[Federal Register Volume 81, Number 247 (Friday, December 23, 2016)]
[Proposed Rules]
[Pages 94296-94310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30817]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2016-0102; FXES11130900000 167 FF09E42000]
RIN 1018-BB74


Endangered and Threatened Wildlife and Plants; Establishment of a 
Nonessential Experimental Population of the Oregon Silverspot Butterfly 
in Northwestern Oregon

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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

SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS), 
with the support of the State of Oregon Parks and Recreation Department 
(OPRD), propose to establish a nonessential experimental population 
(NEP) of the Oregon silverspot butterfly (Speyeria zerene hippolyta), a 
threatened species, under the authority of section 10(j) of the 
Endangered Species Act of 1973, as amended (Act). This proposed rule 
provides a plan for reintroducing the Oregon silverspot butterfly into 
portions of the subspecies' historical range at two sites in 
northwestern Oregon: Saddle Mountain State Natural Area (SNA) in 
Clatsop County, and Nestucca Bay National Wildlife Refuge (NWR) in 
Tillamook County. It would also provide for

[[Page 94297]]

allowable legal incidental taking of the Oregon silverspot butterfly 
within the defined NEP areas. The best available data indicate that 
reintroduction of the Oregon silverspot butterfly to Saddle Mountain 
SNA and Nestucca Bay NWR is biologically feasible and would promote the 
conservation of the subspecies.

DATES: We will accept comments received or postmarked on or before 
February 21, 2017. Please note that if you are using the Federal 
eRulemaking Portal (see ADDRESSES), the deadline for submitting an 
electronic comment is 11:59 p.m. Eastern Time on this date. We must 
receive requests for public hearings, in writing, at the address shown 
in FOR FURTHER INFORMATION CONTACT by February 6, 2017.

ADDRESSES: Written comments: You may submit comments by one of the 
following methods:
     Electronically: Go to the Federal eRulemaking Portal: 
http://www.regulations.gov. In the Search box, enter Docket No. FWS-R1-
ES-2016-0102, which is the docket number for this rulemaking. Then, 
click the Search button. On the resulting page, in the Search panel on 
the left side of the screen, under the Document Type heading, click on 
the box next to Proposed Rules to locate this document. You may submit 
a comment by clicking on ``Comment Now!''
     By hard copy: Submit by U.S. mail or hand-delivery to: 
Public Comments Processing, Attn: FWS-R1-ES-2016-0102, Division of 
Policy, Performance, and Management Programs, U.S. Fish and Wildlife 
Service, MS; BPHC; 5275 Leesburg Pike; Falls Church, VA 22041-3803.
    We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Public Comments, below, for more information).
    Copies of documents: This proposed rule is available on http://www.regulations.gov under Docket No. FWS-R1-ES-2016-0102. In addition, 
the supporting file for this proposed rule will be available for public 
inspection, by appointment, during normal business hours, at the 
Newport Field Office, 2127 SE Marine Science Drive, Newport, OR 97365; 
telephone 541-867-4558. Persons who use a telecommunications device for 
the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-
8339.

FOR FURTHER INFORMATION CONTACT: Laura Todd, Field Supervisor, 541-867-
4558. Persons who use a TDD may call the Federal Relay Service (FRS) at 
1-800-877-8339. Direct all questions or requests for additional 
information to: OREGON SILVERSPOT BUTTERFLY QUESTIONS, U.S. Fish and 
Wildlife Service, Newport Field Office, 2127 SE Marine Science Drive, 
Newport, OR 97365.

SUPPLEMENTARY INFORMATION: 

Public Comments

    We want any final rule resulting from this proposal to be as 
effective as possible. Therefore, we invite Tribal and governmental 
agencies, the scientific community, industry, and other interested 
parties to submit comments or recommendations concerning any aspect of 
this proposed rule. Comments should be as specific as possible.
    To issue a final rule to implement this proposed action, we will 
take into consideration all comments and any additional information we 
receive. Such communications may lead to a final rule that differs from 
this proposal. All comments, including commenters' names and addresses, 
if provided to us, will become part of the supporting record.
    You may submit your comments and materials concerning the proposed 
rule by one of the methods listed in ADDRESSES. Comments must be 
submitted to http://www.regulations.gov before 11:59 p.m. (Eastern 
Time) on the date specified in DATES. We will not consider hand-
delivered comments that we do not receive, or mailed comments that are 
not postmarked, by the date specified in DATES.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. If you provide 
personal identifying information in your comment, you may request at 
the top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as some of the 
supporting documentation we used in preparing this proposed rule, will 
be available for public inspection on http://www.regulations.gov. All 
comments and materials we receive, as well as all supporting 
documentation, will be available by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Newport Field Office (see 
FOR FURTHER INFORMATION CONTACT).
    We particularly seek comments regarding:
     Any possible adverse effects on Oregon silverspot 
butterfly populations as a result of removal of individuals for the 
purposes of captive rearing and reintroduction of their offspring 
elsewhere;
     The likelihood that the proposed NEP will become 
established and survive in the foreseeable future;
     The relative effects that establishment of the NEP will 
have on the recovery of the subspecies; and
     The extent to which the reintroduced population may be 
affected by existing or anticipated Federal or State actions or private 
activities within or adjacent to the proposed NEP areas.

Peer Review

    In accordance with our Interagency Cooperative Policy for Peer 
Review in Endangered Species Act Activities, which was published on 
July 1, 1994 (59 FR 34270), and a recent internal memorandum clarifying 
the Service's interpretation and implementation of that policy (USFWS 
2016), we will seek the expert opinion of at least three appropriate 
independent specialists regarding scientific data and interpretations 
contained in this proposed rule. We will send copies of this proposed 
rule to the peer reviewers immediately following publication in the 
Federal Register. The purpose of such review is to ensure that our 
decisions are based on scientifically sound data, assumptions, and 
analysis. Accordingly, the final decision may differ from this 
proposal.

Background

Statutory and Regulatory Framework

    We listed the Oregon silverspot butterfly as a threatened species 
under the Act (16 U.S.C. 1531 et seq.) on October 15, 1980 (45 FR 
44935; July 2, 1980). We designated critical habitat for the subspecies 
at the time of listing (45 FR 44935; July 2, 1980).
    Species listed as endangered or threatened are afforded protection 
primarily through the prohibitions of section 9 of the Act and the 
requirements of section 7 of the Act. Section 9 of the Act, among other 
things, prohibits the take of endangered wildlife. ``Take'' is defined 
by the Act as harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect, or attempt to engage in any such conduct. Our 
regulations (50 CFR 17.31) generally extend the prohibition of take to 
threatened wildlife species. Section 7 of the Act outlines the 
procedures for Federal interagency cooperation to conserve federally 
listed species and protect designated critical habitat. It mandates 
that all Federal agencies use their existing authorities to further the

