions include repair of any crack before further flight. If any crack is outside the limits specified in the Boeing 747 Structural Repair Manual, the service bulletin specifies to contact the manufacturer for repair data. The service bulletin also:

• Describes procedures for submitting a report if any skin panel or more than two intercostal webs or skin panel fastener clips are found to be cracked;

• Specifies a compliance time of 14,000 total flight cycles or 1,500 flight cycles after the date of the service bulletin, whichever occurs later; and

• Specifies an interval of 6,000 flight cycles for performing the repetitive inspections.

Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.

We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Proposed AD and Service Bulletin.”

The service bulletin specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways:

• Using a method that we approve; or

• Using data that meet the certification basis of the airplane, and that have been approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization whom we have authorized to make those findings.

Although the Accomplishment Instructions of the service bulletin describe procedures for submitting certain information to the manufacturer, this proposed AD would not require those actions.

There are about 615 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 65 airplanes of U.S. registry. The proposed detailed inspection would take about 8 work hours per airplane, per inspection cycle, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $41,600, or $640 per airplane, per inspection cycle.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that the proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See theADDRESSESsection for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Comments Invited

We invite you to submit any relevant written data, views, or arguments regarding this supplemental NPRM. Send your comments to an address listed in theADDRESSESsection. Include the docket number “Docket No. FAA-2006-24440; Directorate Identifier 2006-NM-058-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this supplemental NPRM. We will consider all comments received by the closing date and may amend this supplemental NPRM in light of those comments.

We will post all comments submitted, without change, tohttp://dms.dot.gov,including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this supplemental NPRM. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in theFederal Registerpublished on April 11, 2000 (65 FR 19477-78), or you may visithttp://dms.dot.gov.

You may examine the AD docket on the Internet athttp://dms.dot.gov,or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level in the Nassif Building at the DOT street address stated inADDRESSES. Comments will be available in the AD docket shortly after the Docket Management System receives them.

We proposed to amend 14 CFR part 39 with a notice of proposed rulemaking (NPRM) for an airworthiness directive (AD) (the “original NPRM”). The original NPRM applies to certain EMBRAER Model EMB-145XR airplanes. The original NPRM was published in theFederal Registeron April 13, 2006 (71 FR 19142). The original NPRM proposed to require replacement of certain segments of the passenger seat tracks with new, improved seat tracks.

Since the original NPRM was issued, the Departamento de Aviacao Civil (DAC), which is the airworthiness authority for Brazil, has issued Brazilian airworthiness directive 2006-01-01R1, effective May 23, 2006. (We referenced Brazilian airworthiness directive 2006-01-01, effective February 2, 2006, as related information in the original NPRM.) The DAC issued Brazilian airworthiness directive 2006-01-01R1 to correct the airplane model designation and typographical error to a certain part number (P/N). Therefore, we have revised paragraph (i) of this supplemental NPRM to reference Brazilian airworthiness directive 2006-01-01R1 as related information. However, no change to the airplane model designation in this supplemental NPRM is necessary, since we differed from Brazilian airworthiness directive 2006-01-01, as explained in the original NPRM.

In addition, EMBRAER has published Revision 01 of EMBRAER Service Bulletin 145-53-0059, dated March 9, 2006, to correct the typographical error to a P/N in Figure 4 of the original issue of the service bulletin. (We referenced the original issue, dated July 1, 2005, in the original NPRM as the appropriate source of service information.) The procedures in Revision 01 of the service bulletin are essentially the same as those in the original issue, except that Figure 4 of Revision 01 specifies removing P/N 145-53769-007 at fuselage location x=14,827.8 andreplacing it with P/N 145-38912-003. Therefore, we have revised paragraphs (c) and (f) of this supplemental NPRM to reference Revision 01 of the service bulletin.

We have considered the following comments on the original NPRM.

EMBRAER requests that we revise paragraphs (c) and (f) of the NPRM to reference Revision 01 of EMBRAER Service Bulletin 145-53-0059, dated March 9, 2006. EMBRAER states that Revision 01 has been issued to correct a certain part number.

We agree. As stated previously, we have revised this supplemental NPRM to reference Revision 01 of the service bulletin.

EMBRAER states that the DAC has issued Brazilian airworthiness directive 2006-01-01R1, effective May 23, 2006, to correct the airplane applicability and the part number discussed previously. Therefore, EMBRAER requests that we revise paragraph (h) of the NPRM to reference Brazilian airworthiness directive 2006-01-01R1.

We agree. As stated previously we have revised paragraph (h) of this supplemental NPRM to reference Brazilian airworthiness directive 2006-01-01R1. No change to the applicability of this supplemental NPRM is necessary, since we differed from Brazilian airworthiness directive 2006-01-01, as explained in the original NPRM.

EMBRAER states that actions accomplished before the effective date of the AD in accordance with the original issue of EMBRAER Service Bulletin 145-53-0059, dated July 1, 2005, are acceptable for compliance with actions done in accordance with Revision 01. We infer EMBRAER requests that we add a credit paragraph to this supplemental NPRM for accomplishment of the original service bulletin.

We disagree. Since Figure 4 of the original service bulletin incorrectly specifies removing P/N 145-53769-003 at fuselage location x=14,827.8, this supplemental NPRM would require additional work (i.e., removing P/N 145-53769-007 at fuselage location x=14,827.8). Further, EMBRAER has confirmed that although P/N 145-53769-003 does not exist at fuselage location x=14,827.8, it does exist elsewhere on the airplane; this could cause confusion in accomplishing the service bulletin. Therefore, we have not revised this supplemental NPRM is this regard.

Certain changes discussed above expand the scope of the original NPRM; therefore, we have determined that it is necessary to reopen the comment period to provide additional opportunity for public comment on this supplemental NPRM.

This supplemental NPRM would affect about 97 airplanes of U.S. registry. The proposed actions would take about 10 work hours per airplane, at an average labor rate of $80 per work hour. Required parts would cost about $82 per airplane. Based on these figures, the estimated cost of this supplemental NPRM on U.S. operators is $85,554, or $882 per airplane.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that the proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this supplemental NPRM and placed it in the AD docket. See theADDRESSESsection for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

We proposed to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) with a notice of proposed rulemaking (NPRM) for a new AD for certain EMBRAER Model ERJ 170 airplanes. That NPRM was published in theFederal Registeron May 17, 2006 (71 FR 28628). The NPRM would have required performing a one-time inspection for proper crimping of the terminal lugs for the power cables of each integrated drive generator (IDG), installing a new sleeve on the terminal, and re-crimping if necessary. The NPRM resulted from a report that the terminal lugs for the power cables of the IDGs may not be adequately crimped, which could allow the cables to be pulled out of the terminals with no significant force. The proposed actions were intended to prevent loss of all normal electrical power for the airplane, and consequent reduced controllability of the airplane.

Since we issued the NPRM, Empresa Brasileira de Aeronautica S.A. (EMBRAER), the airplane manufacturer, has informed us that the proposed actions have been done on all affected airplanes.

Upon further consideration, we have determined that the proposed actions are no longer necessary because the proposed actions have already been accomplished on all airplanes listed in the applicability of the NPRM. Accordingly, the NPRM is withdrawn.

Withdrawal of the NPRM does not preclude the FAA from issuing another related action or commit the FAA to any course of action in the future.

Since this action only withdraws an NPRM, it is neither a proposed nor a final rule and therefore is not covered under Executive Order 12866, the Regulatory Flexibility Act, or DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979).

Accordingly, we withdraw the NPRM, Docket No. FAA-2006-24788, Directorate Identifier 2006-NM-073-AD, which was published in theFederal Registeron May 17, 2006 (71 FR 28628).

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification (e.g., reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-381-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-381-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add an airworthiness directive (AD), applicable to all Airbus Model A330, A340-200, and A340-300 series airplanes, was published as a notice of proposed rulemaking (NPRM) in theFederal Registeron June 16, 2004 (69 FR 33592). That original NPRM would have required repetitive detailed inspections for discrepancies of the grease and gear teeth of the radial variable differential transducer (RVDT) of the nose wheel steering (NWS) gearbox; or repetitive detailed inspections for damage of the chrome on the bearing surface of the nose landing gear (NLG) main fitting barrel; as applicable. For airplanes with any discrepancy or damage, the original NPRM would have required an additional inspection or corrective actions.

The original NPRM was prompted by a report from the Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, of the failure of the NWS system on a Model A340 airplane. Problems associated with this failure, if not corrected, could result in incorrect operation or jamming of the NWS, and reduced controllability of the airplane on the ground.

The original NPRM was intended to address the unsafe condition identified in French airworthiness directives 2001-503(B) and 2001-504(B). Since we issued that NPRM, the DGAC has cancelled those airworthiness directives and issued new rulemaking on this subject to add a terminating action and remove airplanes modified in production.

Airbus has issued the following Airbus service bulletins:

Service Bulletins A330-32-3134 and A340-32-4172, both Revision 02, both dated August 8, 2003, were described in the original NPRM. Revisions 03 and 04 of these service bulletins provides minor changes only; the procedures remain essentially unchanged.

Service Bulletins A330-32-3164 and A340-32-4204 describe an inspection to identify the suffix number on the NLG leg assembly. For affected leg assemblies, the service bulletins also describe procedures for a modification that will improve the sealing between the RVDT gearboxes and the NLG steering collar to help prevent contamination of the RVDT gearboxes and the NLG main fitting. The modification involves replacing the RVDT drive gear ring and the housing of the NLG steering gear ring.

Service Bulletins A330-32-3192 and A340-32-4227 describe an inspection to identify the suffix number on the NLG leg assemblies. For affected leg assemblies, the service bulletins also describe procedures for an NLG modification that will reduce wear and damage of the reinforced NLG steering collar and NLG main fitting. The modification involves adding two grease points and new bushes with revised grease paths, which will allow better grease distribution into the steering collar assembly. The modification also involves increasing the internal diameter tolerances of the steering collar, which will reduce the risk of contact between the steering collar and the main fitting at low temperature.

Accomplishing both modifications described in Airbus Service Bulletins A330-32-3164, A340-32-4204, A330-32-3192, and A340-32-4227, as applicable, eliminates the need for the repetitive inspections.

Accomplishing the actions specified in the service information described above is intended to adequately address the unsafe condition. The DGAC mandated the service information and issued French airworthiness directives F-2005-209 and F-2005-210, both dated December 21, 2005, to ensure the continued airworthiness of these airplanes in France.

In light of the DGAC's new rulemaking and the corresponding revised service bulletins described above, we have revised the supplemental NPRM to refer to the new information.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

One commenter, U.S. Airways, supports the original NPRM and the flexibility it offers in allowing operators the option of either inspecting the bearing surface or analyzing a grease sample. The commenter observes that this flexibility will allow operators to choose the inspection method and interval that best suit their maintenance schedules.

Paragraphs (b), (c), and (d) of the original NPRM specify inspection requirements and compliance times based on accomplishment of Airbus Modification 51381. The procedures for the modification are described in Airbus Service Bulletins A330-32-3164 and A340-32-4204. One commenter, Airbus, suggests that identifying those service bulletins in the AD would help operators define the configuration of their airplanes to determine the relevant inspections.

We infer that Airbus is requesting that we exclude from the AD applicability those airplanes on which the modification service bulletins have been accomplished in service. We disagree with the request. Although the applicability of French airworthiness directives F-2005-209 and F-2005-210 excludes airplanes on which Airbus Service Bulletins A340-32-4204 and A330-32-3164 (as well as A340-32-4227 and A330-32-3192) were done in service, the applicability of this supplemental NPRM does not exclude those airplanes. This supplemental NPRM would instead require the applicable modification(s) for airplanes with affected NLG leg assemblies, as specified in those service bulletins. This requirement would ensure that the applicable actions specified in the service bulletins and proposed in this supplemental NPRM are accomplished for all affected airplanes.

Paragraph (d)(1) of the original NPRM specifies detailed inspections for discrepancies of the grease and gear teeth. One commenter, Airbus, states that operators cannot do a detailed inspection, as that term is defined in the original NPRM, of the grease because the associated service information instead specifies that the grease sample be sent to a laboratory for analysis. (This procedure is described in the secondary service bulletin, Messier-Dowty Special Inspection Service Bulletin D23285-32-037, for airplanes without Airbus Modification 51381 installed in production.) The commenter requests that we revise paragraph (d)(1) of the original NPRM to require a detailed inspection only of the gear teeth, which would be in line with the wording and instructions of the applicable service bulletins.

Another commenter, Northwest Airlines, requests that we revise the original NPRM to clarify that it would require only a detailed inspection —not a lab analysis—of the grease.

We partially agree. We agree that the inspection of the grease and the inspection of the gear teeth are different types of actions. And we agree with Airbus that a detailed inspection of the grease is not the appropriate terminology. But paragraph 2.B. of the Accomplishment Instructions of Messier-Dowty Special Inspection Service Bulletin D23285-32-037specifies a grease “inspection,” which involves an analysis of the grease by sending grease samples to a lab for inspection and determination of further actions. We have revised the proposed requirement (paragraph (a)(1) in this supplemental NPRM) to distinguish an “inspection” of the grease (sending the grease to a laboratory for analysis) from a “detailed inspection” of the gear teeth. We disagree with Northwest Airlines' request to clarify that only a detailed inspection is required. As previously discussed, the AD requires two separate actions: A detailed inspection of the gear teeth and an inspection of the grease. The grease inspection specified in the Accomplishment Instructions involves analysis of the grease sample either by Messier-Dowty or another lab. We have not changed the final rule regarding this issue.

One commenter, Northwest Airlines, requests that we revise the original NPRM to refer to the latest revision of Messier-Dowty Special Inspection Service Bulletin D23285-32-037, which is Revision 2, dated May 23, 2002.

As revised, the service bulletin provides for the grease analysis to be done at a lab chosen by the operator; however, a reporting form with results must be returned to Messier-Dowty. Likewise, this supplemental NPRM would provide for the option that the grease analysis be done at a lab chosen by the operator with the results to be evaluated by Messier-Dowty. Note 2 in this supplemental NPRM refers to Revision 2 of the service bulletin.

One commenter, U.S. Airways, which operates Model A330 airplanes, notes that there are no allowable limits for the grease particle content provided in Airbus Service Bulletin A330-32-3134 or Messier-Dowty Special Inspection Service Bulletin D23285-32-037. The original NPRM would allow only Messier-Dowty to do the grease sample analysis. The commenter requests that we revise the original NPRM to define acceptable grease particle content and permit operators to use alternative lab facilities to analyze the grease.

We partially agree with the requests. As stated previously, Messier-Dowty Special Inspection Service Bulletin D23285-32-037 was revised to provide for the grease analysis to be done at a lab chosen by the operator. However, the criteria for acceptable grease particle content are complex and not appropriate to include in this supplemental NPRM. The grease analysis process includes establishing reference spectra for new grease samples, establishing the spectra for each grease sample taken, comparing the sample spectra to the reference, and identifying polluting agents. The allowable pollutant constituents, their allowable size and weights, and specification of the acceptable ranges for constituent concentrations of the grease when compared to the reference would greatly increase the complexity of this supplemental NPRM. Therefore, we have determined that it is necessary for operators to send the results to Messier-Dowty for evaluation.

As stated previously, Messier-Dowty Special Inspection Service Bulletin D23285-32-037 specifies sending grease samples to Messier-Dowty for analysis. If the grease sample analysis indicates any discrepancy, paragraph (d)(1) of the original NPRM would require a detailed inspection of the bearing surface within 3 months. One commenter, U.S. Airways, questions whether the 3-month period should be counted from the day the grease sample was taken or the day the results were provided to the operator. The commenter requests that we revise the original NPRM to specifically require the bearing surface inspection within 3 months after Messier-Dowty advises operators of discrepant results. According to the commenter, this suggested compliance time would avoid problems associated with the possible lag time between the time the operator sends a sample to the manufacturer and the time the operator receives the results. If an extended time is required for the analysis, operators may be required to inspect the bearing surface without adequate planning time.

We do not agree with the request. We have determined that the bearing surface must be inspected within 3 months after the initial inspections of the grease and teeth. However, as previously stated, operators have their option of laboratories for the grease analysis, which could effectively lessen the impact on Messier-Dowty and decrease the lag time between submitting samples and receiving results. In addition, operators may request an extension of this time, in accordance with paragraph (j) of this supplemental NPRM, if data are supplied that will ensure the continued operational safety of the fleet pending receipt of the lab analysis. We have not changed this proposed requirement (paragraph (a)(1) in this supplemental NPRM).

One commenter, Airbus, considers that paragraph (e) of the original NPRM could be interpreted as requiring the same type of inspection at each interval. The commenter notes that Airbus Service Bulletins A330-32-3134 and A340-32-4172 offer operators the option of inspecting either the grease and gear teeth or the chrome on the bearing surface of the NLG main fitting barrel under the NWS rotating sleeve at the next inspection, within the applicable compliance times. The commenter requests that we clarify the repetitive inspection requirement.

We agree that clarification is necessary. For each subsequent repetitive inspection, operators have the option of doing either inspection—regardless of the most recent inspection type performed, provided subsequent inspections are done within the specified intervals. The revisions in paragraph (c) in this supplemental NPRM are intended to clarify this issue.

One commenter, Northwest Airlines, requests that we clarify the compliance times for the initial inspection in the original NPRM. The commenter suggests the following language: “If the NLG is more than 5 years old (since new or overhauled), accomplish the inspection within 700 flight hours of the effective date of the AD.” The commenter states that this will agree with Airbus Service Bulletin A330-32-3134.

We do not agree. The commenter's requested change would allow additional time for some airplanes. We have determined that the compliance times, as proposed, will ensure an acceptable level of safety. We have not changed this supplemental NPRM regarding this issue.

The Cost Impact section of the original NPRM states that the chrome inspection (on the bearing surface under the rotating sleeve) would take about 2 work hours, and the grease and gear teeth inspection (on the RVDT ring) would take about 8 work hours. One commenter, Northwest Airlines, states that these estimates do not agree with those specified in the service information:

• For the chrome inspection, Airbus Service Bulletin A330-32-3134 specifies 17 work hours to inspect, including 9 hours to prepare, test, and close up; and Messier-Dowty Service Bulletin D23285-32-037 specifies 8work hours to inspect the bearing surface.

• For the grease inspection, Airbus Service Bulletin A330-32-3134 (and A340-32-4172) specifies 10 work hours to inspect, including 8 hours to prepare, test, and close up; and Messier-Dowty Service Bulletin D23285-32-037 specifies 2 work hours to inspect the grease and gear teeth.

The commenter states that the differences between the work hours for actual and incidental tasks will significantly affect the planning and scheduling of these inspection tasks.

We partially agree with the commenter's interepretation of the service bulletin labor estimates. We have included work hours for post-inspection test preparation and tests. The cost estimates provided in the original NPRM generally reflect only the direct costs of the specific required actions based on the best data available from the manufacturer. We recognize that operators may incur incidental costs (such as the time for planning, access and close, and associated administrative actions) in addition to the direct costs. The cost analysis in ADs, however, typically does not include incidental costs. The compliance times in this supplemental NPRM should allow ample time for operators to do the required actions at the same time as scheduled major airplane inspection and maintenance activities, which would reduce the additional time and costs associated with special scheduling.

1. We have revised the applicability of the original NPRM to identify model designations as published in the most recent type certificate data sheet for the affected models. Although Model A330-302 and -303 airplanes have not yet been type certificated, FAA approval of these models is in process. We have changed the applicability in this supplemental NPRM to more closely parallel the effectivity section of the French airworthiness directives; the revised reference to Model A330 airplanes includes Model A330-302 and -303 airplanes.

2. We revised the inspection requirements to distinguish airplanes by configuration. Paragraphs (a) through (c) in this supplemental NPRM apply to airplanes without Airbus Modification 51381. Paragraph (d) in this supplemental NPRM applies to airplanes with the modification.

3. We have revised this action to clarify the appropriate procedure for notifying the principal inspector before using any approved AMOC on any airplane to which the AMOC applies.

4. After we issued the original NPRM, we reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $65 per work hour to $80 per work hour. The cost impact information, below, reflects this increase in the specified hourly labor rate.

Since certain changes expand the scope of the originally proposed rule, the FAA has determined that it is necessary to reopen the comment period to provide additional opportunity for public comment.

The following table provides the estimated costs for U.S. operators to comply with this supplemental NPRM.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the captionADDRESSES.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Status:These meetings will be open to the public.

On July 6, 2006, the Bureau of Industry and Security (BIS) published a rule in theFederal Registerthat proposed amendments to the Export Administration Regulations (EAR) that would revise and clarify the United States' policy for exports and reexports of dual-use items to the People's Republic of China (PRC). Specifically, the proposed rule states that it is the policy of the United States Government to prevent exports that would make a material contribution to the military capability of the PRC, while facilitating U.S. exports to legitimate civil end-users in the PRC. Consistent with this policy, BIS proposes to amend the EAR by revising and clarifying United States licensing requirements and licensing policy on exports and reexports of goods and technology to the PRC.

The proposed amendments include a revision to the licensing review policy for items controlled on the Commerce Control List (CCL) for reasons of national security, including a new control based on knowledge of a military end-use on exports to the PRC of certain CCL items that otherwise do not require a license to the PRC. The items subject to this license requirement will be set forth in a list. This rule further proposes to revise the licensing review policy for items controlled for reasons of chemical and biological proliferation, nuclear nonproliferation, and missile technology for export to the PRC, requiring that applications involving such items be reviewed in conjunction with the revised national security licensing policy.

This rule proposes the creation of a new authorization for validated end-users in certain destinations, including the PRC, to whom certain, specified items may be exported or reexported. Such validated end-users would be placed on a list in the EAR after review and approval by the United States Government.

Finally, this rule proposes to require exporters to obtain End-User Certificates, issued by the PRC Ministry of Commerce, for all items that both require a license to the PRC for any reason and exceed a total value of $5,000. The current PRC End-Use Certificate applies only to items controlled for national security reasons. This rule also proposes to eliminate the current requirement that exporters submit PRC End-User Certificates to BIS with their license applications but provides that they must retain them for five years.

Throughout this document, wherever “we,” “us,” or “our” is used, we mean the EPA.

This proposal addresses the determination that the Rillito moderate PM10nonattainment area in Arizona attained the National Ambient Air Quality Standards (NAAQS) for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM10) by the applicable attainment date. This proposal also addresses the determination that, because the Rillito area continues to attain the PM10standards, certain attainment demonstration requirements, along with other related requirements of the CAA, are not applicable to the Rillito area. Lastly, EPA is proposing to correct an error in a previous rulemaking that involved the classification of PM10nonattainment areas within the State of Arizona.

In the Rules and Regulations section of thisFederal Register, we are taking direct final action to make these determinations because we believe this action is not controversial. If we receive adverse comments, however, we will publish a timely withdrawal of the direct final rule and address the comments in subsequent action based on this proposed rule. We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive comments, no further activity is planned.

For all the reasons explained in the parallel direct final notice, we propose to determine that the Rillito moderate PM10nonattainment area in Arizona attained the National Ambient Air Quality Standards (NAAQS) for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM10) by the applicable attainment date. A determination of attainment is not a redesignation to attainment under CAA section 107(d)(3) because we have not yet approved a maintenance plan as required under section 175A of the CAA or determined that the area has met the other CAA requirements for redesignation.1

We further propose to determine that, because the Rillito area has continued to attain the PM10NAAQS, certain attainment demonstration requirements, along with other related requirements of the CAA, are not applicable to the Rillito area. Lastly, EPA is proposing to correct an error in a previous rulemaking that involved the classification of PM10nonattainment areas within the State of Arizona.

For further information on this proposal and the rationale underlying our proposed action, please see the direct final action.

The preamble to this NPRM is organized as follows:

The Vietnam Era Veterans' Readjustment Assistance Act of 1974 (“VEVRAA”) requires at 38 U.S.C. 4212(d) that Federal contractors report annually to the Secretary of Labor about their employment of certain categories of veterans. The Department of Labor has established the VETS-100 Report as the means of reporting the required information. On November 7, 2002, the President signed the Jobs for Veterans Act (JVA), which amended VEVRAA to make two changes to reporting requirements applicable to contracts entered into on or after December 1, 2003: (1) It raised from $25,000 to $100,000, the size of the contract required before an employer is covered by VEVRAA and is required to submit the VETS-100 Report; and (2) it modified the categories of veterans to be tracked in the reports. The part 61-300 rule proposed today is modeled upon the current regulation implementing the VEVRAA Annual Report From Federal Contractors, found in part 61-250. Today's proposal differs from the part 61-250 rule in two ways: it implements the changes made by the JVA to reporting requirements, and it makes changes designed to improve the readability of the rule. This rule is not intended to create other substantive differences from the part 61-250 rule.

Because the JVA amendments apply only to contracts entered on or after December 1, 2003, it will be necessary for VETS to maintain two sets of Federal contractor regulations. The regulations implementing the reporting requirements as amended by the JVA will be located in the new 41 CFR part 61-300 and will apply to contracts entered on or after December 1, 2003. The pre-JVA operating requirements will continue to be located at 41 CFR part 61-250 and will apply to contracts entered before December 1, 2003. Contractors with contracts entered both before, and on or after December 1, 2003, will be subject to both the requirements found in part 61-250 and the requirements proposed for this part 61-300.

To differentiate the VETS-100 Report required for contracts entered before December 1, 2003, from the VETS-100A Report required for contracts entered on or after December 1, 2003, we propose a slightly different name for the new Report form. The report required for contracts entered before December 1, 2003, would continue to be the VETS-100 Report. The report required for contracts entered on or after December 1, 2003, would be the VETS-100A Report.

VETS understands that contractors will need time to update their recordkeeping systems to collect the data required by the VETS-100A Report. Consequently, to give contractors time to update their recordkeeping systems and to collect the data required to complete the VETS-100A Report, the VETS-100A reporting requirement will become effective for the calendar year 2007, which will be reported in the VETS-100A Report to be filed by September 30, 2008.

The JVA changes the categories of qualified covered veterans under VEVRAA. Prior to the JVA, VEVRAA protected veterans of the Vietnam era, special disabled veterans, other protected veterans, and recently separated veterans. The JVA eliminated the coverage category of veterans of the Vietnam era. However, many individuals previously categorized under this category will continue to be covered under the categories of campaign badge veterans and disabled veterans. The JVA added a new category of Armed Forces service medal veterans and expanded the coverage of veterans with disabilities to include all veterans with service-connected disabilities. It also expanded the coverage of recently separated veterans from one year after discharge or release from active duty, to three years. The category of “disabled veterans” is broader than the “special disabled veterans” category it replaces. The category of “disabled veterans” includes all veterans who are entitled to compensation (or who but for the receipt of military retired pay would be entitled to compensation) under laws administered by the Secretary of Veterans Affairs or who were discharged or released from active duty because of a service-connected disability.

