[Federal Register Volume 67, Number 152 (Wednesday, August 7, 2002)]
[Rules and Regulations]
[Pages 51116-51129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-20007]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI18


Endangered and Threatened Wildlife and Plants; Determination of 
Endangered Status for the Carson Wandering Skipper

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
the Carson wandering skipper (Pseudocopaeodes eunus obscurus) to be 
endangered under the Endangered Species Act of 1973, as amended (Act). 
The Carson wandering skipper is currently known from only two 
populations, one in Washoe County, Nevada, and one in Lassen County, 
California. The subspecies is found in grassland habitats on alkaline 
substrates.
    Extinction could occur from naturally occurring events or other 
threats due to the small, isolated nature of the known populations of 
the Carson wandering skipper. These threats include habitat 
destruction, degradation, and fragmentation due to urban and 
residential development, wetland habitat modification, agricultural 
practices (such as excessive livestock grazing), gas and geothermal 
development, and nonnative plant invasion. Other threats include 
collecting, livestock trampling, water exportation projects, road 
construction, recreation, pesticide drift, and inadequate regulatory 
mechanisms. We find these threats constitute immediate and significant 
threats to the Carson wandering skipper. This rule implements Federal 
protection provided by the Act for the subspecies.

DATES: This rule becomes effective on August 7, 2002.

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours at the U.S. Fish and 
Wildlife Service, Nevada Fish and Wildlife Office, 1340 Financial 
Boulevard, Suite 234, Reno, NV 89502.

FOR FURTHER INFORMATION CONTACT: Robert D. Williams, Field Supervisor, 
Nevada Fish and Wildlife Office (see ADDRESSES section) (telephone 775/
861-6300; facsimile 775/861-6301), or Wayne White, Field Supervisor, 
Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room W-2605, 
Sacramento, CA 95825-1846 (telephone 916/414-6000; facsimile 916/414-
6712).

SUPPLEMENTARY INFORMATION:

Background

    The genus Pseudocopaeodes in the family Hesperiidae and subfamily 
Hesperiinae (grass skippers) contains only one species, Pseudocopaeodes 
eunus. Members of Hesperiidae are called skippers because of their 
powerful flight. While their flight may be faster than butterflies, 
they seldom fly far and few species migrate (Scott 1986).
    The species Pseudocopaeodes eunus is thought to consist of five 
subspecies. The Carson wandering skipper (P. e. obscurus) is locally 
distributed in grassland habitats on alkaline substrates in eastern 
California and western Nevada. P. e. eunus is located in western desert 
areas of southern California; P. e. alinea is found in eastern desert 
areas of southern California and in southern Nevada; and P. e. flavus 
is found in western and central Nevada (Brussard 2000). In 1998, what 
is believed to be an undescribed fifth subspecies of P. eunus was found 
in Mono County, California. George Austin of the Nevada State Museum 
and Historical Society in Las Vegas is working to formally describe 
this fifth subspecies (Brussard 2000). Except for the Carson wandering 
skipper, the subspecies of P. eunus do not have universally accepted 
common names.
    The Carson wandering skipper was collected in 1965 by Peter Herlan, 
Nevada State Museum, at a location north of U.S. Highway 50, Carson 
City, Nevada. It was first described by George Austin and John Emmel 
(1998), based

[[Page 51117]]

on 51 adult specimens. The body is tawny orange above except for a 
narrow uniform border and black veins near the border at the outer edge 
of the wing. The upper forewing and hindwing are orange with darker 
smudging. The lower surface of the hindwings is pale creamy orange with 
two creamy rays extending from the base of the wing to its margin, and 
there may be dusky suffusions along the wing veins (MacNeill 1975). 
Males tend to average 13.1 millimeters (mm) (0.52 inches (in)) in size 
(ranging from 12.0 to 13.9 mm (0.47 to 0.55 in)) (size is forewing 
length from base to apex). Females average 14.7 mm (0.58 in) in size, 
and range from 13.4 to 15.6 mm (0.53 to 0.61 in) from forewing base to 
apex. The female's dorsal (upper) surface is similar to the male's but 
with heavier dusting on the discal (relating to a disk) area of the 
hindwing. The female's ventral surface (undersurface of the abdomen) is 
similar in appearance to the male's (Austin and Emmel 1998).
    The Carson wandering skipper can be distinguished from the other 
subspecies of Pseudocopaeodes eunus by a combination of several 
characteristics. The Carson wandering skipper is browner and less 
intensely orange on its dorsal surface, with thicker black coloring 
along the veins, outer margin, and on both basal surfaces; and it is 
duller, overall, with an expanse of bright yellow and orange ground 
color, especially on the ventral surface, interrupted by broadly 
darkened veins (Austin and Emmel 1998).
    Carson wandering skipper females lay their cream-colored eggs on 
salt grass (Distichlis spicata (L.) Greene) (Hickman 1993), the larval 
host plant for the subspecies (Garth and Tilden 1986; Scott 1986). This 
is a common plant species in the saltbush-greasewood community of the 
intermountain west. Salt grass usually occurs where the water table is 
high enough to keep its roots saturated for most of the year (West 
1988, as cited in Brussard et al. 1998).
    No other observations have been made of the early life stages of 
the Carson wandering skipper. However, the Carson wandering skipper's 
life cycle is likely similar to other species of Hesperiinae. Larvae 
(immature, wingless, often worm-like form) of the subfamily Hesperiinae 
live in silked-leaf nests, and some species make their nests partially 
underground. Larvae are usually green or tan and have a dark head and 
black collar. Pupae (intermediate stage between larvae and adult) 
generally rest in the nest, and larvae generally hibernate (Scott 
1986). Minno (1994) described a last instar (stage between molts) 
larvae and a pupa of Pseudocopaeodes eunus, based on one specimen of 
each collected in California. Some larvae may be able to extend their 
period of diapause (period of dormancy) for more than one season 
depending on the individual and environmental conditions (Dr. Peter 
Brussard, University of Nevada, Reno, pers. comm., 2001). Carson 
wandering skippers may differ from other P. eunus in producing only one 
brood per year during June to mid-July (Austin and Emmel 1998).
    The other subspecies produce a second brood in late July to late 
September (Austin and Emmel 1998). Sites occupied by the Carson 
wandering skipper have been searched during August and September and a 
second brood has not been found (Austin and Emmel 1998; Brussard et al. 
1999). However, additional research is needed to confirm that the 
Carson wandering skipper produces only one brood per year.
    Little is known about the specific habitat requirements of the 
Carson wandering skipper, beyond the similarities recognized among 
known locations of this subspecies. As a result, the habitat 
requirements stated could apply to the species as a whole (Brussard et 
al. 1999). Habitat requirements for butterflies in general include: (1) 
Presence of a larval host plant; (2) appropriate thermal environment 
for larval development and diapause, and adult mate location and 
oviposition (to lay eggs); and (3) a nectar source (Brussard et al. 
1999). Based on commonalities of known, occupied sites, suitable 
habitat for the Carson wandering skipper has the following 
characteristics: elevation of less than 1,524 meters (5,000 feet); 
located east of the Sierra Nevada; presence of salt grass; open areas 
near springs or water; and geothermal activity.
    There are no data in the literature on the micro-habitat 
requirements of the Carson wandering skipper (Brussard et al. 1999). 
However, it is likely that suitable larval habitat is related to the 
water table. Many salt grass areas are inundated in the spring, and 
larvae do not develop under water. During wet years, larval survival 
depends on salt grass areas being above standing water. In dry years, 
survival is probably related to the timing of the host plant senescence 
(aging). Therefore, micro-topographic variation (slight irregularities 
of a land surface) is probably important for larval survival because it 
provides a greater variety of appropriate habitat over time (Brussard 
et al. 1999). Since the few historic collections of the Carson 
wandering skipper have been near hot springs, it is possible this 
subspecies may require the higher water table or ground temperatures 
associated with these areas to provide the appropriate temperatures for 
successful larval development (Brussard et al. 1999).
    Adult Carson wandering skippers require nectar for food. Adults of 
all the species in the grass skipper subfamily seem to visit flowers, 
and sap-feeding is absent or rare (Scott 1986). There are no known 
observations of the Carson wandering skipper utilizing mud or other 
substances to obtain nutrients (P. Brussard, pers. comm., 2002a). Few 
plants that can serve as nectar sources grow in the highly alkaline 
soils occupied by salt grass. For a salt grass area to be appropriate 
habitat for the Carson wandering skipper, an appropriate nectar source 
must be present and in bloom during the flight season. Plant species 
known to be used by the Carson wandering skipper for nectar include a 
mustard (Thelypodium crispum), racemose golden-weed (Pyrrocoma 
racemosus), and slender birds-foot trefoil (Lotus tenuis) (Brussard et 
al. 1999). If alkaline-tolerant plant species are not present, but 
there is a fresh-water source to support alkaline-intolerant nectar 
sources adjacent to the larval host plant, the area may provide 
suitable habitat (Brussard et al. 1999).
    No information is available on historic population numbers of the 
Carson wandering skipper. It is possible that a fairly large population 
of the subspecies occurred from the Carson Hot Springs site to the 
Carson River. Outflow from the springs likely supported a water table 
high enough for salt grass and a variety of nectar sources to grow. 
Urban development, water diversions, and wetland manipulations have 
eliminated most of the habitat type in this area (Brussard 2000).
    Likewise, it is possible that appropriate habitat once existed for 
the Carson wandering skipper between the existing populations in Lassen 
County, California, and Washoe County, Nevada (P. Brussard, pers. 
comm., 2001). The population locations are approximately 120 kilometers 
(km) (75 miles (mi)) apart, and while the dispersal capability of the 
Carson wandering skipper is unknown, it is unlikely that any current 
genetic exchange occurs between the two populations. Over time, the 
habitat between the two populations has become unsuitable and 
fragmented due to agriculture and development, and the two populations 
have become isolated from one another. The subspecies likely represents 
a remnant of a more widely distributed complex of populations in

[[Page 51118]]

the western Lahontan basin (Brussard et al. 1999).
    In 1998, collections of four of the Pseudocopaeodes eunus 
subspecies were made for a genetic study by University of Nevada-Reno 
(UNR) researchers (Brussard et al. 1999). In addition to collections 
made of the Carson wandering skipper at the Washoe County site (24) and 
the Lassen County site (25), individuals of three other P. eunus 
subspecies (173) were also collected. P. e. eunus individuals were not 
collected due to their scarcity. Genetic analysis was based on an 
analysis of allozyme (i.e., protein) variation (Brussard et al. 1999). 
Levels of heterozygosity (genetic variability) were low in all but two 
populations of P. eunus, and the average heterozygosity over the nine 
populations was also low. The low levels of heterozygosity in many of 
the populations is likely due to repeated extirpation events, 
recolonizations, and population and genetic bottlenecks throughout the 
Holocene geologic period (beginning 10,000 years ago) to the present 
time (Brussard et al. 1999).