[[Page 94298]]

purposes of the Act by carrying out programs for the conservation of 
listed species. It also states that Federal agencies must, in 
consultation with the Service, ensure that any action they authorize, 
fund, or carry out is not likely to jeopardize the continued existence 
of a listed species or result in the destruction or adverse 
modification of designated critical habitat. Section 7 of the Act does 
not affect activities undertaken on private land unless they are 
authorized, funded, or carried out by a Federal agency.
    The 1982 amendments to the Act (16 U.S.C. 1531 et seq.) included 
the addition of section 10(j), which allows for the designation of 
reintroduced populations of listed species as ``experimental 
populations.'' The provisions of section 10(j) were enacted to 
ameliorate concerns that reintroduced populations would negatively 
impact landowners and other private parties, by giving the Secretary 
greater regulatory flexibility and discretion in managing the 
reintroduction of listed species to encourage recovery in collaboration 
with partners, especially private landowners. Under section 10(j) of 
the Act and our regulations at 50 CFR 17.81, the Service may designate 
as an experimental population an endangered or threatened species that 
has been or will be released into suitable natural habitat outside the 
species' current natural range (but within its probable historical 
range, absent a finding by the Director of the Service in the extreme 
case that the primary habitat of the species has been unsuitably and 
irreversibly altered or destroyed).
    As discussed below (see Relationship of the NEP to Recovery 
Efforts), we are considering the reintroduction of the Oregon 
silverspot butterfly into areas of suitable habitat within its 
historical range for the purpose of restoring populations to meet 
recovery goals. Oregon silverspot butterfly populations have been 
reduced from at least 20 formerly known locations to only 5, thus 
reintroductions are important to achieve biological redundancy in 
populations and to broaden the distribution of populations within the 
geographic range of the subspecies. The restoration of multiple 
populations of Oregon silverspot butterfly distributed across its range 
is one of the recovery criteria identified for the subspecies (USFWS 
2001, pp. 39-41).
    When we establish experimental populations under section 10(j) of 
the Act, we must determine whether such a population is essential or 
nonessential to the continued existence of the species. This 
determination is based solely on the best scientific and commercial 
data available. Our regulations (50 CFR 17.80(b)) state that an 
experimental population is considered essential if its loss would be 
likely to appreciably reduce the likelihood of survival of that species 
in the wild. All other populations are considered nonessential. We find 
the proposed experimental population to be nonessential for the 
following reasons: (1) Oregon silverspot butterflies are currently 
found at five locations, from the central Oregon coast to northern 
California (see Biological Information, below); (2) There are ongoing 
management efforts, including captive rearing and release, to maintain 
or expand Oregon silverspot butterfly populations at these five 
locations (VanBuskirk 2010, entire; USFWS 2012, entire); (3) The 
experimental population will not provide demographic support to the 
wild populations (see Location and Boundaries of the NEP, below); (4) 
The experimental population will not possess any unique genetic or 
adaptive traits that differ from those in the wild populations because 
it will be established using donor stock from extant wild populations 
of Oregon silverspot butterflies (see Donor Stock Assessment and 
Effects on Donor Populations, below); and (5) loss of the experimental 
population will not preclude other recovery options, including future 
efforts to reestablish Oregon silverspot butterfly populations 
elsewhere. Therefore, we are proposing to designate a nonessential 
experimental population (NEP) of Oregon silverspot butterfly at two 
sites in northwest Oregon.
    With the NEP designation, the relevant population is treated as if 
it were listed as a threatened species for the purposes of establishing 
protective regulations, regardless of the species' designation 
elsewhere in its range. This approach allows us to develop tailored 
take prohibitions that are necessary and advisable to provide for the 
conservation of the species. In these situations, the general 
regulations that extend most section 9 prohibitions to threatened 
species do not apply to that species. The protective regulations 
adopted for an experimental population in a section 10(j) rule contain 
the applicable prohibitions and exceptions for that population. These 
section 9 prohibitions and exceptions apply on all lands within the 
NEP.
    For the purposes of section 7 of the Act, which addresses Federal 
cooperation, we treat an NEP as a threatened species when the NEP is 
located within a National Wildlife Refuge or unit of the National Park 
Service, and Federal agency conservation requirements under section 
7(a)(1) and the Federal agency consultation requirements of section 
7(a)(2) of the Act apply. Section 7(a)(1) of the Act requires all 
Federal agencies to use their authorities to carry out programs for the 
conservation of listed species. Section 7(a)(2) requires that Federal 
agencies, in consultation with the Service, ensure that any action they 
authorize, fund, or carry out is not likely to jeopardize the continued 
existence of a listed species or adversely modify its critical habitat. 
When NEPs are located outside a National Wildlife Refuge or National 
Park Service unit, then, for the purposes of section 7, we treat the 
population as proposed for listing and only section 7(a)(1) and section 
7(a)(4) of the Act apply. In these instances, NEPs provide additional 
flexibility because Federal agencies are not required to consult with 
us under section 7(a)(2). Section 7(a)(4) requires Federal agencies to 
confer (rather than consult) with the Service on actions that are 
likely to jeopardize the continued existence of a species proposed to 
be listed. The results of a conference are in the form of conservation 
recommendations that are optional to the agencies carrying out, 
funding, or authorizing activities. If finalized, the NEP area within 
Nestucca Bay NWR will still be subject to the provisions of section 
7(a)(2), and intra-agency consultation would be required on the refuge. 
Section 7(a)(2) consultation would not be required outside of the 
refuge.
    Before authorizing the release as an experimental population 
(including eggs, propagules, or individuals) of an endangered or 
threatened species, and before authorizing any necessary transportation 
to conduct the release, the Service must find, by regulation, that such 
release will further the conservation of the species. In making such a 
finding, the Service uses the best scientific and commercial data 
available to consider the following factors (see 49 FR 33893; August 
27, 1984): (1) Any possible adverse effects on extant populations of a 
species as a result of removal of individuals, eggs, or propagules for 
introduction elsewhere (see Donor Stock Assessment and Effects on Donor 
Populations, below); (2) the likelihood that any such experimental 
population will become established and survive in the foreseeable 
future (see Likelihood of Population Establishment and Survival, 
below); (3) the relative effects that establishment of an experimental 
population will have on the recovery of the species (see Relationship 
of the NEP

[[Page 94299]]

to Recovery Efforts, below); and (4) the extent to which the introduced 
population may be affected by existing or anticipated Federal or State 
actions or private activities within or adjacent to the experimental 
population area (see Extent to Which the Reintroduced Population May Be 
Affected by Land Management Within the Proposed NEP, below).
    Furthermore, as set forth at 50 CFR 17.81(c), all regulations 
designating experimental populations under section 10(j) must provide: 
(1) Appropriate means to identify the experimental population, 
including, but not limited to, its actual or proposed location, actual 
or anticipated migration, number of specimens released or to be 
released, and other criteria appropriate to identify the experimental 
population(s) (see Location and Boundaries of the NEP, below); (2) a 
finding, based solely on the best scientific and commercial data 
available, and the supporting factual basis, on whether the 
experimental population is, or is not, essential to the continued 
existence of the species in the wild (see discussion in this section, 
above); (3) management restrictions, protective measures, or other 
special management concerns of that population, which may include but 
are not limited to, measures to isolate and/or contain the experimental 
population designated in the regulation from natural populations (see 
Extent to Which the Reintroduced Population May Be Affected by Land 
Management Within the Proposed NEP, below); and (4) a process for 
periodic review and evaluation of the success or failure of the release 
and the effect of the release on the conservation and recovery of the 
species (see Reintroduction Effectiveness Monitoring and Donor 
Population Monitoring, below).
    Under 50 CFR 17.81(d), the Service must consult with appropriate 
State fish and wildlife agencies, local governmental entities, affected 
Federal agencies, and affected private landowners in developing and 
implementing experimental population rules. To the maximum extent 
practicable, section 10(j) rules represent an agreement between the 
Service, the affected State and Federal agencies, and persons holding 
any interest in land which may be affected by the establishment of an 
experimental population.
    Section 10(j)(2)(C)(ii) of the Act states that critical habitat 
shall not be designated for any experimental population that is 
determined to be nonessential. Accordingly, we cannot designate 
critical habitat in areas where we establish an NEP.