The proposed rule differs from the pre-JVA VEVRAA implementing regulation by eliminating redundant definitions, references, and instructions, such as the twice-repeated definition of “job category.” This streamlining is designed to make the part 300 rule more “reader friendly” and is not intended to create other substantive differences from the part 61-250 rule. Finally, the proposed rule would clarify that only veterans of the U.S. Armed Forces are covered by the JVA.

This proposed rule is modeled on the pre-JVA VEVRAA regulations at 41 CFR part 61-250. The section-by-section review focuses on the differences between the proposed rule and the part 61-250 regulations. The proposed rule differs from part 61-250 in two respects: (1) it incorporates the requirements of the JVA, and (2) it contains several minor language differences designed to streamline and improve the readability of this version of the VEVRAA regulations. Unless specified below, none of these minor language differences are intended to create a difference in substantive meaning between the proposed rule and parallel provisions of part 61-250. For a discussion of provisions of the proposal that are the same as those found in part 61-250, see 65 FR 59684 (October 5, 2000) (Federal RegisterNotice of Propose Rulemaking for current part 61-250 rule) and 66 FR 51998 (October 11, 2001) (Federal RegisterFinal Rule for current part 61-250 rule).

This section would raise the threshold contract amount for filing reports from $25,000 to $100,000 for contractsentered on or after December 1, 2003, and would substitute the term “qualified covered veterans” for “protected veterans” to implement the new statutory requirement in the JVA. Paragraph (a) also is proposed to state that these VEVRAA regulations apply only to contracts that were entered on or after December 1, 2003. Contracts that were entered before December 1, 2003, continue to be governed by the VEVRAA requirements located in part 61-250.

Paragraph (a) would make the point that any contractor covered by the affirmative action provision of VEVRAA (38 U.S.C. 4212(a)) would be required to file a VETS-100A Report under the part 61-300 regulations implementing the reporting provisions of VEVRAA (38 U.S.C. 4212(d)). Paragraph (a) of the parallel provision at 41 CFR 61-250.1(a) expresses the same point by stating that contractors subject to the regulations implementing the affirmative action provision of VEVRAA (41 CFR part 60-250) are required to file a VETS-100 Report. Section 61-300.1(a) would reference the affirmative action requirements of the statute, rather than the affirmative action implementing regulations, because those regulations have not yet been updated to reflect changes required by the JVA.

Paragraph (c) of this section would differ from 41 CFR 61-250.1 in that it corrects the citation to the “separate facility” exemption contained in 41 CFR 60-250.4(b)(3).

Paragraph (d) of this section would be identical to 41 CFR 61-250.1(d) but for the addition of a new footnote. The proposed footnote discusses the affirmative action obligation guidance contained in the OFCCP VEVRAA regulations located at 41 CFR part 60-250. The footnote would state that, although the categories of protected veterans have changed, the guidance in the OFCCP regulation is still valid.

Section 61-300.2 is nearly identical to section 61-250.2 but for the changes necessary to implement the JVA and one change to clarify the definition of “job category.” The JVA defines several new or revised categories of protected veterans. The proposal incorporates the JVA definitions of these categories of protected veterans into this definition section. Paragraph (b)(4) would define “disabled veteran,” paragraph (b)(5) would define “other protected veteran,” paragraph (b)(6) would define “Armed Forces service medal veteran,” paragraph (b)(7) would define “recently separated veteran,” paragraph (b)(8) would define “covered veteran,” and paragraph (b)(9) would define the term “qualified,” as required by the JVA.

The JVA defines the term “recently separated veteran” as “any veteran during the three-year period beginning on the date of such veteran's discharge or release from active duty.” See 38 U.S.C. 4211(6).

We propose to clarify the definitions of Armed Forces service medal veteran, other protected veteran, and recently separated veteran to state that only veterans of the U.S. Armed Forces are protected under these regulations.

The definition of “eligibility period” would not be carried over from the part 61-250 rule because it is not used in this regulation. Paragraph (b)(14) would add a definition for the phrase “covered incumbent veteran,” as it is defined in the JVA, to use as a shorthand phrase for collectively referring to all categories of protected veterans. Lastly, paragraph (b)(15) would define “covered contract” to explain the meaning of the term as used in part 61-300, incorporating by reference the definitions pertinent to contract coverage contained in the regulations implementing the affirmative action provisions of VEVRAA at 41 CFR 60-250.2.

This section is parallel to the requirement in 41 CFR part 61-250.10 that covered Federal contractors and subcontractors submit reports annually regarding their hiring and employment of qualified covered veterans in accordance with the VETS-100 reporting clause. The VETS-100A reporting clause proposed in section 61-300.10 would be the same as the clause at 61-250.10, except for updates to reflect changes required by the JVA. The categories would be those prescribed by the JVA and defined in section 61-300.2: (1) Disabled veterans; (2) other protected veterans; (3) Armed Forces service medal veterans, and (4) recently separated veterans. Section 61-300.10 would include the JVA requirement that covered Federal contractors and subcontractors include in the VETS-100A Report the total number of their employees, by job category and hiring location. Section 61-250.10 also includes required language for the reporting clause that must be included in each covered Federal contract and subcontract. Paragraph (a)(1) of the clause would add the requirement that contractors and subcontractors report on their total employment. Paragraphs (a)(1) and (a)(2) of the clause would change the reporting categories of covered veterans (as defined in § 300.2). These changes are required by the JVA. Paragraph (a)(1) also differs from the parallel provision of part 61-250 in that the word “total” has been added to clarify that the report must reflect the total number of employees in the workforce of the contractor.

Paragraph (c), which prescribes the date for filing a VETS-100A Report, is the same as the parallel provision in 41 CFR 61-250.10 except for editing to improve readability and designating the name of the report as “VETS-100A Report.”

Paragraphs (b) and (e) also would differ in that the name of the report would be the “VETS-100A Report.”

In part 61-250 some instructions for completing the VETS-100 Report are located in the regulations (section 61-250.11) and additional instructions are located in the VETS-100 Report form (Appendix A.) In part 61-300 we propose to consolidate the instructions for completing the VETS-100A Report onto the report form located in Appendix A (discussed below) without discussion of the instructions in the regulations. The proposed consolidation of instructions, as well as changes required by the JVA, are discussed below.

Paragraph (a) would provide that a copy of the VETS-100A Report and instructions may be found in Appendix A.

Additionally, in paragraph (a), VETS proposes to state that the report is “provided” annually to contractors who are included in the VETS-100 database. Part 61-250.11(a) states that the VETS-100 Report is “mailed” annually to contractors who are included in the VETS-100 database. The use of the term “provided” would allow VETS greater flexibility in distribution format of the VETS-100A Report. Paragraph (a) also states that VETS' failure to provide a contractor with a VETS-100A Report does not excuse a contractor from the requirement of submitting a VETS-100A Report.

Paragraph (b) is identical to paragraph (b) in 41 CFR 61-250.11.

Paragraph (c) would contain the same information as 41 CFR 61-250.11(c). However, the proposed section 61-300.11(c) language, in accordance with plain language principles, is simplified. The requirement that a contractor or subcontractor must submit a VETS-100A Report on September 30 of each year following a calendar year in which a contractor or subcontractor held a covered contract or subcontract is unchanged.

Paragraph (d) is identical to paragraph (d) in 41 CFR 61-250.11.

Paragraph (e) is identical to paragraph (e) in 41 CFR 61-250.11, except that the Internet address where requests for the VETS-100A Report may be made is updated.

The proposed section 61-300.20 is identical to section 61-250.20.

This section is the same as section 61-250.99, except that the section title would read, “What is the OMB control number for this part?” instead of “What are the OMB control numbers for this part?” to reflect the single OMB control number assigned to this information collection.

The proposed part 61-300 VETS-100A Report and instructions contained in the proposed Appendix A are different in two ways from the VETS-100 Report form and instructions found in the part 61-250 regulation's Appendix A. First, this proposal consolidates all information necessary to the completion of a VETS-100A Report into the proposed instructions. Second, the proposed VETS-100A Report and instructions would incorporate changes required by the JVA. A section-by-section description of differences between the part 61-250 and proposed part 61-300 instructions follows.

Report Title:The report's title is proposed to read, “VETS-100A Report” to conform with the new naming convention used in the VETS-100 Reporting program. Also, directly under the Report title, we propose to add the instruction that the VETS-100A Report is for contracts entered on or after December 1, 2003.

Who Must File:This paragraph describes who must file a VETS-100A Report. The proposed paragraph sets forth a reporting threshold amount of $100,000 or more for contracts entered on or after December 1, 2003, as required by the JVA. Additionally, this paragraph would state that nonexempt Federal contractors and subcontractors whose contracts were entered before December 1, 2003 are required to complete a VETS-100 Report. Finally, this paragraph would reference the report as the “VETS-100A Report.”

When/Where To File:This paragraph describes when and where the VETS-100A Report must be filed. This proposed paragraph is identical to the corresponding paragraph in the part 61-250 VETS-100 Report form instructions. However, the title of the paragraph reads “When/Where To File” instead of “When To File” to more accurately reflect the instructions provided in the paragraph.

Legal Basis for Reporting Requirements:This paragraph describes the statutory basis for requiring the VETS-100A Report. This proposed paragraph is different from the corresponding paragraph in the part 61-250 VETS-100 Report form instructions in that the individual categories of qualified covered veterans protected under VEVRAA would no longer be listed and a United States Code citation rather than a Public Law citation would be provided.

How To Submit the VETS-100A Report:This proposed paragraph describes how the VETS-100A Report must be submitted. This paragraph differs from the parallel paragraph of Appendix A in part 61-250 in that instructions from sections 61-250.11(b) and 61-250.11(c) are incorporated into this paragraph. Also, this paragraph would reference the report as the “VETS-100A Report.”

Recordkeeping:This proposed paragraph conforms to the paperwork package approved for the Federal Contractor Veterans' Employment Report (VETS-100A), and references the report as the “VETS-100A Report.”

How To Prepare Forms:This proposed paragraph describes how to prepare the VETS-100A Report. This paragraph differs from the corresponding paragraph in the part 61-250 VETS-100 Report form instructions by moving an instruction that was on the VETS-100 Report form in Appendix A to the VETS-100A Report instructions in Appendix A. Additionally, an instruction is added discussing when to use the VETS-100 Report, when to use the VETS-100A Report, and when to use both the VETS-100 and VETS-100A Report forms. Finally, this paragraph would reference the report as the “VETS-100A Report.”

Company Identification Information:This proposed paragraph describes how to receive information if there are questions regarding a company's identification number. This paragraph differs from the corresponding paragraph in the part 61-250 VETS-100 Report form instructions by including an updated telephone number for contractors to call for information.

Information on Employees:This proposed paragraph describes how to count the number of veterans, employees, new hires, and the maximum and minimum number of employees in a contractor's or subcontractor's labor force. It differs from the corresponding paragraph in the part 61-250 VETS-100 Report form instructions by incorporating the new categories of protected veterans into the instructions and describing the renumbering of the VETS-100A Report. Additionally, in the subparagraph titled “maximum/minimum employees” we propose to update the regulatory citation.

Definitions:This proposed paragraph presents the definitions of the categories of veterans protected under the JVA: “disabled veteran;” “other protected veteran;” “Armed Forces service medal veteran;” and “recently separated veteran;” as well as a definition for “covered veteran” and “job categories.” The reference to “hiring location” would contain an updated regulatory citation. Additionally, this paragraph would include a website link where individuals can find the VETS-100 Report and the VETS-100A Report regulations in their entirety.

This proposed rule contains information collections that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995. The proposed rule would create a new part, 41 CFR part 61-300, to implement the new JVA reporting requirements. The VETS-100 reporting requirements applicable to contracts entered before December 1, 2003, are currently approved under OMB No. 1293-2005 and will be revised to reflect provisions of this regulation. We estimate the collection burden that would be imposed under the proposed rule to be 60 minutes per respondent. A description of the information to be collected is shown below.

Contractors and subcontractors will be required to collect data on modified categories of covered veterans, which is to include disabled veterans, other protected veterans, Armed Forces service medal veterans, and recently separated veterans. These changes are required by the JVA. VETS invites the public to comment on whether the proposed collection of information: (1) Ensures that the collection ofinformation is necessary to the proper performance of the agency, including whether the information will have practical utility; (2) estimates the projected burden, including the validity of the methodology and assumptions used, accurately; (3) enhances the quality, utility, and clarity of the information to be collected; and (4) minimizes the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology (e.g., permitting electronic submission of responses).

Executive Order (E.O.) 12866 requires that regulatory agencies assess both the costs and benefits of intended regulations. Under Executive Order 12866, the Department must determine whether the regulatory action is “significant” and therefore subject to the requirements of the Executive Order and subject to review by the Office of Management and Budget (OMB). Under section 3(f), the order defines a “significant regulatory action” as an action that is likely to result in a rule (1) having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as “economically significant”); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

The Department has determined that this proposed rule is a “significant regulatory action” within the meaning of E.O. 12866 because of the public interest and policy issues raised by the rulemaking. This rule is not an “economically significant regulatory action,” however, because it will not have an economic effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.

Executive Order 12875—The proposed rule will not create an unfunded Federal Mandate upon any State, local, or tribal government.

Unfunded Mandate Reform Act of 1995—The proposed rule will not include any Federal mandate that may result in increased expenditures by State, local and tribal governments in the aggregate of $100 million or more, or increased expenditures by the private sector of $100 million or more.

This notice of proposed rulemaking will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, the requirements of section 6 of Executive Order 13132 do not apply to this rule.

This notice of proposed rulemaking does not substantially change the existing obligation of Federal contractors or subcontractors. The Department of Labor certifies that the proposed rule will not have a significant economic impact on a substantial number of small business entities. Therefore, no regulatory flexibility analysis is required.

Executive Order 12866 and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language. The Department invites comments on how to make this proposed rule easier to understand.

For the reasons set forth in the preamble, 41 CFR part 61-300 is proposed to be added to read as follows:

Section 610 of the Regulatory Flexibility Act of 1980 (Pub. L. 96-354), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), requires agencies to conduct periodic reviews of rules that have a significant economic impact on a substantial number of small business entities. The purpose of the review is to determine whether such rules should be continued without change, amended, or rescinded, consistent with the objectives of applicable statutes, to minimize any significant economic impact of the rules on a substantial number of such small entities.

The Department of Transportation (DOT) published its Semiannual Regulatory Agenda on October 31, 2005 (70 FR 64940), listing in Appendix D (70 FR 64954) those regulations that each operating administration will review under section 610 during the following 12 months. Appendix D also contains DOT's 10-year review plan for all of its existing regulations.

The Pipeline and Hazardous Materials Safety Administration (PHMSA, we) has divided its Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) and its Pipeline Safety Regulations (49 CFR parts 190-199) into 10 groups by subject area. Each group will be reviewed once every 10 years, undergoing a two-stage process (an Analysis Year and Section 610 Review Year. For purposes of the review announced in this notice, the Analysis year began in October 2005, coincident with the fall 2005 publication of the Semiannual Regulatory Agenda.

During the Analysis Year, we will analyze each of the rules in a given year's group to determine whether any rule has a significant impact on a substantial number of small entities and, thus, requires review in accordance with section 610 of the Regulatory Flexibility Act. In each fall's Regulatory Agenda, we will publish the results of the analyses we completed during the previous year. For rules that have a negative finding, we will provide a short explanation. For parts, subparts, or other discrete sections of rules that do have a significant impact on a substantial number of small entities, we will announce that we will be conducting a formal section 610 review during the following 12 months.

The section 610 review will determine whether a specific rule should be revised or revoked to lessen its impact on small entities. We will consider: (1) The continued need for the rule; (2) the nature of complaints or comments received from the public; (3) the complexity of the rule; (4) the extent to which the rule overlaps, duplicates, or conflicts with other federal rules or with state or local government rules; and (5) the length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule. At the end of the Review Year, we will publish the results of our review.

The following table shows the 10-year analysis and review schedule:

In addition to FTA's general rulemaking authority provided under 49 U.S.C. 15334, 42 U.S.C. 5141 (section 301 of the Stafford Act, Pub. L. 92-288, as amended) provides that “[a]nyFederal agency charged with the administration of a Federal assistance program may, if sorequested by the applicant State or local authorities, modify or waive, for a major disaster, suchadministrative conditions for assistance as would otherwise prevent the giving of assistanceunder such programs if the inability to meet such conditions is a result of the major disaster.”

This section allows FTA, at a State or local governmental entity's request, to waive ormodify any administrative condition it has placed on any of its Federal transit assistanceprograms if the State or local governmental entity cannot meet the condition because of the majordisaster. This provision does not, however, allow for the waiver or modification of any Federal transit program requirement mandated by statute, therefore, this rulemaking would apply only tonon-statutory requirements in FTA regulations and policies.

When a natural or man-made disaster occurs that results in significant damage to property and loss of life, such as Hurricanes Katrina and Rita or the events of September 11, 2001, our nation's transit systems play a key role in evacuating people, providing necessary supplies, and moving displaced families and relief personnel to and from the area. In the aftermath of Hurricanes Katrina and Rita, FTA received numerous requests for relief from policy statements, circulars, guidance documents and regulations, from transit agencies in the immediate disaster zone as well as transit agencies receiving evacuees. In order to ensure consistent responses to similar requests, FTA regional offices had to forward all requests to headquarters, which then reviewed the request and sent a message back to the regional office. This was a time-consuming process that resulted in delayed responses to requests for relief. Therefore, FTA believes it is necessary to establish a process by which we can quickly and efficiently handle requests for relief from Federal requirements that are directly related to the effects of a national or regional emergency, such as Hurricanes Katrina and Rita. FTA recognizes that these types of petitions must be afforded special consideration and must be handled expeditiously in order to ensure that the safety of the public and the safety of those individuals and businesses providing aid are immediately addressed.

This NPRM would establish an Emergency Relief Docket within two business days of an emergency or disaster declaration in which it appears transit agencies are or will be impacted. In the event emergencies can be foreseen, such as hurricanes, FTA proposes setting up such a docket in advance of the event, so that emergency evacuation and other services can occur in a timely manner. FTA would place a message on its Web page (http://www.fta.dot.gov) indicating an Emergency Relief Docket has been established and including the docket number. Any person would be able to petition the Administrator for temporary relief from administrative requirements. The petition would be conditionally granted for three (3) business days, during which time anyone could provide comments on the petition. FTA would then post a decision to the Emergency Relief Docket.

In some instances, grantees or subrecipients may not have access to electronic means by which to request relief. In those situations, FTA proposes to allow the grantee or subrecipient to contact any FTA regional office and ask the office to submit a request for relief on its behalf. Further, in the event a State's subrecipient is impacted by an emergency, the State may request relief on behalf of the subrecipient, even if the State (as the recipient) is not impacted by the emergency.

FTA believes this new emergency procedure would provide the agency with the ability to promptly and effectively address relief requests, while ensuring that the public and all interested parties are afforded proper notice of any such requests and are provided a sufficient opportunity to comment. FTA notes that these procedures would apply to policy statements, circulars, guidance documents and non-statutory requirements in regulations only, as FTA does not have the authority to waive statutory requirements.

In addition, FTA cannot independently waive regulations promulgated by the U.S. Department of Transportation (DOT). If a grantee needed relief from DOT regulations, such as the Americans with Disabilities Act (49 CFR part 37) or the Common Grant Rule (49 CFR part 18), the grantee would submit a request for relief to FTA's Emergency Relief Docket in the same manner it would request relief from FTA regulations. FTA would then work with DOT to process the petition for relief, including a request for a hearing, if any. Once DOT provides a response, FTA would post the response to the docket and the same review procedures would apply.

The proposed emergency procedures would establish FTA's criteria for requesting relief and would only be used to address petitions for relief that FTA determines are directly related to a Presidential declaration of a national or regional emergency, or anticipation of such a declaration, such as Hurricanes Katrina and Rita, or the events of September 11, 2001. FTA seeks comment on whether a State Governor's declaration of an emergency should also trigger these emergency relief procedures.

As FTA responds to emergencies, trends emerge as to the types of relief requests we are likely to receive. FTA seeks comment on whether it would be helpful, when opening an emergency relief docket, for FTA to proactively extend relief from certain policies, circulars, guidance or regulations to the geographical area(s) most impacted by the emergency, rather than waiting for transit agencies to request relief.

FTA remains mindful that as both public and private transportation providers move to expand service to address the needs of persons affected by national or regional emergencies, like Hurricanes Katrina and Rita, it is important to ensure that private companies are not placed at a competitive disadvantage in themarketplace. FTA requests public comment on whether the procedures contained in this NPRM would provide the necessary relief while also allowing the private sector to participate in transit relief efforts.

Under the proposed relief procedures, FTA would reserve the right to reopen any docket and reconsider any decision on its own initiative or based upon information or comments received. FTA requests public comment on whether the proposed three business day period is a sufficient amount of time to provide comments on petitions for relief.

This NPRM is nonsignificant for purposes of Executive Order 12866 and the Department of Transportation's Regulatory Policies and Practices. The NPRM proposes to establish emergency procedures and requests for relief from Federal transit regulations. FTA requests comment on whether this rulemaking may have unintended cost impacts.

This NPRM has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). FTA believes this rule would not impose any requirements that would have substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government.

This NPRM has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this NPRM does not have tribal implications and does not impose direct compliance costs, the funding and consultation requirements of Executive Order 13175 do not apply.

Section 603 of the Regulatory Flexibility Act (RFA) requires an agency to prepare an initial regulatory flexibility analysis describing impacts on small entities whenever an agency is required by 5 U.S.C. 553 to publish a general notice of proposed rulemaking for any proposed rule. Similarly, section 604 of the RFA requires an agency to prepare a final regulatory flexibility analysis when an agency issues a final rule under 5 U.S.C. 553 after being required to publish a general notice of proposed rulemaking. Because this rulemaking proposes a process by which small entities may seek relief from Federal transit requirements, FTA does not believe this NPRM would have a significant economic impact on a substantial number of small entities. FTA requests public comment on whether this rulemaking may have unintended impacts on small entities.

This rule would not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $128.1 million or more, in the aggregate, to any of the following: State, local, or Native American tribal governments, or the private sector.

There are no new information collection requirements in this NPRM.

A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in heading of this document may be used to cross-reference this action with the Unified Agenda.

The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321-4347), requires Federal agencies to consider the consequences of major Federal actions and prepare a detailed statement on actions significantly affecting the quality of the human environment. We find that there are no significant environmental impacts associated with this NPRM, but ask for public comment on this issue.

Anyone is able to search the electronic form for all comments received into any of our dockets by the name of the individual submitting the comments (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in theFederal Registerpublished on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visithttp://dms.dot.gov.

For the reasons set forth in the preamble, part 601 of title 49 of the Code of Federal Regulations is proposed to be amended as follows:

Add subpart D, consisting of 601.40 through 601.46, to read as follows:

When we make a finding that a petition presents substantial information to indicate that listing a species may be warranted, we are required to promptly commence a review of the status of the species. Based on results of the status review, we make a 12-month finding as required by section 4(b)(3)(B) of the Act (16 U.S.C. 1531et. seq.). To ensure that the status review of Casey's June beetle is complete and based on the best available scientific and commercial data, we are soliciting information on the species. We request any additional data, comments, and suggestions from the public, other concerned governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties concerning the status of the Casey's June beetle. Of particular interest is information pertaining to the factors the Service uses to determine if a species is threatened or endangered: (1) Present or threatened destruction, modification, or curtailment of its habitat or range; (2) overutilization for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) inadequacy of existing regulatory mechanisms; and (5) other natural or human-caused factors affecting its continued existence. In addition, we request data and information regarding the status of the Casey's June beetle throughout its range, including:

(A) Information on taxonomy, distribution (including positive or negative survey and collection data), habitat selection, food habits, population density and trends, and habitat trends;

(B) Information of the effects of potential threat factors, including artificial lighting, pesticides, lighted swimming pools, development, and changes in the distribution and abundance of the Casey's June beetle over the short and long term; and

(C) Information on management programs for Casey's June beetle conservation, including mitigation measures related to development, and any private, Tribal, or governmental conservation programs that benefit the Casey's June beetle.

If we determine that listing the Casey's June beetle is warranted, it is our intent to propose critical habitat to the maximum extent prudent and determinable at the time we would propose to list the species. Therefore, we also request data and information on what may constitute physical or biological features essential to the conservation of the species, where these features are currently found, whether any of these features may require special management considerations or protection, and whether there are areas not containing these features which might of themselves be essential to the conservation of the species. Please provide specific comments as to what, if any, critical habitat should be proposed for designation if the species is proposed for listing, and why that proposed habitat meets the requirements of the Act.

We will base our 12-month finding on a review of the best available scientific and commercial information, including all information received during the public comment period.

If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods (seeADDRESSESsection). Electronic comments may be submitted toFW8CFWOcomments@fws.govin ASCII file format and avoid the use of special characters or any form of encryption. Please include “Attn: Casey's June beetle” in your e-mail subject header and your name and return address in the body of your message. If you do not receive a confirmation from the system that we have received your electronic message, contact the Carlsbad Fish and Wildlife Office directly at 760-431-9440.

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. We will not consider anonymous comments, and we will make all comments available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the Carlsbad Fish and Wildlife Office (seeADDRESSES).

Section 4(b)(3)(A) of the Act requires us to make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information to indicate that the petitioned action may be warranted. We are to base the finding on information provided in the petition and supporting information available in our files at the time we make a determination. To the maximum extent practicable, we are to make a finding within 90 days of our receipt of the petition and to publish a notice of the finding promptly in theFederal Register.

Our standard for substantial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial information is presented, we are required to promptly commence a review of the status of the species.

In making this finding, we relied on information provided by the petitioners and information available in our files at the time we reviewed the petition, and we evaluated that information in accordance with 50 CFR 424.14(b). Our process for making a 90-day finding under section 4(b)(3)(A) of the Act and section 424.14(b) of our regulations is limited to a determination of whether the information contained in the petition meets the “substantial information” threshold.