Population Sites

    Historically, population locations included the type locality found 
near the Carson Hot Springs in Carson City, Carson City County, NV, and 
one other site in Lassen County, CA. When described in Austin and Emmel 
(1998), specimens from two additional sites, Dechambean Hot Springs at 
Mono Lake and Hot Springs, Mono County, CA, were assigned, with 
uncertainty due to their small numbers, to the Carson wandering skipper 
subspecies. Based on 1998 surveys by Brussard et al. (1999), these Mono 
County specimens would be more appropriately assigned to the currently 
undescribed subspecies (George Austin, Nevada State Museum and 
Historical Society, pers. comm., 2001).
    Surveys conducted in 1997 in the vicinity of Carson City, and in 
1998 throughout potential, suitable habitat in Nevada and California, 
found two new nectar sites occupied by the Carson wandering skipper. 
One site was located in Washoe County, NV, and the other site (two 
locations) was found in Lassen County, CA. The site in Lassen County 
could be a rediscovery of the area where Carson wandering skippers were 
collected in the 1970s; however, the collection record is too vague to 
be certain (P. Brussard, pers. comm., 2001). Despite additional, more 
limited attempts at finding other populations in 2000 and 2001, none 
have been found (P. Brussard, pers. comm., 2000; Rebecca Niell, UNR, 
pers. comm., 2001). While results of the surveys conducted in 2001 for 
the other subspecies of Pseudocopaeodes eunus are still pending, no new 
Carson wandering skipper populations were found during these surveys 
(R. Niell, pers. comm., 2002).

Carson City Site

    The Carson City site was surveyed for the Carson wandering skipper 
by the UNR from 1997 to 2001. Only five individuals (four males and one 
female) were observed during surveys in June 1997. One possible 
sighting of a Carson wandering skipper occurred at a project site in 
1998 (Brussard et al. 1999). No individuals were observed at this site 
in 1999 or 2000 (P. Brussard, pers. comm., 2000). In 2001, searches 
were again conducted with no individuals observed (R. Niell, pers. 
comm., 2001). Habitat changes resulting from drainage manipulations for 
residential and commercial development are likely responsible for this 
possible extirpation (Brussard et al. 1999). Construction of a freeway 
bypass will eliminate and fragment the remaining habitat (5 ha (12 ac)) 
of the Carson wandering skipper at this site.
    An area just south of the Carson City site was also surveyed in 
1997 and 1998. Twelve hectares (ha) (30 acres (ac)) of potential 
habitat were present (Paul Frost, Nevada Department of Transportation 
(NDOT), in litt., 1998), however, no Carson wandering skippers were 
found during the surveys (Brussard et al. 1999). Approximately 5 ha (12 
ac) of this potential habitat will be impacted by the construction of 
the Carson Highway 395 bypass (Alan Jenne, NDOT, pers. comm., 1999). 
Brussard et al. (1997) found no other suitable habitat in the vicinity 
of Carson City in 1997.
    Because of habitat destruction, degradation, and fragmentation, the 
Carson wandering skipper has probably been extirpated from the Carson 
City site.

Washoe County Site

    The nectar site in Washoe County occurs on Bureau of Land 
Management (BLM) administered lands and adjacent private lands. This 
nectar site is estimated to be about 10 to 12 ha (25 to 30 ac), with 
approximately half of the site occurring on BLM lands and half on 
private lands (Brussard et al. 1999). The nectar source at this site 
(racemose golden-weed) is abundant, as is salt grass. A few Carson 
wandering skippers were seen approximately 1.6 km (1 mi) northeast of 
the nectar site. This suggests the Carson wandering skipper may occur 
in small numbers elsewhere in adjacent areas (Brussard et al. 1999). 
Surveys were not conducted in 1999 or 2000 at this site. In 2001, 
searches of this area were made to confirm the Carson wandering 
skipper's presence. Five individuals were found at the nectar site on 
BLM lands; private lands were not searched (Virginia Rivers, Truckee 
Meadows Community College, pers. comm., 2001).

Lassen County Site

    Two locations where the subspecies is found in Lassen County occur 
approximately 8 km (5 mi) apart. One location occurs on public lands 
managed by the California Department of Fish and Game (CDFG property). 
Another location is found on both private and public lands (private/
public property). In 1998, two individuals were observed on the CDFG 
property, while several individuals were observed at a nectar site less 
than 2 ha (5 ac) in size on the private/public property. UNR did not 
conduct surveys at either of these locations in 1999. Surveys were 
conducted in 2000 and, while several individuals were seen on the 
private/public property nectar site location, none were seen on the 
CDFG property. Salt grass is abundant in the surrounding area of the 
private/public property but the attraction appears to be the nectar 
source, which is slender birds-foot trefoil. In 2001, searches were 
conducted to confirm the Carson wandering skipper's presence. A few 
sightings (three one day and four on another day) were observed on the 
private/public property nectar site, but again, none were observed on 
the CDFG property (V. Rivers, pers. comm., 2001).

Previous Federal Action

    On May 22, 1984, we published an invertebrate wildlife Notice of 
Review in the Federal Register (49 FR 21664) designating 
Pseudocopaeodes eunus eunus as a category 2 candidate. Category 2 
candidates were those species for which we had information indicating 
that listing may be appropriate, but for which additional information 
was needed to support the preparation of a proposed rule. The entity 
now known as the Carson wandering skipper was included in P. e. eunus; 
however, in early 1995, we were informed by Mr. George Austin that the 
Carson wandering skipper was a distinct, undescribed subspecies (G. 
Austin, pers. comm., 1995). In the February 28, 1996, Notice of Review 
(61 FR 7596), we discontinued the use of multiple candidate categories 
and considered the former category 1 candidates as simply 
``candidates'' for listing purposes. The Carson wandering

[[Page 51119]]

skipper was removed from the candidate list at that time.
    Following an updated assessment of the status of the Carson 
wandering skipper and its vulnerability to threats in 1998, we included 
this taxon as a candidate species in the Notice of Review published in 
the Federal Register on October 25, 1999 (64 FR 57533), with a listing 
priority number of 12.
    A petition dated November 9, 2000, from Mr. Scott Hoffman Black, 
Executive Director, The Xerces Society, and received by the Service on 
November 10, 2000, requested that we emergency list the Carson 
wandering skipper as an endangered species throughout its range, and 
designate critical habitat concurrent with the listing. We responded in 
a letter dated February 20, 2001, that we would not publish a petition 
finding for the Carson wandering skipper because it was already listed 
as a candidate species in the most recent Notice of Review (64 FR 
57533). This meant that we had already determined that listing was 
warranted for the species. We indicated we would continue to monitor 
the status of the Carson wandering skipper, and if an emergency listing 
was warranted, we would act accordingly, or list the subspecies when 
the action was not precluded by higher priorities.
    In addition, the petitioner had also requested emergency listing of 
the entire species. We responded in our February 20, 2001, letter to 
the petitioner that we did not believe that an emergency situation 
existed at the time for the remaining subspecies. Surveys for 
Pseudocopaeodes eunus spp. were conducted in 1998 throughout potential, 
suitable habitat in Nevada and California (Brussard et al. 1999). Of 
the 78 sites (48 new; 30 historic) visited, P. eunus spp. were found at 
14 sites. Of the 30 historic sites, P. eunus spp. were found at 8 
sites. Seven areas (2 in Nevada; 5 in California) which were historic 
sites for these subspecies were not visited. We contracted with UNR to 
have additional status surveys conducted in 2001 for these other 
subspecies of P. eunus, and results of these surveys are pending. These 
surveys will assist in determining their status, and if we find that a 
listing of the remaining subspecies is warranted, we will act 
accordingly.
    On August 28, 2001, we reached an agreement with the Center for 
Biological Diversity, California Native Plant Society, Southern 
Appalachian Biodiversity Project, and Foundation for Global 
Sustainability to complete work on a number of species proposed for 
listing. Under this ``miniglobal'' agreement, we agreed to issue 
several final listing decisions, propose a number of other species for 
listing, and review three species for emergency listing, including the 
Carson wandering skipper (Center for Biological Diversity, et al. v. 
Norton, Civ. No. 01-2063 (JR) (D.D.C.), entered by the court on October 
2, 2001).
    The Carson wandering skipper was included in the October 30, 2001, 
candidate Notice of Review (66 FR 54808), but with a listing priority 
number change from a 12 to a 3. We made this change because we have 
been unsuccessful implementing actions outlined in a draft conservation 
plan for the subspecies and two additional threats appear imminent. 
These threats include: (1) A proposed water exportation project in the 
vicinity of the Washoe County site that is a potential threat to the 
subspecies and its habitat; and (2) tall whitetop (Lepidium 
latifolium), a nonnative invasive plant, becoming established at the 
Lassen County site and is a threat to the subspecies' nectar source.
    On November 29, 2001, we issued an emergency rule listing the 
Carson wandering skipper as an endangered species because we found that 
a number of threats constituted immediate and significant risk to the 
subspecies (66 FR 59537). A proposed rule to list the Carson wandering 
skipper was published in the Federal Register concurrently with the 
emergency rule (66 FR 59550). The proposed rule opened a 60-day comment 
period which closed on January 28, 2002.
    On May 7, 2002, we reopened the public comment period to allow 
additional time for all interested parties to submit written comments 
on the proposal, and to give notice of a public informational meeting 
(67 FR 30645). The comment period was open for 30 days and closed June 
6, 2002.
    The Carson wandering skipper was included in the Candidate Notice 
of Review (67 FR 40657) published June 13, 2002.