Biological Information

    The Oregon silverspot butterfly is a small, darkly marked coastal 
subspecies of the Zerene fritillary, a widespread butterfly species in 
montane western North America (USFWS 2001, p. 1). Historically, the 
Oregon silverspot butterfly was documented at 20 locations, from the 
border of northern California to the southern coast of Washington 
(McCorkle et al. 1980, p. 7). Its current distribution is limited to 
five locations, one near Lake Earl, along the coast of Del Norte 
County, California; two on the central Oregon coast in Lane County, 
Oregon; and two in Tillamook County, Oregon. With the exception of the 
two populations on the central Oregon coast that are only about 5 miles 
(mi) (8 kilometers (km)) apart, all remaining populations are 
geographically isolated from one another (USFWS 2001, pp. 8-10).
    The Oregon silverspot butterfly has a 1-year life cycle which 
begins when female adults lay eggs on or near early blue violets (Viola 
adunca) during their flight period from mid-August through September. 
The eggs hatch within 10 days. The tiny first-instar caterpillars eat 
their eggshells and then go into diapause, a hibernation-like state, 
until late spring the following year when violets begin growing. 
Caterpillars are cryptic in habits and feed on early blue violets and a 
few other Viola species until pupation in the summer. Adult emergence 
starts in July and extends into September.
    The Oregon silverspot butterfly occupies three types of grassland 
habitat: marine terrace and coastal headland meadows, stabilized dunes, 
and montane grasslands. Key resources needed by the Oregon silverspot 
butterfly in all of these habitats include: (1) The early blue violet, 
which is the primary host plant for Oregon silverspot caterpillars; (2) 
a variety of nectar plants that bloom during the butterfly flight 
period, including, but not limited to, yarrow (Achillea millefolium), 
pearly everlasting (Anaphalis margaritacea), Pacific aster 
(Symphyotrichum chilense), Canada goldenrod (Solidago canadensis), 
tansy ragwort (Senecio jacobaea), and edible thistle (Cirsium edule); 
(3) grasses and forbs in which the larvae find shelter; and (4) trees 
surrounding occupied meadows, which provide shelter for adult 
butterflies (45 FR 44935, July 2, 1980, p. 44939; USFWS 2001, p. 12). 
Historically, habitats with these key resources were likely widely 
distributed along the Oregon and Washington coasts (Hammond and 
McCorkle 1983, p. 222). Loss of habitat and key resources occurred as a 
result of human development and due to ecological succession and 
invasion of shrubs, trees, and tall introduced grasses which crowd-out 
the subspecies' host plants and nectar resources (Hammond and McCorkle 
1983, p. 222). Loss of habitat was the primary threat to the subspecies 
identified in our 2001 Revised Recovery Plan for the Oregon Silverspot 
Butterfly (USFWS 2001, entire). More recently, during a periodic review 
of the subspecies' status, we identified the reduced size, number, and 
isolation of Oregon silverspot butterfly populations as additional 
severe and imminent threats to the subspecies (USFWS 2012, pp. 24-25).
    Additional information on the biology, habitat, and life history of 
the butterfly can be found in our Revised Recovery Plan for the Oregon 
Silverspot Butterfly (Speyeria zerene hippolyta) (USFWS 2001, pp. 11-
19), which is available online at http://www.regulations.gov under 
Docket No. FWS-R1-ES-2016-0102 or by contacting the person listed under 
FOR FURTHER INFORMATION CONTACT, above.

Relationship of the NEP to Recovery Efforts

    We are proposing to establish an NEP to promote the conservation 
and recovery of the Oregon silverspot butterfly. The recovery strategy 
for the Oregon silverspot butterfly, as detailed in our 2001 revised 
recovery plan, is to protect and manage habitat, and to augment and 
restore populations (USFWS 2001, pp. 39-41). Recovery criteria for the 
Oregon silverspot butterfly are (USFWS 2001, p. 42):
    1. At least two viable Oregon silverspot butterfly populations 
exist in protected habitat in each of the following areas: Coastal 
Mountains, Cascade Head, and Central coast in Oregon; and Del Norte 
County in California; and at least one viable Oregon silverspot 
butterfly population exists in protected habitat in each of the 
following areas: Long Beach Peninsula, Washington, and Clatsop Plains, 
Oregon. This includes the development of comprehensive management 
plans.
    2. Habitats are managed long term to maintain native, early 
successional grassland communities. Habitat management maintains and 
enhances early blue violet abundance, provides a minimum of five native 
nectar species dispersed abundantly throughout the habitat and 
flowering throughout the entire flight-period, and reduces the 
abundance of invasive, nonnative plant species.
    3. Managed habitat at each population site supports a minimum 
viable

[[Page 94300]]

population of 200 to 500 butterflies for at least 10 years.
    The reintroduction of Oregon silverspot butterflies within the 
proposed NEP would help address the limited number of populations and 
the subspecies' diminished geographic range. In addition, it is likely 
to contribute to meeting recovery criteria, as both proposed NEP areas 
have the biological attributes to support a viable butterfly population 
of butterflies and will be managed consistent with the subspecies' 
biological needs.

Location and Boundaries of the NEP

    Section 10(j) of the Act requires that an experimental population 
be geographically separate from other populations of the same species. 
We identified the boundary of the proposed NEP as those Public Land 
Survey System sections intersecting with a 4.25-mi (6.8-km) radius 
around the proposed release locations. This boundary was selected to 
encompass all likely movements of Oregon silverspot butterflies away 
from the release areas while maintaining geographic separation from 
existing populations. This 4.25-mi (6.8-km) radius is greater than the 
longest known flight distance of the Oregon silverspot butterfly (4.1 
mi (6.6 km)) (VanBuskirk and Pickering 1999, pp. 3-4, Appendix 1). 
Although this flight distance had previously been reported as ``5 
miles'' (VanBuskirk and Pickering 1999, p. 4; USFWS 2010, p. 10), a 
more precise measurement using the locations where the individual 
butterfly in question was marked and recaptured (rather than the 
general distance between the populations) resulted in a distance of 4.1 
mi (6.8 km). The proposed NEP areas are geographically isolated from 
existing Oregon silverspot butterfly populations by a sufficient 
distance to preclude significant contact between populations. There is 
an extremely small potential that butterflies dispersing 4.1 mi (6.8 
km) from the proposed release site on Nestucca Bay NWR may interact 
with butterflies dispersing 4.1 mi (6.8 km) from Cascade Head, because 
these locations are 8 mi (13 km) apart. Nevertheless, the likelihood of 
butterflies from these two sites interbreeding is remote because of the 
distance between the sites and the fact that there is little or no 
suitable habitat with appropriate larval host plants and adult nectar 
sources between Nestucca Bay NWR and Cascade Head. Even if butterflies 
dispersed and were present within the same area, we do not believe the 
occasional presence of a few individual butterflies meets a minimal 
biological definition of a population. Based on definitions of 
``population'' used in other experimental population rules (e.g., 59 FR 
60252, November 22, 1994; 71 FR 42298, July 26, 2006), we believe that 
a determination that a population is not geographically separate from 
the proposed NEP area would require the presence of sufficient suitable 
habitat in the intervening area to support successfully reproducing 
Oregon silverspot butterflies over multiple years. Because there is 
little to no suitable habitat between Nestucca Bay NWR and Cascade 
Head, we conclude this is unlikely to happen. Biologically, the term 
``population'' is not normally applied to dispersing individuals, and 
any individual butterflies would be considered emigrants from the 
Cascade Head population. Finally, a few butterflies would not be 
considered a self-sustaining population. Self-sustaining populations 
need a sufficient number of individuals to avoid inbreeding depression 
and occurrences of chance local extinction; a general rule of thumb is 
that the effective population size needs to be at least 50 to reduce 
the likelihood of extinction in the short term because of harmful 
effects of inbreeding depression on demographic rates, and at least 500 
to retain sufficient genetic variation to allow for future adaptive 
change (Jamieson and Allendorf 2014, p. 578).