On May 12, 2004, we received a petition, dated May 11, 2004, from David H. Wright, Ph.D.; the Center for Biological Diversity; and the Sierra Club requesting the emergency listing of the Casey's June beetle (Dinacoma caseyi) as endangered in accordance with section 4 of the Act. On October 4, 2005, the Center for Biological Diversity filed a complaint against us in the U.S. District Court for the Central District of California (Case No. ED CV-05-00922-SGL) challenging our failure to make the required 90-day and, if appropriate, 12-month findings on their petition to emergency list Casey's June beetle as endangered under the Act. We looked at the immediacy of possible threats to the species to determine if emergency listing may be warranted. Our initial review of the petition did not indicate that an emergency situation exists. We reached a settlement agreement with theplaintiffs on March 28, 2006, in which we agreed to submit to theFederal Registera completed 90-day finding by July 27, 2006, and to complete and submit to theFederal Register, if applicable, a 12-month finding by June 30, 2007. This notice constitutes the 90-day finding on the May 12, 2004, petition.

Casey's June beetle was not previously determined to be a candidate species nor does it currently have Federal regulatory status.

Casey's June beetle belongs to the scarab family (Scarabidae). The genus Dinacoma includes two described species,D. caseyiandD. marginata(Blaisdell 1930). Delbert La Rue, a researcher experienced with the genusDinacomaand a taxonomic expert stated, “Dinacoma caseyiis a distinct species morphologically and comprises its own species group—thecaseyicomplex—the other [species group] being themarginatacomplex which includes the bulk/remainder of the genus” (La Rue 2006). The Casey's June beetle was first collected in 1916 and later described by Blaisdell (1930) based on male specimens. This species measures 0.55 to 0.71 inches (in) (1.4 to 1.8 centimeters (cm)) long, with dusty brown or whitish coloring, and brown and cream longitudinal stripes on the elytra (wing covers and back).

Little is conclusively known about the Casey's June beetle and its life history. Based on surveys conducted to assess the species' presence, both male and female Casey's June beetles emerge from underground burrows sometime between late March through early June, with abundance peaks generally occurring in April and May (Duff 1990; Barrows 1998). During the active flight season, males emerge from the ground and begin flying near dusk (Hovore 1997). Males are reported to fly back and forth or crawl on the ground where a female beetle has been detected (Duff 1990). Cornett (2003) theorized that after emergence, females remain on the ground and release pheromones to attract flying males. After mating, females return to their burrows or dig a new burrow and deposit eggs. Excavations of adult emergence burrows revealed pupal exuviae (casings) at depths ranging from approximately 4 to 6 in (10 to 16 cm) (Frank Hovore and Associates 1995). The larval cycle for the species is likely 1 year, based on the absence of larvae (grubs) in burrows during the adult flight season (Frank Hovore and Associates 1995; LaRue 2004). What Casey's June beetle larvae feed on while underground is unknown, but other species of June beetle are known to eat “plant roots or plant detritus and associated decay organisms” (LaRue 2004). La Rue (2006) stated, “[Casey's June beetle] exhibits no specific host preferences, and larvae likely consume any available organic resources—including stratified detritus—encountered within the alluvial habitat.” Although specific host plant associations for Casey's June beetle are not known, visual surveys of the species using non-confining, light-collecting methods have detected females near emergence burrows in the vicinity (within 1 meter) ofHymenoclea salsola(cheesebush) (Frank Hovore and Associates 1995).

Recently, entomologists have found two new species or subspecies of Dinacoma, collected respectively from near the city of Hemet, California, and in the northwest portion of Joshua Tree National Park at Covington Flats (La Rue 2006). The specimens collected from Hemet are paler than Casey's June beetle specimens and possess morphologically different genitalia (Anderson 2006). To date, these specimens ofDinacomahave not been formally described in the scientific literature, but expert evaluation places them in the otherDinacomaspecies group (marginatacomplex) (La Rue 2006). La Rue (2006) states, “* * * from my research,Dinacoma caseyiis the most divergent and distinct species in the genus * * * the Little San Bernardino Mountains geographically isolate [the Joshua Tree population] from all other known [Dinacoma] species.”

The Casey's June beetle is most commonly associated with Carsitas series soil (CdC), described by the United States Department of Agriculture's Soil Conservation Service (1980) as gravelly sand on 0 to 9 percent slopes. This soil series is associated with alluvial fans, rather than areas of aeolian or windblown sand deposits. The Casey's June beetle also occurs in a portion of Palm Canyon Wash on soils characterized as “fine sands and alluvial soils without crypto-biotic crusts” (McGill 2003). According to Hovore (2003), these soils “show light braiding and some organic deposition, but generally do not receive scouring surface flows.” Although the Casey's June beetle has primarily been found on CdC soils, it is also apparently associated with Riverwash (RA) and, possibly, Carsitas cobbly sand (ChC) soils in the Palm Canyon Wash area (Anderson and Love 2006). Its burrowing habit would suggest the species needs soils that are not too rocky or compacted to complete portions of its lifecycle. La Rue (2006) states that allDinacomapopulations are ecologically associated with alluvial sediments. Alluvial sediments occurring in or contiguous with subcoastal scrub, submontane chaparral, and desert dry washes (ephemeral watercourses) are indicative of themarginatacomplex; bases of desert alluvial fans, and the broad, gently sloping, depositional surfaces formed at the base of mountain ranges in a dry region by the coalescing of individual alluvial fans (bajada) are indicative of thecaseyicomplex (La Rue 2006).

Early collection records identify “Palm Desert,” “Indian Wells,” and “Palm Canyon,” all in Riverside County, California, as locations where the Casey's June beetle occurred; however, these early records lack specific locality information (Duff 1990). The species has been most commonly collected at the “Bogert Trail” and Smoke Tree Ranch localities adjacent to Palm Canyon Wash, which are commonly used as reference sites when collecting at other locations (Hovore 1997; Cornett 2000; Cornett 2003; Cornett 2004). Hovore (1995) stated the Casey's June beetle was collected by University of California-Long Beach students “within the past 20 years” in Dead Indian Canyon (near Indian Wells); however, Hovore (2006b) subsequently explained the reliability of this information is questionable and incomplete due to incomplete specimen label information. The historical range of the Casey's June beetle cannot be determined with any certainty given the lack of specific locality information for some of the collection records and the absence of rangewide survey data. Frank Hovore and Associates (1995) describe the possible extent of the species' historical range as “somewhere around Chino Canyon floodplain (or at most northwest to the Snow Creek drainage), south to around Indian Wells.” Within these general geographic areas, the species is assumed to have occurred on the alluvial fan bases flowing from the Santa Rosa Mountains, at or near the level contour line, where finer silts and sand are deposited. However, this purported range is “based on inference and fragmentary data” (Frank Hovore and Associates 1995).

Given the lack of collection records, efforts have been made to ascertain the presence of the Casey's June beetle in its purported historical range. Barrows andFisher (2000) conducted trapping on two separate evenings in Dead Indian Canyon in Palm Desert, but the species was not detected. The University of California—Riverside conducted more than 10 years of year-round surveys for a variety of species, including Casey's June beetle, at the Boyd Deep Canyon Preserve in Palm Desert, California, southeast of Palm Springs (also near Indian Wells, and including portions of Dead Indian Canyon). No Casey's June beetles were found during any of the surveys (Anderson 2006). A single night survey conducted in 2003 (Powell) near Snow Creek, northwest of Palm Springs, failed to find the species, although the beetle was confirmed to be active at Smoke Tree Ranch in Palm Springs.

La Rue (2006) has collected and worked extensively withDinacomaspp. in southern California since the 1980s, and has not collected Casey's June beetle outside of its current known range in the City of Palm Springs. La Rue (2006) states:

Cornett (2004) sampled more than 60 locations in Palm Springs to determine the current range of Casey's June beetle. Light traps were used to attract flying males and placed in relatively undisturbed flatlands likely to have supported Casey's June beetle. Traps were opened by 6:30 p.m. and remained open until at least 10 p.m. on 26 nights, for a total of 756 trap-hours. Eight traps were opened each evening, and each trapping station was used at least two times. To gauge trapping success, at least one trap was opened at Smoke Tree Ranch each trapping session. Based on the survey results, Cornett (2004) concluded that Casey's June beetle is restricted to an area of southern Palm Springs north of Acanto Way, east of South Palm Canyon Drive, and south of State Route 111, west of Palm Canyon Wash (Cornett 2004) and includes portions of the Agua Caliente Tribal Reservation. Cornett (2004) estimated the area occupied by Casey's June beetle to cover approximately 800 acres (ac) (324 hectares (ha)). Non-historic (1990s or later) collection locations of Casey's June beetle include sites near South Palm Canyon Drive, Bogert Trail, Smoke Tree Ranch, and portions of Palm Canyon Wash (Hovore 2003; McGill 2003; Powell 2003; Cornett 2004). However, not all the currently known range is occupied. For example, the species does not occur in residential areas where soils have been graded and covered with structures, nor is it found in areas with ornamental landscaping, such as lawns and other landscaping (Cornett 2004).

The above studies present compelling evidence for a localized distribution of Casey's June beetle in the southern Palm Springs area. The localized distribution of Casey's June beetle described by Cornett (2004) is typical for species of June beetles (superfamily Scarabaeoidea) with flightlessness in one or both sexes (Hovore 2006a). Experts agree with La Rue's (2006) hypothesis that the Palm Springs area east of Mount San Jacinto has a number of unique environmental characteristics, such as slightly higher precipitation and lighter winds, which are significant, positive factors contributing to the presence of the Casey's June beetle.

Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be endangered or threatened due to one or more of the following five factors as described in section 4(a)(1) of the Act: (A) Present or threatened destruction, modification, or curtailment of habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. In making this 90-day finding, we evaluated the petition and its supporting information to determine whether substantial scientific or commercial information was presented that indicated that listing the Casey's June beetle may be warranted. The Act identifies the five factors to be considered, either singly or in combination, to determine whether a species may be threatened or endangered. Our evaluation of these threats, based on information provided in the petition and readily available in our files, is presented below.

The petitioners claimed that the Casey's June beetle is threatened by the cumulative loss and degradation of habitat from development. The petitioners stated that, within “the south Palm Springs, California area,” approximately 600 ac (243 ha) of potential CdC soils in nine remnant fragments “in the Palm Springs topographic quadrangle south of San Rafael Drive” remained undeveloped when the petition was submitted in 2004, and this area was decreasing due to continued urban development. The petitioners claimed that loss of habitat threatens the continued existence of two populations of the Casey's June beetle.

Petitioners stated that approximately 600 ac (243 ha) of potential CdC soils in nine remnant fragments in the south Palm Springs area remained undeveloped. To evaluate the information provided in the petition about the range of Casey's June beetle in Palm Springs, we used data already in our geographic information system (GIS) to overlay 2003 soil data (CdC and RA soil series) obtained from the U.S. Department of Agriculture (USDA)'s Natural Resources Conservation Service, 2006 aerial photography from the USDA's Farm Service Agency Aerial Photography Field Office, and species survey and distribution data from Powell (2003) (cited in the petition) and Cornett (2004) (available to us shortly after we received the petition).

Information provided by the petitioners (Barrows and Fisher 2000; Nosset al.2001; Hovore 2003; McGill 2003; Powell 2003; La Rue 2006) is corroborated by information in our files (Hovore 2003; Cornett 2004), and GIS information available at the time of petition review (2003 soil data and 2006 aerial photography). Thus, we believe petitioners have provided substantial scientific information that only one population of the Casey's June beetle exists and is limited to the southern portion of the City of Palm Springs, California. Although the petition states there are two populations, no population distribution mapping or population dynamics studies have been conducted. Because all known occupied habitat is connected by Palm Canyon Wash, we consider all occupied areas to be within a single population distribution. That the majority of theCdC soils tend to occur along the base of the mountains in “areas most extensively used for agriculture and urban development, so that very little potential habitat may still exist” (Coachella Valley Association of Governments 2001) supports the possibility of a larger historical distribution. However, we examined 2006 aerial photography overlaying potentially suitable soils from Palm Springs to Indian Wells and determined that the majority of these soils have been developed. In Palm Springs, the bulk of remaining undeveloped CdC soils are north of the city center, an area lacking in records of the species (Cornett 2004).

Within southern Palm Springs, the petitioners cited at least five projects that had been formally proposed that would remove additional occupied habitat in Palm Springs: (1) The 30-ac (12-ha) Monte Sereno project north of Bogart Trail; (2) the 34-ac (14-ha) El Portal project east of South Palm Drive; (3) the 10-ac (4-ha) Canyon Ranch project west of South Palm Canyon Drive; (4) a 3-ac (1.2-ha) condominium project at Baristo; and (5) the 1.5- to 2-ac (0.6- to 0.81-ha) Desert Water Agency wells and pipeline project in the Smoke Tree Ranch development. The petition states that these five projects would remove over 11 percent of the remaining 600 ac of habitat. While these five projects were considered the most imminent projects, the petition also lists several properties that were being actively advertised for lease and development and other projects in various stages of development south of San Rafael Drive: (1) 18 ac (7 ha) on Smoke Tree Ranch actively advertised for lease and development; (2) a roughly 25-ac (10-ha) project north of Acanto Drive and west of Palm Canyon Wash; (3) a 0.3-ac (0.1-ha) communications site at Smoke Tree Ranch; and (4) a 25-ac (10-ha) “Casitas” development at Smoke Tree Ranch. These projects, if approved and implemented, could result in the additional removal or modification of approximately 68-ac (27.5-ha) of Casey's June beetle habitat south of San Rafael Drive. The petition also lists a 3-ac (1-ha) South Ridge Cove project and a 306-ac (124-ha) “McComic” project proposed in CdC soils south of Whitewater Wash. However, it appears that these proposed development projects south of Whitewater Wash are north of Palm Springs, outside of the current known range of the Casey's June beetle as identified by Cornett (2004).

Based on our GIS mapping of Cornett's (2004) distribution map, the estimated Casey's June beetle range is approximately 707 ac (286 ha) as opposed to the approximately 800 ac (324 ha) estimated by Cornett (2004). To this we add another 51 ac (21 ha) of north Palm Canyon Wash between East Palm Canyon Drive and South Gene Autry Trail based on collection of more than 70 individuals by Powell (2003), resulting in an approximately 758-ac (307-ha) range for Casey's June beetle in the Palm Springs area. While this estimated current range of 758 ac (307 ha) is greater than the 600 ac (243 ha) of potential CdC soils presented in the petition, past development likely greatly reduced the habitat for Casey's June beetle in Palm Springs. As stated in the petition, historical records of the Casey's June beetle from elsewhere in Palm Springs and nearby communities are from areas that have been thoroughly developed or otherwise altered and no longer have the appropriate habitat (Nosset al.2001). Also, according to 2006 aerial photography, it appears that construction has been at least initiated for some of the proposed or pending development projects listed in the petition (such as the 30-ac Monte Sereno project) and that other development projects may have been initiated within Palm Springs since the 2004 petition was submitted.

Based on information provided in the petition, it appears that pending or proposed development projects could result in the destruction or modification of approximately 147 ac (59 ha) of Casey's June beetle habitat in Palm Springs. This constitutes about 19 percent of the remaining 758 ac (307 ha), based on our determination of the species' current range. Since it appears that past development has removed most of the historical Casey's June beetle habitat, resulting in a range restricted to the southern Palm Springs area, and future development projects threaten to continue removing Casey's June beetle habitat, we find that the petition, supporting information, and information readily available to the Service presents substantial information indicating that listing Casey's June beetle may be warranted.

The petitioners stated that they do not have information on trade of the species, citing the difficulty of tracking these activities. We are not aware of any information regarding the overutilization of Casey's June beetle for commercial, recreational, scientific, or educational purposes.

The petitioners stated that they are unaware of impacts from disease or predation on Casey's June beetle. We are not aware of any information regarding the threats of disease or predation to the Casey's June beetle.

The petitioners maintained that Casey's June beetle occurs primarily on private lands and, to an unknown extent, occurs on a portion of the Agua Caliente Tribal Reservation. They also asserted that regulatory mechanisms currently available do not protect the Casey's June beetle. According to the petitioners, some protection for Casey's June beetle can potentially be provided under the California Environmental Quality Act (CEQA); however, the petition cited six projects that considered the species under CEQA (but proceeded with impacts) and another list of 12 projects in the City of Palm Springs that impacted potentially suitable soils for the species that may not have considered the species in their respective environmental reviews.

CEQA requires public agencies to disclose environmental impacts of a project on native species and natural communities during the land use planning process and to identify mitigation measures and project alternatives. This allows public comments to influence the planning process. The petition cites an example of the inadequacy of CEQA as a regulatory mechanism to provide for conservation of the Casey's June beetle. The Monte Sereno project impacted approximately 30 ac (12 ha) of occupied habitat. Impacts to the Casey's June beetle were expected to be mitigated by payment of $600 per acre (total of $24,780) to the City of Palm Springs or a habitat conservation entity designated by the city for 41.3 ac (16.7 ha) of “potential” Casey's June beetle habitat (Dudek and Associates 2001). No specific use of the funds for mitigation was specified (Dudek and Associates 2001).

The petitioners claimed that, while development on Tribal lands is subject to the National Environmental Policy Act (NEPA)(42 U.S.C. 4321-4347), potential impacts to Casey's June beetle may not always be considered during the NEPA process. The petitioners cited two instances of projects on Tribal lands that did not review impacts to the Casey's June beetle. In a 2004 Environmental Assessment (EA) for a brush clearing project on the Agua Caliente Tribal Reservation, CdC soilswere confirmed in a portion of the proposed project site. These soils were described in the EA as being compacted, and it was stated that the distance from this area to known locations of the Casey's June beetle, coupled with the amount of nonnative vegetation onsite, made it unlikely for the species to occur on the project site (Agua Caliente Band of Cahuilla Indians (Tribe 2004). Although the Tribe indicated that the two projects were not likely to impact Casey's June beetle habitat, we have no information indicating whether surveys were conducted for the species within the project's footprint.

Although Casey's June beetle was initially considered for coverage under the Coachella Valley Multiple Species Habitat Conservation Plan (MSHCP), the April 2006 release of the final MSHCP, final EIR, and final implementing agreement did not include Casey's June beetle as a covered species. Given the non-inclusion of Casey's June beetle in the final Coachella Valley MSHCP and draft Agua Caliente Tribal HCP, the Service has been working with Smoke Tree Ranch to develop a Candidate Conservation Agreement with Assurances (CCAA) addressing species' conservation. As indicated in reports (Hovore 2003; Cornett 2004), Smoke Tree Ranch supports a substantial portion of known occupied Casey's June beetle habitat, including a portion of the property currently identified in Smoke Tree Ranch Codes, Covenants, and Restrictions as “open space.” The Service expects to continue working cooperatively with Smoke Tree Ranch to complete and implement a CCAA for the Casey's June beetle. The use of a CCAA can be an effective tool to conserve species in the absence of listing them as threatened or endangered under the Act. However, until such time as a CCAA is completed, current regulatory mechanisms likely are inadequate to ensure conservation of the species.

Removal of occupied habitat by projects in the Bogert Trail area after submission of the petition in 2004, and other recent and proposed development in potentially occupied habitat, demonstrates existing regulatory mechanisms are not sufficient to protect remaining occupied Casey's June beetle habitat from destruction. We find the petition and supporting information, as well as information readily available to the Service, present substantial information indicating that the petitioned action may be warranted.

The petitioners asserted male Casey's June beetles are readily attracted to artificial lights (Frank Hovore and Associates 1995; Hovore 1997), and such lights pose a significant threat to the species. They further stated that lighted swimming pools attract males and cause substantial mortality (Barrows and Fisher 2000; Cornett 2000). The extent that artificial lights and lighted swimming pools pose a threat to the Casey's June beetle is speculative. Hovore (2003) noted the presence of the Casey's June beetle on a portion of Smoke Tree Ranch with limited natural open space adjacent to “numerous attractive light sources.” He concluded that while males would likely be attracted to these light sources during the flight season, such losses of straying males would not put the overall population at risk because males typically outnumber females and males are likely to complete multiple matings. While drowning in swimming pools or flying into lights causes mortality, we have no substantial information that would lead us to conclude that these factors singularly pose a significant threat to the species.

In addition, the petitioners claimed the species may be killed or injured by vehicles in the springtime at dusk. However, the petitioners provide no data regarding the possible number of beetles killed by vehicles. Additionally, the petitioners asserted that Casey's June beetle may be particularly sensitive to chemicals that interfere with neural or chemosensory functions during the flight season when males are seeking females. However, the petitioners did not provide any citations or documented evidence for this. We have no substantial information that would lead us to conclude that pesticides or toxins pose a significant threat to the species.

The petitioners claimed loss and fragmentation of habitat compromises the ability of the species to disperse and establish new, or augment declining, populations, especially because females have not been observed to fly and males alone cannot establish new populations. Because female Casey's June beetle do not appear to fly, Frank Hovore and Associates (1995) assumed subpopulations of the species “tend to be localized.” Hovore (2003) indicated that population movement would be “slow and indirect,” and suggested the population structure for Casey's June beetle in any given area is for multiple mini-colonies or “clusters of individuals around areas of repeated female emergence.” This would, in Hovore's (2003) assessment, make the species susceptible to extirpation by land use changes that would remove or alter surface features. In their report on the draft Coachella Valley MSHCP, Noss et al. (2001) also expressed concern about the species' ability to adjust its range in response to environmental changes.

The petitioners asserted that having only two population locations and restricted habitat makes Casey's June beetle susceptible to extinction or extirpation from all or a significant portion of its range due to chance events such as fire, flood, drought, or disease (Shaffer 1981, 1987; Primack 1998). The petitioners noted that Palm Canyon Wash is likely ephemeral habitat for the Casey's June beetle and that periodic flooding of the wash would eliminate the species from this site. Between 1978 and 2001, streamflows in Palm Canyon Wash exceeded 1,000 cubic feet (28 cubic meters) per second on four occasions (U.S. Geological Survey 2003). Streamflows of high magnitude could temporarily eliminate the species from portions of the wash (Hovore 2003; Cornett 2004). Furthermore, the petitioners assert that recolonization of the wash would most likely be accomplished by species from the extant habitat on upland terraces, making the upland habitat areas essential for the species' long-term survival (Wright 2003). It is also possible that periodic flooding in Palm Canyon Wash could have a positive impact by depositing detritus downstream that could be used by the species as it recolonizes the area following flood events (Wright 2003). However, conclusive information on such habitat use is not available.

While periodic flooding of Palm Canyon Wash may result in temporary elimination of that portion of the population, the overall impact of periodic flooding on the continued existence of the species is not known. However, given the ephemeral characteristic of habitat in Palm Canyon Wash, the conservation of upland habitat is likely required to maintain the species long term.

The petitioners claimed low numbers of Casey's June beetles make it vulnerable to risks experienced by small, restricted populations, including (1) chance demographic effects (such as skewed sex ratios, high death rates, or low birth rates); (2) the effects of genetic drift and inbreeding; and (3) deterioration in environmental quality (such as increased artificial lighting, swimming pools, or wash channelization). No analyses have been undertaken to estimate a minimumviable population size for Casey's June beetle, nor is there any substantial information concerning the population dynamics of the species. No information was provided in the petition, and we are not aware of any information regarding any genetic analyses of the species to determine the presence of skewed sex ratios or inbreeding. Therefore, we find the petition, supporting information, and information readily available to the Service does not present substantial information for this factor indicating that the petitioned action may be warranted.

The petition focused on three of the five listing factors: (A) The Present or Threatened Destruction, Modification, or Curtailment of the Species' Habitat or Range; (B) the Inadequacy of Existing Regulatory Mechanisms; and (C) Other Natural or Manmade Factors Affecting the Species' Continued Existence. Specifically, under Factor A, the petition indicates the range of the Casey's June beetle has been greatly reduced and is threatened by habitat removal from continued urban development. This is corroborated by information in the Service's files. The petition also presents information under Factor D suggesting that the existing regulatory mechanisms, such as CEQA and NEPA, are inadequate to protect the Casey's June beetle and its habitat. Additionally, while the Casey's June beetle was initially a covered species under the Coachella Valley MSHCP, the finalized version of that plan does not cover the species. The petition also presents information regarding additional threats under Factor E, such as drowning in lighted swimming pools, direct mortality by vehicles, and reduced genetic exchange due to a reduced population size. We are not aware, however, of any substantial information to suggest that any of the threats described under Factor E would threaten the existence of the Casey's June beetle.

According to the petition, five “imminent” projects would destroy over 11 percent of Casey's June beetle habitat in Palm Springs. As cited in the petition, two of the five projects (Monte Sereno and El Portal) considered imminent had been approved by the City Council at the time we received the petition in 2004.

After this review and evaluation, we find the petition presents substantial scientific or commercial information indicating that listing of Casey's June beetle may be warranted. Therefore, we are initiating a status review to determine if listing is warranted. To ensure the status review is comprehensive, we are soliciting scientific and commercial information regarding this species. Under the terms of a settlement agreement, we are required to make a 12-month finding determining whether listing the Casey's June beetle is warranted on or before June 30, 2007.

The petitioners also requested critical habitat be designated for this species. We consider the need for critical habitat designation when listing species. If we determine in our 12-month finding that listing of Casey's June beetle is warranted, we will address the designation of critical habitat in a subsequent proposed rule.

A complete list of all references cited herein is available, upon request, from the Carlsbad Fish and Wildlife Office (seeADDRESSES).

The primary author of this document is the staff of the Carlsbad Fish and Wildlife Office (seeADDRESSES).

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

Background

Section 4(b)(3)(A) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531et seq.) requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial information to indicate that the petitioned action may be warranted. To the maximum extent practicable, this finding is to be made within 90 days of receipt of the petition, and the finding is to be published in theFederal Register.

This finding summarizes information included in the petition and information available to us at the time of the petition review. A 90-day finding under section 4(b)(3)(A) of the Act and § 424.14(b) of our regulations is limited to a determination of whether the information in the petition meets the “substantial information” threshold. Substantial information is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)).

The Hermes copper butterfly was included as a Category 2 candidate species in our November 21, 1991 (56 FR 58804), and November 15, 1994 (59 FR 58982), Candidate Notices of Review (CNOR). Category 2 included taxa for which information in the Service's possession indicated that a proposedlisting rule was possibly appropriate, but for which sufficient data on biological vulnerability and threats were not available to support a proposed rule. In the CNOR published on February 28, 1996 (61 FR 7595), the Service announced a revised list of plant and animal taxa that were regarded as candidates for possible addition to the Lists of Endangered and Threatened Wildlife and Plants. The revised candidate list included only former Category 1 species. All former Category 2 species were dropped from the list in order to reduce confusion about the conservation status of these species, and to clarify that the Service no longer regarded these species as candidates for listing. Since the Hermes copper butterfly was a Category 2 species, it was no longer recognized as a candidate species as of the February 28, 1996, CNOR.