Summary of Comments and Recommendations

    In the November 29, 2001, proposed rule (66 FR 59550), we requested 
that all interested parties submit factual reports, information, and 
comments that might contribute to the development of the final listing 
decision. We contacted appropriate State and Federal agencies, county 
and city governments, scientific organizations and authorities, and 
other interested parties and requested them to comment. We published 
legal notices in the Nevada Appeal on December 16, the Lassen County 
Times on December 18, and the Reno Gazette Journal on December 19, 
2001. Following the publication of the proposed rule, we received a 
total of 183 comments from individuals or organizations. We opened a 
second comment period on May 7, 2002 for 30 days to give the public 
additional time to comment (67 FR 30645). We also held a public 
informational meeting in Susanville, CA on May 22, 2002. We received an 
additional 248 comments during the second comment period, for a total 
of 431 comments. Of the comments received, 263 were in support of the 
listing action, 165 were opposed to the listing, and 3 were neutral. 
Comments providing additional information were incorporated where 
appropriate. We have addressed each of the substantive issues raised by 
commenters and grouped them into several issues that are discussed 
below.
    Issue 1: A number of commenters were opposed to the listing stating 
there was a lack of information to support a listing of the Carson 
wandering skipper as endangered.
    Our Response: Since its discovery in 1965, data collections of the 
Carson wandering skipper have been limited to surveys, literature 
review, and collection records. The best scientific and commercial data 
available indicate the subspecies occurs at only two known sites and 
has been extirpated from a third site.
    Geographic Information System modeling was incorporated into the 
Brussard et al. (1999) study to identify potential habitats for 
surveying. All records of P. eunus from various sources were compiled. 
Habitat characteristics, based on the records as well as areas of salt 
desert scrub and low elevation sagebrush vegetation and water sources 
along eastern California and western Nevada, were mapped. A total of 78 
sites, 30 historic sites and 48 potential new sites were surveyed for 
the Carson wandering skipper and the other subspecies to assist in 
determining the Carson wandering skipper's range. Twenty-two of these 
historic and potential sites were located in the northern areas within 
the potential range of the Carson wandering skipper. As a result of 
surveys, two new populations of the Carson wandering skipper were 
found. The Carson City historic population of Carson wandering skipper 
is believed extirpated. At this time, only two known populations are 
extant. All of the surveys were conducted by qualified field biologists 
during the proper time of year and time of day when the Carson 
wandering skipper could reasonably be expected to be active, evident, 
and identifiable.

[[Page 51120]]

    We have prepared a survey protocol to determine habitat suitability 
and presence or absence of the Carson wandering skipper, and to provide 
consistency among surveyors. This protocol is currently being used by 
consultants reviewing various current and proposed projects during the 
2002 survey season. We will evaluate the appropriateness of the 
protocol for accuracy, usefulness of data, and implementation, and the 
protocol will be revised as needed. Additional monitoring of occupied 
sites will be needed to determine population sizes and trends in the 
future.
    Surveys to estimate population size of the Carson wandering skipper 
have not been conducted. We recognize that population estimates refine 
our understanding of the status of the subspecies. However, the 
abundance of insect species can fluctuate greatly from year to year. 
Some insects may be abundant in localized populations yet susceptible 
to extirpation by a single event. Therefore, estimates of abundance are 
not necessarily adequate to determine whether a species is threatened 
or endangered. We based our determination to list the Carson wandering 
skipper on evaluation of the current and future threats from the five 
factors listed in section 4 (a) of the Act.
    We acknowledge that undiscovered sites occupied by the Carson 
wandering skipper may exist and appreciate comments mentioning other 
areas where the Carson wandering skipper and suitable habitat may 
occur. However, until the existence of additional populations can be 
verified and threats, if any, can be determined in these areas, we 
consider the Carson wandering skipper an endangered species.
    Issue 2: Some commenters were opposed to the listing of the Carson 
wandering skipper because they believed it would cause negative 
economic impact to the agricultural community.
    Our Response: Under section 4 (b)(1)(A) of the Act, a listing 
determination must be based solely on the best scientific and 
commercial date available. The legislative history of this provision 
states the intent of Congress is to ensure that listing decisions are 
``based solely on biological criteria and to prevent non-biological 
considerations from affecting these decisions,'' H.R. Rep. No. 97-835, 
97th Cong., 2nd Sess. 19 (1982). The legislative history also provides 
that, ``applying economic criteria * * * to any phase of the species 
listing process is applying economics to the determinations made under 
section 4 of the Act and is specifically rejected by the inclusion of 
the word ``solely'' in the legislation,'' H.R. Rep. No. 97-835, 97th 
Cong. 2nd Sess. 19 (1982). Therefore, we are precluded from considering 
economic impacts in a final decision to list a species.
    Issue 3: Other commenters stated that grazing was not a threat to 
the Carson wandering skipper. Many held this position based on the fact 
that the extirpation of a population of Carson wandering skipper 
occurred because of urban and residential development rather than 
agricultural land use. Many stated that grazing was not a threat to the 
Carson wandering skipper because salt grass was resistant to grazing 
and trampling by livestock. Others stated grazing is beneficial to 
butterflies. In addition, the nectar source, slender birds-foot 
trefoil, was introduced by farmers and ranchers in the area for pasture 
production, and the Carson wandering skipper has been utilizing this 
plant as a nectar source and is successful because of it.
    Our Response: While the recently extirpated Carson wandering 
skipper population in Carson City was in an urban setting, the rural 
landscape in Nevada and California has also been altered over time. 
Grazing occurs at both known sites. Livestock grazing can impact: (1) 
Species composition of communities by decreasing the density and 
biomass of species, reducing species richness, and changing community 
organization; (2) ecosystem function including the disruption of 
nutrient cycling and succession; and (3) ecosystem structure including 
altering vegetation stratification, contributing to soil erosion and 
reducing the availability of water to biotic communities (Fleischner 
1994). Hutchinson and King (1980) found abundance and biomass of 
invertebrates (including butterflies (Lepidoptera)) were reduced (with 
the exception of ants (Hymenoptera)) with increases in sheep numbers. 
Excessive grazing that reduces the availability of salt grass for 
Carson wandering skipper larvae and availability of nectar sources for 
the adults is considered a threat.
    We recognize that different grazing intensities and management 
practices can impact areas differently, and impacts at each site must 
be evaluated independently. However, we have identified grazing as a 
threat to several butterfly species that have been listed under the Act 
(e.g., Uncompahgre fritillary butterfly (Boloria acrocnema) (56 FR 
28712); Myrtle's silverspot butterfly (Speyeria zerene myrtleae) (57 FR 
27858); Quino checkerspot butterfly (Euphydryas editha quino) (62 FR 
2322); Callippe silverspot butterfly (Speyeria callippe callippe) and 
Behren's silverspot butterfly (Speyeria zerene behrensii) (62 FR 
64320)). Grazing occurs at both of the known nectar sites. While we do 
not know the level or intensity of grazing at these sites, and 
acknowledge that specific impacts at these sites must be evaluated, we 
identified a concern that excessive grazing can threaten the species 
when it reduces the availability of salt grass for the larvae or nectar 
sources for the adults, or results in the trampling of the larvae. We 
recognize that grazing, at an appropriate level and season, may be 
compatible with the conservation of the skipper at these sites. 
However, such appropriate levels are not known at this time and must be 
assessed during the recovery process.
    As noted by several commenters, salt grass is known to be resistant 
to grazing and trampling (Crampton 1974; Nebraska Cooperative Extension 
Service 1985). However, this does not mean that livestock will not 
graze or trample the salt grass. The term ``resistant'' means that salt 
grass is not killed by grazing or trampling and recovers well. Our 
concerns with impacts from grazing and trampling of salt grass to the 
Carson wandering skipper relate to the availability of food for the 
larvae, and the direct trampling of the larvae which are feeding on the 
salt grass, not impacts to salt grass itself.
    As stated by commenters, slender birds-foot trefoil, a nonnative, 
has been planted in agricultural lands as a forage for cattle and has 
been utilized by the Carson wandering skipper. The presence of a nectar 
source is not the only factor influencing the occurrence of Carson 
wandering skippers. The nectar source location in relation to salt 
grass is also important and it may be too far from emerging adults to 
be utilized. Butterflies, in general, are less selective with regard to 
their nectar sources than they are about their larval host plants 
(Brussard et al. 1999). Flowers that are the proper size for the 
butterfly's proboscis (mouthparts) and that produce a sugar 
concentration of 15 to 25 percent are likely to be utilized (Kingsolver 
and Daniel 1979). As a result, nectar sources for a particular species 
can vary by locality and by season (Brussard et al. 1999). While the 
Carson wandering skipper has been observed nectaring on slender birds-
foot trefoil, other plants in the area may offer additional nectar 
sources as well. If cattle are foraging on slender birds-foot trefoil 
during the adult flight period, the availability of slender birds-foot 
trefoil as a nectar source may be reduced. Given these considerations 
and the Carson wandering skipper's rarity,