Saddle Mountain State Natural Area

    Saddle Mountain SNA, managed by OPRD, is located in central Clatsop 
County, in northwest Oregon. Saddle Mountain was historically occupied 
by the Oregon silverspot butterfly, which was last documented at this 
site in 1973 (McCorkle et al. 1980, p. 8). Butterfly surveys in 1980 
and more recent surveys during the butterfly flight period--in 2003, 
2006, and 2010--did not document the species at Saddle Mountain (Mike 
Patterson, pers. comm. 2016), and the population there is presumed to 
be extirpated (VanBuskirk 2010, p. 27). The nearest extant Oregon 
silverspot butterfly population is 50 miles (80 km) south at Mount 
Hebo.
    Saddle Mountain SNA is a 3,225-acre (ac) (1,305-hectare (ha)) park 
known for its unique botanical community, which thrives on the thin 
rocky soils, with few invasive weeds. Habitat suitable for the Oregon 
silverspot butterfly consists of approximately 60 ac (24 ha) of meadows 
on the slopes of Saddle Mountain near its upper peaks at 3,288 feet 
(ft) (1,002 meters (m)) above sea-level. Based on recent plant surveys 
(OPRD 2012, p. 2), the proposed release site contains high-quality 
butterfly habitat with sufficient densities of the requisite species 
(Viola adunca and native nectar plants) to support an Oregon silverspot 
butterfly population (USFWS 2001, pp. 13-14). Habitat quality has been 
maintained through natural processes including vertical drainage 
patterns associated with steep ridges, thin rocky soils, elevation, and 
winter snow cover within the forb rich Roemer fescue (Festuca roemeri) 
montane grassland community (ONHIC 2004, p. 2). In a letter to the 
Service dated October 15, 2011, and a follow-up letter dated February 
12, 2016, OPRD expressed their desire to have an NEP of Oregon 
silverspot butterfly and to return this native pollinator to the 
ecosystem (OPRD in litt., 2011; OPRD in litt., 2016).
    The Saddle Mountain NEP area is centered on the coastal prairie 
habitat on top of Saddle Mountain, where we are proposing to 
reintroduce the Oregon silverspot butterfly. The proposed NEP 
encompasses all the Public Land Survey System sections that intersect 
with a 4.25-mi (6.8-km) radius around the proposed release area. The 
subspecies is territorial within habitat areas, and the reintroduced 
butterflies are expected to stay in or near meadows on top of Saddle 
Mountain, which have an abundance of the plant species they need to 
survive. The proposed Saddle Mountain butterfly population will be 
released into permanently protected suitable habitat. We are proposing 
to reintroduce the Oregon silverspot butterfly as an NEP in this area 
to address OPRD's concerns regarding potential impacts to park 
management activities, such as trail maintenance, and potential 
opposition from surrounding landowners to the reintroduction of a 
federally listed species without an NEP. Surrounding land cover is 
primarily forest (OPRD 2014, pers. comm.) and is not suitable Oregon 
silverspot butterfly habitat; therefore, we do not expect butterflies 
to use areas outside of Saddle Mountain SNA.

Nestucca Bay National Wildlife Refuge

    The Nestucca Bay NWR, managed by the Service, is located in the 
southwest corner of Tillamook County, along the northern Oregon coast. 
Although the Oregon silverspot butterfly was never documented at this 
site, it is within the historical range of the subspecies along the 
coast, and a small amount of remnant coastal prairie occurred on the 
site prior to commencement of restoration efforts in 2011. Therefore, 
it is reasonable to assume that the Oregon silverspot butterfly once 
inhabited the area, but no surveys were conducted to document its 
presence. Currently occupied Oregon silverspot butterfly

[[Page 94301]]

sites nearest to the proposed NEP area are 10 mi (16 km) to the east at 
Mount Hebo and 8 mi (13 km) south at Cascade Head, with little or no 
suitable habitat in between. There are currently no known extant Oregon 
silverspot butterfly populations to the north of the proposed release 
site, but the subspecies was historically documented near Cape Meares, 
20 mi (32 km) to the north of Nestucca Bay NWR, where it was last 
observed in 1968 (McCorkle et al. 1980, p. 7).
    The Nestucca Bay National Wildlife Refuge Comprehensive 
Conservation Plan includes a goal to promote the recovery of the Oregon 
silverspot butterfly by establishing an NEP on the refuge (USFWS 2013, 
p. 2-4). The approximately 1,203-ac (487-ha) refuge has 25 to 30 ac (10 
to 12 ha) of coastal prairie habitat in varying stages of restoration, 
including the conversion of degraded grasslands on the Cannery Hill 
Unit from nonnative pasture grasses to native coastal grasses and forbs 
with an emphasis on the plant species and structure required to support 
the Oregon silverspot butterfly. Since 2011, invasive weed abundance 
has been minimized, and thousands of violet and nectar plants have been 
planted to enhance and restore the coastal prairie ecosystem. Funding 
acquired by the refuge in 2015 is now being used to complete habitat 
restoration on the remaining acreage prior to the release of Oregon 
silverspot butterflies.
    The NEP area is centered on coastal prairie habitat on the Cannery 
Hill Unit of the refuge, where we are proposing to release Oregon 
silverspot butterflies. The proposed NEP encompasses all Public Land 
Survey System sections that intersect with a 4.25-mi (6.8-km) radius 
around the proposed release area. We propose to release Oregon 
silverspot butterflies into permanently protected suitable habitat at 
Nestucca Bay NWR, which will be managed to provide the plant community 
needed for the butterfly to become established and to support a 
population. We are proposing to reintroduce the Oregon silverspot 
butterfly as an NEP in this area to address adjacent landowner concerns 
regarding the impact a federally listed species might have on the sale 
or development of their property. As little or no suitable habitat is 
currently available on adjacent properties, and Oregon silverspot 
butterflies are territorial and non-migratory, we consider the 
likelihood of butterflies moving on to these adjacent lands to be low. 
Despite a few adjacent properties that Oregon silverspot butterflies 
might occasionally move through, the primary surrounding land cover is 
agriculture and forest (USFWS 2013, p. 4-3), which are not suitable 
habitat for the subspecies; therefore, occurrence of Oregon silverspot 
butterflies in surrounding areas, if any, is expected to be limited.