On June 4, 1991, the Service received a petition dated May 27, 1991, from David Hogan of the San Diego Biodiversity Project to list the Hermes copper butterfly, Laguna Mountains skipper (Pyrgus ruralis lagunae), Harbison's dun skipper (Euphyes vestries harbinsoni), and Thorne's hairstreak butterfly (Callophrys[Mitoura]grynea thornei) as endangered under the Act. In aFederal Registernotice dated July 19, 1993 (58 FR 38549), the Service announced its finding on the petition. We found that the petition presented substantial information for the Laguna Mountains skipper, but not for the other three butterflies. However, the finding also concluded that other substantial information existed to support a decision that listing may be warranted for Hermes copper butterfly, Harbison's dun skipper, and Thorne's hairstreak butterfly, and we announced our intention to continue a formal status review of these three species. In a proposed rule for the Laguna Mountain skipper and Quino checkerspot butterflies published on August 4, 1994 (59 FR 39868), we clarified that the negative 90-day finding on the Hermes copper butterfly and the other two butterflies “was made because sufficient information was not available regarding the threats to and biological vulnerability of these” butterflies (59 FR 39869). Though we have continued, and will continue, to collect available data on the Hermes copper butterfly and the other two butterflies, we did not complete a formal status review of Hermes copper butterfly under section 4(b)(3)(A) of the Act.

On October 25, 2004, the Service received an updated petition to list the Hermes copper and Thorne's hairstreak butterflies as endangered from David Hogan of the Center for Biological Diversity. The petitioner also sought emergency listing protection for Thorne's hairstreak and designation of critical habitat for both butterfly species concurrent with listing, if warranted. Included in the petition was information regarding the species' taxonomy, biology, ecology, historical and current distribution, present status, and potential causes of decline and imminent threats. In a letter dated May 9, 2005, the Service determined that despite apparent threats to the Thorne's hairstreak butterfly, such threats did not appear to be of a magnitude and severity to warrant emergency listing. In our response, we also advised the petitioner that we had insufficient funds to respond to the petition at that time. On March 15, 2005, we received a 60-day notice of intent to sue filed by the Center for Biological Diversity for lack of response to the Hermes copper and Thorne's hairstreak butterfly petition. On October 18, 2005, the Center for Biological Diversity filed a complaint for declaratory and injunctive relief challenging our failure to make the required 90-day findings for these two taxa. The Service agreed to submit 90-day petition findings for Hermes copper and Thorne's hairstreak butterflies to theFederal Registerby August 1, 2006, and if the 90-day findings was substantial, to submit 12-month findings to theFederal Registerby June 1, 2007. This notice constitutes our 90-day finding on the petition to list the Hermes copper butterfly; the 90-day finding on the petition to list the Thorne's hairstreak butterfly will be published separately in theFederal Register.

In completing this 90-day finding, the Service has reviewed not only the information submitted in the petition but also information in our files. This includes all of the data we had obtained prior to the July 19, 1993, not substantial finding that would have been considered in an internal status review (had one been completed), as well as all of the information we have collected on this species to date. Further, based on all new information and our analysis below, we have determined that the petition does not present substantial information indicating that listing the Hermes copper butterfly may be warranted or that a status review should be conducted.

The Hermes copper butterfly was first described asChrysophanus hermesby Edwards in 1870 (cited in Thorne 1963). Comstock placed the species in the genusTharsaleain 1927 (cited in Thorne 1963). According to Faulkner and Klein (2005), Hoffman moved it to the genusLycaenain 1940. In a subsequent study of American copper butterflies, Miller and Brown (1979) placed the species in the monotypic genusHermelycaenaon the basis of anatomical features that resemble two butterfly genera and other unique morphological characters. The authors concluded the Hermes copper butterfly was “perhaps * * * our most evolved Copper.” In an allozyme phylogenetic study of North American copper butterflies, Pratt and Wright (2002) suggested that the Hermes copper butterfly “could belong to a separate genus or subgenus.”Lycaena hermesis the name predominantly used in recent literature (North American Butterfly Association 2001; Opler and Warren 2003; Faulkner and Klein 2005), and we recognize it as such for the purposes of this finding.

The Hermes copper butterfly is a small, brightly-colored butterfly approximately 1 to 1.25 inches (2.5 to 3.2 centimeters) in length, with one tail on the hindwing. On the upperside, the forewing is brown with a yellow or orange area enclosing several black spots, and the hindwing has orange spots that may be merged into a band along the margin. On the underside, the forewing is yellow with 4 to 6 black spots, and the hindwing is bright yellow with 3 to 6 black spots (USGS 2006). Emmel and Emmel (1973) provide a description of the early stages of the species (eggs, larvae, and pupae).

The Hermes copper butterfly has a single flight period per year (univoltine), and spends about two thirds of its life in the egg stage (Thorne 1963). The adult flight period is from mid-May through early July, depending on elevation. Its peak flight period is typically around June 10 for males and June 20 for females. Recent observations indicate that some diapausing (low metabolic rate resting stage) Hermes copper butterfly eggs may remain in that state for multiple years as a drought adaptation (Faulkner and Klein 2005). Eggs are laid singly on stems of its larval host plant, spiny redberry (Rhamnus crocea) (Faulkner and Klein 2005). Pupation also occurs on spiny redberry.

Males are territorial and perch on plants along the edge of trails (Thorne 1963). Hermes copper butterflies are rarely seen far from their host or nectar plants, and form geographically small but locally abundant “colonies” that probably number in the hundreds. These “colonies” are hypothesized to be relatively independent from each other, even when in close proximity; inter-colony dispersal, which helps maintain the gene pool, may be limited to occasional males (Thorne 1963; Faulkner and Klein 2005). Mark-release-recapture data recorded a maximum movement of 92 yards (84 meters) (Marschalek 2004).

The Hermes copper butterfly is restricted to areas that contain its larval host plant, spiny redberry (Thorne 1963; Emmel and Emmel 1973). This plant is a low-growing, spreading shrub with a widespread range that includes the coastal ranges of northern California, along the foothills of the Sierra Nevada, on the Channel Islands (including the Mexican islands), the Mojave Desert in southwestern Arizona, and south into Baja California Norte and Sonora, Mexico (Thorne 1963; Sawyer 1993; Flesch and Hahn 2005; Christie et al. 2006). Spiny redberry commonly grows in coastal-sage scrub, chaparral, and woodlands in California (Sawyer 1993).

Faulkner and Brown (1993) described the habitat of the Hermes copper butterfly's habitat as coastal sage scrub and open southern mixed chaparral communities in which spiny redberry “is a common component.” The authors further noted that “these habitat types range from near sea level along the coast to 1250 m [4,100 feet] at the western edge of the Laguna Mountains.” Habitat consists of continuous stands of mixed chaparral/sage scrub in well-drained soil, usually found in canyon bottoms or on hillsides with a northern exposure. Host and nectar plants need to be in close proximity to one another (Faulkner and Klein 2005). Adult butterflies are typically observed feeding on nectar from flat-topped buckwheat (Eriogonum fasciculatum) (Marschalek 2004), but have also been observed nectaring on chamise (Adenostoma fasciculatum), golden yarrow (Eriophyllum confertiflorum), slender sunflower (Helianthus gracilentus), other species in the sunflower family (Asteraceae), and short-podded mustard (Hirshfeldia incana) (Faulkner and Klein 2005). Klein and Faulkner (2003) hypothesized host plants must be mature to support Hermes copper butterflies, although the petitioner acknowledged such evidence is anecdotal.

Faulkner and Brown (1993) described the known range of the Hermes copper butterfly as from near Fallbrook in San Diego County, California, to 18 miles (mi) (29 kilometer (km)) south of Santo Tomas in Baja California Norte, Mexico (a north-south distance of approximately 155 mi (250 km)), and from near the immediate coast inland to Pine Valley in San Diego County (an east-west distance of about 40 mi (65 km)). Thorne's (1963) map had 33 unnamed “known” colony locations, all within San Diego County in the United States.

According to the petition, Hermes copper butterflies have been reported approximately 100 mi (160 km) south of the U.S.-Mexico border, yet only three populations have been identified (Brown et al. 1992). The petitioner asserts the lack of Baja California populations may reflect both a dearth of suitable habitat and survey efforts and cites surveys conducted east of Tecate that yielded negative results despite extensive stands of high quality habitat (D. Faulkner, pers. comm.) [document not submitted with petition].

According to the petition, the current species' distribution has been reduced to approximately 18 known populations following years of continuing urban development and the huge wildfires of 2003. The petition included “Table 1: Hermes Copper Populations and Status,” which outlines the site location, estimated population at each site, current land manager, and years the species has been observed at each site. According to information in Table 1, Hermes copper butterflies have been observed, or specimens collected from, 48 sites in San Diego County and 4 sites in Baja, Mexico, since the early 1900s. This table also highlights 22 sites “presumed lost to fire,” 6 sites “presumed lost to urban development,” 2 sites that have “unknown specific locations and unknown status,” and 8 sites “identified during environmental review of development projects,” leaving the 18 sites with known populations referred to above. The petitioner also stated that, while the status of the Baja populations is unknown, they are presumed to be extant for the purposes of the petition.

Based on information available to us, Hermes copper butterfly has been recorded from at least 29 different sites in San Diego County (Engelhard 2004a, 2004b). Of these, 2 sites or areas have not been resurveyed since the 1930s (Fallbrook and Pala), 3 sites have incomplete survey information (surveyor name and/or date) (Scripps Gateway, East Elliott Ranch, Flinn Springs County Park), 3 sites were proposed for residential development or have been developed (the Crosby property, Scripps Gateway, Presky/Gonya property), and 5 sites were burned in the 2003 fires (Mission Trails Regional Park, Crestridge Ecological Reserve, Sycamore Canyon Open Space Preserve, Rancho Jamul Ecological Reserve, and portions of Miramar [Marine Corp Air Station]). However, as indicated in Engelhard's (2004a, 2004b) assessment, much of the information about the status of the site relative to development, extent of development (e.g., area impacted), and fire was not determined at that time. Therefore, this assessment did not constitute a complete review of the species' status at that time.

Some of the sites identified as being historically or currently occupied in the petition are likely the same sites identified by Engelhard (2004a, 2004b), and both references likely utilized the same sources of information. However, information used to create Table 1 in the petition was not provided by the petitioner; therefore it was not possible for us to compare location information available to us to that provided in the petition. Therefore, it appears that between 18 (according to the petition) and 21 (Engelhard 2004a, 2004b) sites were considered occupied by Hermes copper butterflies in 2004.

According to the petition, the Crestridge Ecological Reserve supports the largest known population of the species, and field surveys of the reserve between 1999 and 2001 revealed population fluctuations ranging from 1,000 butterflies in 2001, to one single butterfly in 2002 (M. Klein pers. comm.) [document not submitted with petition], to 400 butterflies in 2003. The petitioner asserted these fluctuations may be due to variations in rainfall in San Diego County. Other occupied sites have not been systematically surveyed, as illustrated in Table 1 in the petition and in Engelhard (2004a, 2004b). Therefore, no quantitative data exist on the total population size of Hermes copper butterfly.

Section 4 of the Act and its implementing regulations (50 CFR 424) set forth the procedures for adding species to the Federal List of Endangered and Threatened Wildlifeand Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence. In making this finding, we evaluated whether threats to the Hermes copper butterfly presented in the petition and other information readily available to us may pose a concern with respect to the species' survival such that listing under the Act may be warranted. Our evaluation of these threats is presented below.

The petition, its appendices, and referenced documents discuss the following threats that we have grouped under Factor A: Urban development, wildfire, and prescribed fire.

Information provided by the petitioner.The petitioner asserts the “Hermes copper [butterfly] is highly vulnerable to extinction due to loss of populations and dispersal habitat to expanding urban development in San Diego County and northern Baja California,” and “the threat of urban development is compounded by the additional threat of wildfire.” The petitioner cited two publications (Comstock 1927; Wright 1930) that predict probable extinction if rapid expansion of development were to continue within San Diego County. The petitioner cited Brown (1991), “[b]ecause continued development in the San Diego County threatens to eliminate additional colonies of this insect [Hermes copper butterfly], it is considered highly sensitive and vulnerable to extirpation.”

The petitioner stated many populations recorded from El Cajon, Fairmont Canyon, Kearny Mesa, Scripps Gateway, and numerous sites near the urban core of the city of San Diego have been lost to urban development and cites Murphy (1991) [document not submitted with petition] as stating, “[Hermes copper butterfly] has been virtually extirpated in nearly all of its best known historical localities around [the] City of San Diego.” The petitioner also stated that loss of populations and dispersal habitat to urban development is a significant threat to the species in the unincorporated portion of the San Diego County foothills west of the Cleveland National Forest, especially unburned areas near Jamul and northern portions of San Diego County. The petitioner further stated that ongoing urban development in Harbison Canyon, Marine Air Corps Station Miramar, San Marcos Creek, and Santee reduces likelihood of recolonization by the species. The petition also stated that Hermes copper butterfly populations identified in several locations by recent development project biological surveys may not persist following construction, especially considering resulting habitat fragmentation and increased risk of fire with an expanded, proximate human population.

Analysis of information provided in the petition.Rapid urban development is occurring within the current known range of the Hermes copper butterfly. Coastal and interior San Diego County is projected to grow about 44 percent by the year 2020 (San Diego Association of Governments 1999). While we acknowledge development has likely reduced the amount of occupied habitat for Hermes copper butterfly, the extent to which the reduction of habitat has impacted the species has not been quantitatively estimated.

The petition stated many populations recorded from El Cajon, Fairmont Canyon, Kearny Mesa, Scripps Gateway, and numerous sites near the urban core of the city of San Diego have been lost to urban development. While not explicitly stated in the petition, we assumed for the purposes of our review that the above statements were based on information in Table 1 in the petition. According to Table 1, six sites/areas appear to correspond to these areas and are referred to as “presumed lost to urban development”: El Cajon (“3 miles south of El Cajon” and “El Cajon”), Fairmont Canyon (“Fairmont Canyon”), Kerny Mesa (“Kerny Mesa”), Scripps Gateway (“Scripps Gateway”), and numerous sites in San Diego (collectively referred to as “San Diego”). However, no information was provided with the petition documenting site development, site location, the extent of the development (e.g., area developed), or the extent of habitat loss due to development.

The petition also stated several populations have been identified during recent development project biological surveys and asserts these populations may not persist following construction. Table 1 identifies eight such sites. However, no information was provided documenting proposed or ongoing development at these sites, site location, the extent of development (e.g., area developed), or extent of habitat loss due to development.

The status of Hermes copper butterfly distribution compiled by Engelhard (2004a, 2004b) lists 21 occupied locations known as of 2004; Table 1 in the petition lists 18 sites. As discussed above, information used to create Table 1 in the petition was not provided; therefore it was not possible for us to compare location information available to us (i.e., in Engelhard (2004a, 2004b)) to information provided in the petition. While Engelhard's (2004a, 2004b) assessment included total area and development status for some sites, such information for most sites was not determined at that time. Without complete and specific information about butterfly locations or past and proposed development projects and their associated impacts to habitat, we were unable to determine the extent to which urban development has reduced the known range of the Hermes copper butterfly. Further, according to Thorne (1963), urbanization is not as great a threat as commonly assumed:

Thorne's (1963) map had 33 unnamed “known” colony locations, all within San Diego County in the United States. Although some colonies near urban centers referred to by Thorne (1963) have been destroyed by development, many recent discoveries (i.e., post-1993) of extant colonies within the known species' range have also been reported, and the range of the species remains relatively widely distributed. Examples of colonies that have been reported since 1993 include Black Mountain, and multiple colonies on both the California Department of Fish and Game (CDFG) Crestridge Ecological Reserve and San Diego National Wildlife Refuge (Engelhard 2004b). In addition, the biology of the species has not changed; therefore Thorne's (1963) assessment of individual colony resilience with regard to development and fire should still be considered valid.

In addition, much uncertainty exists regarding the distribution of the species because the range of its host plant, spiny redberry, extends well beyond the known range of the butterfly, andsurveys have not been conducted throughout the host plant's range (especially inland San Diego County and northwestern Baja California Norte). Even the survey information for sites historically or currently occupied by the species is limited. The information in Table 1 of the petition and in Engelhard (2004a, 2004b) illustrates the fact that most occupied sites have only been surveyed on one or two occasions and many have not been surveyed since the 1950s or 1960s. Therefore, it is difficult to assess the species' current status in the absence of more current information.

In conclusion, we agree with the petitioner that urban development has likely reduced and fragmented habitat for Hermes copper butterfly in San Diego County. However, the habitat loss and fragmentation has not been quantitatively estimated, and the species remains relatively widely distributed. Therefore, we have determined that information in the petition and available to us does not substantiate the claim that urban development has significantly reduced the amount of available Hermes copper butterfly habitat to the point at which the butterfly may become threatened or endangered in the foreseeable future.

Information provided by the petitioner.The petitioner asserted Hermes copper butterfly is highly vulnerable to extinction due to the threat of fire as a result of direct mortality of individuals and indirect mortality due to loss of the species' larval host plant, spiny redberry. The petitioner further asserts, “Excessive, human induced fire poses a significant threat to the survival of the species, even on lands otherwise protected from development.” The threat of fire as it relates to direct mortality of individual butterflies is also discussed here.

Table 1 of the petition identifies areas “presumed to be burned” during the October 2003 fires in San Diego County, which are estimated to have burned 39 percent of Hermes copper butterfly habitat (Betzler et al. 2003). According to the petition, the largest concentration of the species ever documented was lost when the 2003 fire burned nearly all of the California Department of Fish and Game's Crestridge Ecological Reserve. The petition further stated 2001 surveys at Crestridge identified approximately 52 Hermes copper butterfly colonies with a total estimated population of 1,000 butterflies (CDFG 2001), of which all appear to have been destroyed by the 2003 fires (M. Klein pers. comm.) [document not submitted with petition].

The petition stated that fires in 2003 also impacted the second largest concentration of Hermes copper butterfly when they burned through 4 populations in the City of San Diego's Mission Trails Regional Park (Mission Grove, Mission Dam, Oak Creek, and Spring Canyon) and at least 15 populations (although only 14 were listed) throughout San Diego County: (1) Anderson Road (Viejas Mountain), (2) Boulder Creek Road, (3) Descanso, (4) El Monte County Park, (5) Flinn Springs, (6) Gooden Ranch reserve, (7) Harbison Canyon, (8) Little Cedar Canyon, (9) Miramar, (10) Old Viejas Grade Road, (11) Otay-Foothill area, (12) Rancho Jamul, (13) Santee (Fanita Ranch area), and (14) Sycamore Canyon reserve. The petition also stated at least three Hermes copper butterfly populations were likely lost to past fires on Bernardo Mountain near Escondido, Dictionary Hill in Spring Valley, and San Marcos Creek.

According to the petition, increased human population density and utilization of wildlands correlates with increased southern California wildfire frequency (Keeley et al. 1999; Keeley 2001 [document not submitted with petition]; Keeley and Fotheringham 2003; Wells et al. 2004). The petitioner asserted close proximity to large human populations increases vulnerability of the Hermes copper butterfly and its host plant, the spiny redberry populations to “excessive” fire.

The petitioner cited two references, Brooks et al. (2002 [correct citation 2004]) and Keeley and Fotheringham (2003), that provide examples of excessive fire harming chaparral ecosystems and dependent species in a number of ways. The petition quoted Keeley and Fotheringham (2003), “* * * ecosystem health of shrublands is threatened not by lack of fire but by high fire frequencies that exceed the resilience of many species.”

The petitioner stated excessive fire may prevent chaparral and coastal sage scrub plant species, like spiny redberry, from reaching maturity, thereby reducing or eliminating reproduction and recruitment of replacement chaparral plants. An example cited by the petitioner of an exotic species type conversion within an area occupied by Hermes copper butterflies was Bernardo Mountain. The petition stated that in 2002, Michael Klein visited the known occupied area burned in 1986, and found it dominated by weedy exotic forbs and grasses, with no spiny redberry plants or Hermes copper butterflies (M. Klein pers. comm.) [document not submitted with petition].

According to a supplemental letter and map provided by the petitioner, 44 fires had burned through known Hermes copper butterfly habitat, and 788 fires have burned through “modeled” habitat between 1900 and 2003 (CBD 2005). The letter stated, “This rate of fire return appears to exceed natural fire frequency in coastal sage scrub and chaparral ecosystems.” The letter further stated that the combined effects of limited dispersal behavior, urban development, and excessive fires have reduced available habitat, limited re-colonization, and increased vulnerability of remaining Hermes copper butterfly populations, greatly increasing likelihood of the species' extinction.

According to the petition, Hermes copper butterfly biology appears to reduce the likelihood of escape from fire, because adults, eggs, larvae, and pupae are likely killed when fire burns spiny redberry plants and other coastal sage scrub or chaparral vegetation. Also, excessive fires over the last several decades have reduced patches of mature spiny redberry used by Hermes copper butterfly, thereby reducing butterfly populations and disrupting metapopulation dynamics and stability. Due to the amount of past and potential future fires, any butterfly that escapes a fire is unlikely to locate other suitable habitat.

Also according to the petition, Hermes copper butterfly recovery following a fire is confounded by very slow recovery of it host plant (Zedler et al. 1983) and very slow recolonization by the butterfly. The petition cited Brown (1991): “Even after recovery of the host, the sedentary behavior of the butterfly may make natural colonization a very slow process, especially where sources of potential colonists previously have been extirpated.”

Analysis of information provided in the petition. The petition claimed Hermes copper butterfly is highly vulnerable due to the threat of fire, citing a 39 percent loss of the species' habitat burned in the 2003 fires. The petitioner also claimed that the 2003 fires destroyed or impacted two of the largest concentrations of the species and at least 15 other populations throughout San Diego County.

As cited in the petition, 39 percent of Hermes copper butterfly habitat is believed to have burned during the 2003 fires, a reduction from 317,451 ac (128,468 ha) to 192,924 ac (78,074 ha) (Betzler et al. 2003). However, this 39 percent reduction is an estimate based on vegetation mortality for areas occupied by the species (Betzler et al 2003). Since this estimate is not based on actual post-fire surveys, it is not possible to determine the actual amountof occupied Hermes copper habitat that burned in the 2003 fire.

Table 1 of the petition highlights 22 sites that were “presumed lost to fire.” However, neither the petition nor the supplemental map provided by the petitioners had information on location of sites “presumed lost to fire” or extent of habitat lost due to fire (i.e., area burned). While Engelhard (2004a, 2004b) attempted to compile information on specific sites known to be occupied by the species, the total acres of the site and the fire status (i.e., burned in 2003 fires) for most of the sites was not determined at that time and is still unknown. Regardless, as discussed above, extant colonies continue to be discovered, and the species appears to have maintained a relatively wide range.

The petitioner also claimed the largest known concentration of the species ever documented was lost in the 2003 fire that burned nearly all of the Crestridge Ecological Reserve, further asserting a total estimated population of 1,000 butterflies (per 2001 surveys) was lost. However, as discussed in the “Population Estimate/Status” section of this finding, the petitioner stated that surveys conducted between 1999 and 2001 documented fluctuations in individual abundance ranging from 1,000 butterflies in 2001, to a single butterfly in 2002 (M. Klein pers. comm.) [document not submitted with petition] to 400 butterflies in 2003 (pre-fire). The petition asserted that these fluctuations may be due to variations in rainfall in San Diego County. It is also not clear how good an index survey counts are of population size. While it is clear that the 2003 fire impacted the Hermes copper butterfly habitat at Crestridge, and presumably the butterfly itself, it is unclear how resilient this population is since wide fluctuations in the species' abundance had been documented prior to the fire. Also, while a few historically occupied territories burned in the 2003 fires were visited in 2004 (Faulkner and Klein 2005), we are unaware of any systematic post-fire monitoring conducted to document the extent of the impact of the fires on Hermes copper butterfly.

The petitioner also claimed that the 2003 fires impacted a large concentration of Hermes copper butterflies at Mission Trails Regional Park and at least 15 other populations throughout San Diego County. However, the petitioner did not provide any information on the extent of the area impacted by fire (e.g., area burned) or on post-fire surveys done at these sites; additional monitoring is needed at these sites to determine their status, particularly as it relates to the impact of fire on butterfly populations and habitat.

While it is unlikely that immature Hermes copper butterflies (larvae, pupae, and adults) can survive the burning of occupied habitat, it appears that adult butterflies will recolonize burned habitat over time. In an example of fire recovery, Brown (1991) noted that a 1982 fire apparently eliminated large stands of spiny redberry and a colony of Hermes copper butterfly in Mission Gorge (in Mission Trails Regional Park). Although the species was not observed again during annual surveys following the fire until 2000 (Klein and Faulkner 2003), the host plant and butterfly did eventually return 18 years later. During limited post-fire monitoring at Crestridge, one adult male Hermes copper was observed in 2005 on three different dates by two observers (Klein 2006), indicating that the population had not been extirpated as hypothesized in Klein and Williams (2003). We are not aware of any additional surveys conducted at Crestridge in 2005. While Faulkner and Klein (2005) state that no butterflies were observed during 2004 visits to only a few of the historically occupied territories burned in the 2003 fires, we are unaware of any systematic post-fire monitoring conducted to document the extent of the impact of the fires to Hermes copper butterfly and its habitat or to document recolonization rates. Additional monitoring is needed to determine the survival and recolonization rate of immature and adult butterflies following a fire.

The petition claimed increased human populations and utilization of wildlands correlates with increased southern California wildfire frequency. The petition also asserted that, between 1900 and 2003, from 44 to 788 fires had burned through known and “modeled” habitat, respectively, and this rate of fire return appears to exceed natural fire frequency in coastal sage scrub and chaparral ecosystems.

In a GIS modeling study, Wells et al. (2004) largely concurred with Keeley et al. (1999) (cited in the petition) that increasing human population (especially at lower elevations) has resulted in a greater number of fires and an increase in area burned overall in southern California. However, looking at fire frequency for coastal sage scrub and chaparral in San Diego County specifically, Wells et al. (2004) concluded that for “coastal sage scrub habitats, there has been an increase in burning over the course of the past century” but that the “trend in burning in chaparral is virtually flat over the past century, and if the years following 1950 are considered, there has been a marked decrease in area burned since then.” Contrary to the interpretation of the petitioner, Keeley et al. (1999) actually reported that fire rotation intervals (i.e., the time needed to burn an equivalent area of shrubland) actually increased in San Diego County after 1950.