[[Page 51121]]

grazing and trampling by livestock can significantly impact the 
subspecies and should be assessed in the recovery process.
    Issue 4: Four commenters preferred that a collaborative 
conservation approach occur between the Service and local entities and 
individuals rather than a listing of the Carson wandering skipper under 
the Act. They suggested that listing the Carson wandering skipper would 
inhibit efforts to maintain and restore Carson wandering skipper 
habitat and likely prevent access to private lands. They proposed 
development of a process which would be ``more informal, less 
restrictive'' than what could occur under the Act.
    Our Response: We strongly support the concept of utilizing a 
collaborative conservation effort to address the threats to species 
such that the need to list them is precluded. However, given the time 
needed to complete such an effort and the lack of protective measures 
afforded by the Act during the process, this type of approach is not 
well suited for species which are imminently threatened with 
extinction. We worked with agencies in Nevada and California, and a 
landowner in Nevada, and a draft conservation plan for the subspecies 
was developed in 2000. However, we were unable to obtain the 
information and commitment necessary to reduce or eliminate the threats 
to the Nevada and California populations. Given the immediate and 
significant threats to the Carson wandering skipper, we believe listing 
is necessary to put into effect the various conservation provisions in 
the Act including, but not limited to, interagency consultation, 
recovery planning, and take prohibitions as well as cooperative efforts 
with each State. We look forward to working with Federal, State, 
county, and private entities in development of a recovery plan to 
address the conservation needs of the Carson wandering skipper.
    Issue 5: Three commenters stated that they believed that the 
emergency and proposed listing of the Carson wandering skipper was 
solely the result of the ``miniglobal'' lawsuit agreement and not 
science.
    Our Response: As stated earlier, our ``miniglobal'' agreement 
provided we would review the status of the Carson wandering skipper to 
determine if emergency listing was appropriate. Based on our review of 
the available information, we believed emergency listing of the Carson 
wandering skipper was appropriate and adding it to the list of 
threatened and endangered species as endangered is also appropriate at 
this time.
    Issue 6: Two commenters suggested that the Service list the Carson 
wandering skipper as threatened rather than endangered because this 
would enable the Service to protect the subspecies from urban 
pressures.
    Our Response: We make a determination as to whether a species is 
threatened or endangered based on the magnitude of threats and the 
imminency of extinction. The term ``endangered'' is defined according 
to section 3(6) of the Act as ``* * * any species which is in danger of 
extinction throughout all or a significant portion of its range * * 
*''. A ``threatened species'' is defined as ``* * * any species which 
is likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range.''
    Threats to this subspecies include habitat destruction, 
degradation, and fragmentation due to urban and residential 
development, wetland habitat modification, agricultural practices (such 
as excessive livestock grazing), gas and geothermal development, 
nonnative plant invasion, collecting, livestock trampling, water 
exportation/importation projects, road construction, recreation, 
pesticide drift, and inadequate regulatory mechanisms. Given that only 
two populations are known to exist, we find these threats constitute 
immediate and significant threats to the Carson wandering skipper. 
Based on the available information, we believe that endangered status 
is appropriate for the Carson wandering skipper.
    Issue 7: Two commenters thought that groundwater exportation was 
not a threat to the Lassen County Carson wandering skipper population 
because Lassen County restricts transfer of groundwater out of the 
County under the 1999 Lassen County General Plan.
    Our Response: The potential water development project that could 
impact the Lassen County population involves exportation of water from 
the Honey Lake Valley which is located in both Lassen County, 
California and Washoe County, Nevada. It is our understanding that the 
extraction would occur in the Washoe County portion of the Honey Lake 
Valley. While Lassen County may not support exportation of surface or 
ground waters from aquifers located in Lassen County, it is unclear, 
after review of the Lassen County General Plan Ordinance No. 539 (Andy 
Whiteman, Lassen County Board of Supervisors, in litt., 2002), how it 
could prevent actions taken by Washoe County, Nevada.
    Issue 8: Two commenters stated that the Service has potentially 
extended its jurisdiction unlawfully by listing habitat modification 
under the heading of activities that we believe could potentially 
result in a violation of section 9, ``without identifying an actual 
Carson wandering skipper specimen that has been taken.'' The commenters 
expressed the opinion that a direct impact is necessary before take has 
occurred.
    Our Response: We have not extended our jurisdiction under section 9 
of the Act. As stated in the listing, it is our policy (59 FR 34272) to 
identify, to the maximum extent practicable, those activities that we 
believe may or may not constitute a violation of section 9 of the Act. 
The intent of this policy is to increase public awareness of the 
effects of the listing on proposed and ongoing activities within the 
species' range.
    With regard to take, under the Act Federal agencies must address 
both indirect and direct impacts of activities they authorize, fund, or 
carry out, that may impact listed species and consult with us under 
section 7 of the Act. Also, under the Act, private entities must 
address indirect and direct impacts of activities that result in take 
of a listed species in order to be issued a permit exception from us 
for activities that incidentally take listed species but are otherwise 
lawful. This process occurs under section 10 of the Act and is separate 
from a listing action which is addressed in section 4 of the Act.
    Issue 9: One commenter questioned whether urban development was a 
threat to the Lassen County Carson wandering skipper population because 
the area was zoned for agriculture and limited development pressure was 
occurring.
    Our Response: Limited urban or residential development is occurring 
at both known sites. One example of development is the construction of 
the Federal Correctional Institution (Institution) in the vicinity of 
the Lassen County site. Not only can the construction of buildings and 
infrastructure impact Carson wandering skipper habitat directly, the 
withdrawal of water for home and business needs could impact 
groundwater resources. If the water table is lowered, and changes the 
salt grass community, the Carson wandering skipper may be impacted.
    The Lassen County General Plan policies related to zoning (Policies 
AG-4, AG-8) (A. Whiteman, in litt., 2002), do not prohibit development 
in the area. Policy AG-4 supports agricultural uses and does not allow 
isolated subdivision in non-designated areas, but does allow for 
exceptions. Policy AG-8 recognizes that agricultural areas may be 
evaluated for alternative uses. Agricultural lands can be converted 
with adequate

[[Page 51122]]

justification and consideration of related policies. Again, exceptions 
may occur. It is unclear whether the Carson wandering skipper site 
located partially on private land would be considered a ``significant 
wild habitat'' by Lassen County. Therefore, it is unclear whether or 
not it would be taken into consideration prior to possible conversion 
from agricultural lands to an alternate land use. The Lassen County 
General Plan also does not address the potential indirect effects of 
development (A. Whiteman, in litt., 2002).
    Issue 10: One commenter questioned whether tall whitetop was a 
threat to Carson wandering skipper habitat because there was no 
scientific evidence to support it. However, the commenter did also 
state that tall whitetop ``* * * infestations most likely have a 
negative impact on salt grass and bird's-foot trefoil density.''
    Our Response: While it is correct that a study specific to the 
impacts of tall whitetop invasion at a Carson wandering skipper nectar 
site has not been conducted, tall whitetop is a threat to other native 
species. Tall whitetop is an aggressive invader that displaces other 
vegetation and can form monotypic stands (an area comprised of one 
species), decreasing biodiversity, and degrading wildlife habitat as 
well as reducing the value of agricultural lands (Young et al. 1995; 
Donaldson and Johnson 1999; Krueger and Sheley 1999; Howard 2000). The 
species is known to grow in alkaline soils (Hickman 1993; Young et al. 
1995; Howard 2000) but is not restricted to them. Tall whitetop can 
invade disturbed and undisturbed sites including roadsides, 
agricultural fields, pastures, riparian areas, alkaline wetlands, 
natural areas, and irrigation canals (Donaldson and Johnson 1999; 
Howard 2000). It has become widely established in Lassen County and is 
found in Honey Lake Valley, California (Howard 2000). We are concerned 
that tall whitetop will displace the Carson wandering skipper's nectar 
source at the Lassen County site. We are also concerned that tall 
whitetop may displace salt grass, the Carson wandering skipper's larval 
host plant. According to Young et al. (1998), infestation areas, once 
well established, rarely contain other plant species. Tall whitetop 
appears to have increased at this nectar site compared to 2001 (V. 
Rivers, pers. comm., 2002).
    We support efforts to control tall whitetop in Lassen County and 
elsewhere in Nevada and California. However, where the Carson wandering 
skipper is found, consideration must be given to any impacts of control 
methods. Appropriate methods must be selected, so that the Carson 
wandering skipper (or other sensitive wildlife, plants, or habitats) 
can be protected at the same time tall whitetop is controlled.
    Issue 11: One commenter stated that pesticide use was not a threat 
because Carson wandering skippers still occur adjacent to an alfalfa 
field, and farmers have to pass a safety test prior to applying 
pesticides.
    Our Response: We have indicated that the use of pesticides adjacent 
to the Carson wandering skipper population in question could be a 
potential threat if pesticide drift occurred because of the proximity 
of the agricultural fields to the species' habitat. We do not know what 
precautions, if any, are being taken at this time to prevent any 
impact.
    Issue 12: One reviewer thought the Service should consider listing 
the entire species as endangered.
    Our Response: As indicated earlier in this rule, a petitioner 
requested emergency listing of the entire species on November 9, 2000. 
In our February 20, 2001, response, we indicated we did not believe 
that an emergency situation existed at that time. Additional status 
surveys were conducted in 2001 for the remaining subspecies. The 
results of these surveys are pending, but they should assist us in 
determining the status of the additional subspecies and determining any 
threats to them. If our ongoing status review indicates a listing is 
warranted, we will act accordingly.
    Issue 13: One commenter did not think critical habitat should be 
designated because the Carson wandering skipper has occurred in very 
small numbers within a few kilometers/miles of the known nectar sites 
and may exist at low numbers over large areas. Its ecology suggests 
that areas of relatively high population density may shift among sites 
within the salt grass community based on changes in climatic, 
hydrographic, and geothermal conditions. Accurately designating 
critical habitat will be difficult because either large areas of 
unoccupied habitat would need to be designated, or if small patches of 
habitat were designated, changing environmental conditions could result 
in these areas being uninhabited at a later date.
    Our Response: Because information about the specific biological 
needs of the Carson wandering skipper is currently limited, we are not 
able to adequately perform critical habitat designation analysis at 
this time, and find that critical habitat for the species is not 
determinable. In the proposed rule, we specifically solicited 
information on potential critical habitat, biological information, and 
information that would aid our prudency analysis. We received no 
comments regarding specific physical or biological features essential 
for the Carson wandering skipper which provided information that added 
to our ability to determine critical habitat. When we find that 
critical habitat is not determinable, we have two years from the 
publication date of the original proposed rule to designate critical 
habitat, unless the designation is found to be not prudent.
    Issue 14: One commenter noted that the description of the Carson 
wandering skipper by Austin and Emmel (1998) suggests that, 
infrequently, other subspecies of Pseudocopaeodes eunus approach the 
coloration of P. e. obscurus. Therefore, the commenter questioned the 
appropriateness of this subspecies. The commenter was also concerned 
that the designation ``ssp.'' had not been included in the scientific 
name for the Carson wandering skipper indicating that a subspecies was 
being discussed.
    Our Response: It is correct that Austin and Emmel (1998) indicated, 
as mentioned above, that infrequently, specimens from other populations 
approach the less heavily marked extremes of the Carson wandering 
skipper. These specimens do not, however, give the impression of an 
insect with a dark ventral hindwing, and they lack the dark apex on the 
ventral forewing. The Carson wandering skipper has been described by 
recognized authorities in a peer reviewed publication.
    We do not use ``ssp.'' to denote an animal subspecies, only plant 
subspecies. The absence of its use in animal scientific names does not 
indicate uncertainty in its taxonomic definition.
    Issue 15: One commenter was concerned with the lack of information 
provided regarding habitat requirements for the Carson wandering 
skipper. It was suggested that, because soils are effective in 
discriminating environmental units, soil survey maps be utilized to 
delineate habitat for the Carson wandering skipper.
    Our Response: We agree that additional information regarding Carson 
wandering skipper's habitat requirements would be useful. However, 
under the Act, the absence of more details regarding habitat 
requirements for a species or subspecies does not prevent the listing 
of the taxon. Habitat requirements for butterflies are primarily 
defined by its larval host plant, in this case, salt grass. While soils 
can be an effective means of indicating vegetation communities, salt 
grass has been observed in many soil types.