Likelihood of Population Establishment and Survival

    The best available scientific data indicate that the reintroduction 
of Oregon silverspot butterflies into suitable habitat is biologically 
feasible and would promote the conservation of the species. Oregon 
silverspot butterfly population augmentations have been conducted on 
the central Oregon coast from 2000 through 2015 (USFWS 2012, p. 10; 
Engelmeyer 2015, p. 4). Based on the knowledge gained from these 
efforts, we anticipate the proposed NEP areas would become successfully 
established. Butterflies would be released into high-quality habitat in 
sufficient amounts to support large butterfly populations, and no 
unaddressed threats to the species are known to exist at these sites.
    The coastal headland meadows of the Nestucca Bay NWR are being 
restored with the specific intent of providing high densities of the 
plant species needed by the Oregon silverspot butterfly. Ongoing 
habitat enhancement and management will maintain suitable habitat and 
minimize the abundance and distribution of invasive, nonnative plant 
species, which degrade habitat quality. The Nestucca Bay NWR has 
committed to the management required to restore and maintain suitable 
habitat specifically for a population of the Oregon silverspot 
butterfly. The upper meadows of the Saddle Mountain SNA have an 
abundance of the key resources, including an intact plant community 
with an abundance of plants needed to support the Oregon silverspot 
butterfly. Habitat quality has been maintained through natural 
processes, including vertical drainage patterns associated with steep 
ridges, thin rocky soils, elevation, and winter snow cover within the 
forb rich Roemer fescue montane grassland community (ONHIC 2004, p. 2). 
The habitat at Saddle Mountain is self-sustaining, does not require 
active management (see Addressing Causes of Extirpation, below), and is 
adequately protected. Additionally, within both proposed NEP areas, 
large trees surrounding the meadows would provide needed cover for 
sheltering Oregon silverspot butterflies.
    Based on all of these considerations, we anticipate that 
reintroduced Oregon silverspot butterflies are likely to become 
established and persist at Nestucca Bay NWR and Saddle Mountain SNA.

Addressing Causes of Extirpation

    The largest threat to Oregon silverspot butterfly populations is a 
lack of suitable habitat. Without regular disturbance, coastal prairie 
habitat is vulnerable to plant community succession, resulting in loss 
of prairie habitat to brush and tree invasion. Invasive, nonnative 
plants also play a significant role in the degradation of habitat 
quality and quantity for this butterfly.
    The reasons for the extirpation of the original population of 
Oregon silverspot butterflies on Saddle Mountain between 1973 and 1980 
are unknown. The habitat on top of Saddle Mountain is currently 
suitable for supporting a population of the butterfly. The grassland 
habitat at this location has been self-sustaining likely due to the 
3,000-ft (914-m) elevation, thin rocky soil type, steep slopes, 
primarily native composition of the plant community, and lack of human 
disturbance to the ecosystem. The Saddle Mountain SNA, protected as a 
special botanical area, has an annual day-use rate of 68,928 visitors 
per year. OPRD maintains a trail, accessible only by foot, which leads 
to the top of the mountain. The extremely steep grade on either side of 
the trail discourages visitors from straying off trail and into the 
adjacent meadow areas. Park rules do not allow collection of plants or 
animals (OPRD 2010). Continuance of this management regime is expected 
to protect the reintroduced population and contribute to its successful 
establishment. We acknowledge there is some uncertainty regarding 
population establishment and long-term viability at this site given 
that we have not identified the original cause of local extirpation. 
Nevertheless, this site has been identified as one of the most 
promising for a reintroduction effort given the lack of identifiable 
threats, density of host plants, and overall quality of habitat 
(VanBuskirk 2010, p. 27).
    The Nestucca Bay NWR will address habitat threats by monitoring and 
maintaining habitat quality for the benefit of the Oregon silverspot 
butterfly, in accordance with the Nestucca Bay National Wildlife Refuge 
Comprehensive Conservation Plan, which sets specific targets for 
abundance of violet and nectar species. All management actions taken in 
the vicinity of the reintroduced population will defer to the habitat 
needs of the butterfly (USFWS 2013, pp. 4-37-4-43). As described above, 
the Nestucca Bay NWR is actively working to restore habitat 
specifically for the benefit of the Oregon silverspot butterfly in

[[Page 94302]]

anticipation of a potential reintroduction. Restoration efforts have 
proven successful in establishing high-quality habitat that is likely 
to support all life stages of the subspecies. Nestucca Bay NWR's 
demonstrated commitment to reestablishing and maintaining high-quality 
habitat suitable for the Oregon silverspot butterfly is expected to 
contribute to the successful establishment of the proposed NEP at this 
site.

Release Procedures

    We propose to use captive-reared butterflies to populate the NEP 
areas using proven release methods developed by the Oregon silverspot 
butterfly population augmentation program from 2000 to 2015 (USFWS 
2012, p. 10; Engelmeyer 2015, p. 2). We will release captive-reared 
caterpillars or pupae of wild female butterflies into suitable habitat 
within the proposed NEP areas, following the guidance in the Captive 
Propagation and Reintroduction Plan for the Oregon Silverspot Butterfly 
(VanBuskirk 2010, entire). We will determine the number of individuals 
to release based on the number of available healthy offspring and the 
amount of suitable habitat available, with violet densities as the 
primary measure of habitat suitability. The ultimate goal is the 
establishment of self-sustaining populations of between 200 to 500 
butterflies for 10 years at each proposed NEP area, similar to the 
recovery criteria for the other habitat conservation areas.
    Based on guidance from the Captive Propagation and Reintroduction 
Plan for the Oregon Silverspot Butterfly (VanBuskirk 2010, entire), we 
propose to establish populations in each NEP area from offspring of at 
least 50 mated females. Because the number of female butterflies 
available for collection for the captive-rearing program is limited to 
5 percent of the donor population per year, it may be necessary to 
release caterpillars or pupae incrementally over a period of a few 
years. We will use annual butterfly counts during the flight period to 
monitor population establishment success. Butterfly survey methods used 
at the occupied sites (Pollard 1977, p. 116; Pickering 1992, p. 3) will 
also be used to assess population establishment success in the proposed 
NEP areas.

Donor Stock Assessment and Effects on Donor Populations

    Individual Oregon silverspot butterflies used to establish 
populations at both proposed NEP areas will most likely come from the 
offspring of the Mount Hebo population. Additional genetic research on 
the subspecies is in progress and may suggest that butterflies from 
other populations should be included in the captive-rearing program to 
enhance genetic diversity. If populations other than the Mount Hebo 
population are used as donor stock, we will evaluate the impact of 
taking females from those populations on the survival and recovery of 
the subspecies prior to issuing a recovery permit for such take.
    The Mount Hebo Oregon silverspot butterfly population has 
historically been the largest and most stable population, averaging an 
annual index count of 1,457 butterflies per year between 2000 to 2014 
(USFWS 2012, p. 10; Patterson 2014, p. 11); therefore, it is the least 
likely to be impacted by the removal of up to 5 percent of the 
population. Demographic modeling indicates that the optimal strategy 
for captive rearing of Oregon silverspot butterflies to increase the 
probability of persistence is to take females from larger donor 
populations (Crone et al. 2007, p. 108). Regional persistence can be 
increased with captive rearing, with negligible effects on the donor 
population (Crone et al. 2007, pp. 107-108). Measurable increases in 
regional persistence are predicted when one assumes each donor female 
produces four adult butterflies for release to the wild (i.e., four 
adults/female). In reality, the number of adult butterflies produced 
per female captured from the donor population has been much higher in 
recent years. For example, during 2007-2009, between 24 and 29 females 
were captured, producing between 875 and 2,391 adults for release (31-
83 adults/female) (VanBuskirk 2010, p. 12). In 2015, 14 females 
produced 815 adults for release (58 adults/female) (Engelmeyer 2015, p. 
5). These rates of production far exceed what is needed to have a 
positive impact on regional persistence, even if all the females were 
removed from small donor populations (see Crone et al. 2007, p. 109). 
As an additional protective measure, we will release some caterpillars 
and pupae from the captive-rearing program back into the donor 
population each year, concurrent with the reintroductions to the 
proposed NEP areas. This will further minimize any potential effects 
from the removal of a small number of adult females in the prior year.
    The Mount Hebo population occurs in an environment similar to the 
proposed Saddle Mountain NEP area (i.e., similar elevation, native 
plant community, and distance from the coast). Therefore, offspring of 
butterflies from Mount Hebo will likely be well-adapted to the 
environment in the meadows on top of Saddle Mountain. The Mount Hebo 
population may also serve as the best donor population for the proposed 
Nestucca Bay NEP area because it is genetically most similar to the 
existing population closest to the refuge (i.e., the Cascade Head 
population) (VanBuskirk 2000, p. 27; McHugh et al. 2013, p. 8). We will 
consider all new scientific information when making annual decisions on 
an appropriate donor population; therefore, it is possible that we will 
use donor populations other than Mount Hebo.
    The Captive Propagation and Reintroduction Plan for the Oregon 
Silverspot Butterfly (VanBuskirk 2010, entire) contains further 
information on the captive rearing program, release procedures, genetic 
considerations, population dynamics, effects of releases on population 
viability of the Oregon silverspot butterfly, and the potential for 
reintroduction to Saddle Mountain SNA and Nestucca Bay NWR (copies of 
this document are available online at http://www.regulations.gov under 
Docket No. FWS-R1-ES-2016-0102 or by contacting the person listed under 
FOR FURTHER INFORMATION CONTACT, above).