The supplemental letter and map provided by the petitioner (stating that between 1900 and 2003, 44 fires had burned through known Hermes copper butterfly habitat, and 788 fires have burned through “modeled” habitat) does not provide sufficient information to allow us to verify the extent of the impact caused by these historic and more recent fires. In an attempt to outline fire frequency in Hermes copper butterfly habitat, the map overlays “approximate location of past and current Hermes copper colonies” and “modeled” Hermes copper habitat with a data layer indicating areas where from one to nine fires had occurred. “Modeled” habitat is defined on the map as being “based on very broad vegetation, soil, elevation and other categories and therefore includ[ing] many unsuitable habitat areas.” No information about the Hermes copper butterfly location data or the data on which the fire layer is based were provided by the petitioner. The petitioner did not explain how information on the map was used to determine that 44 fires had burned through known Hermes copper butterfly habitat or 788 fires have burned through “modeled” habitat. Also, the petitioner did not indicate where fires that burned between 1900 and 2003 overlapped or calculate a fire frequency/rate of return for any particular geographic area. Therefore, it is not clear how the petitioner determined that “This rate of fire return appears to exceed natural fire frequency in coastal sage scrub and chaparral ecosystems.” Without specific information on the extent of the impact caused by historic and current fires, including the 2003 fires, it does not appear the Hermes copper butterfly is currently threatened with extinction due to fire.

The petition also stated “excessive” fires prevent chaparral and coastal sage scrub species (like spiny redberry, the Hermes copper butterfly's host plant) from reaching maturity, thereby reducing or eliminating reproduction and recruitment of replacement chaparral, and allowing for the invasion of nonnative species.

Spiny redberry plants, like other large-seeded shrubs, are “obligate resprouters” after fires (Keeley 1998). Because such taxa resprout from a deeproot system or lignotuber and establish few seedlings immediately following fire, obligate resprouters “successfully recruit in the long-term absence of fire” (Keeley 1998). Post-fire seedling establishment of obligate resprouters is always quite limited, although seedling recruitment has been reported as “abundant” in older unburned chaparral stands (Keeley 1992a and 1992b). In the absence of fire, “obligate resprouting species often gain dominance over obligate seeding species,” butRhamnusspecies and other obligate resprouters are also “quite resilient to frequent burning” (Keeley 1986). Moreover, Keeley (1986) stated obligate resprouters “have a marked competitive advantage during the first decade after fire,” which is within the current regrowth timeframe of butterfly-occupied spiny redberry stands burned in 2003. In a post-fire recovery and succession study of chaparral and sage scrub in southern California, Keeley et al. (2005) “showed that all vegetation types exhibited a high proportion of structural similarity between pre- and postfire communities” after 5 years. Though Keeley and Fotheringham (2003) concluded that, with continued disturbance like fire, nonnative invasives may replace an entire ecosystem and type convert shrublands to alien grasslands, Keeley (2004) noted that invasive alien plants typically will not displace obligate resprouting species in mesic shrublands that burn once a decade “because rapid resprout growth recaptures the site and replenishes vitality of roots and lignotubers.” Therefore, based on the species' biology, it appears that spiny redberry should recover in these burned areas.

Though recent fires may have temporarily reduced the extent of Hermes copper butterfly habitat (i.e., spiny redberry and associated chaparral/coastal sage scrub plants), information in the petition and available to us does not substantiate a permanent loss of or a downward trend in the extent of the species' habitat as a result of increased fire frequency and associated alien plant invasion.

The petitioner did not provide information or data to substantiate the claim that excessive fires over the last several decades have reduced Hermes copper butterfly population numbers and disrupted metapopulation dynamics and stability. As stated in the “Population Estimates/Status” section of this finding, no quantitative data on population size exists nor do we have any information on the dispersal or movement behavior of this species. Without this information, it is not possible to determine the species' population structure (e.g., metapopulation or panmictic) and, subsequently, the impact of fire on population numbers and structure.

Information provided by the petition.The petitioner, citing Schlicht and Orwig (1999) [document not submitted with petition], claimed prescribed fire is likely to harm vulnerable Hermes copper butterfly populations by further contributing to excessive fire, and controlled burns often differ from natural fires in frequency, intensity, timing, and patchiness. These aforementioned factors could reduce the likelihood of the butterfly's survival through prescribed fire. The petitioners also maintained that the Cleveland National Forest has aggressively prescribed fire as a vegetation management tool in an attempt to benefit native wildlife. In addition, they asserted the County of San Diego “has generally rejected effective fire safety techniques of limiting poorly planned rural [development] and retrofitting existing structures with fire resistant materials. The County has instead focused on * * * excessive brush clearing around homes and communities, and has pushed for expanded prescribed fire on both National Forest and private land.”

Analysis of information provided in the petition.The petitioner asserted that a number of Hermes copper butterfly populations located under the jurisdiction of the Cleveland National Forest and San Diego County are being impacted by prescribed burning practices and policies undertaken by these entities. However, the petition does not provide documentation of instances where prescribed burning is being conducted in occupied Hermes copper butterfly habitat.

Review of San Diego County fire management regulations and recommendations (San Diego County 2004, 2006a; California Fire Safety Council 2006) contradicts the petitioner's claim that San Diego County rejected effective fire safety techniques and has pushed for expanded prescribed fire. San Diego County does recommend clearing within 100 feet (30.5 m) of structures (Sand Diego County 2006), and places emphasis on replacement of flammable roofing material with fire-resistant shingles, planting of fire-resistant landscape vegetation, use of fire-resistant native plant species, avoidance of invasive exotic species in landscaping, and other effective conservation-oriented fire management techniques (San Diego County 2006; California Fire Safety Council 2006). No readily available documents support a rejection of conservation-oriented rural planning in favor of fire-safe planning, or a recent push for prescribed fire. Koelander and Bowman (2004), in a report designed to identify how San Diego County (and the City of San Diego) could better prepare and respond to fire hazards, concluded, “Adoption of new building codes will only resolve the problem for the new structures * * * For existing structures, the removal of highly flammable vegetation within 100-feet of structures and the replacement of combustible roofing will provide a heightened level of wildland fire protection.”

Regarding the U.S. Forest Service, of the U.S. Department of Agriculture, the agency stated in its final environmental impact statement (Volume 1) that the Hermes copper butterfly “[c]ould be affected by prescribed fire or fuel reduction projects in habitat that affect [its] host plant,Rhamnus crocea,” but that Vegetation Management Standard 37 addressed this threat (USDA Forest Service 2005a). However, according to the Forest Service's Land Management Plan (2005b), Standard 37 requires the Forest Service when implementing fire management activities to “[d]esign and manage fuel treatments to minimize the risk that treated areas will be used by unauthorized motorized and mechanized vehicles [and to m]itigate impacts where such use does occur.” It is not clear how Standard 37 (USDA Forest Service 2005a) addresses the threat of prescribed fire to the species. In the Cleveland National Forest's Land Management Plan (USDA Forest Service 2005c), the Forest Service's primary strategy for threatened, endangered, proposed, candidate, and sensitive species management is to “[m]anage habitat to move listed species toward recovery and delisting” and “[p]revent listing of proposed and sensitive species” by implementing the priority conservation strategies in Table 529. According to this table (USDA Forest Service 2005c), a priority conservation strategy task over the next 3 to 5 years is to protect Hermes copper butterfly habitat by preventing and suppressing fires.

Though the above guidance is general in nature, we could find no support for the claim that the Cleveland National Forest has aggressively prescribed fire as a vegetation management tool in an attempt to benefit other native wildlife at the expense of the Hermes copper butterfly. Based on the above discussion, we have determined that the petition does not substantiate the claim that prescribed burning impactsoccupied Hermes copper butterfly habitat.

We have determined that information in the petition does not substantiate the claim that urban development, wildfire, and prescribed fire has significantly reduced the amount of available Hermes copper butterfly habitat. While we acknowledge that urban development and fire has likely reduced and fragmented habitat for Hermes copper butterfly in San Diego County, the extent of impact to the species and its habitat has not been quantitatively estimated, and the species appears to have multiple colonies within a relatively wide geographic range. Thus, we do not believe the petition has presented substantial information to suggest the butterfly is likely to become endangered in the foreseeable future.

Information provided in the petition.The petitioner stated the Hermes copper butterfly may be endangered by overutilization for commercial purposes and identifies one commercial enterprise that may contribute to the imperiled status of the butterfly. A company, “Morningstar Flower and Vibrational Essences,” markets a “Hermes copper butterfly essence” over the Internet. These essences are available in 2-ounce and 4-ounce sizes by special order.

The petitioner claimed that over-collection is another potential threat to the Hermes copper butterfly because of their value to butterfly collectors. They cite an example, in 1986, where a female Hermes copper butterfly was worth $20.00.

Analysis of information provided in the petition.No evidence exists to support the use of Hermes copper butterfly in developing butterfly essences. According to Morning Star Essences (2006), no butterfly parts are used in “essences” production. While there are a number of other businesses that advertise sale of “butterfly essences,” no information exists to support the claim that this activity threatens the species.

Some collection of Hermes copper butterflies may occur given their value to collectors. As the number of colonies is reduced, lepidopterists may increasingly collect individuals to include rare species in their collections, or obtain surplus specimens for exchange or sale. On June, 26, 2004, two different advertisements on the Internet offered specimens ofLycaena hermesfor sale. Both were priced at 125 Euros (= approximately $152.00) (Martin 2004b). Nonetheless, no substantial data exist to substantiate such trade still exists or, if any trade continues, the extent to which it impacts the Hermes copper butterfly population. As a result, we conclude trade or collection probably does not pose a significant threat to the species at this time.

The petitioner did not provide any information with respect to disease on Hermes copper butterfly.

Information provided by the petition.The petitioner stated the Hermes copper butterfly may be endangered by predation. The petition claimed experts suspect birds, predatory insects, parasitic insects, and spiders prey upon Hermes copper butterfly, and that the harmful effects of otherwise normal predation or parasitism might be exacerbated by population reduction from urban development and excessive fires.

Analysis of information provided in the petition.The petitioner did not provide specific information validating the claim that the Hermes copper butterfly may be endangered by predation. We are not aware of any documentation that suggests that predation poses a significant threat to the species, and, therefore, we are unable to validate whether predation may endanger the Hermes copper butterfly.

Information provided by the petition.The petition, its appendices, and referenced documents discuss five regulatory mechanisms that provide some potential for Hermes copper butterfly conservation, but the petition claimed none of these mechanisms have proven effective in reducing the primary threats to the butterfly from urban development, fire, and related habitat degradation. The five regulatory mechanisms include: (1) California Environmental Quality Act; (2) National Environmental Policy Act; (3) Forest Service Management; (4) San Diego Multiple Species Conservation Plan or “San Diego MSCP”; and (5) County of San Diego Resource Protection Ordinance.

The petitioner claimed the Service has previously provided extensive discussion of the inadequacy of the California Environmental Quality Act (CEQA) to protect imperiled species, identifying several listings in theFederal Register(62 FR 2318, January 16, 1997; 62 FR 4935, February 3, 1997; 61 FR 25829, May 23, 1996; 69 FR 47236, August 4, 2004). The petitioner implies the Service's previous conclusions are fully applicable in consideration of protections under CEQA for the Hermes copper butterfly.

Analysis of information provided in the petition.California Department of Fish and Game can only designate “native species or subspecies of a bird, mammal, fish, amphibian, or plant” as either endangered or threatened under the California Endangered Species Act (Fish and Game Code, Sections 2062 and 2067). However, the California Environmental Quality Act or CEQA (Public Resources Code, Sections 21000-21178, and Title 14 CCR, Section 753, and Sections 15000-15387) has and should continue to require proposed project effects to Hermes copper butterflies be evaluated under the provisions of this State environmental statute, although CEQA does not require any species to be protected. CEQA requires public agencies to disclose environmental impacts of a project on native species and natural communities during the land use planning process and to identify mitigation measures and project alternatives. This allows public comments to influence the planning process. The National Environmental Policy Act (NEPA) (42 U.S.C. 4321-4347) requires the Federal Government to disclose adverse impacts of a proposed action that cannot be avoided, but NEPA does not require any species to be protected. Although these statutes provide limited protection for the Hermes copper butterfly, we are not aware of any documentation that suggests that implementation of these laws, especially land use development projects under CEQA, pose a significant threat to the species. Also, as discussed under Factor A above, information in the petition and available to us does not substantiate the claim that urban development subject to these laws has significantly reduced the amount of available Hermes copper butterfly habitat.

Information provided in the petition.The petitioner claimed Forest Service regulations and management activities appear to provide few protections to the Hermes copper butterfly. The petitioner states that aside from monitoring survey results by others, there is no indication that the Cleveland National Forest is engaged in the conservation of theHermes copper butterfly. In addition, the petitioner states the Hermes copper butterfly is not formally recognized as a “sensitive species” by the Forest Service, and recognition of Hermes copper butterfly as a sensitive species would still be unlikely to generate any important, pro-active conservation activities necessary to improve the status of the species.

Analysis of information provided in the petition.The Hermes copper butterfly was included in the table of “Animal Species Evaluated for Viability Concerns (Species of Concern)” by the Forest Service (USDA 2005a); therefore, the petitioners claim the Hermes copper butterfly is not formally recognized as a “sensitive species” by the Forest Service is not currently accurate.

In describing proposed management standards to address threats facing designated “Animal Species-At-Risk,” the Forest Service stated the Hermes copper butterfly “[c]ould be affected by prescribed fire or fuel reduction projects in habitat that affect [its] host plant,Rhamnus crocea; wildfire risk” and that Vegetation Management Standard 37 addressed this threat (USDA 2005a). As discussed above, Standard 37 of the Forest Service's Land Management Plan (USDA 2005b), requires the Forest Service to “[d]esign and manage fuel treatments to minimize the risk that treated areas will be used by unauthorized motorized and mechanized vehicles [and to m]itigate impacts where such use does occur.” However, it is not clear how this standard protects the butterfly from prescribed fire, nor is any other protection apparently provided by this standard because vehicle impacts are not considered a threat to the species.

In the Cleveland National Forest's (USDA 2005c) Land Management Plan, the Forest Service's primary strategy for threatened, endangered, proposed, candidate, and sensitive species management is to “[m]anage habitat to move listed species toward recovery and delisting” and “[p]revent listing of proposed and sensitive species” by implementing the priority conservation strategies in Table 529. According to this table (USDA 2005c), the priority tasks for the next 3 to 5 years in conservation strategy emphasis are to monitor/study “[s]pecies recovery after wildfire (burned area monitoring)” and protect its habitat by preventing and suppressing fires. Although the above guidance is general in nature, the Cleveland National Forest should be engaged to some degree in the conservation of the Hermes copper butterfly; however, no documentation of conservation activities was available.

We acknowledge that Forest Service regulations provide limited protection of the Hermes copper butterfly. However, as discussed in Factor A and Factor E, information in the petition does not substantiate the claim that wildfire or prescribed fire pose a threat to the species or that there is a need to improve the species' status.

Information provided in the petition.The petition stated: (1) The Hermes copper butterfly is not recognized as a “covered species” under the San Diego Multiple Species Conservation Plan (MSCP) (MSCP 1998); (2) the MSCP cannot provide the necessary management to benefit the species because none is planned, described, or required by the Plan; and (3) the MSCP can benefit the Hermes copper butterfly only in the event of collaterally beneficial conservation activities for other species and habitats. The petitioner claimed the informal treatment of Hermes copper butterfly by the MSCP provides few conservation benefits. The petitioner also stated the MSCP identifies only three sites where the butterfly occurs in one area, the Metro-Lakeside-Jamul Segment, despite the additional occupied sites at the time of Plan approval in the Metro-Lakeside-Jamul and South County segments.

Analysis of information provided in the petition.It is true this species is not specifically covered under the San Diego Multiple Species Conservation Plan; however, the San Diego MSCP appears to have already benefited the Hermes copper butterfly where it overlaps with conservation activities for other species (e.g., management of Crestridge Ecological Reserve and the San Diego National Wildlife Refuge). Also, not all potential habitat within the planned MSCP preserve has been fully surveyed yet, and the full distribution of the species within areas protected or managed by the MSCP is unknown.

Land use restrictions within the MSCP County of San Diego Subarea plan will be implemented through the Biological Mitigation Ordinance (BMO). The BMO implements preserve design criteria for urban development and conservation of remaining private land, based on preserve design criteria that establish mitigation ratios and conditions. Mitigation may be required for the species recognized as “sensitive species” as defined by CEQA on land identified as Biological Resource Core Area, and therefore should provide some protection for the species. However, Hermes copper butterfly populations, habitat, and dispersal corridors will not be protected outside of the Biological Resource Core Area. The BMO within the Biological Core Area requires the County to impose design criteria that could minimize additional losses of populations and habitat, but would not require avoidance of Hermes copper butterfly populations, habitat, or dispersal corridors.

Information provided in the petition.The petition stated that remaining Hermes copper butterfly populations are not necessarily protected by nature of their location on the following open space park lands managed by the City or County of San Diego: Black Mountain, McGinty Mountain, and Mission Trails Regional Park. Lacking formal coverage, the Hermes copper butterfly cannot directly benefit from these open spaces.

Analysis of the information provided in the petition.The Hermes copper butterfly is now known to occur on approximately 25 different properties in San Diego County, California. Of these, seven properties are under City or County of San Diego ownership. Many of these lands are “designed” open space areas and County parks, which include various types of trails, ball fields, picnic areas, restroom facilities and/or parking lots. Although the impact of recreation on the butterfly is unknown, it is unlikely that limited recreational development and foot and bicycle traffic will destroy significant numbers of host plant shrubs in existing designated open space parklands.

Information provided in the petition.The petition claimed the County of San Diego's Resource Protection Ordinance (RPO) (County of San Diego 1991) imposes control on development of wetlands, floodplains, steep slopes, sensitive biological habitats, and prehistoric and historic sites. The petition stated RPO provisions address biological resources outside of the boundaries of the County's Subarea Plan under the San Diego MSCP. The RPO does not directly protect species or impose any species-specific management efforts, but rather attempts to minimize the impacts of urban development on habitat. The petition stated that the Hermes copper butterfly would be only inadvertently protected by the County RPO through the land protection ordinance, which would not require measures necessary to prevent extinction of the species, such as a requirement that new urbandevelopment avoid remaining Hermes copper butterfly populations and dispersal corridors. The petition also stated the RPO does not provide measures that could improve the status of the species, such as special conservation management of the Hermes copper butterfly populations, habitat, and dispersal corridors.

Analysis of the information provided in the petition.The RPO (County of San Diego 1991) imposes controls on development of wetlands, floodplains, steep slopes, sensitive biological habitat, and prehistoric and historic sites. The RPO requires the Resource Protection Study for certain discretionary projects in order to identify a number of objectives, including identification of environmentally sensitive lands. The County may require conditions to protect sensitive lands including habitats that may protect the Hermes copper butterfly.

Based on the information and analysis provided above, we find that the petition does not present substantial information that the species is threatened at this time by the inadequacy of existing regulatory mechanisms across all or a significant portion of its range.

The petition, its appendices, and referenced documents discuss the following threats that we have grouped under Factor E: Vulnerability of small and isolated populations, and global climate change.

Information provided in the petition.The petitioner asserts that endemic species, such as the Hermes copper butterfly, are generally considered more prone to extinction than widespread species due to their restricted geographic range. The petitioner claims that the common factors that increase the vulnerability of a small and isolated population to extinction are demographic fluctuations, environmental stochasticity, and reduced genetic diversity.

Analysis of the information provided in the petition.Although annual observations of the largest known pre-fire population (Crestridge Ecological Reserve) suggest that numbers of adult butterflies may fluctuate approximately two orders of magnitude from one year to the next, and may be correlated with rainfall (Klein and Faulkner 2003), it is not clear how these observations correlate with population densities of all individuals including immature diapausing (quiescent) stages. Also, much uncertainty exists regarding the distribution of the species because the range of its host plant, spiny redberry, extends well beyond the known range of the butterfly, and surveys have not been conducted throughout the host plant range (especially inland San Diego County and northwestern Baja California Norte). While it is possible that “small” populations and isolation could subject the butterfly to genetic drift and restricted gene flow that may decrease genetic variability over time and could adversely affect the species' viability, we do not have sufficient information about the species' distribution or population structure to determine that isolation and small population size pose a threat to the species.

Information provided in the petition.The petitioner asserted butterflies are particularly sensitive to small changes in microclimates, such as fluctuations in moisture, temperature, or sunlight. Studies of Edith's checkerspot (Euphydryas chalceona edithi) have documented that whole ecosystems may move northward or upward in elevation as the Earth's climate warms.

Analysis of the information provided in the petition.The petitioner did not provide specific information validating the claim that the Hermes copper butterfly may be endangered by global climate change. We recognize recent evaluations (e.g., Parmesan and Galbraith 2004) that whole ecosystems are seemingly being shifted northward. We are not aware of any documentation available or provided by the petitioner directly linking global warming as a threat to the Hermes copper butterfly, or explaining how global warming specifically affects this species.

We do not have sufficient information about the species' distribution or population structure to determine that isolation and small population size pose a threat to the species or that global warming poses a threat to the Hermes copper butterfly. Therefore, we have determined that information in the petition and available to us does not substantiate the claim that vulnerability of small and isolated populations and global climate change have significantly impacted Hermes copper butterfly.

We evaluated each of the five listing factors individually, and because the threats to Hermes butterfly are not mutually exclusive, we also evaluated the collective effect of these threats. The petition focused primarily on three listing factors: Factor A (the Present or Threatened Destruction, Modification, or Curtailment of the Species' Habitat or Range), Factor D (Inadequacy of Existing Regulatory Mechanisms), and Factor E (Other Natural or Manmade Factors Affecting Its Continued Existence). More specifically, information in the petition suggests that urban development and fire pose the primary threats to Hermes copper butterfly habitat and populations because the species' range occurs on lands susceptible to both types of impacts.

While it is likely that recent fires have temporarily reduced the extent of Hermes copper butterfly habitat (i.e., spiny redberry and associated chaparral/coastal sage scrub plants), information in the petition and available to us does not substantiate a permanent loss of, or a downward trend in, the extent of the species' habitat as a result of increased fire frequency. Also, within areas that have burned, the species appears able to re-colonize over time.

We also acknowledge that urbanization and fire have further fragmented the species' habitat, but current information indicates development does not currently threaten the species with extinction. Also, much uncertainty exists regarding the distribution of the species because the range of its host plant, spiny redberry, extends well beyond the known range of the butterfly, and surveys have not been conducted throughout the host plant's range.

We have determined that the petition and other information in our files does not present substantial information that the species is threatened at this time by the inadequacy of existing regulatory mechanisms across all or a significant portion of the species' range and that Federal listing would not necessarily provide additional benefits to the species. We will continue to work with the appropriate Federal, State, and local entities to avoid and minimize impacts to this species on their lands.

We have reviewed the petition and literature cited in the petition and evaluated that information in relation to information available to us. After this review and evaluation, we find the petition does not present substantial scientific or commercial information to indicate listing the Hermes copper butterfly may be warranted at this time. Although we are not commencing a status review in response to this petition, we will continue to monitor potential threats and ongoing management actions that might be important with regard to the conservation of the Hermes copper butterfly across its range. We encourageinterested parties to continue to gather data that will assist with the conservation of the species. Information regarding the Hermes copper butterfly may be submitted to the Field Supervisor, Carlsbad Fish and Wildlife Office (seeADDRESSESsection above) at any time.

A complete list of all references cited herein is available, upon request, from the Carlsbad Fish and Wildlife Office (seeADDRESSESsection above).

The primary authors of this notice are staff of the Carlsbad Fish and Wildlife Office (seeADDRESSESsection above).

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

We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule are hereby solicited. Comments particularly are sought concerning:

(1) The reasons any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether the benefit of designation will outweigh any adverse impacts to the species due to designation;

(2) Specific information on the presence of Alabama beach mouse habitat, particularly what areas should be included in the designations that were occupied at the time of listing that contain features that are essential for the conservation of the species and why; and what areas that were not occupied at listing are essential to the conservation of the species and why;

(3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat;

(4) Any foreseeable economic, national security, or other potential impacts resulting from the proposed designation and, in particular, any impacts on small entities;

(5) Whether the draft economic analysis identifies all State and local costs attributable to the proposed critical habitat designation, and information on any costs that have been inadvertently overlooked;

(6) Whether the draft economic analysis makes appropriate assumptions regarding current practices and likely regulatory changes imposed as a result of the designation of critical habitat;

(7) Whether the draft economic analysis correctly assesses the effect on regional costs associated with any land use controls that may derive from the designation of critical habitat;

(8) Whether the draft economic analysis appropriately identifies allcosts and benefits that could result from the designation; and

(9) Whether our approach to critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concern and comments.

If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods (seeADDRESSESsection). Please note that comments merely stating support or opposition to the actions under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) directs that determinations to be made “solely on the basis of the best scientific and commercial data available.” Please submit comments electronically toabmcriticalhabitat@fws.govin ASCII file format and avoid the use of special characters or any form of encryption. Please also include “Attn: Alabama Beach Mouse Critical Habitat” in your e-mail subject header and your name and return address in the body of your message. If you do not receive a confirmation from the system that we have received your electronic message, contact us directly by calling the Daphne Fish and Wildlife Office at phone number 251-441-5181. Please note that the e-mail addressabmcriticalhabitat@fws.govwill be closed out at the termination of the public comment period.

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. We will not consider anonymous comments and we will make all comments available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the U.S. Fish and Wildlife Service Office at the above address.

Copies of the draft economic analysis and the proposed rule for critical habitat designation are available on the Internet athttp://www.fws.gov/daphneor from the Daphne Fish and Wildlife Office at the address and contact numbers above.

Our final designation of critical habitat will take into consideration all comments and any additional information we received during both comment periods. Previous comments and information submitted during the initial comment period on the February 1, 2006, proposed rule (71 FR 5516) need not be resubmitted. On the basis of information received during the public comment period, we may during the development of our final critical habitat determination find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion. An area may be excluded from critical habitat if it is determined that the benefits of such exclusion outweigh the benefits of including a particular area as critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species. We may exclude an area from designated critical habitat based on economic impacts, national security, or any other relevant impact.