[[Page 51123]]

Researchers did review soil survey maps during the Carson wandering 
skipper surveys of 1998; however, salt grass did not appear to follow 
soil survey boundaries and as a result, they were not particularly 
helpful (P. Brussard, pers. comm., 2002b).
    Issue 16: One commenter stated that when the Endangered Species Act 
was originally passed it ``* * * did not contemplate the extinction of 
creatures of the phylum Insecta; it was aimed at the protection of 
vertebrate species.''
    Our Response: When the Endangered Species Act was passed in 1973, 
it provided for protection of insects and other invertebrate species. 
At the time of its passage, definitions for the purposes of the Act 
were found in section 3(5) which stated: ``The term `fish or wildlife' 
means any member of the animal kingdom, including without limitation 
any mammal, fish, bird (including any migratory, nonmigratory, or 
endangered bird for which protection is also afforded by treaty or 
other international agreement), amphibian, reptile, mollusk, 
crustacean, arthropod or other invertebrate, and includes any part, 
product, egg, or offspring thereof, or the dead body or parts 
thereof.'' Several amendments to the Act have since occurred, and this 
definition can be found today in section 3(8) of the Act.
    Issue 17: One commenter asked what information would be necessary 
for delisting of the Carson wandering skipper.
    Our Response: The listing of a species is based on the best 
scientific and commercial data available at the time of listing as it 
relates to addressing the five listing factors defined under section 4 
(a)(1) of the Act. Section 4 regulations (50 CFR 424.11(c-f)) provide 
guidance regarding the applicable criteria for delisting and 
reclassifying species. Delisting of a species can occur if: (1) The 
species is extinct or has been extirpated from its previous range; (2) 
the species has recovered and is no longer endangered or threatened; or 
(3) investigations show that the best scientific or commercial data 
available when the species was listed or the interpretations of such 
data were in error. The requirements for listing and delisting are 
different in that the information necessary to resolve the threats and 
recover the species need not be known at the time of listing. Specific 
recovery criteria, which define when a species may be downlisted or 
delisted, are developed for each species during the recovery planning 
process and are published in the recovery plan for the species.
    Issue 18: One commenter repeated a comment the Service made that 
the Carson wandering skipper is rare in and of itself. The commenter 
states that ``rare does not mean endangered''.
    Our Response: The commenter is correct. Just because a species is 
rare does not mean it should automatically be listed under the Act. 
However, if a rare species is determined to be threatened or endangered 
based on the listing factors in section 4 (a)(1) of the Act using the 
best scientific and commercial data available, it should be considered 
for listing.
    Issue 19: One commenter stated that there had been insufficient 
time to gather information, research it, and comment on it by the 
public.
    Our Response: A 60-day comment period was opened when the proposed 
rule was published. An additional 30-day comment was opened to provide 
opportunity for further public input. In addition, a public 
informational meeting was held to answer questions regarding the 
species and the proposed rule. We believe that the 60-day and 30-day 
comment periods and the informational meeting provided adequate 
opportunity for the public to gather available information and comment 
on the proposed listing.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we have sought the expert opinions of four appropriate and 
independent specialists regarding our proposal to list the Carson 
wandering skipper. The purpose of these reviews is to ensure that 
listing decisions are based on scientifically sound data, assumptions, 
and analyses. We sent the peer reviewers copies of the emergency and 
proposed rules immediately following their publication in the Federal 
Register. Three of the four reviewers returned comments during the 
comment period. Two of the three reviewers supported our assumptions 
and conclusions as well as our decision to list the Carson wandering 
skipper as endangered, while a third reviewer was neutral in his 
opinion of our proposed action. We have incorporated their comments 
into this final determination.

Summary of Factors Affecting the Species

    Section 4 of the Act and regulations (50 CFR part 424) promulgated 
to implement the listing provisions of the Act (16 U.S.C. 1531 et seq.) 
set forth the procedures for adding species to the Federal lists. We 
may determine a species to be endangered or threatened due to one or 
more of the five factors described in section 4(a)(1). These factors 
and their application to the Carson wandering skipper are as follows:

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

    The primary cause of the decline of the Carson wandering skipper is 
loss of salt grass, nectar sources, and wetland habitats from human 
activities. Threats include habitat fragmentation, degradation, and 
loss due to urban and residential development, wetland habitat 
modification, agricultural practices (such as excessive livestock 
grazing), nonnative plant invasion, gas and geothermal development, 
road construction, water exportation projects with their subsequent 
change in water table levels and plant composition, and recreation. 
Threats at each known or historic site are discussed below.
Carson City Site
    Habitat at the original Carson City site has been greatly modified 
over time, and most of it was destroyed by construction of a shopping 
center (Brussard et al. 1999). Several years later, an extension of 
this population was discovered north of the original location (Brussard 
et al. 1999). The current site includes about 10 ha (24.7 ac) of known 
and potential Carson wandering skipper habitat (P. Frost, in litt., 
1998). Collections were made at this site from the late 1960s through 
the early 1990s, although population numbers were small (Austin and 
Emmel 1998; Brussard et al. 1999). In the 1990s, additional urban 
development further reduced the remaining habitat, and the site is now 
completely surrounded by development. Adult Carson wandering skippers 
have not been observed at this location since 1997.
    The Carson wandering skipper has likely been extirpated from the 
Carson City site due to development and habitat changes resulting from 
drainage manipulations for residential and commercial development 
(Brussard et al. 1999). Adjacent lands surrounding this site will 
continue to be developed for commercial and residential use.
    The remaining habitat at the type locality will also be fragmented 
or destroyed by construction of a freeway bypass and associated flood 
control facilities being planned by the Nevada Department of 
Transportation (NDOT). The bypass was approved and the right-of-way 
corridor was purchased several years ago. At the time, this was the 
only known site occupied by the Carson wandering skipper. The only 
suitable nectar source available during the

[[Page 51124]]