Legal Status of Reintroduced Populations

    Based on the current legal and biological status of the subspecies 
and the need for management flexibility, and in accordance with section 
10(j) of the Act, we propose to designate all Oregon silverspot 
butterflies released within the boundaries of the NEP areas as members 
of the NEP. Such designation allows us to establish special protective 
regulations for management of Oregon silverspot butterflies.
    With the experimental population designation, the relevant 
population is treated as threatened for purposes of section 9 of the 
Act, regardless of the species' designation elsewhere in its range. 
Treating the experimental population as threatened allows us the 
discretion to devise management programs and specific regulations for 
such a population. Section 4(d) of the Act allows us to adopt any 
regulations that are necessary and advisable to provide for the 
conservation of a threatened species. When designating an experimental 
population, the general regulations that extend most section 9 
prohibitions to threatened species do not apply to that species, and 
the section 10(j) rule contains the prohibitions and exemptions 
necessary and advisable to conserve that species.
    The 10(j) rule would further the conservation of the subspecies by 
facilitating its reintroduction into two areas of suitable habitat 
within its historical range. The rule would provide

[[Page 94303]]

assurances to landowners and development interests that the 
reintroduction of Oregon silverspot butterflies will not interfere with 
natural resource developments or with human activities (although the 
Act's section 7(a)(2) consultation requirements would still apply on 
Nestucca Bay NWR). Without such assurances, some landowners and 
developers, as well as the State, would object to the reintroduction of 
Oregon silverspot butterflies to these two areas. Except as provided 
for under sections 10(a)(1)(A) and 10(e) of the Act, or as described in 
this proposed NEP rule, take of any member of the Oregon silverspot 
butterfly NEP will be prohibited under the Act.

Extent to Which the Reintroduced Population May Be Affected by Land 
Management Within the Proposed NEP

    We conclude that the effects of Federal, State, or private actions 
and activities will not pose a threat to Oregon silverspot butterfly 
establishment and persistence at Saddle Mountain SNA or the Nestucca 
Bay NWR because the best information, including activities currently 
occurring in Oregon silverspot butterfly populations range wide, 
indicates that activities currently occurring, or likely to occur, at 
prospective reintroduction sites within proposed NEP areas are 
compatible with the species' recovery. The reintroduced Oregon 
silverspot butterfly populations would be managed by OPRD and the 
Service, and would be protected from major development activities 
through the following mechanisms:
    (1) Development activities and timber harvests are not expected to 
occur in the Saddle Mountain SNA, which is protected as a special 
botanical area. Trail maintenance and other park maintenance activities 
would continue to occur within the proposed NEP area, but are expected 
to have minimal impact on the butterfly meadow habitat areas due to the 
terrain and steepness of the slopes. Because of the rugged nature of 
the area, and also to protect the important botanical resources at this 
site, maintenance activities in this area are generally limited to 
trail maintenance by hand crews, with minimal impacts on the meadow 
areas. Additionally, the proposed Oregon silverspot butterfly NEP area 
at Saddle Mountain SNA would be protected by the Oregon State 
regulations prohibiting collection of animals on State lands (Oregon 
Administrative Rule (OAR) 736-010-0055(2)(d)). Private timberlands 
surrounding the SNA do not contain suitable butterfly habitat, and 
therefore activities on adjacent lands are not expected to impact the 
butterfly.
    (2) In accordance with the Nestucca Bay NWR Comprehensive 
Conservation Plan, all refuge management actions taken in the vicinity 
of the reintroduced population will defer to the habitat needs of the 
butterfly (USFWS 2013, pp. 4-37-4-43). In addition, the refuge must 
complete section 7(a)(2) consultation on all actions that may affect 
the butterfly. Oregon silverspot butterflies may occasionally visit or 
fly within adjacent properties near the proposed NEP area, which may be 
subject to future development. However, given the lack of suitable 
habitat for this subspecies on adjacent properties, as well as the 
butterfly's territorial and non-migratory nature, we consider negative 
impacts to the Oregon silverspot butterfly from development on adjacent 
sites to be unlikely, as there is little likelihood of individuals 
moving to these sites.
    Management issues related to the proposed Oregon silverspot 
butterfly NEP that have been considered include:
    (a) Incidental Take: The regulations implementing the Act define 
``incidental take'' as take that is incidental to, and not the purpose 
of, carrying out an otherwise lawful activity (50 CFR 17.3), such as 
agricultural activities and other rural development, and other 
activities that are in accordance with Federal, Tribal, State, and 
local laws and regulations. Experimental population rules contain 
specific prohibitions and exceptions regarding the taking of individual 
animals. If we adopt this 10(j) rule as proposed, take of the Oregon 
silverspot butterfly anywhere within the NEP areas would not be 
prohibited, provided that the take is unintentional, not due to 
negligent conduct, and is in accordance with this 10(j) rule; however, 
the section 7(a)(2) consultation requirement still applies on refuge 
lands. We expect levels of incidental take to be low because the 
reintroduction is compatible with ongoing activities and anticipated 
future actions in the proposed NEP areas.
    (b) Special handling: In accordance with 50 CFR 17.32, any person 
with a valid permit issued by the Service may take the Oregon 
silverspot butterfly for educational purposes, scientific purposes, the 
enhancement of propagation or survival of the species, zoological 
exhibition, and other conservation purposes consistent with the Act. 
Additionally, any employee or agent of the Service, any other Federal 
land management agency, or a State conservation agency, who is 
designated by the agency for such purposes, may, when acting in the 
course of official duties, take an Oregon silverspot butterfly in the 
wild in the NEP area without a permit if such action is necessary for 
scientific purposes, to aid a law enforcement investigation, to 
euthanize an injured individual, to dispose of or salvage a dead 
individual for scientific purposes, or to relocate an Oregon silverspot 
butterfly to avoid conflict with human activities, to improve Oregon 
silverspot butterfly survival and recovery prospects or for genetic 
purposes, to move individuals into captivity or from one population in 
the NEP to the other, or to retrieve an Oregon silverspot butterfly 
that has moved outside the NEP area. Non-Service or other non-
authorized personnel would need a permit from the Service for these 
activities.
    (c) Coordination with landowners and land managers: We have 
coordinated with landowners likely to be affected by the proposed 
reintroduction. During this coordination we identified issues and 
concerns associated with reintroducing Oregon silverspot butterflies in 
the absence of an NEP designation. We also discussed the possibility of 
NEP designation. Affected State agencies, landowners, and land managers 
have either indicated support for, or no opposition to, the proposed 
NEP if a 10(j) rule is promulgated to allow incidental take of Oregon 
silverspot butterflies.
    (d) Public awareness and cooperation: The proposed NEP designation 
is necessary to secure needed cooperation of the States, landowners, 
agencies, and other interests in the affected area. If this proposed 
rule is adopted, we will work with our partners to continue public 
outreach on our effort to restore Oregon silverspot butterflies to 
parts of their historical range and the importance of these restoration 
efforts to the overall recovery of the subspecies.
    (e) Potential impacts to other federally listed species: No 
federally listed species occur in the proposed NEP areas that would be 
affected by the reintroductions.
    (f) Monitoring and evaluation: Annual monitoring would be performed 
by qualified personnel with the cooperation of the OPRD Saddle Mountain 
SNA and Nestucca Bay NWR. Oregon silverspot butterflies would be 
counted on designated survey transects or public trails. We do not 
anticipate that surveys would disrupt or hamper public use and would 
likely be perceived by the public as normal activities in the context 
of a natural area.