On February 1, 2006, we published a proposed rule to designate critical habitat for the ABM (71 FR 5516), revising the original designation for the subspecies (50 FR 23872; June 6, 1985). The proposed revision outlined five coastal dune areas (units), totaling approximately 1,298 total acres (ac) (525 hectares (ha)) in southern Baldwin County, Alabama, as critical habitat for the ABM. These five units consist of a mix of primary, secondary, and scrub sand dunes and interdunal swales and generally include an inland expansion of 1985 designated units to include more scrub dune habitat. Also in our February 2006 rule, we proposed exclusion of approximately 1,229 ac (497 ha) that, following our analysis under sections 4(b)(2) and 3(5)(A) of the Act, did not warrant designation of critical habitat because they are either protected by existing habitat conservation plans or do not require special management considerations or protection. The five proposed revised units, combined with these areas proposed for exclusion, constitute our best assessment of those areas essential to the conservation of the subspecies. As a result of revisions and corrections outlined in this revised proposed rule, these five units now total 1,326 ac (537 ha). We are also proposing inclusion of six residential lots to critical habitat (see Acreage Corrections). Other than the changes just described, the proposed rule of February 1, 2006, remains intact. We will submit for publication in theFederal Registera final revised critical habitat designation for ABM on or before January 15, 2007.

Critical habitat is defined in section 3 of the Act as the specific areas within the geographic 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 essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographic 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. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, pursuant to section 7(a)(2) of the Act.

Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic or any other relevant impact of specifying any particular area as critical habitat. We have prepared a draft economic analysis based on the February 1, 2006, proposed rule (71 FR 5516) that revises the currently designated critical habitat for the ABM; subsequent corrections are included.

The draft economic analysis estimates the foreseeable economic impacts of ABM conservation measures within the proposed critical habitat designation on government agencies and private businesses and individuals. The analysis measures lost economic efficiency associated with residential and commercial development, and public projects and activities, such as economic impacts on transportation projects, the energy industry, and State and Federal lands. It is difficult to separate costs attributed to the listing of a species from costs associated solely with a critical habitat designation. Therefore, the draft economic analysis considers the potential economic effects of all actions relating to the conservation of the ABM, including costs associated with sections 4, 7, and 10 of the Act, and those attributable to designating critical habitat. This may result in an overestimate of the potential economic impacts of the designation.

The draft economic analysis forecasts that costs associated with conservation activities for the ABM would range from $18.3 million to $51.8 million in undiscounted dollars over the next 20 years. Adjusted for possible inflation, the costs would range from $16.1 million to $46.8 million over 20 years, or $1.1 million to $3.1 million annually using a 3 percent discount; or $14.2 million to $41.7 million over 20 years,or $1.3 million to $3.9 million annually, using a 7 percent discount. Overall, the residential and commercial development industry is calculated to experience the highest estimated costs (99 percent).

The draft economic analysis considers the potential economic effects of all actions relating to the conservation of the ABM, including costs coextensive with listing. It further considers the economic effects of protective measures taken as a result of other Federal, State, and local laws that aid habitat conservation for the ABM in proposed critical habitat areas. The draft analysis considers both economic efficiency and distributional effects. In the case of habitat conservation, efficiency effects generally reflect lost economic opportunities associated with restrictions on land use (opportunity costs). This analysis also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on small entities and the energy industry. This information can be used by decision makers to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, this draft analysis looks retrospectively at costs that have been incurred since the date the subspecies was listed as endangered and considers those costs that may occur in the 20 years following revision of critical habitat.

As stated earlier, we solicit data and comments from the public on this draft economic analysis, as well as on all aspects of the proposal. We may revise the proposal, or its supporting documents, to incorporate or address new information received during the comment period.

By this notice, we are also advising the public of two changes to the February 1, 2006, proposed rule (71 FR 5516). First, we regret that an error was inadvertently made in the proposed rule concerning the 49 single-family homes proposed for exclusion under section 4(b)(2) of the Act based upon habitat conservation plans (HCPs). Owners of six lots that were proposed for exclusion do not have approved HCPs. Undeveloped portions of these lots, totaling approximately 6 ac (2 ha) and distributed between Units 1 (3.3 ac), 2 (2.3 ac), and 3 (0.5 ac), contain both the habitat known to be occupied at the time of listing and the physical and biological characteristics essential to the conservation of the subspecies. Therefore, they are now proposed for inclusion in the revised designation.

Second, there were also slight acreage discrepancies in the proposed rule due to an inadvertent calculation error. An 18-acre discrepancy in Unit 1 was identified and accounted for in the draft economic analysis. Table 1 contains the corrected acreage values, including the six additional acres proposed for inclusion discussed above. These acreage differences do not change the legal description published in the February 1, 2006, proposed rule, which are a true representation of the updated acreage identified in Table 1 below.

In accordance with Executive Order 12866, this document is a significant rule because it may raise novel legal and policy issues. However, it is not anticipated to have an annual effect on the economy of $100 million or more or affect the economy in a material way. Due to the timeline for publication in theFederal Register, the Office of Management and Budget (OMB) did not formally review the proposed rule.

Further, Executive Order 12866 directs Federal Agencies promulgating regulations to evaluate regulatory alternatives (Office of Management and Budget, Circular A-4, September 17, 2003). Pursuant to Circular A-4, once it has been determined that the Federal regulatory action is appropriate, the agency will need to consider alternative regulatory approaches. Since the determination of critical habitat is a statutory requirement pursuant to the Endangered Species Act of 1973, as amended (16 U.S.C. 1531et seq.), we must then evaluate alternative regulatory approaches, where feasible, when promulgating a designation of critical habitat.

In developing our designations of critical habitat, we consider economic impacts, impacts to national security, and other relevant impacts pursuant to section 4(b)(2) of the Act. Based on the discretion allowable under this provision, we may exclude any particular area from the designation of critical habitat providing that the benefits of such exclusion outweighs the benefits of specifying the area as critical habitat and that such exclusion would not result in the extinction of the species. We believe that the evaluation of the inclusion or exclusion of particular areas, or combination thereof, in a designation constitutes our regulatory alternative analysis.

Under the Regulatory Flexibility Act (5 U.S.C. 601et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impacton a substantial number of small entities. In our proposed rule, we withheld our determination of whether this designation would result in a significant effect as defined under SBREFA until we completed our draft economic analysis of the proposed designation so that we would have the factual basis for our determination.

According to the Small Business Administration, small entities include small organizations, such as independent nonprofit organizations, and small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations.

To determine if the proposed ABM critical habitat designation would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities (such as residential and commercial development). We considered each industry or category individually to determine if certification is appropriate. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement; some kinds of activities are unlikely to have any Federal involvement and so will not be affected by the designation of critical habitat. Designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies.

In our draft economic analysis, we evaluated the potential economic effects on small business entities resulting from conservation actions related to the listing of ABM and proposed designation of their critical habitat. This analysis estimated prospective economic impacts due to the implementation of beach mouse conservation efforts in five categories: Private development activities; recreation; tropical storms and hurricanes; species management and habitat protection activities; and road construction. We determined from our analysis that in four of these five categories, impacts of ABM conservation efforts are not anticipated to impact small business. The only category of small business entities that may be affected is private development firms. Costs associated with residential-commercial development comprise 99 percent of the total quantified future impacts. Total costs of conservation efforts related to development activities are estimated to be $18.1 million to $51.2 million in undiscounted dollars over the next 20 years, on approximately 587 acres of developable private lands. Adjusted for possible inflation, the costs would range from $16.1 million to $46.8 million over 20 years, or $1.1 million to $3.1 million annually using a 3 percent discount; or $14.2 million to $41.7 million over 20 years, or $1.3 million to $3.9 million annually, using a 7 percent discount. Conservation effort costs include land preservation (set asides), monitoring, and predator control that may be required of new development activity on private land. Assuming each parcel of land is owned by a unique landowner, approximately 137 landowners could be impacted by the ABM conservation efforts. This analysis assumes that, in general, landowners are private citizens and not developers. Thus, although 137 landowners may be affected by this designation, few are anticipated to be small entities. Therefore, we do not believe that the designation of critical habitat for the ABM will result in a disproportionate effect to small business entities.

Please refer to our draft economic analysis of the proposed critical habitat designation for a more detailed discussion of potential economic impacts.

On May 18, 2001, the President issued Executive Order (E.O.) 13211 on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed rule is considered a significant regulatory action under E.O. 12866 because it raises novel legal and policy issues, but it is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant action, and no Statement of Energy Effects is required.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service makes the following findings:

(a) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments,” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”

The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. Non-Federal entities that receive Federal funding, assistance, permits, or otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of criticalhabitat. However, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.

(b) As discussed in the draft economic analysis of the proposed designation of critical habitat for the ABM, the impacts on nonprofits and small governments are expected to be negligible. It is likely that small governments involved with developments and infrastructure projects will be interested parties or involved with projects involving section 7 consultations for the ABM within their jurisdictional areas. Any costs associated with this activity are likely to represent a small portion of a local government's budget. Consequently, we do not believe that the designation of critical habitat for this subspecies will significantly or uniquely affect these small governmental entities. As such, a Small Government Agency Plan is not required.

In accordance with E.O. 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of proposing critical habitat for the ABM. Critical habitat designation does not affect landowner actions that do not require Federal funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. In conclusion, the designation of critical habitat for this subspecies does not pose significant takings implications.

The primary author of this notice is Rob Tawes of the Daphne Fish and Wildlife Office (seeADDRESSESsection).

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

Section 4(b)(3)(A) of the Endangered Species Act (Act) (16 U.S.C. 1531et seq.) requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial information to indicate that the petitioned action may be warranted. To the maximum extent practicable, this finding is to be made within 90 days of receipt of the petition, and the finding is to be published in theFederal Register.

This finding summarizes information included in the petition and information available to us at the time of the petition review. A 90-day finding under section 4(b)(3)(A) of the Act and § 424.14(b) of our regulations is limited to a determination of whether the information in the petition meets the “substantial information” threshold. Substantial information is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)).

The Thorne's hairstreak butterfly was included as a Category 2 candidate species in our November 21, 1991 (56 FR 58804), and November 15, 1994 (59 FR 58982), Candidate Notices of Review (CNOR). Category 2 included taxa for which information in the Service's possession indicated that a proposed listing rule was possibly appropriate, but for which sufficient data on biological vulnerability and threats were not available to support a proposed rule. In the CNOR published on February 28, 1996, the Service announced a revised list of plant and animal taxa that were regarded as candidates for possible addition to the List of Threatened and Endangered Species (61 FR 7595). The revised candidate list included only former Category 1 species. All former Category 2 species were dropped from the list in order to reduce confusion about the conservation status of these species, and to clarify that the Service no longer regarded these species as candidates for listing. Since the Thorne's hairstreak butterfly was a Category 2 species, it was no longer recognized as a candidate species as of the February 28, 1996, CNOR.

On June 4, 1991, the Service received a petition dated May 27, 1991, from David Hogan of the San Diego Biodiversity Project to list the Thorne's hairstreak butterfly, Hermes copper butterfly (Hermelycaena[Lycaena]hermes), Laguna Mountains skipper (Pyrgus ruralis lagunae), and Harbison's dun skipper (Euphyes vestries harbinsoni) as endangered under the Act. In aFederal Registernotice dated July 19, 1993 (58 FR 38549), the Service announced its finding on the petition. We found that the petition presented substantial information for the Laguna Mountains skipper, but not for the other three butterflies. However, the finding also concluded that other substantial information existed to support adecision that listing may be warranted for the other three butterflies, including the Thorne's hairstreak butterfly, and announced our intention to continue the formal status review of these species. In a proposed rule for the Laguna Mountain skipper and Quino checkerspot butterflies published on August 4, 1994 (59 FR 39869), the Service clarified that the negative 90-day finding on the Thorne's hairstreak butterfly and the other two butterflies “was made because sufficient information was not available regarding the threats to and biological vulnerability of these” butterflies. Though we have continued and will continue to collect available data on the Thorne's hairstreak butterfly and the other two butterflies, we did not complete the status review of Thorne's hairstreak butterfly pursuant to section 4(b)(3)(A) of the Act.

On October 25, 2004, the Service received an updated petition to list the Thorne's hairstreak and Hermes copper butterflies as endangered from David Hogan of the Center for Biological Diversity. Petitioners also sought emergency listing protection for Thorne's hairstreak and designation of critical habitat for both butterfly taxa concurrent with listing, if warranted. Included in the petition was information regarding the subspecies's taxonomy, biology, ecology, historical and current distribution, present status, and potential causes of decline and imminent threats. In a letter dated May 9, 2005, the Service determined that despite apparent threats to Thorne's hairstreak butterfly, such threats did not appear to be of a magnitude and severity to warrant emergency listing. In our response, we also advised the petitioners that we had insufficient funds to respond to the petitions at that time. On March 15, 2005, we received a 60-day notice of intent to sue filed by the Center for Biological Diversity for lack of response to the Thorne's hairstreak and Hermes copper butterfly petitions. On October 18, 2005, the Center for Biological Diversity filed a complaint for declaratory and injunctive relief challenging our failure to make the required 90-day findings on these two petitions. The Service agreed to submit 90-day petition findings on Thorne's hairstreak and Hermes copper butterflies to theFederal Registerby August 1, 2006, and if the 90-day findings determined that listing may be warranted, to submit 12-month findings to theFederal Registerby June 1, 2007. This notice constitutes our 90-day finding on the petition to list the Thorne's hairstreak butterfly. The 90-day finding on the petition to list the Hermes copper butterfly will be published in theFederal Registerseparately.

In completing this 90-day finding, the Service has reviewed not only the information submitted in the petition, but also information in our files. This includes all of the data we had obtained prior to the July 19, 1993, not substantial finding that would have been considered in any internal status reviews had one been completed, as well as all of the information we have continued to collect on this species to date. Based on all new information and our analysis below, we have determined that the petition does not present substantial scientific or commercial information indicating that listing the Thorne's hairstreak butterfly may be warranted or that a status review or status assessment should be conducted.

Thorne's hairstreak butterfly (Mitoura thornei) was originally described by John Brown (1983) based on a specimen collected by Fred Thorne in 1972, near Lower Otay Lake, which is generally west of Otay Mountain. Brown distinguishedM. thorneifrom its closest relativeM. lokion the basis of host preference (cypress (Cupressus) versus juniper (Juniperus)), the color of the ventral hindwing surface (green versus purple), and geographical isolation.

Brown (1983) described Thorne's hairstreak butterfly at the species rank, which has been accepted by many subsequent authors (Garth and Tilden 1986; Ballmer and Pratt 1988; Emmel et al. 1998; Opler and Warren 2004). However, some authors disagree with this classification. Shields (1984) considers Thorne's hairstreak butterfly a subspecies ofM. loki, and Scott (1986) lists it as a subspecies of the Cedar hairstreak (Callophrys gryneus). The issue of the taxonomic ranking and placement of Thorne's hairstreak butterfly was considered by the Committee on Scientific Names of North American Butterflies in 1999. The committee adopted the recommendation made by Dr. Robert K. Robbins, an expert on Lycaenidae (Research Entomologist with U.S. Department of Agriculture's Systematic Entomology Laboratory at the National Museum of Natural History, Smithsonian Institution), that bothM. lokiandM. thorneishould be treated as belonging to the superspecies,C. gryneus(Faulkner and Klein 2005). Currently, the committee's Checklist of North American Butterflies (North American Butterfly Association (NABA) 2004) includesM. thorneiandM. lokiasCallophrys gryneus thorneiandCallophrys gryneus loki, respectively.

The petitioner deferred to other experts regarding the appropriate classification, taxonomic rank, of Thorne's hairstreak butterfly (i.e., species or subspecies). In 2004, the Service contracted with Dr. Richard W. Van Buskirk (Pacific University in Forest Grove, Oregon) to review the taxonomic status of Thorne's hairstreak butterfly. Following Van Buskirk's recommendation (Van Buskirk 2004), the Service recognizes Thorne's hairstreak butterfly as the subspeciesCallophrys gryneus thornei.

Adult Thorne's hairstreak butterflies are approximately 1.0 to 1.2 inches in wingspan (25.4 to 30.5 millimeters) (Brown 1983). The forewings and hindwings are rich reddish brown with dark brown shading on the margin. The ventral surface forewing is mahogany brown with traces of lavender overscaling. The males bear well-developed scent pads on the forewings, and the hindwings are tailed. Eggs are round (echinoid), light green, and laid singly on the food plant. Garth and Tilden (1986) provide a description of the butterfly's early stages.

The Thorne's hairstreak butterfly is bivoltine (has two flight periods per year) and overwinters in the pupal stage. The pupation time for first generation is about 10 to 15 days, with emergence occurring in late February through March or possibly early April, depending on rainfall. The second generation emerges in June. A third brood may take place in September if summer rains occur (Faulkner and Klein 2005).

Eggs incubate in 7 to 14 days. The first instar larvae initially bore into the young stems of the host plant, Tecate cypress (Cupressus forbesii), but later become external feeders. Pupation is in the duff and leaf litter at the base of the host plant, and larvae feed on young cypress stems. Mature larvae are vivid green with two irregular white crescents on each segment, forming a longitudinal white stripe along each side of the larvae (Faulkner and Klein 2005).

Conifer-eating larvae within family Lycaenidae are an unusual occurrence. Within San Diego County, its congenersCallophrys gryneus loki(juniper hairstreak) andCallophrys nelsoni (Nelson's hairstreak)have only been found in association with California juniper (Juniperus californica) and incense cedar (Calocedrus decurrens) host plants, respectively (Faulkner and Klein 2005).

According to Brown (1983), Thorne's hairstreak butterfly is restricted to its larval host plant, Tecate cypress. Associated with chaparral ecosystems in southern California and northern Baja California, Tecate cypress occurs primarily on north-facing slopes from near sea level to over 4,200 feet (ft) (1,300 meters (m)) in elevation (Dunn 1986). Although some experts hypothesized that larvae eat only mature Tecate cypress at least 25 to 30 years old (Klein and Williams 2003; Faulkner and Klein 2005), recent post-fire observations of adults in three stands of cypress trees less than 9 years old within a 1996 fire footprint (Faulkner and Klein 2005) do not support that hypothesis. Thus, the best available information indicates Thorne's hairstreak butterflies can use host plants as young as 9 years of age.

Adult Thorne's hairstreak butterflies are known to nectar onEriogonum fasciculatum(California buckwheat),Ceanothus tomentosus(Ramona lilac), andLotus scoparius(deerweed), in the vicinity of Tecate cypress stands (Faulkner and Klein 2005).

Thorne's hairstreak butterfly dispersal behavior is not well known. An individual was observed nectaring on deerweed plants 0.25 miles (mi) (0.4 kilometer (km)) away from the nearest Tecate cypress (Faulkner and Klein 2005). Adults have been observed nectaring on California buckwheat as much as 197 ft (60 m) away from Tecate cypress trees (Faulkner and Klein 2005). Mattoni (1998) gave estimated relative movement values for three species ofCallophrysbutterflies in the greater Los Angeles area. Two species were estimated to move between 330-3300 ft (100-1000 m), and one from 3300 ft to 30 mi (1-50 km). Among butterflies, the genusCallophrysappears to be relatively sedentary.

Thorne's hairstreak butterfly is known only from the vicinity of Otay Mountain in southern San Diego County, California, in association with its larval host plant, Tecate cypress. Though not common within the limits of its range, Tecate cypress occurs in widely scattered and isolated “floristic islands” in the chaparral of southern California and Baja California Norte (Griffin and Critchfield 1972; Dunn 1986; Minnich 1987). In California, Tecate cypress is found on Guatay Mountain, Otay Mountain, and Tecate Peak in San Diego County; and on Sierra Peak and in Coal Canyon in Orange County (Dunn 1986).

Historically, the Thorne's hairstreak butterfly has been reported on Otay Mountain in San Diego County, primarily in Little Cedar Canyon and Cedar Canyon (Klein and Williams 2003). An unconfirmed historic observation of the subspecies in Orange County on private land has been reported (R. Stanford pers. comm. in Faulkner and Klein 2005). Multiple, consecutive surveys over 10 years within areas containing Tecate cypress on Tecate Peak and Guatay Mountain in San Diego County and some stands in Baja California, Mexico, conducted annually during the late 1980s and early 1990s, did not yield any Thorne's hairstreak butterflies (Anderson 2003). However, we do not have documentation of these surveys and are unable to determine what proportion of the Tecate cypress stands on Tecate Peak and Guatay Mountain in San Diego County were surveyed. Therefore, it is unclear whether these surveys efforts constitute comprehensive surveys of the Tecate cypress stands in these areas. Limited sampling in the Sierra Peak-Coal Canyon area in Orange County did not yield any Thorne's hairstreak butterfly observations (Brown 1983).

More than 20 groves of Tecate cypress are documented by botanical collections or aerial imagery from Baja California Norte, Mexico, indicating potential distribution of the Thorne's hairstreak butterfly in Mexico. Minnich (1987) described the northernmost stands of Tecate cypress in Mexico as extensions of U.S. populations at the border. As stated above, some surveys have been conducted in Tecate cypress stands in Baja California, Mexico for Thorne's hairstreak butterflies during the late 1980's and early 1990's. However, since we do not have documentation of these surveys, it is unclear what proportion of the Tecate cypress stands in Baja were surveyed. Therefore, more investigation is required to determine the possible extent of undiscovered populations of Thorne's hairstreak butterfly in Tecate cypress stands in Mexico.

No specific data on Thorne's hairstreak butterfly abundance or population dynamics and distribution exists, although a number of apparently discrete occupied locations have been identified. The petition states that fewer than 10 historically occupied locations have been identified on Otay Mountain (Klein and Williams 2003) primarily within designated wilderness administered by the Bureau of Land Management (BLM). The status of Thorne's hairstreak butterfly and its habitat (areas dominated by Tecate cypress over 6 ft (2 m) tall) was evaluated as part of a post-2003 Otay/Mine fire reassessment of species covered by the section 10(a)(1)(B) permit associated with the San Diego Multiple Species Conservation Plan (MSCP). Surveys of Tecate cypress stands conducted in 2004 revealed the presence of 4 to 5 areas occupied by the subspecies (Martin 2004; Klein 2006). However, Martin (2004) and Klein (2006) acknowledge that not all cypress stands were surveyed due to accessibility. No quantitative data on population size exist.

In the following discussion, we respond to each of the major assertions made in the petition, organized by the Act's listing factors. Section 4 of the Act and its implementing regulations (50 CFR 424) set forth the procedures for adding species to the Federal list of endangered and threatened species. 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) of the Act. The five listing factors are: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence.

This 90-day finding is not a status assessment and does not constitute a status review under the Act. A brief discussion of how each of the five listing factors applies to the Thorne's hairstreak butterfly follows.

The petition, its appendices, and referenced documents discuss the following threats that we have grouped under Factor A: wildfire, prescribed fire, grazing, and vehicle access and recreation.

Information provided by the petitioner. The petitioner asserts that Thorne's hairstreak butterfly is highly and immediately vulnerable to extinction due to the threat of wildfire as a result of direct mortality of individuals and indirect mortality due to loss of the subspecies' larval host plant, Tecate cypress. (The threat of wildfire as it relates to direct mortality of individual butterflies is discussed under Factor E.) They assert that onesingle new fire could cause the extinction of this butterfly. The 2003 Otay/Mine fire served as an example of the threat of fire to the butterfly when it burned 68 percent of the Thorne's hairstreak butterfly habitat (Betzler et al. 2003). The petitioner claims the number of fires greatly exceeds natural fire frequencies in southern California's chaparral ecosystems, and the excessive fires have reduced stands of mature Tecate cypress utilized by Thorne's hairstreak butterflies.

The petitioner provided a map illustrating multiple fires that have burned through and near Thorne's hairstreak butterfly locations within the last century. According to the petition, increased human populations and utilization of wildlands correlates with increased southern California wildfire frequency (Keeley et al. 1999; Keeley 2001 [document not submitted with petition]; Keeley and Fotheringham 2003; Wells et al. 2004).

The petitioner cited two references, Brookset al.(2002 [correct citation 2004]) and Keeley and Fotheringham (2003), which provide examples where excessive fire harms chaparral ecosystems and dependent species in a number of ways. The petition quoted Keeley and Fotheringham (2003), “* * * ecosystem health of shrublands is threatened not by lack of fire but by high fire frequencies that exceed the resilience of many species.” The petitioner claims that excessive fire contributes to expansion of highly flammable, invasive, alien grasses (D'Antonio and Vitousek 1992) and forbs, contributing in turn to an even greater fire frequency. Excessively frequent fire (more than once a decade) may prevent nonsprouting chaparral shrubs from reaching maturity, thereby eliminating these species entirely from the system (Keeley and Fotheringham 2003).

According to the petitioners, frequent fire also leads to type conversion and replacement of chaparral ecosystems with alien plant species (Keeley 2001; Keeley and Fotheringham 2003). The petitioner asserted that fire-induced conversion of Tecate cypress and surrounding chaparral to vegetation dominated by invasive plant species reduces Thorne's hairstreak butterfly habitat through loss of host and nectar plants. Moreover, the petitioner reported that Zedler et al. (1983) documented vegetation conversion in the San Ysidro Mountains within 1 mi of Thorne's hairstreak butterfly populations. Based on a personal communication with Michael Klein, a Thorne's hairstreak butterfly expert, the petitioner also refers to anecdotal observations that exotic grasses and forbs appear to be increasing in former Tecate cypress habitat following the 2003 fire.

Analysis of the information provided in the petition and available to us at the time of petition review.Though cypress trees do not survive fire, fire is integral to initiating cone opening and seed dispersal and is, therefore, critical for successful regeneration of Tecate cypress stands (Zedler 1977; Dunn 1986). Cone production begins as early as 5 to 7 years of age, but is sporadic until the trees reach about 30 years of age, and maximum cone production may not be achieved until 50 years or later (Zedler 1981; Dunn 1986). For cypress population levels to be maintained, the interval between fires must be long enough to permit enough trees to produce sufficient cones and seeds to replace the trees consumed in the fire. Zedler (1981) noted that if [all] stands of Tecate cypress were burned every 33 years, his “data suggest that near extinction would result after three or four fires. Cone and seed production depend on factors other than age alone and a large variation in average tree size and hence cone production exists within stands.”