Carson wandering skipper's flight season at this site was the native 
mustard, Thelypodium crispum (Brussard et al. 1999). Construction of 
the bypass began in 2000 and impacts to Carson wandering skipper 
habitat will likely occur in 2002 (Julie Ervin-Holoubek, NDOT, pers. 
comm., 2001). The alignment will impact approximately 2.4 ha (6 ac) of 
previously occupied habitat, and about 8 ha (20 ac) of the potential 
habitat remaining at both areas north and south of U.S. 50 (P. Frost, 
in litt., 1998). According to Brussard (2000), this will leave 
inadequate habitat to support a restored population.
    Habitat loss and modifications of the Carson City site have also 
occurred due to the construction of a wetland mitigation area in the 
early 1990s to mitigate for wetlands lost approximately 0.8 km (0.5 mi) 
southwest of this site. The U.S. Army Corps of Engineers (Corps) issued 
a section 404 permit on March 10, 1993, for a residential housing and 
golf course project, impacting about 2 ha (5 ac) of wetlands. 
Mitigation for these impacts involved the creation of 9 ha (22 ac) of 
intermittent, seasonal, and semi-permanent wetlands adjacent to the 
existing wetlands (Robert W. Junell, Corps, in litt., to Charles L. 
Macquarie, Lumos and Associates, Inc. 1993; Lumos and Associates, Inc. 
1993). To date, this mitigation site has not met its objectives to 
provide high-value urban wetlands and enhance wetland function (Nancy 
Kang, Corps, in litt., to Dwight Millard, J.F. Bawden and Stanton Park 
Development 2001).
    In addition, this site is used for recreation by walkers and 
mountain and dirt bikers in the remaining open area.
Washoe County Site
    Threats at the Washoe County site include excessive livestock 
grazing and trampling, residential development, increased potential 
recreational use, such as off-road vehicles (ORV), a proposed water 
exportation project, and potential impacts associated with pesticide 
drift.
    Recent grazing practices on BLM-administered lands at the Washoe 
County site allowed for a November to March grazing season. Although 
this season of use avoided impacts to adult Carson wandering skipper 
nectar sources and impacts to eggs, larvae, and pupae during the spring 
and summer, high livestock densities can cause larval mortality by 
trampling larvae that hibernate during the winter in salt grass. On 
adjacent private lands, cattle densities and season of use are not 
regulated, and cattle have access to areas occupied by nectar sources 
during the Carson wandering skipper flight season. Livestock can 
trample the salt grass and nectar sources and also cause direct 
mortality of eggs, pupae, or feeding larvae. While the level of grazing 
on salt grass has not been measured at this site, cattle readily 
utilize this dominant forage species (Walt Devaurs, BLM, pers. comm., 
2001), possibly competing with larval needs.
    An assessment of the springs located on the BLM portion of this 
site occurred in 2001 (Daniel Jacquet, BLM, in litt., 2002). Cattle use 
of this area resulted in the springs being determined ``Functional at 
Risk'' and ``Non-functional,'' indicating that the springs were not in 
good condition. As a result of this determination, livestock grazing 
will be excluded from this area for 3 years or through the 2005 growing 
season to rehabilitate the area. This exclusion should improve the 
abundance and quality of nectar sources and salt grass habitat for the 
Carson wandering skipper. Grazing may be allowed after this 3-year 
period if it is determined that improvement to the springs has 
occurred. While long-term monitoring data of salt grass are lacking, 
transects established in March 2002, indicate overall utilization was 
in the ``heavy to severe range.'' BLM will monitor the site annually 
for the 3-year period for improvement in growth of vegetation.
    Residential development is occurring in the area surrounding the 
Washoe County site. Increases in domestic wells could impact the water 
table in the area, resulting in changes to the salt grass community. As 
this area becomes more populated, fragmentation and degradation of the 
Carson wandering skipper's habitat is expected to increase through 
development and recreational activities such as ORV use. Also, use of 
public lands for recreation will likely increase as the area becomes 
more developed.
    The Nevada State Engineer's Office approved change-in-use 
applications (agricultural to municipal and industrial use) (Hugh 
Ricci, Nevada Department of Conservation and Natural Resources, 
Division of Water Resources, in litt., 2001) for a private landowner 
plan to export water from this valley and import it to a neighboring 
valley. This project will involve the collection of up to 358 hectare-
meters (ha-m) (2,900 acre-feet (ac-ft)) per year of surface and ground 
water through a system of ditches, natural channels, diversion 
structures, collection facilities, and recovery wells. The recovered 
water will be treated and exported via pipeline to the neighboring 
valley (Stantec Consulting, Inc. 2000). Implementation of this project, 
or a similar one, could result in the lowering of the water table in 
the valley and result in adverse changes to the salt grass community 
upon which the Carson wandering skipper at this site depends. In 
addition, the construction of facilities could result in direct impacts 
to Carson wandering skipper habitat.
    Another potential threat is pesticide drift from alfalfa fields 
located near to the occupied nectar site. Pesticides are used to 
control pests such as aphids, cutworms, grasshoppers, and mites 
(Carpenter et al. 1998.). Pesticide drift from these fields to the 
nectar site could eliminate a large part of the Carson wandering 
skipper population (Brussard 2000).
Lassen County Site
    Threats at the Lassen County site include the invasion of the 
nonnative plant species tall whitetop, proposed gas and geothermal 
development, urban development, and the potential for excessive 
livestock grazing and trampling. A water development project, which 
could affect the ground water table, is also of concern.
    Tall whitetop, which was first noted in 2000, has encroached onto 
the nectar site on the public/private property and has become 
established in patches of slender birds-foot trefoil, this site's 
nectar source. Tall whitetop is a perennial native to Europe and Asia 
which grows in disturbed sites, wet areas, ditches, roadsides, and 
cropland. Spreading roots and numerous seeds make this plant difficult 
to control (Stoddard et al. 1996). No further advancement of tall 
whitetop into the nectar site was observed during visits in 2001 (V. 
Rivers, pers. comm., 2001), but it appears to have spread in 2002 (V. 
Rivers, pers. comm., 2002). The surrounding countryside, including both 
public and private lands, is infested (Howard 2000). Failure to control 
this invasive species could quickly result in the loss of this small 
nectar source and the immediate salt grass area (Young et al. 1998). 
Depending on the control methods used (herbicide treatments or 
mechanical means) and timing, efforts to control this plant species 
could also impact the Carson wandering skipper population and its 
habitat at this site. To date, the Carson wandering skipper has not 
been observed nectaring on tall whitetop.
    A permit for proposed gas and geothermal development has been 
recently extended by the Lassen County Planning Commission (Albaugh 
2002). The permit allows exploratory drilling

[[Page 51125]]

for 14 hydrocarbon wells and one geothermal water test well near the 
occupied site. The Carson wandering skipper has been associated with 
geothermal areas and the resulting ground and hydrologic disturbances 
caused by the exploratory drilling may impact the subspecies and its 
habitat.
    Construction of the Federal Correctional Institution, and its 
associated water supply and wastewater treatment facilities for the 
Institution and adjacent community, could impact Carson wandering 
skipper habitat. The increased water needs (approximately 757 million 
liters (200 million gallons) per year) (The Louis Berger Group, Inc. 
2002) for the project could impact Carson wandering skipper habitat if 
the ground water table is lowered and salt grass habitat is negatively 
affected. The Federal Bureau of Prisons is currently consulting with us 
on the potential impacts of this project to the Carson wandering 
skipper.
    Cattle have access to the Lassen County site at the private/public 
lands location, however, it is unknown at this time what type of 
management is being implemented. Like the Washoe County site, season of 
use and densities of livestock can affect the availability of nectar 
sources for adults and salt grass for larvae. Trampling of larvae is 
also possible. In addition, the small size of this site makes it more 
susceptible to adverse impacts.
    Additional potential threats include attempts to export water from 
the area to other locations. In 1991, the Nevada State Engineer 
approved exportation of 1,604 ha-m (13,000 ac-ft) of groundwater per 
year from Honey Lake Valley, located in Lassen and Washoe counties to 
Lemmon and Spanish Springs Valleys, Washoe County. In 1993, a draft 
Bedell Flat Pipelines Rights-of-Way, Washoe County, Nevada 
Environmental Impact Statement was prepared (BLM 1993). Further work on 
the Bedell Flats Project by BLM was suspended by the Secretary of the 
Interior (Secretary) in 1994 due to concerns with groundwater modeling, 
groundwater contamination, and potential impacts to Pyramid Lake (Bruce 
Babbitt, U.S. Department of the Interior, in litt., 1994). The project 
has since been modified by new water rights holders, and there are 
future plans, not yet approved, to potentially export 987 ha-m (8,000 
ac-ft) of groundwater annually from Honey Lake Valley to the North 
Valleys (Donald Pattalock, Vidler Water Company, pers. comm., 2002). If 
this project, or a similar project, is implemented, lowering of the 
water table could occur and result in adverse changes to the salt grass 
community upon which the Carson wandering skipper depends.

B. Over-Utilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Rare butterflies and moths are highly prized by collectors, and an 
international trade exists for insect specimens for both live and 
decorative markets, as well as the specialist trade that supplies 
hobbyists, collectors, and researchers (Morris et al. 1991; Williams 
1996). The specialist trade differs from both the live and decorative 
market in that it concentrates on rare and threatened species (U.S. 
Department of Justice 1993). In general, the rarer the species, the 
more valuable it is, and prices may exceed US $2,000 for rare specimens 
(Morris et al. 1991).
    Simply identifying a species as rare can result in an increase in 
commercial or scientific interest, both legal and illegal, which can 
threaten the species through unauthorized and uncontrolled collection 
for scientific and/or commercial purposes. Even limited collection from 
small populations can have adverse impacts on their viability.
    While there have been no studies on the impact of the removal of 
individuals from natural populations of this subspecies, it is possible 
that the Carson wandering skipper has been adversely affected. At the 
Carson City site, individuals of the Carson wandering skipper are known 
to have been collected for personal butterfly collections during the 
late 1960s until the early 1990s, though populations were small (Austin 
and Emmel 1998; Brussard et al. 1999). From 1965 to 1989, at least 86 
males and 90 females were collected during 7 different years by various 
collectors (Austin and Emmel 1998). During this time, this was the only 
known site at which Carson wandering skipper occurred. The Carson 
wandering skipper is now believed to have been extirpated from the 
site. While habitat degradation and loss have occurred at this site, 
collecting may have also contributed to this extirpation.
    In 1998, the Carson wandering skipper was collected at the Washoe 
County and Lassen County sites by UNR researchers for genetic analysis. 
Only males were collected, and these were taken late in the flight 
season to minimize impacts to the population (Brussard et al. 1999).
    The two known populations of Carson wandering skipper could face 
strong pressure from collectors. Since the nectar sites occur along 
public roadsides, the subspecies is easily accessible, and the limited 
number and distribution of these populations make this subspecies 
vulnerable to collectors. Even limited collection from the small 
populations of Carson wandering skipper could have deleterious effects 
on its viability and lead to the eventual extinction of this 
subspecies.

C. Disease or Predation

    Disease is not known to be a factor affecting this subspecies at 
this time.
    Predation by species, such as birds or insects, on eggs, larvae, 
pupae, or adult Carson wandering skippers is likely, but it is unknown 
how this may affect the population's viability.