[[Page 94304]]

Reintroduction Effectiveness Monitoring

    Oregon silverspot butterfly surveys would be conducted annually 
within Oregon silverspot butterfly habitat at Nestucca Bay NWR and 
Saddle Mountain SNA using a modified Pollard walk methodology 
(Pickering et al. 1992, p. 7). This survey method is currently used at 
all occupied Oregon silverspot butterfly sites. The surveys would be 
conducted weekly during the butterfly flight period, July through 
September, on designated survey transects or public trails. The surveys 
produce an index of Oregon silverspot butterfly relative abundance that 
would be used to assess annual population trends to provide information 
on reintroduction effectiveness. We would prepare annual progress 
reports. Reintroduction efforts would be fully evaluated after 5 years 
to determine whether to continue or terminate the reintroduction 
efforts.

Donor Population Monitoring

    We would conduct annual Oregon silverspot butterfly surveys within 
the populations where donor stock is obtained using a modified Pollard 
walk methodology (Pickering et al. 1992, p. 7). Our annual monitoring 
would be used to adaptively manage the captive rearing program to 
insure that the removal of donor stock would not jeopardize the 
continued existence of the population or the species as a whole.

Monitoring Impacts to Other Listed Species

    We do not anticipate impacts to other listed species by the 
proposed reintroduction of the Oregon silverspot butterfly.

Findings

    Based on the above information, and using the best scientific and 
commercial data available (in accordance with 50 CFR 17.81), we find 
that reintroducing the Oregon silverspot butterfly into the Saddle 
Mountain SNA and the Nestucca Bay NWR and the associated protective 
measures and management practices under this proposed rulemaking would 
further the conservation of the subspecies. The nonessential 
experimental population status is appropriate for the reintroduction 
areas because we have determined that these populations are not 
essential to the continued existence of the subspecies in the wild.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this proposed 
rule is not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this proposed rule in a manner 
consistent with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C. 
60 et seq.), whenever a Federal agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare, and make 
available for public comment, a regulatory flexibility analysis that 
describes the effect of the rule on small entities (small businesses, 
small organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. SBREFA amended the Regulatory 
Flexibility Act to require Federal agencies to provide a statement of 
the factual basis for certifying that a rule will not have a 
significant economic impact on a substantial number of small entities. 
We are certifying that this rule will not have a significant economic 
effect on a substantial number of small entities. The following 
discussion explains our rationale.
    The area that would be affected if this proposed rule is adopted 
includes the release areas at Saddle Mountain SNA and Nestucca Bay NWR 
and adjacent areas into which individual Oregon silverspot butterflies 
may disperse. Because of the regulatory flexibility for Federal agency 
actions provided by the proposed NEP designation and the exemption for 
incidental take in the rule, we do not expect this rule to have 
significant effects on any activities within Federal, State, or private 
lands within the proposed NEP. In regard to section 7(a)(2) of the Act, 
the population would be treated as proposed for listing, and Federal 
action agencies are not required to consult on their activities, except 
on National Wildlife Refuge and National Park land where the subspecies 
is managed as a threatened species. Section 7(a)(4) of the Act requires 
Federal agencies to confer (rather than consult) with the Service on 
actions that are likely to jeopardize the continued existence of a 
proposed species. However, because the proposed NEP is, by definition, 
not essential to the survival of the species, conferring will likely 
never be required for the Oregon silverspot butterfly populations 
within the NEP areas. Furthermore, the results of a conference are 
advisory in nature and do not restrict agencies from carrying out, 
funding, or authorizing activities. In addition, section 7(a)(1) of the 
Act requires Federal agencies to use their authorities to carry out 
programs to further the conservation of listed species, which would 
apply on any lands within the NEP areas. Within the boundaries of the 
Nestucca Bay NWR, the subspecies would be treated as a threatened 
species for the purposes of section 7(a)(2) of the Act. As a result, 
and in accordance with these regulations, some modifications to 
proposed Federal actions within Nestucca Bay NWR may occur to benefit 
the Oregon silverspot butterfly, but we do not expect projects to be 
substantially modified because these lands are already being 
administered in a manner that is compatible with Oregon silverspot 
butterfly recovery.
    If adopted, this proposal would broadly authorize incidental take 
of the Oregon silverspot butterfly within the NEP areas. The 
regulations implementing the Act define ``incidental take'' as take 
that is incidental to, and not the purpose of, the carrying out of an 
otherwise lawful activity such as, agricultural activities and other 
rural development, camping, hiking, hunting, vehicle use of roads and 
highways, and other activities in the NEP areas that are in accordance 
with Federal, Tribal, State, and local laws and regulations. 
Intentional take for purposes other than authorized data collection or 
recovery purposes would not be authorized. Intentional take for

[[Page 94305]]

research or recovery purposes would require a section 10(a)(1)(A) 
recovery permit under the Act.
    The principal activities on private property near the proposed NEP 
areas are timber production, agriculture, and activities associated 
with private residences. We believe the presence of the Oregon 
silverspot butterfly would not affect the use of lands for these 
purposes because there would be no new or additional economic or 
regulatory restrictions imposed upon States, non-Federal entities, or 
private landowners due to the presence of the Oregon silverspot 
butterfly, and Federal agencies would only have to comply with sections 
7(a)(1) and 7(a)(4) of the Act in these areas, except on Nestucca Bay 
NWR lands where section 7(a)(2) of the Act would apply. Therefore, this 
rulemaking is not expected to have any significant adverse impacts to 
activities on private lands within the proposed NEP areas.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (1) If adopted, this proposal would not ``significantly or 
uniquely'' affect small governments. We have determined and certify 
under the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that 
this proposed rulemaking would not impose a cost of $100 million or 
more in any given year on local or State governments or private 
entities. A Small Government Agency Plan is not required. As explained 
above, small governments would not be affected because the proposed NEP 
designation would not place additional requirements on any city, 
county, or other local municipalities.
    (2) This proposed rule would not produce a Federal mandate of $100 
million or greater in any year (i.e., it is not a ``significant 
regulatory action'' under the Unfunded Mandates Reform Act). The 
proposed NEP area designations for the Oregon silverspot butterfly 
would not impose any additional management or protection requirements 
on the States or other entities.