Faulkner and Klein (2005) agreed with Brown (1993) who stated that, “[c]haparral fires probably represent the greatest threat to * * * [Tecate cypress] and its associated insect fauna, including Thorne's hairstreak butterfly.” Though human-induced ignitions have been a part of the California landscape for more than 10,000 years, humans “likely have had a greater influence in the twentieth century due to the near exponential rise in population density and fire frequency in the southern part of the state” (Keeley and Fotheringham 2003). The frequency of smaller fires proximal to the Mexican Border may have increased on Otay Mountain, and, as the petitioner claims, this may be due to increasing ignition by illegal immigrants and associated border patrol activities since the 1990s (Jacob 1999, California Department of Forestry and Fire prevention (CDF) 2006). For example, in 2004, over 100 fires were reported on Otay Mountain (Woychak 2006). However, the majority of these fires were relatively small and localized (Porter 2006) and only affected small percentages of areas likely to be Thorne's hairstreak habitat patches associated with Tecate cypress.

The majority of the studies examining the impacts of fire frequency on California plant communities have focused primarily on overall impacts to dominant vegetative types, such as coastal sage scrub, chaparral, hardwood conifer forest, conifer forest, shrublands, and desert shrublands (Zedler 1981; Zedler et al. 1983; Keeley et al. 1999; Keeley and Fotheringham 2003; Wells et al. 2004). In a GIS modeling study, Wells et al. (2004) largely concurred with Keeley et al (1999) that increasing human population (especially at lower elevations) has resulted in a greater number of fires and an increase in area burned overall in Southern California. However, looking at fire frequency for chaparral in San Diego County specifically, Wells et al. (2004) concluded that the “trend in burning in chaparral is virtually flat over the past century, and if the years following 1950 are considered, there has been a marked decrease in area burned since then.”

Few studies have examined the association between fire frequency and population dynamics of Tecate cypress specifically. Dunn (1985, 1986) concluded at the time of his work in the 1980s that the Tecate cypress population on Otay Mountain, the largest population in California (about 5,900 acres (2,400 hectares)), was “in no immediate danger” and that “a fire would do little damage” because the majority of the trees were over 40 years old and the threat of fire associated with the human interface was relatively low. In fact, Dunn (1984) had concluded in his Master's thesis that, at that time, no need existed for strict fire exclusion on Otay Mountain. As stated above, increasing human population has resulted in a greater number of fires in California. However, while portions of the Tecate cypress stands on Otay Mountain were burned in 1996 and again in the 2003, no recent data exist documenting the actual extent of impact to Tecate cypress specifically. Although Zedler and others (1983) documented a decline in native shrub abundance with the introduction of annual ryegrass (Lolium multiflorum) following two fires in 1979 and 1980 on Otay Mountain (i.e., the petitioner's claim of type conversion in the San Ysidro Mountains within 1 mi of Thorne's hairstreak butterfly populations), this work did not involve Tecate cypress and is not applicable to the species. Moreover, in a recent study of the fire frequency and population trend in four Tecate cypress populations in California, cited on page 9 of the petition (cited as “Ansaryin print”), de Gouvenain and Ansary (in press) reported that the Otay Mountain, Tecate Peak, and Guatay populations “appeared to be stable or potentially increasing” (i.e., the rate of population increase or λ 1), while only the Coal Canyon/Sierra Peak population in Orange County “appeared to bedeclining” due to a shorter fire interval at that site.

We used GIS data in our files to overlay Tecate cypress distribution on the petition map illustrating multiple fires that have burned through and near Thorne's hairstreak butterfly locations within the last century, and determined the majority of Tecate cypress was within one or two fire footprints during the 93 year period from 1910 to 2003. Therefore, information in our files does not support the claim that the fire frequency is high relative to Tecate cypress reproductive maturity.

As cited in the petition, 68 percent of the Thorne's hairstreak butterfly habitat (Tecate cypress) burned during the 2003 Otay/Mine fire, a reduction from 5,577 ac (2,257 ha) to 1,778 ac (720 ha) according to preliminary estimates by Betzler et al. (2003). Nonetheless, butterfly occupation was documented after the 2003 fire in 2004 and 2005, mostly on the southwest slope of the mountain within the 1996 burn area that did not burn in 2003 (Martin 2004; Faulkner and Klein 2005; Klein 2006). While the fire footprint was estimated by Betzler et al. (2003) to have covered 68 percent of the Tecate cypress habitat on Otay Mountain, the amount of Tecate cypress that actually burned is likely less. The source cited by Betzler et al. (2003) was a report prepared by the Interagency Burned Area Emergency Response Team (IBAERT 2003), which gives vegetation mortality estimates in categories of 0 to 25 percent, 26 to 75 percent, and greater than 76 percent. It is not clear how Betzler et. al. (2003) calculated the 68 percent burned habitat area, however it could have been based on the percent of mapped Tecate cypress distribution within those burn categories given by IBAERT (2003); therefore, Betzler et al. (2003) may not have known how much Tecate cypress within the fire footprint was actually killed.

Limited post-fire monitoring in 2004 revealed the presence of at least five unburned stands of mature Tecate cypress (defined for the survey as a patch of at least 50 trees greater than 2 meters tall), four of which were determined to be occupied by adult Thorne's hairstreak butterflies at the time of the survey (Martin 2004). Two areas adjacent to or within canyons known to contain Tecate cypress were not surveyed in 2004. At least one area, the lower portion of O'Neal Canyon may contain a significant stand since the upper portion supports the largest stand of extant cypress (Martin 2004). According to Martin (2004), these five stands constituted approximately 166 ac (36 ha). However, since he was not able to survey all potential habitat areas and his analysis was limited to stands of at least 50 mature trees, additional stands and stands of less than 50 mature and immature trees may have persisted after the fire.

Also, de Gouvenain and Ansary (in press) hypothesize that the steep north-facing slopes and rocky outcrops where Tecate cypress is found may function as refugia for Tecate cypress during fire events in the surrounding chaparral habitat. A comprehensive survey of Tecate cypress on Otay Mountain is needed in order to accurately determine the extent of the impact caused by the 2003 fire and to what extent the Thorne's hairstreak butterfly is utilizing the remaining Tecate cypress habitat (at least 3,799 ac (1,537 ha)).

With regard to curtailment of habitat and range by fire, it is important to consider that Thorne's hairstreak habitat distribution on Otay Mountain is slightly greater than that of its larval host plant (Tecate cypress), and must be based on adult resource use and movement between and on the periphery of host plant stands. Given the evolutionary relationship of Thorne's hairstreak and Tecate cypress with fire, it is likely burned areas devoid of woody vegetation and reduced butterfly population density after fire facilitate movement between unburned host plant patches. For example, in a mark-recapture study ofParnassius smintheus(Papilionidae) butterflies, Roland et al. (2000) concluded “butterflies move readily through open meadow but that forests are twice as resistant to butterfly movement. Butterflies also tended to stay at sites with high numbers of butterflies, but readily emigrate from sites with small populations.” Roland et al.'s (2000) results are a good example of how differences in habitat structure and population density can affect butterfly movement. Differences in population densities and habitat structure are known to commonly affect movement patterns of butterflies (Ries and Debinski 2001; Service 2003).

Along with the direct loss of Tecate cypress, the Thorne's hairstreak butterfly's host plant, the petitioners claim that increased fire frequency results in the conversion of Tecate cypress and surrounding chaparral to vegetation dominated by invasive plant species, further reducing the amount of host and nectar plants. As discussed above, it appears that Tecate cypress populations on Otay Mountain are stable and potentially increasing overall and that frequency of fire in chaparral communities in San Diego County over the past century is stable or potentially decreasing overall. Also, although Zedler et al. (1983) documented a decline in native shrub abundance following two fires in 1979 and 1980 on Otay Mountain, they state that changes to the vegetative community following the 1979 fire alone are similar to those commonly seen in chaparral fires. Their study was not conducted in an area occupied by Tecate cypress. The common pattern after chaparral fires is for native and introduced annual herbs to dominate for the 1st year and then gradually decline as the cover of shrub and subshrubs increases (Zedler et al. (1983). They reported drastic reductions in several chaparral species, particularly those with limited dispersal and specialized germination requirements, after the same area that burned in 1979 burned again in 1980. However, they state that over time, it is likely that coastal sage scrub species, particularly those that are vigorous invaders of man-made and natural disturbance, includingEriogonum fasciculatum, a nectar source for Thorne's hairstreak butterfly, are likely to reoccupy the area. Therefore, it is likely that while the vegetative community may undergo short-term conversion, over time, native, fire adapted species will reestablish.

In sum, information in the petition and available to us does not substantiate a recent decline or downward trend in the extent of Tecate cypress on Otay Mountain, the host plant of the Thorne's hairstreak butterfly, as a result of increased fire frequency and associated alien plant invasion.

Information provided in the petition.The petitioner states that while prescribed fire does not appear to be planned for the San Ysidro Mountains, it could compound the threat of excessive fire to Thorne's hairstreak butterflies and Tecate cypress if implemented in the future.

Analysis of information provided in the petition and available to us at the time of petition review.No evidence exists to support the petitioner's claim that prescribed burning would be allowed within the Otay Mountain Wilderness. The current BLM policy is 100 percent fire suppression on Otay Mountain (Woychak 2006).

Information provided in the petition.The petitioner stated that BLM authorizes grazing on Otay Mountain in an area occupied by Thorne's hairstreak butterfly prior to the 2003 Otay/Mine fire and near the “last five known remaining populations.” The allotment is now vacant according to agency staff,but BLM is actively considering renewal of this grazing lease, according to a Notice of Proposed Action dated May 26, 2004.

The petitioner claimed that renewal of the Otay Mountain grazing allotment lease would result in significant direct and indirect effects similar to those identified by the Service for the Quino checkerspot butterfly (January 16, 1997; 62 FR 2313). The Quino checkerspot butterfly recovery plan (Service 2003) noted that grazing may harm the butterfly through destruction of larval host plants, soil compaction, degradation of cryptogamic soil crusts, and trampling of eggs and larvae. The invasion of alien plants may be facilitated by degradation of soil crusts. The recovery plan recommends phasing out of commercial grazing in Quino checkerspot butterfly's habitat.

The petitioner also stated that grazing on the Otay Mountain allotment could harm the Thorne's hairstreak butterfly and Tecate cypress even if grazing is excluded around existing populations of these species because grazing could lead to the introduction of invasive alien plants. These plants could increase fire frequency, resulting in the loss of populations of sensitive species and habitat degradation, and may result in subsequent further expansion of alien plants through additional disturbance from fire.

Analysis of information provided in the petition and available to us at the time of petition review.We confirmed that an active 5,522 acre (2,235 ha) BLM grazing allotment exists on Otay Mountain (Doran 2006) that overlaps occupied Thorne's hairstreak butterfly habitat. Approximately one-third of Tecate cypress woodland on the mountain (2,026 acres (820 ha)) occurs within the Otay Mountain Grazing Allotment on the north side of the mountain (Anderson and Love 2006). Approximately half (20 acres (8 ha)) of a patch of occupied mature Tecate cypress trees was confirmed to be within the southern grazing allotment boundary in 2004 (Anderson and Love 2006). However, the grazing allotment is in a non-use status, which means that the allottee does not intend to graze in the near term, and grazing is not allowed in the Cedar Canyon Area of Critical Environmental Concern (Doran 2006). Also, Tecate cypress woodland would not often be very accessible to cattle within the allotment, because of the extremely steep, thickly vegetated terrain associated with Tecate cypress stands.

We were unable to confirm the petitioner's assertion that the renewal of the grazing allotment lease will likely result in significant direct and indirect harm to Thorne's hairstreak butterflies and Tecate cypress populations. The petitioner failed to provide specific examples of negative impacts from grazing on Thorne's hairstreak butterflies and Tecate cypress. Comparison to Quino checkerspot butterfly grazing threats is not appropriate because host plants for that subspecies, unlike Tecate cypress, are herbaceous annuals directly affected by grazing and type-conversion of open-canopy vegetation.

Information provided by the petitioner.The petitioner claims BLM's emphasis on recreation in the San Ysidro Mountains, and maintenance of vehicle access likely increases the risk of new fires. BLM lands occupied by the subspecies are located within the agency's designated Otay Mountain Wilderness. Roads grandfathered into the wilderness designation generally allow unrestricted public access in close proximity to Thorne's hairstreak butterfly populations except during special closures.

Analysis of information provided in the petition and available to us at the time of petition review.Although public access is allowed, the Otay Mountain Wilderness is remote, and few people visit the wilderness area. Because of the proximity of the wilderness area to the United States-Mexico international border, border operations (e.g., surveillance and patrolling) are common throughout the wilderness. Traffic is concentrated on few main roads adjacent to occupied Thorne's hairstreak butterfly habitat. Border patrol vehicles and vehicles accessing the wilderness may increase the risk of new fires; however, fires that are potentially started by the border patrol would be reported immediately. Since access by the public is rare, and border patrol vehicle ignitions would be reported, we believe vehicle access and recreation is not a significant threat to the subspecies. The petitioner neglected to provide specific examples of vehicle access and recreation increasing the risk of new fires to Thorne's hairstreak butterfly habitat (i.e., Tecate cypress stands), and we are unaware of any documentation that directly links vehicles and recreation as a threat to this subspecies.

Because there is no clear threat of fire to Tecate cypress or Thorne's hairstreak butterfly, and grazing and recreation impacts appear negligible, we conclude that the petition and other available information does not constitute substantial scientific information indicating listing Thorne's hairstreak butterfly may be warranted due to Factor A (destruction, modification, or curtailment of habitat or range).

The petitioner did not provide information with respect to Factor B. We have no information regarding the overutilization for commercial, sporting, scientific, or education purposes for Thorne's hairstreak butterfly.

The petitioner did not provide any information with respect to disease nor do we have any information regarding impacts of disease on Thorne's hairstreak butterfly.

Information provided in the petition.The petitioner stated that experts suspect birds, predatory insects, parasitic insects, and spiders prey upon the Thorne's hairstreak butterfly. Birds may prey on either larvae or adults. The harmful effects of otherwise normal predation or parasitism might be exacerbated by population reduction from excessive fires.

Analysis of information provided in the petition and available to us at the time of petition review.The petitioner did not provide specific information, nor was there any information available in our files, documenting that the Thorne's hairstreak butterfly may be endangered by predation.

The petition and referenced documents discuss three regulatory mechanisms that may provide some Thorne's hairstreak butterfly conservation, including (1) the Wilderness Act, (2) BLM activities, and (3) the San Diego Multiple Species Conservation Plan (MSCP).

Information provided by the petition.While the petition acknowledged BLM lands occupied by the subspecies are protected from urban development and mining by the nature of the location within the Otay Mountain Wilderness Area (designated under the Wilderness Act), the petitioner asserted this area is not intensely managed, and BLM does not implement proactive conservation measures for either the Thorne's hairstreak butterfly or Tecate cypress. In addition, the petitioner maintained that BLM does not recognize the Thorne's hairstreak butterfly as a “sensitive[sub]species.” The petitioner further claims Thorne's hairstreak butterfly populations face an additional, unique risk of excessive fire as U.S. border enforcement has inadvertently directed illegal Mexican immigrant crossings away from coastal urban areas toward wildland areas east of Otay Mesa. The petitioner contends that fire and land management agencies often identify illegal immigrant's campfires and arson as the cause of border-area wildfires.

Analysis of information provided in the petition and available to us at the time of petition review.Congress formally designated BLM lands on Otay Mountain as the Otay Mountain Wilderness in 1999 (Otay Mountain Wilderness Act, December 11, 1999). The inclusion of these occupied habitats within a designated Wilderness provided additional significant protection for this area and complemented BLM's objective to manage these public lands to provide protection and enhancement for biological values. The Wilderness Act of 1964 (16 U.S.C. 1131) restricts vehicles, new developments, chainsaws, mountain bikes, leasing, and mining from the wilderness area.

As cited in the petition, BLM's South Coast Resource Management Plan guides management and protection on sensitive species and their habitat. At the time of the petition, BLM did not recognize Thorne's hairstreak as a “sensitive” subspecies; however, the subspecies was recently officially designated as “sensitive,” elevating it to a higher management priority level (Schlachter 2006).

As stated in the petition, no formal plans to specifically manage or monitor for Thorne's hairstreak butterfly currently exist. Thorne's hairstreak butterfly populations may face an additional, unique risk of excessive fire due to activities related to illegal Mexican immigrant crossings east of Otay Mesa (Jacob 1999, CDF 2006). However, since at this time it appears the primary source of the wildfire threat to the subspecies is accidental wildfire caused by illegal immigrants, and border security is currently greater than before to prevent illegal immigration, fire prevention is indirectly maximized by border patrol activities. Fire prevention measures include formation of the Border Agency Fire Council, (BAFC) a multi-agency council formed due to the wildfire threat to human life and the environment (Jacob 1999). The goals of the BAFC are to make people in the border area aware of the dangers of wildfire and encourage them to be careful with fire; preferably not to start any campfires, but if they do, to understand the fire must be completely out before they abandon it (CDF 2006). BAFC member agencies represent a collaborative effort to prepare the area for fire fighting purposes, including establishment of three helispots and construction of spur roads (BAFC 2006). Signs in Spanish posted across the mountain warn of the danger of starting campfires and advise against it. Also, BLM's current policy is 100 percent fire suppression on Otay Mountain (Woychak 2006). Therefore, while a formal management plan would benefit the subspecies to guide long-term monitoring and other types of conservation actions, it would not necessarily change current fire prevention and suppression policies and activities.

Information in the petition.The petitioner stated that the Thorne's hairstreak butterfly is recognized as a “covered species” under the MSCP and some conservation activities in the San Ysidro Mountains occur, but these activities do not appear to have reduced the primary threats to the subspecies, especially from excessive wildfire.

Analysis of information provided in the petition and available to us at the time of petition review.Thorne's hairstreak butterfly is covered under the MSCP, and the MSCP recognizes that “a fire management program would be needed for prevention of catastrophic fires and long term viability of its host plant.” No fire management plan has been written to date, nor has BLM developed a long-term management or monitoring plan for the butterfly (J. Schlachter 2006). However, the current BLM policy is 100 percent fire suppression on Otay Mountain; BLM has received allocations to complete a wilderness management plan; and a fire management plan is expected to be completed after the wilderness plan and will focus on complete fuel suppression (Woychak 2006).

The Service considers the current BLM activities and policies, and the MSCP adequate for protection of the subspecies. If the MSCP or referenced activities and polices are modified in the future, the adequacy of these measures to protect the Thorne's hairstreak butterfly should be evaluated at that time. The Service does not believe the absence of the cited plans poses a substantial threat such that the Thorne's hairstreak butterfly requires additional regulatory mechanisms to be developed. Therefore, the petition and other information in our files does not present substantial information that the subspecies is threatened at this time by the inadequacy of existing regulatory mechanisms across all or a significant portion of its range.

The petition, its appendices, and referenced documents discuss the following threats that we have grouped under Factor E: wildfire, habitat fragmentation, vulnerability of small and isolated populations, and global climate change.

Information provided in the petition.The petitioner stated the Thorne's hairstreak butterfly cannot escape fire. Pupae and larvae are likely killed when fire burns Tecate cypress stands and nearby chaparral. Adults are also likely killed by fire, due to their habit of remaining close to their host plant, and the likelihood of their escape being outpaced by an approaching fire. The petition claims excessive fires over the last several decades have reduced Thorne's hairstreak butterfly population numbers and disrupted metapopulation dynamics and stability.

Analysis of information provided in the petition and available to us at the time of petition review.The persistence of the Thorne's hairstreak butterfly was considered questionable after the 2003 Otay/Mine fire, since the fire footprint appeared to cover all areas known to be occupied by the subspecies (Anderson 2003; Klein and Williams 2003). However, adult Thorne's hairstreak butterflies were documented from four Tecate cypress stands after the 2003 fire on the southwest slope of the mountain (Martin 2004; Faulkner and Klein 2005; Klein). Therefore, as discussed under Factor A, it appears that some Tecate cypress habitat did not burn during that fire and that the actual extent of occupied habitat on Otay Mountain has not yet been determined. The petition included a map delineating large fire footprints from 1910 to 2003. We used GIS data in our files to overlay all known occupancy records on the fire map and determined that 9 out of the 12 Thorne's hairstreak butterfly observations (point data) and the majority of Tecate cypress distribution are within one or two fire footprints during the 93 year period from 1910 to 2003. The apparent ability of Thorne's hairstreak butterflies to recolonize immature Tecate cypress stands less than 9 years post-fire (Martin 2004; Faulkner and Klein 2005; Klein), compared to the relatively low large-fire frequency indicated by the petition map of less than 2 fires per 93 years, contradicts petition claims of a directmortality extinction threat due to high fire frequency on Otay Mountain. Also, as discussed under Factor A, the steep canyons where Tecate cypress is found may provide refugia during a fire.

While immature Thorne's hairstreak butterflies have not been reported from younger stands surveyed after fire, this may be attributed to the fact that they are small and cryptic, making them difficult to detect, and spend most of their larval stage (early instars) within the tissue of the Tecate cypress or buried as pupae in the leaf litter on the ground. Also, post-fire monitoring has been limited. We are only aware of post-fire monitoring being conducted in 2004. Therefore, additional monitoring would be needed to determine the survival and recolonization rate of immature and adult butterflies following a fire.

The petitioner did not provide information or data to substantiate the claim that excessive fires over the last several decades have reduced Thorne's hairstreak butterfly population numbers and disrupted metapopulation dynamics and stability. As stated in the “Population Estimates/Status” section of this finding, no quantitative data on population size exists nor do we have any information on the dispersal or movement behavior of this subspecies. Without this information, it is not possible to determine the subspecies's population structure (e.g., metapopulation or panmicitic) and subsequently, the impact of fire on population numbers and structure.

Information provided in the petition.The petitioner claimed fragmentation of Thorne's hairstreak butterfly populations, through fire, type conversion, and roads, poses a significant threat to the subspecies. The petitioner noted that habitat fragmentation reduces the area of Thorne's hairstreak butterfly habitat and isolates populations from one another. In addition, the petitioner claimed that fragmentation expands edge habitat, resulting in further stress on fragmented or small populations.

Analysis of information provided in the petition and available to us at the time of petition review.Neither the petition nor information available support the claim that fragmentation threatens the subspecies existence within its known distribution on Otay Mountain. The best available information indicates Thorne's hairstreak butterfly is capable of re-colonizing immature Tecate cypress stands in recently burned areas. For example, as stated above, re-colonization of immature stands after a 1996 fire has been documented (Faulkner and Klein 2005). Also, as discussed above, surveys of potentially occupied habitat on Otay Mountain are incomplete, and, as discussed under Factor A, habitat patch distribution as defined by adult movement has not been determined.

Information provided in the petition.The petitioner asserted that endemic taxa such as the Thorne's hairstreak butterfly are generally considered more prone to extinction than widespread species due to their restricted geographic range. According to the petition, the common factors that increase the vulnerability of small and isolated populations to extinction are demographic fluctuations, environmental stochasticity (i.e., random events), and reduced genetic diversity.

Analysis of information provided in the petition and available to us at the time of petition review.Populations of Thorne's hairstreak butterfly are likely subject to population fluctuations. If occupied habitat is temporarily fragmented by fire, fluctuation in numbers could render small populations more vulnerable to stochastic extirpation. Small populations and isolation could subject the butterfly to genetic drift and restricted gene flow that may decrease genetic variability over time and could adversely affect the subspecies' viability. However, we lack the genetic or demographic evidence to support such claims in the petition, and potential isolation of small populations by fire appears to be short-term. Furthermore, surveys of potentially occupied habitat on Otay Mountain are incomplete and estimates of population status/size do not currently exist. Therefore, information in our files does not indicate small population size is a threat to this subspecies.

Information provided in the petition.The petitioner asserted that butterflies are particularly sensitive to small changes in microclimates, such as fluctuations in moisture, temperature, or sunlight. According to the petition, studies of Edith's checkerspot (Euphydryas chalceona edithi) have verified speculation that whole ecosystems may move northward or shift in elevation as the Earth's climate warms (Parmesan and Galbraith 2004).

Analysis of the information provided in the petition and available to us at the time of petition review.The petitioner did not provide specific information validating the claim that the Thorne's hairstreak butterfly may be endangered by global climate change. We recognize recent evaluations by Parmesan and Galbraith (2004) that whole ecosystems are seemingly being shifted northward. However, neither the petition nor our files provides anything more than speculation on the type, magnitude, or temporal effects of ecosystem changes that may be brought about by regional climate change. We are not aware of any documentation available or provided by the petitioner that directly links global warming as a threat to the subspecies, or how global warming specifically affects the subspecies. Therefore, we find that the petition does not contain substantial information suggesting that global climate change may be a factor that threatens the Thorne's hairstreak butterfly.

We evaluated each of the five listing factors individually, and because the threats to Thorne's hairstreak butterfly are not mutually exclusive, we also evaluated the collective effect of these threats. The petition focused primarily on three listing factors: Factor A (the Present or Threatened Destruction, Modification, or Curtailment of the Species' Habitat or Range), Factor D (Inadequacy of Existing Regulatory Mechanisms), and Factor E (Other Natural or Manmade Factors Affecting the Continued Existence). More specifically, information in the petition suggests that fire poses the primary threat to Thorne's hairstreak butterfly habitat and populations because the subspecies' range occurs on lands susceptible to wildfires. However, it appears that frequency of fire in occupied habitat over the past century is not high enough on average to threaten the subspecies, and Tecate cypress populations on Otay Mountain are stable and potentially increasing overall. Within areas that have burned, the subspecies appears able to re-colonize over time.

Also, we have determined that Federal regulations and activities (Wilderness Act, BLM fire suppression policy, Border Patrol enforcement activities, and MSCP) provide a significant level of protection for the Thorne's hairstreak butterfly and/or its habitat on Federal lands that include the subspecies entire known range. We will continue to work with the City and County of San Diego and the BLM to avoid and minimize impacts to the Thorne's hairstreak butterfly on their lands.

We have reviewed the petition and literature cited in the petition and evaluated that information in relation to information available to us. After this review and evaluation, we find the petition does not present substantial scientific information to indicate listing the Thorne's hairstreak butterfly may be warranted at this time. Although we will not be commencing a status review in response to this petition, we will continue to monitor potential threats and ongoing management actions that might be important with regard to the conservation of the Thorne's hairstreak butterfly across its range. We encourage interested parties to continue to gather data that will assist with the conservation of the subspecies.