D. The Inadequacy of Existing Regulatory Mechanisms

    The Carson wandering skipper occurs on Federal, State, and private 
lands. Existing regulatory mechanisms do not fully protect this 
subspecies or its habitat on these lands. Existing regulatory 
mechanisms that may provide some protection for the Carson wandering 
skipper include: (1) Federal laws and regulations including the Clean 
Water Act (CWA); and (2) State laws including the California 
Environmental Quality Act (CEQA).
Federal Laws and Regulations
    The Carson wandering skipper appears to be closely associated with 
wetland habitats. Current regulatory mechanisms, such as section 404 of 
the CWA, have not precluded development and alteration of these 
habitats. Section 404 regulations require that applicants obtain a 
permit from the Corps for projects that place fill material into waters 
of the United States. Whether an individual or nationwide permit may be 
required depends upon the activity and the amount of fill proposed. 
Regulatory mechanisms addressing alterations to stream channels, 
riparian areas, springs and seeps from various activities such as 
agricultural activities, development, and road construction have been 
inadequate to protect the Carson wandering skipper habitat in Nevada 
and California.
    Some protection is afforded to the Carson wandering skipper on 
lands administered by the BLM at the Washoe County site due to their 
commitment to assist in the conservation of this subspecies through a 
Cooperative Agreement (CA) signed in 1999. This CA was signed by the 
Service, NDOT, the Federal Highway Administration (FHA), and BLM in 
October 1999. It was developed to outline the actions necessary for the 
conservation and management of the Carson wandering skipper. 
Development of a conservation plan was one activity outlined by the

[[Page 51126]]

CA. UNR was contracted by NDOT, and a draft plan was completed in 2000. 
Additional biological information and agency commitment are needed 
before this plan can be finalized. Since signing the CA in 1999, BLM 
has designated 98 ha (243 ac) of their lands at the Washoe County site 
as an Area of Critical Environmental Concern. This designation allows 
BLM discretion in determining actions which can occur within the area 
(BLM 2001). However, these protections only cover a portion of Carson 
wandering skipper habitat in the area and are insufficient to protect 
the subspecies throughout the site.
    Publication of the emergency rule on November 29, 2001, provides 
protection for the Carson wandering skipper until July 29, 2002. Until 
publication of the emergency rule, we considered the Carson wandering 
skipper a candidate species; a candidate species designation carries no 
formal Federal protection under the Act.
State Laws and Regulations
    Although California State laws may provide a measure of protection 
to the subspecies, these laws are not adequate to protect the Carson 
wandering skipper and ensure its long-term survival. CEQA pertains to 
projects on non-Federal lands and requires that a project proponent 
publicly disclose the potential environmental impacts of proposed 
projects. Section 15065 of the CEQA Guidelines requires a ``finding of 
significance'' if a project has the potential to ``reduce the number or 
restrict the range of a rare or endangered plant or animal'' including 
those that are eligible for listing under the California Endangered 
Species Act. However, under CEQA, where overriding social and economic 
considerations can be demonstrated, a project may proceed despite 
significant adverse impacts to a species.
    The California Natural Diversity Data Base (CNDDB) classifies the 
Carson wandering skipper as a S1S3 species, which identifies this 
subspecies as one that is extremely endangered with a restricted range 
within California (CNDDB 2001). This designation provides no legal 
protection in California. The CDFG is unable to protect insects under 
its current regulations (Pete Bontadelli, CDFG, in litt., 1990), since 
the California Endangered Species Act does not allow for the listing of 
insect species.
    In Nevada, there are no local or State regulations protecting the 
Carson wandering skipper on State or non-Federal lands. The Nevada 
Natural Heritage Program ranks the Carson wandering skipper as S1, 
meaning it is considered critically imperiled in the State of Nevada 
due to extreme rarity, imminent threats, or biological factors (Nevada 
Natural Heritage Program 2000). This designation provides no legal 
protection in Nevada. The Nevada Division of Wildlife is unable to 
protect insects under its current regulations (Nevada Revised Statutes 
1999).

E. Other Natural or Manmade Factors Affecting Its Continued 
Existence

    The apparent low numbers of the Carson wandering skipper make it 
vulnerable to risks associated with small, restricted populations. The 
elements of risk that are amplified in very small populations include: 
(1) Random demographic effects (e.g., skewed sex ratios, high death 
rates or low birth rates); (2) the effects of genetic drift (random 
fluctuations in gene frequencies) and inbreeding (mating among close 
relatives); and (3) deterioration in environmental quality (Gilpin and 
Soule 1986). Genetic drift and inbreeding may lead to reductions in the 
ability of individuals to survive and reproduce (i.e., reductions in 
fitness) in small populations. In addition, reduced genetic variation 
in small populations may make any species less able to adapt to future 
environmental changes. Also, having only two locations and restricted 
habitat makes the Carson wandering skipper susceptible to extinction or 
extirpation from all or a portion of its range due to random events 
such as fire, flood, or drought (Shaffer 1981, 1987; Primack 1998).
    In addition, the loss of habitat compromises the ability of the 
Carson wandering skipper to disperse. Populations are isolated with no 
opportunity to migrate or recolonize if conditions become unfavorable.
    A wetlands mitigation bank is being established near the Lassen 
County site. It is located adjacent to existing CDFG lands. This parcel 
of land has been recently grazed and farmed. The bank is intended to 
create a minimum of 37 ha (92 ac) of emergent wetlands at this site to 
mitigate for wetland losses in sagebrush scrub and juniper woodland 
habitats due to road construction in Lassen and Modoc counties and the 
eastern portion of Plumas County. This bank will be managed by CDFG 
(California Department of Transportation (CalTrans) and CDFG 1998). 
Depending upon the location of constructed wetlands, loss of potential 
Carson wandering skipper habitat could occur. CalTrans, representing 
the FHA, is currently consulting with us regarding potential impacts to 
the subspecies with regard to this wetland mitigation bank project.
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by the Carson wandering skipper in determining to make this rule 
final. We are concerned about the Carson wandering skipper because of 
the extremely small number of populations, habitat fragmentation, and 
significant decrease in its historical range in Nevada and California. 
This subspecies is threatened by the following factors: habitat 
destruction, degradation, and fragmentation due to urban and 
residential development, wetland habitat modification, agricultural 
uses (such as excessive livestock grazing), nonnative plant invasion, 
gas and geothermal development, road construction and recreation. Other 
threats include impacts from collecting, livestock trampling, pesticide 
drift, and inadequate regulatory mechanisms. Proposed water exportation 
projects pose an additional threat. These projects could severely 
impact Carson wandering skipper habitat by lowering the water table, 
and degrading or eliminating the salt grass community upon which the 
Carson wandering skipper depends.
    This subspecies is also vulnerable to chance demographic, genetic, 
and environmental events, to which small populations are particularly 
vulnerable. The combination of only two populations, small range, and 
restricted habitat makes the subspecies highly susceptible to 
extinction or extirpation from a significant portion of its range due 
to random events such as fire, drought, disease, or other occurrences 
(Shaffer 1981, 1987; Meffe and Carroll 1994).
    Because the Carson wandering skipper occurs at only two known 
locations, and because both locations are subject to various immediate, 
ongoing, and future threats as outlined above, we find that the Carson 
wandering skipper is in imminent danger of extinction throughout all or 
a significant portion of its range and, therefore, meets the Act's 
definition of endangered and warrants protection under the Act. 
Threatened status would not accurately reflect the diminished status 
and the threats to this subspecies.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as the-- (i) 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological

[[Page 51127]]