A complete list of all references cited herein is available, upon request, from our Carlsbad Fish and Wildlife Office (seeADDRESSESsection above).

The primary authors of this notice are staff from the Carlsbad Fish and Wildlife Office (seeADDRESSESsection above).

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

When we make a finding that substantial information is presented to indicate that listing a species may be warranted, we are required to promptly commence a review of the status of the species. To ensure that the status review is complete and based on the best available scientific and commercial information, we are soliciting information on the Sand Mountain blue butterfly. We request any additional information, comments, and suggestions from the public, other concerned governmental agencies, Tribes, the scientific community, industry, or any other interested parties concerning the status of the Sand Mountain blue butterfly. We are seeking information regarding the species' historical and current status and distribution, its biology and ecology, ongoing conservation measures for the species and its habitat, and threats to the species and its habitat.

If we determine that listing the Sand Mountain blue butterfly is warranted, it is our intent to propose critical habitat to the maximum extent prudent and determinable at the time we would propose to list the species. Therefore, we also request data and information on what may constitute physical or biological features essential to the conservation of the species, where these features are currently found, whether any of these areas are in need of special management, and whether there are areas not containing these features, which of themselves, might be essential to the conservation of the species. Please provide specific comments as to what, if any, critical habitat should be proposed for designation, if the species is proposed for listing, and why that proposed habitat meets the requirements of the Act.

If you wish to comment or provide information, you may submit your comments and materials concerning this finding to the Field Supervisor (seeADDRESSES).

Our practice is to make comments and materials provided, including names and home addresses of respondents, available for public review during regular business hours. We will not consider anonymous comments and we will make all comments available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the address listed in theADDRESSESsection.

Section 4(b)(3)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531et seq.), requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information to indicate that the petitioned action may be warranted. We base this finding on information provided in the petition and information otherwise available in our files at the time of petition review. To the maximum extent practicable, we make this finding within 90 days of our receipt of the petition, and publish our notice of this finding promptly in theFederal Register.

Substantial information, as defined by 50 CFR 424.14(b), is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial information was presented, we are required to promptly commence a review of the status of the species, if one has not already beeninitiated under our internal candidate assessment process.

In making this finding, we relied on information provided by the petitioners and information otherwise available in our files at the time of petition review and evaluated that information in accordance with 50 CFR 424.14(b). Our process in making this 90-day finding under section 4(b)(3)(A) of the Act and section 424.14(b) of our regulations is limited to a determination of whether the information in the petition meets the “substantial information” threshold.

On April 23, 2004, we received a formal petition, dated April 23, 2004, from the Center for Biological Diversity, Xerces Society, Public Employees for Environmental Responsibility, and the Nevada Outdoor Recreation Association requesting that the Sand Mountain blue butterfly (Euphilotes pallescens arenamontana) known only from Sand Mountain, Nevada, be listed as threatened or endangered in accordance with section 4 of the Act, and that critical habitat be designated for the species concurrent with the listing. The petition is available athttp://www.fws.gov/nevada/nv_species/sand_blue.html.

Action on this petition was precluded by court orders and settlement agreements for other listing actions that required nearly all of our listing funds for fiscal years 2004 and 2005. On September 26, 2005, we received a 60-day notice of intent to sue, and on January 5, 2006, we received a complaint regarding our failure to carry out the 90-day finding on the petition to list the Sand Mountain blue butterfly. On April 20, 2006, we reached an agreement with the plaintiffs to submit to theFederal Registera completed 90-day finding by July 28, 2006, and to complete, if applicable, a 12-month finding by April 26, 2007 (Center for Biological Diversity et al.v.Norton, and U.S. Fish and Wildlife Service,(CV-00023-LKK-GGH) (E.D. Cal)).

The Sand Mountain blue butterfly was first described asEuphilotes pallescenssubspeciesarenamontanaby Austin in 1998 (1998, pp. 556-557). Prior to the 1998 publication, it had been considered an undescribed subspecies ofEuphilotes rita, the name under which it was previously assigned a Federal category 2 candidate status (see Previous Federal Action section).

The Sand Mountain blue butterfly is a small, pale-blue butterfly in the family Lycaenidae. Males have a wingspan that ranges from 10.0 to 11.8 millimeters (mm) (0.39 to 0.46 inches (in)) and averages 11.1 mm (0.44 in). The dorsum is pale bluish-violet, often whitish distally, with a narrow (0.5 mm (0.002 in)) black outer margin. There is usually a series of dots on the hindwing, but sometimes no more than a terminal line on the forewing. There is usually an indistinct pinkish to pale orange aurora of moderate width on the posterior hindwing. At the vein tips on the posterior of both wings, there are fringes of white with indistinct grey checkering. The bottom surface of the male abdomen is chalky white. Macules (patches of different coloration) are small, often nearly obsolete on the hindwing. Females have a wingspan that ranges from 10.0 to 11.9 mm (0.39 to 0.46 in) with an average of 10.9 mm (0.43 in). The female dorsum is brown to tan, and usually pale bluish-gray basally on both wings. The forewing has a faint brown cell-end bar, while the hindwing has marginal dots. The forewing apex is usually whitish. The hindwing aurora is pale orange to pale pink usually grading to nearly white distally and not strongly contrasting. The female venter and fringes are similar to those of the male (Austin 1998, p. 556).

The Sand Mountain blue butterfly is the palest of allEuphilotes. The ground color of both sexes is considerably paler than that ofE. pallescensssp.pallescens. The pinkish aurora is unlike any otherEuphilotes. The pale bluish-gray wing bases of the female do not contrast with the distal area of the wing as they do onE. pallescensssp.pallescens. The black macules ofE. pallescensssp.arenamontanatend to be smaller than those ofE. pallescensssp.pallescens(Austin 1998, p. 557).

The Sand Mountain blue butterfly is known only from Sand Mountain, Churchill County, Nevada, where it is dependent on its host plant, Kearney buckwheat (Eriogonum nummulare) (Austin 1998, p. 557), a long-lived, perennial shrub with numerous branches (Reveal 2002, p. 1), that occurs in scattered locations in several western States (Welsh et al. 1987, p. 547). Kearney buckwheat typically occurs at Sand Mountain as a dominant or co-dominant with other shrubs on less active, smaller dunes around the periphery of the main dune (The Nature Conservancy 2002, p. 1). Because of the small size of the Sand Mountain blue butterfly and the frequent high winds typical of the Sand Mountain area, it is likely that adult butterflies spend most of their life sheltered within the canopy of Kearney buckwheat plants (Murphy 2006). Kearney buckwheat is the sole food source for the larvae and an important nectar source for adults during their flight period. The butterfly has one brood from mid-July to mid-September (Austin 1998, p. 557), a period that coincides with the peak flowering period of the Kearney buckwheat (Reveal 2002, p. 2).

We added the Sand Mountain blue butterfly asEuphilotes ritassp. to our list of candidate species as a category 2 candidate species on November 21, 1991 (56 FR 58829). A category 2 candidate species was a species for which we had information indicating that a proposal to list it as threatened or endangered under the Act may be appropriate, but for which additional information was needed to support the preparation of a proposed rule. It remained a category 2 candidate asEuphilotes ritassp. in our 1994 Candidate Notice of Review (November 15, 1994; 59 FR 59020). In the 1996 Candidate Notice of Review (February 28, 1996; 61 FR 7596), we discontinued the use of category 2 candidates. The Sand Mountain blue butterfly has no Federal regulatory status under the Act.

Pursuant to section 4 of the Act, we may list a species, subspecies, or distinct population segment of invertebrate taxa on the basis of any of the following five factors: (A) Present or threatened destruction, modification, or curtailment of habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. In making this finding, we evaluated whether threats to the Sand Mountain blue butterfly presented in the petition may pose a concern with respect to its survival. The Act identifies the five factors to be considered, either singly or in combination, to determine whether a species may be threatened or endangered. Our evaluation of these threats, based on information provided in the petition, is presented below.

The petition states that the Sand Mountain blue butterfly is known only from Sand Mountain in Churchill County, Nevada, where it is dependent on its larval host plant, Kearney buckwheat (Eriogonum nummulare) (Austin 1998). The petitioners note that while the Kearney buckwheat is widespread in Nevada and also occursin Utah, Arizona, and California, several reconnaissance surveys have been conducted of sand dunes within 62.5 mile (mi) (100 kilometer (km)) radius of Sand Mountain in search of populations of Kearney buckwheat large enough to support a population of the butterfly. No Kearney buckwheat plants have been observed on any of these surveys, and the surveyors concluded that if the plant were present, its population is so small that it would not provide suitable habitat for the Sand Mountain blue butterfly. The petition relies on communication from a species expert, Claudia Funari of the U.S. Bureau of Land Management (BLM) to further state that no other habitat exists within the flight range of the butterfly. In our files we have an electronic message which corroborates this claim (Funari 2004). Furthermore, information from our files indicates that butterflies of the family Lycaenidae are known to have limited dispersal distances (Arnold 1983, Peterson 1994 as cited in Peterson 1996). While in some cases they may employ a stepping-stone method of hopping to habitat patches, increasing the likelihood of dispersing further and expanding their range, the petitioners have provided substantial survey information indicating no populations of the host plant or the Sand Mountain blue butterfly occur within a 62.5 mi (100 km) radius of Sand Mountain. Thus, it is unlikely given their life history, ecology, and dispersal capabilities that the Sand Mountain blue butterfly would be found beyond this distance.

The petition claims that the Sand Mountain blue butterfly occurs only within the Sand Mountain Recreation Area (SMRA), a BLM designation that encompasses 4,795 acres (ac) (1,940 hectares (ha)), and, according to the petitioners, is about 1.0 mi (1.6 km) wide and 3.5 mi (5.6 km) long. It notes, however, that Kearney buckwheat, the larval host plant on which the butterfly depends, has a patchy distribution and much of the area is open sand. The petition includes a map as Figure 4 that shows dune shrub habitat extending onto BLM lands adjacent to the designated boundary of the SMRA (BLM 2003). The petitioners claim that the Sand Mountain blue butterfly is dependent on 1,000 ac (405 ha) of Kearney buckwheat habitat is supported by a report referenced in the petition that states that between 1,000 ac (405 ha) and 1,600 ac (647 ha) of dune shrub habitat occur inside and outside the SMRA (BLM 2004). This dune shrub habitat is comprised of 13 shrub species, one of which is the Kearney buckwheat (BLM 2004).

The petitioners present data in Figure 9, provided to them by BLM, that documents an increase in annual visitor use at the SMRA from about 16,000 persons in 1981 to over 40,000 persons in 2003 (BLM 2003). The petition notes that as early as 1985, motorized recreation by motorcycles, four wheel drive vehicles, three wheelers, and dune buggies accounted for over 90 percent of the total visits to the SMRA (BLM 1985). The 2003 BLM data provided by the petitioners also show an increase in route proliferation from about 20 mi (32 km) of off-road vehicle trails in 1981 to about 200 mi (320 km) in 2003. The petition includes four figures (maps) that document the proliferation of the route system based on a BLM analysis of satellite imagery from 1978, 1994, 1999, and 2002 (BLM 2003). In addition to the overall proliferation of off-road vehicle routes documented by the imagery, the maps clearly show an increase in the amount of habitat fragmentation and an expansion of the off-road vehicle route system from the more accessible southern end of the main dune into shrub habitat toward the north and northeast that had been relatively undisturbed as recently as 1994. Thus, while about 1,000 ac (405 ha) of potential butterfly habitat may remain, an estimated reduction in habitat of about 50 percent based on our visual comparison of 1978 and 2002 satellite imagery, much of this remaining habitat is highly fragmented by the extensive trail system that has been created. Furthermore, the off-road vehicle use that has led to this reduction in and fragmentation of habitat continues to this day and poses an ongoing threat to the viability of the Sand Mountain blue butterfly.

The petition also cites observations over the past 25 years noting the effects of off-road vehicles on the Sand Mountain dune shrub habitat and, in particular, on the Kearney buckwheat. These include: (1) A letter documenting the extirpation of all plant life from an area 150 ft (46 m) wide along the edge of the main dune over a period of several years (Giuliani 1977); (2) a memorandum reporting that up to half of 58 individual Kearney buckwheat plants inspected on the south side of the mountain had been crushed and broken off at the ground surface and were either dead or in the process of resprouting from the rootstocks (USFWS 1994); (3) a report to the Service from a research scientist at the University of Nevada, Reno (Brussard 1995 (cited incorrectly as Brussard 1996 in the petition)) stating that a continued decline of the Kearney buckwheat in the overall area could call into question the continued existence of the butterfly; and (4) an assessment by The Nature Conservancy (2002) that determined the condition of the dunes to be heavily impaired due to loss of vegetative cover from recreational use and abuse. The petition notes that in this assessment, The Nature Conservancy found that running vehicles at high speeds over large perennial plants, in particular, was a significant source of stress to the Sand Mountain dune system. The petitioners note that Kearney buckwheat plants are intentionally targeted because they accumulate sand at their base, thereby forming natural jumps. We have determined that the report to the Service cited as Brussard (1995) actually states “as long as the foodplant remains as abundant as it is now in the overall dune area, we saw no particular threat to the continued existence of the butterfly.” However, despite the inaccurate characterization of this letter in the petition, the statement does imply that should the abundance of Kearney buckwheat decline, a circumstance for which the petitioners have provided significant evidence, the loss of this critical foodplant would be a threat to the continued existence of the butterfly.

The petition also provides numerous citations from scientific literature that document the effects of off-road vehicles on terrestrial habitats in arid environments, including sand dunes. The effects include the elimination of a tiger beetle that was once widespread and abundant along beaches (Black and Vaughn 2003); significant reductions in the number, density, and cover of plants, including shrubby perennials (Bury and Luckenbach 1983); and direct impacts on desert vegetation (Stebbins 1995; Lathrop 1983; Lathrop and Rowlands 1983). Documentation also indicates that natural recovery rates of perennial vegetative cover damaged by off-road vehicles in arid environments can take decades and, in some cases, may require centuries (Lathrop and Rowlands 1983; Kockelman 1983; Webb and Wilshire 1983).

None of these citations provides specific evidence of a direct significant threat to the Sand Mountain blue butterfly. The papers by Bury and Luckenbach (1983, pp. 211-213), Lathrop (1983, pp. 157-164), Lathrop and Rowlands (1983, pp. 138-141, 144-146), and Stebbins (1995, pp. 471-472), however, do provide documentation that off-road vehicles can damage and destroy plants, and result in significant decreases in plant numbers, density, and cover of plants, including shrubbyperennials at various sites in the western North American deserts.

The papers by Lathrop and Rowlands (1983, p. 143) and Kockelman (1983, p. 3) also provide a timeframe for understanding natural recovery rates of habitats damaged by off-road vehicle use in arid environments. Recovery of damaged vegetation is a process of critical importance to the Sand Mountain blue butterfly because it depends on the presence of its host plant, the Kearney buckwheat, on an annual basis in order to reproduce. Based on the data provided by the petitioners (BLM 2003, 2004), we estimate that the habitat on which the Sand Mountain blue butterfly depends has been reduced by as much as 50 percent over the past 25 years and that, at most, 1,000 ac (405 ha) of potential, but highly fragmented, habitat remains. These studies provide reliable documentation that even if off-road vehicle use were to be eliminated from Sand Mountain, natural recovery of the Kearney buckwheat habitat may take decades, a time frame that poses an indirect threat to the long-term viability of a species that must reproduce annually.

The petition also claims that off-road vehicles alter the hydrology of dune systems by exposing clay layers that create an impermeable barrier to the percolation of precipitation into the soil. Further vehicle impacts break the clay layer and precipitation percolates to depths where it is beyond the reach of seedlings attempting to establish (Tonenna no date). No data are provided to support this claim; therefore, we consider it speculative. The petition also claims that constant disruption of the soil surface makes it difficult or impossible for seeds to germinate. We agree the germination process would be made difficult or impossible under frequent disturbance by vehicles. The petition claims that this could be the primary reason for a reported skew in Kearney buckwheat populations at Sand Mountain toward older shrubs. The petition provides no documentation to support this claim. The persistence of some plant species may depend on episodic years of strong recruitment (Brigham and Thomson 2003, p. 154). Episodic regeneration was not found to be characteristic of several plants studied in the cold deserts of the Great Basin in which Sand Mountain is located (Westet al.1979, pp. 384-385). The same researchers, however, also found no correlation between plant size and plant age, and that plants that appear even-aged because of their similar size are often uneven-aged (Westet al.1979, pp. 386). The petitioners do not indicate whether this critical aspect of population structure was considered.

We conclude that the petition provides substantial information to support the claim that off-road vehicle use at Sand Mountain presents direct and indirect threats to the dune shrub habitat with Kearney buckwheat on which the Sand Mountain blue butterfly depends. In particular, data provided to the petitioners by the BLM (2003) reliably documents that within the past 25 years a progressive loss of dune shrub habitat, continuing fragmentation of dune shrub habitat, and an ongoing expansion of the route system into dune shrub habitat previously considered secure for the butterfly has occurred. The data presented in the petition document that annual visitor use has more than doubled and the route system has expanded from 20 miles (32 km) to over 200 miles (320 km) over this time period. The petition presents an estimate, based on a personal communication from the BLM (Tonenna, no date), that a maximum of about 1,000 ac (405 ha) of dune shrub habitat remain, and notes that the Kearney buckwheat, on which the Sand Mountain blue butterfly depends, has a patchy distribution within the remaining, highly fragmented habitat. The petitioners also reference a report that provides reliable information indicating that at the time of the petition, an estimated 1,000 to 1,600 ac (405 to 647 ha) of dune shrub habitat remained in which Kearney buckwheat is a component (BLM 2004, p. 4). We estimate, based on the data presented in the petition (BLM 2003, 2004), about 50 percent of the dune shrub habitat may have been destroyed or altered over this 25-year time span. The off-road vehicle use that has led to this reduction in and fragmentation of habitat continues to this day and poses a significant and ongoing threat to the continued viability of the Sand Mountain blue butterfly.

The petition claims collection by overzealous lepidopterists is a potential threat because of the rarity of the Sand Mountain blue butterfly. While we have accepted the claim that the Sand Mountain blue butterfly occurs only at Sand Mountain, the petition does not provide any data to substantiate the claim that the species is threatened by collection.

The petitioners claim that diseases affecting larval host plants and butterflies, and predation by native and introduced wildlife have affected other butterfly species with small population sizes, but provide no data to support these claims, and note that no information on the potential impacts of disease or predation to the Sand Mountain blue butterfly is available.

The petition claims that the BLM has failed to protect habitat for the Sand Mountain blue butterfly from excessive off-road vehicle use over the past 25 years, and cites a public comment letter on the 1978 draft SMRA which states concern over the potential impacts to the invertebrate fauna of the dune system and notes that the management plan fails to adequately take into account biological considerations (Hardy 1978).

The petition also cites a mid-1990s effort by the BLM, the Service, and others to assess the status of the Sand Mountain blue butterfly in response to a complaint that off-road vehicles were posing a threat to its existence by impacting its host plant (Austin 1990). The initial outcome of this effort was a determination that no emergency action was necessary because, during the course of the assessment, the Kearney buckwheat was found to be much more common than previously believed, particularly in the northeastern portion of the dune system. Instead, the BLM and Service decided to institute a monitoring plan in order to avoid an emergency situation in the future (BLM 1995, p. 1). The monitoring plan consisted only of establishing permanent photographic points. Due to personnel changes in both agencies, monitoring was discontinued after a few years. In recent years, the photographic points have been revisited and found to reliably document the ongoing alteration and destruction of shrub habitat (Tonenna 2006).

The petition notes that in the Spring of 2002, BLM staff recommended that some areas of Sand Mountain be closed to protect the Sand Mountain blue butterfly. As a result, a group comprised of BLM and Service staff, representatives from conservation and off-road vehicles groups, and representatives of the Fallon-Paiute Shoshone Tribe, who consider Sand Mountain sacred, proposed that 1,000 ac (405 ha) be closed to off-road vehicles while keeping the more popular off-road riding areas open. No action was taken on this proposal.

The petitioners claim that in 2003, the BLM implemented an emergency action to protect and restore the sand dune ecosystem that included the followingsix main actions: (1) Continue to manage the SMRA under the existing off-road vehicle designation; (2) develop programs and practices that encourage off-road vehicle users to prevent disturbance of Kearney buckwheat habitat within and outside of the SMRA; (3) begin efforts to restore and rehabilitate disturbed Kearney buckwheat habitat within and outside of the SMRA; (4) identify existing disturbed travel routes through the Kearney buckwheat habitat to connect off-road vehicle use areas within and outside the SMRA and discontinue off-road vehicle use in habitat outside these travel routes; (5) continue scientific investigations into the Sand Mountain ecosystem, including studies of the natural history of the plants and animals, restoration techniques, and monitoring technology; and (6) initiate a revised management plan for the Sand Mountain landscape to update the current Recreation Area Management Plan, reflecting the increasing amount and variety of uses and demands of the area.

The primary claim that the petitioners make regarding this strategy is that compliance with the encouraged off-road vehicle route system is voluntary and unenforceable, and therefore ineffective in preventing further habitat decline. They cite data from a 2004 BLM report that documents noncompliance occurring throughout the area with all routes continuing to be used based on 15 weeks of compliance monitoring. Impacts to shrub vegetation continued with multiple vehicles riding through vegetation despite alternative existing routes nearby that avoid vegetation. The petitioners note that Kearney buckwheat plants are intentionally targeted because sand accumulates around the base forming natural jumps. The report states that educational efforts and increased signage are routinely ignored, and, although there does seem to have been some level of compliance as a result of the management changes, “there is still significant noncompliance that will likely continue the trend of vegetation loss and prevent the rehabilitation of the area” (BLM 2004).

We have reviewed all of the sources cited in the petition and have concluded that they provide substantial information that existing regulatory mechanisms may be inadequate to prevent the progressive decline of the habitat on which the Sand Mountain blue butterfly depends.

The petition claims that invasive plants, and particularly Russian thistle (Salsola kali), pose a threat to the Sand Mountain blue butterfly because the fuel load it produces when dry increases the potential for wildfire. The petitioners also claim that Kearney buckwheat is not adapted to resist fire, and fire could kill or seriously damage plants since wildfires have not occurred historically at Sand Mountain. An increase in Russian thistle, therefore, would increase the risk that a fire may occur and habitat for the Sand Mountain blue butterfly would be destroyed (Tonnena no date).

Russian thistle is known to occur at Sand Mountain and, when dried, is highly combustible. However, the petition provides no data to support the claim that it is so widespread as to constitute a significant threat to either the Kearney buckwheat or the Sand Mountain blue butterfly. Nor does the petition provide documentation for the claim that Kearney buckwheat is not adapted to resist fire. Elsewhere in the petition, the petitioners note that Kearney buckwheat has an extensive branching caudex from a deep, woody taproot (Reveal 2002). It is at least possible that this taproot, buried beneath sand, would survive and resprout after fire, as it has been observed to do after damage to the above-ground shoots (USFWS 1994). We do not, therefore, find the petition to provide substantial information to support the claim that invasive plants and/or fire currently pose a significant threat to the Sand Mountain blue butterfly.

In addition, the petition notes that most insect populations normally experience large fluctuations in size (Ehrlich 1992; Schultz 1998), and that weather, predation, and disease may cause annual changes of an order of magnitude or more. The petition claims that these normal population fluctuations, in combination with habitat alteration or loss, can result in population extirpations (Hanskiet al.1995) and that, because of its extremely limited geographic area, the butterfly is extremely vulnerable to extinction.

We acknowledge that insect populations may experience normal large population fluctuation, although the petition provides no data specific to the Sand Mountain blue butterfly. We have previously, under Factor C, noted that there is no evidence to support the claim that disease or predation are threats to the butterfly. Nor is there any evidence presented that the Sand Mountain blue butterfly population fluctuates in response to weather. We acknowledge that habitat alteration may exacerbate normal population fluctuations, and that this may make the Sand Mountain blue butterfly, a species likely to experience large population fluctuations (Murphy 2006), more susceptible to extinction. There is no evidence provided, however, that this has occurred, or is occurring, and therefore we do not find this threat to be substantial.

We have reviewed the petition and literature cited in the petition, and evaluated that information. On the basis of this review and evaluation, we find that the petition does present substantial information to indicate that listing the Sand Mountain blue butterfly may be warranted. The Sand Mountain butterfly is known only from Sand Mountain, Nevada, where it is closely associated with its host shrub, the Kearney buckwheat. Adult butterflies, which survive only a few weeks, deposit their eggs on the Kearney buckwheat, which is the only food for the larvae (caterpillars) that hatch the following spring. Larvae likely pass through several stages of molting, emerging larger each time, with each stage dependent on the availability of the food resource. The final molt results in a pupa which attaches to a twig or other surface and from which the adult emerges resource (Scott 1986, p. 21). The annual continuance of the butterfly population larvae, therefore, depends entirely upon this food.

An estimated 1,000 ac (405 ha) of dune shrub habitat remained in 2003, an estimated reduction of about 50 percent over the past 25 years. Moreover, much of this remaining habitat has been highly fragmented by over 200 miles (320 km) of off-road vehicle routes. This reduction and fragmentation of habitat correlates with a significant increase in off-road vehicle recreational use of the area over the same time period. Recreational use continues to increase, and all areas of the Kearney buckwheat habitat upon which the Sand Mountain blue butterfly depends remain open to off-road vehicle use as a result of inadequate regulatory mechanisms. The reduction and fragmentation of Kearney buckwheat habitat, therefore, represents a direct reduction in the food critical to the survival of the larvae and their subsequent emergence as reproductive adults. As the food supply diminishes, fewer larvae survive and fewer adults are produced, which in turn is likely to result in fewer eggs being deposited.Over time this will result in smaller and smaller population levels as habitat destruction continues. Thus, there is substantial information presented in the petition that the reduction in available habitat is leading to a decrease in population that will continue over time, thus increasing the risk of extinction. Therefore we conclude that the petition has presented substantial information that listing may be warranted for this species. We will initiate a status review to determine whether listing is warranted.

The petitioners also requested that critical habitat be designated for this species. We always consider the need for critical habitat designation when listing species. If we determine in our 12-month finding that listing the Sand Mountain blue butterfly is warranted, we will address the designation of critical habitat at the time of the proposed rulemaking.

A complete list of all references cited herein is available, upon request, from the Nevada Fish and Wildlife Office (seeADDRESSES).

The primary author of this notice is the Nevada Fish and Wildlife Office (seeADDRESSES).

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