features (I) essential to the conservation of the species, and (II) 
that may require special management considerations or protection, and 
(ii) specific areas outside the geographical area occupied by a species 
at the time it is listed in accordance with the provisions of section 4 
of the Act, upon a determination by the Secretary that such areas are 
essential for the conservation of the species. ``Conservation'' means 
the use of all methods and procedures needed to bring the species to 
the point at which listing under the Act is no longer necessary.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, we designate critical habitat at the time the species 
is determined to be endangered or threatened. Our regulations (50 CFR 
424.12(a)) state that critical habitat is not determinable if 
information sufficient to perform the required analysis of impacts of 
the designation is lacking, or if the biological needs of the species 
are not sufficiently well known to allow identification of an area as 
critical habitat. Section 4(b)(2) of the Act requires us to designate 
critical habitat on the basis of the best scientific data available 
after considering economic and other relevant impacts of designating a 
particular area as critical habitat. We may exclude any area from 
critical habitat if we determine that the benefits of such exclusion 
outweigh the conservation benefits, unless to do so would result in the 
extinction of the species.
    We find that critical habitat is not determinable for the Carson 
wandering skipper. In the proposed rule, we specifically solicited 
information on potential critical habitat, biological information, and 
information that would aid our prudency analysis. We received no 
comments regarding specific physical or biological features essential 
for the Carson wandering skipper which provided information that added 
to our ability to determine critical habitat. In addition, the extent 
of habitat required for recovery of the Carson wandering skipper has 
not been identified. This information is considered essential for 
determining critical habitat. We are also concerned that the 
designation of critical habitat could increase the degree of threat to 
the subspecies through collecting or from intentional habitat 
degradation. Because information relevant to the specific biological 
needs of the Carson wandering skipper is not currently available, we 
are unable to adequately perform the analysis required to designate 
critical habitat and therefore, we find that critical habitat for the 
Carson wandering skipper is not determinable at this time. When a ``not 
determinable'' finding is made, we must, within 2 years of the 
publication date of the original proposed rule, designate critical 
habitat, unless the designation is found to be not prudent.
    We will protect the Carson wandering skipper and its habitat 
through section 7 consultations to determine whether Federal actions 
are likely to jeopardize the continued existence of the subspecies, 
through the recovery process, through enforcement of take prohibitions 
under section 9 of the Act, and through the section 10 process for 
activities on non-Federal lands with no Federal nexus.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, development of recovery 
actions, requirements for Federal protection, and prohibitions against 
certain activities. Recognition through listing results in public 
awareness and encourages conservation actions by Federal, State, and 
local agencies, private organizations, and individuals. The Act 
provides for possible land acquisition and cooperation with the States, 
and requires that the Service carry out recovery actions for all listed 
species. The protection required of Federal agencies, and the 
prohibitions against certain activities involving listed species are 
discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened, and with respect to its critical 
habitat, if any is being designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) requires Federal agencies to confer with us 
on any action that is likely to jeopardize the continued existence of a 
species proposed for listing, or result in destruction or adverse 
modification of proposed critical habitat. If a species is listed 
subsequently, section 7(a)(2) requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of the species or destroy or 
adversely modify its critical habitat, if any has been designated. If a 
Federal action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into formal consultation with us.
    Federal agencies whose actions may require consultation include, 
but are not limited to, the BLM, Corps, FHA, Natural Resources 
Conservation Service, U.S. Department of the Army, and the Federal 
Bureau of Prisons. Federal agencies with management responsibility for 
the Carson wandering skipper also include the Service, in relation to 
Partners for Fish and Wildlife projects and issuance of section 
10(a)(1)(B) permits for habitat conservation plans, and other programs. 
Activities on BLM lands could include livestock grazing and associated 
management activities, sale, exchange, or lease of Federal land 
containing suitable habitat, recreational activities, or issuance of 
right-of-way permits for various projects across lands they administer. 
Occurrences of this subspecies could potentially be affected by 
projects requiring a permit from the Corps under section 404 of the 
CWA. The Corps is required to consult on permit applications they 
receive for projects that may affect listed species. Highway 
construction and maintenance projects that receive funding from the FHA 
would be subject to review under section 7 of the Act. Activities 
authorized under the Natural Resources Conservation Service's Emergency 
Watershed Protection program, such as fire rehabilitation projects, and 
activities authorized by the U.S. Department of the Army and the 
Federal Bureau of Prisons would also be subject to section 7 review. In 
addition, activities that are authorized, funded, or administered by 
Federal agencies on non-Federal lands will be subject to section 7 
review.
    We believe that protection and recovery of the Carson wandering 
skipper will require reduction of the threats from habitat destruction, 
degradation, and loss of salt grass and wetland habitats due to urban 
and residential development, agricultural practices (such as excessive 
livestock grazing), nonnative plant invasion, gas and geothermal 
development, and road construction. Threats from collection, livestock 
trampling, water exportation projects, pesticide drift, and recreation 
must also be reduced. These threats should be considered when 
management actions are taken in habitats currently and potentially 
occupied by the Carson wandering skipper, and areas deemed important 
for dispersal, and connectivity or corridors between known locations of 
this subspecies. Monitoring should also be undertaken for any 
management actions or scientific investigations designed to address 
these threats or their impacts.
    Listing the Carson wandering skipper as endangered will provide for 
the

[[Page 51128]]

development of a recovery plan for the subspecies. Such a plan will 
bring together Federal, State, and regional agency efforts for 
conservation of the subspecies. A recovery plan will establish a 
framework for agencies to coordinate their recovery efforts. The plan 
will set recovery priorities, assign responsibilities, and estimate the 
costs of various tasks necessary to achieve conservation and survival 
of the subspecies. Additionally, pursuant to section 6 of the Act, we 
will be able to grant funds to the States of Nevada and California for 
management actions promoting the protection and recovery of this 
subspecies.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered 
wildlife. All prohibitions of section 9(a)(2) of the Act, codified at 
50 CFR 17.21, in part, make it illegal for any person subject to the 
jurisdiction of the United States to take (includes harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect; or attempt 
any such conduct), import or export, transport in interstate or foreign 
commerce in the course of commercial activity, or sell or offer for 
sale in interstate or foreign commerce any listed species. It is also 
illegal to possess, sell, deliver, carry, transport, or ship any such 
wildlife that has been taken illegally. Certain exceptions apply to our 
agents and State conservation agencies.
    Permits may be issued to carry out otherwise prohibited activities 
involving endangered wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.22 and 17.23. Such permits 
are available for scientific purposes, to enhance the propagation or 
survival of the species, and for incidental take in connection with 
otherwise lawful activities.
    It is our policy, published in the Federal Register on July 1, 1994 
(59 FR 34272), to identify, to the maximum extent practicable, 
activities that would or would not constitute a violation of section 9 
of the Act. The intent of this policy is to increase public awareness 
of the effects of the listing on proposed and ongoing activities within 
the subspecies' range. With respect to the Carson wandering skipper, 
based upon the best available information, we believe the following 
actions would not be likely to result in a violation of section 9, 
provided these activities are carried out in accordance with existing 
regulations and permit requirements:
    (1) Possession, delivery, including interstate transport and import 
or export from the United States, involving no commercial activity, of 
dead Carson wandering skippers that were collected prior to the 
November 29, 2001 date of publication of the emergency listing rule in 
the Federal Register;
    (2) Any actions that may result in take of the Carson wandering 
skipper that are authorized, funded or carried out by a Federal agency 
when the action is conducted in accordance with the consultation 
requirements for listed species pursuant to section 7 of the Act;
    (3) Any action taken for scientific research carried out under a 
recovery permit issued by the Service pursuant to section 10(a)(1)(A) 
of the Act; and
    (4) Land actions or management carried out under a habitat 
conservation plan approved by the Service pursuant to section 
10(a)(1)(B) of the Act, or an approved conservation agreement.
    Activities that we believe would potentially result in a violation 
of section 9 include, but are not limited to:
    (1) Unauthorized possession, handling, or collecting of the Carson 
wandering skipper. Research efforts involving these activities will 
require a permit under section 10(a)(1)(A) of the Act;
    (2) Possession, sale, delivery, carriage, transportation, or 
shipment of illegally taken Carson wandering skipper specimens;
    (3) Activities authorized, funded, or carried out by Federal 
agencies that may result in take of the Carson wandering skipper when 
such activities are not conducted in accordance with the consultation 
requirements for listed species under section 7 of the Act; and
    (4) Activities (e.g., habitat conversion, urban and residential 
development, gas and geothermal exploration and development, excessive 
livestock grazing, farming, road and trail construction, water 
development, recreation, and unauthorized application of herbicides and 
pesticides in violation of label restrictions) that directly or 
indirectly result in the death or injury of adult Carson wandering 
skippers, or their pupae, larvae or eggs, or that modify Carson 
wandering skipper habitat and significantly affect their essential 
behavioral patterns including breeding, foraging, sheltering, or other 
life functions that result in death or physical injuries to skippers. 
Otherwise lawful activities that incidentally take Carson wandering 
skipper specimens, but have no Federal nexus, will require a permit 
under section 10(a)(1)(B) of the Act.
    Questions regarding whether specific activities risk violating 
section 9 should be directed to the Field Supervisor of the Nevada Fish 
and Wildlife Office or the Field Supervisor of the Sacramento Fish and 
Wildlife Office (see FOR FURTHER INFORMATION CONTACT section). Requests 
for copies of the regulations on listed wildlife, and general inquiries 
regarding prohibitions and issuance of permits under the Act, may be 
addressed to the U.S. Fish and Wildlife Service, Ecological Services, 
Endangered Species Permits, 911 NE 11th Ave., Portland, OR 97232-4181 
(telephone 503/231-2063; facsimile 503/231-6243).

Reasons for Effective Date

    We published the emergency rule for this subspecies on November 29, 
2001. The 240-day period expires on July 29, 2002. This final rule must 
be published on or before this date to prevent Federal protection for 
the Carson wandering skipper from expiring. Because of this, we find 
that good cause exists for this rule to take effect immediately upon 
publication in accordance with 5 U.S.C. 553(d)(3).

National Environmental Policy Act

    We have determined that an environmental assessment and 
environmental impact statement, as defined under the authority of the 
National Environmental Policy Act of 1969, need not be prepared in 
connection with regulations adopted pursuant to section 4(a) of the 
Endangered Species Act of 1973, as amended. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244).

Paperwork Reduction Act

    This rule does not contain any new collections of information that 
require approval by Office of Management and Budget (OMB) under the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.). This rule will not 
impose record keeping or reporting requirements on State or local 
governments, individuals, businesses, or organizations. An agency may 
not conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number. Information collections associated with endangered 
species permits are covered by an existing OMB approval and are 
assigned control number 1018-0093 expires March 31, 2004.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when

[[Page 51129]]

undertaking certain actions. This rule is not expected to significantly 
affect energy supplies, distribution, or use. Therefore, this action is 
not a significant energy action and no Statement of Energy Effects is 
required.

References Cited

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

Author

    The primary author of this final rule is Marcy Haworth, U.S. Fish 
and Wildlife Service, Nevada Fish and Wildlife Office (see ADDRESSES 
section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

    2. In Sec. 17.11(h), add the following, in alphabetical order under 
INSECTS, to the List of Endangered and Threatened Wildlife:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                Vertebrate population
--------------------------------------------------------    Historic range      where endangered or    Status    When       Critical      Special rules
           Common name                Scientific name                                threatened                 listed      habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
             INSECTS
 
                   *                  *                  *                  *                  *                  *                  *
Skipper, Carson wandering........  Pseudocopaeodes       U.S.A. (CA, NV).....  U.S.A., (Lassen              E      730  NA.............  NA
                                    eunus obscurus.                             County, CA; Washoe
                                                                                County, NV).
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: July 26, 2002.
Steve Williams,
Director, Fish and Wildlife Service.
[FR Doc. 02-20007 Filed 8-6-02; 8:45 am]
BILLING CODE 4310-55-P