Takings (E.O. 12630)

    In accordance with Executive Order 12630, the proposed rule does 
not have significant takings implications. This rule would allow for 
the take of reintroduced Oregon silverspot butterflies when such take 
is incidental to an otherwise legal activity, such as recreation (e.g., 
hiking, birdwatching), forestry, agriculture, and other activities that 
are in accordance with Federal, State, and local laws and regulations. 
Therefore, we do not believe that the proposed NEP would conflict with 
existing or proposed human activities.
    A takings implication assessment is not required because this rule 
(1) will not effectively compel a property owner to suffer a physical 
invasion of property, and (2) will not deny all economically beneficial 
or productive use of the land or aquatic resources. This rule would 
substantially advance a legitimate government interest (conservation 
and recovery of a listed species) and would not present a barrier to 
all reasonable and expected beneficial use of private property.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, we have considered 
whether this proposed rule has significant Federalism effects and have 
determined that a federalism summary impact statement is not required. 
This proposed rule would not have substantial direct effects on the 
States, on the relationship between the Federal Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. In keeping with Department of the 
Interior policy, we requested information from and coordinated 
development of this proposed rule with the affected resource agencies 
in Oregon. Achieving the recovery goals for this subspecies would 
contribute to its eventual delisting and its return to State 
management. No intrusion on State policy or administration is expected; 
roles or responsibilities of Federal or State governments would not 
change; and fiscal capacity would not be substantially directly 
affected. The proposed rule would maintain the existing relationship 
between the State and the Federal Government, and is being undertaken 
in coordination with the State of Oregon. Therefore, this rule does not 
have significant Federalism effects or implications to warrant the 
preparation of a federalism summary impact statement under the 
provisions of Executive Order 13132.

Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule would not unduly burden the 
judicial system and would meet the requirements of sections (3)(a) and 
(3)(b)(2) of the Order.

Paperwork Reduction Act

    Office of Management and Budget (OMB) regulations at 5 CFR 1320, 
which implement provisions of the Paperwork Reduction Act (PRA) (44 
U.S.C. 3501 et seq.), require that Federal agencies obtain approval 
from OMB before collecting information from the public. This proposed 
rule does not contain any new information collections that require 
approval. We may not collect or sponsor, and you are not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.

National Environmental Policy Act

    The reintroduction of native species into suitable habitat within 
their historical or established range is categorically excluded from 
NEPA documentation requirements consistent with the Department of 
Interior's Department Manual (516 DM 8.5B(6)).

Government-to-Government Relationship With Tribes

    In accordance with the presidential memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951; May 4, 1994), Executive Order 13175 (65 FR 
67249; November 9, 2000), and the Department of the Interior Manual 
Chapter 512 DM 2, we have considered possible effects on federally 
recognized Indian tribes and have determined that there are no tribal 
lands affected by this proposed rule.

Energy Supply, Distribution, or Use (E.O. 13211)

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This rule is not 
expected to significantly affect energy supplies, distribution, or use. 
Because this action is not a significant energy action, no Statement of 
Energy Effects is required.

Clarity of This Rule (E.O. 12866)

    We are required by E.O. 12866, E.O. 12988, and by the Presidential 
Memorandum of June 1, 1998, to write all rules in plain language. This 
means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comment should be as specific as possible. For 
example, you should tell

[[Page 94306]]

us the numbers of the sections and paragraphs that are unclearly 
written, which sections or sentences are too long, or the sections 
where you feel lists and tables would be useful.

References Cited

    A complete list of all references cited in this final rule is 
available at http://www.regulations.gov at Docket No. FWS-R1-ES-
2016-0102 or upon request from the Newport Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this proposed rule are staff members of the 
Service's Newport Field Office (see FOR FURTHER INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
record keeping requirements, Transportation.

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, 
unless otherwise noted.

0
2. Amend Sec.  17.11(h) by revising the entry for ``Butterfly, Oregon 
silverspot'' under INSECTS in the List of Endangered and Threatened 
Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                              Listing citations
           Common name               Scientific name        Where listed         Status         and applicable
                                                                                                    rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
             Insects
 
                                                  * * * * * * *
Butterfly, Oregon silverspot.....  Speyeria zerene      Wherever found,      T               45 FR 44935; 7/2/
                                    hippolyta.           except where                         1980,
                                                         listed as an                        50 CFR 17.95(i)
                                                         experimental                         \CH\.
                                                         population.
Butterfly, Oregon silverspot.....  Speyeria zerene      U.S.A. (OR--         XN              [Federal Register
                                    hippolyta.           specified portions                   citation of the
                                                         of Clatsop and                       final rule]
                                                         Tillamook
                                                         Counties; see Sec.
                                                           17.85(d)).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.85 by adding paragraph (d) to read as follows:


Sec.  17.85  Special rules--invertebrates.

* * * * *
    (d) Oregon Silverspot Butterfly (Speyeria zerene hippolyta).
    (1) Where is the Oregon silverspot butterfly designated as a 
nonessential experimental population (NEP)? (i) The NEP areas for the 
Oregon silverspot butterfly are within the subspecies' historical range 
in Tillamook and Clatsop Counties, Oregon. The boundary of the NEP 
includes those Public Land Survey System sections intersecting with a 
4.25-mile (6.8-kilometer) radius around the release locations. This 
boundary was selected to encompass all likely movements of Oregon 
silverspot butterflies away from the release areas while maintaining 
geographic separation from existing populations.
    (A) The Nestucca Bay NEP area, centered on the coastal prairie 
habitat on the Cannery Hill Unit of the Nestucca Bay National Wildlife 
Refuge (Nestucca Bay NEP area), includes Township 4 South, Range 10 
West, Sections 15 through 36; Township 4 South, Range 11 West, Sections 
13, 24, 25, and 36; Township 5 South, Range 10 West, Sections 2 through 
11, 14 through 23, 27 through 30; and Township 5 South, Range 11 West, 
Sections 12, 13, 24, and 25.
    (B) The Saddle Mountain NEP area, centered on the coastal prairie 
habitat on top of Saddle Mountain State Natural Area (Saddle Mountain 
NEP area), includes Township 6 North, Range 7 West, Sections 7, 17 
through 20, 29 through 32; Township 6 North, Range 8 West, Sections 1 
through 36; Township 6 North, Range 9 West, Sections 1, 11 through 14, 
23 through 26, 35, and 36; Township 5 North, Range 7 West, Sections 5 
through 8, 17, 18, and 19; Township 5 North, Range 8 West, Sections 1 
through 24; and Township 5 North, Range 9 West, Sections 1, 2, 3, 11, 
12, 13, and 14.
    (ii) The nearest known extant population to the Nestucca Bay NEP 
area is 8 miles (13 kilometers) to the south, beyond the longest known 
flight distance of the butterfly (4.1 miles (6.6 kilometers)) and with 
little or no suitable habitat between them. The nearest known extant 
population to the Saddle Mountain NEP area is 50 miles (80 kilometers) 
to the south, well beyond the longest known flight distance of the 
butterfly (4.1 miles (6.6 kilometers)). Given its habitat requirements, 
movement patterns, and distance from extant populations, the NEP is 
wholly separate from extant populations and we do not expect the 
reintroduced Oregon silverspot butterflies to become established 
outside the NEP areas. Oregon silverspot butterflies outside of the NEP 
boundaries will assume the status of Oregon silverspot butterflies 
within the geographic area in which they are found.
    (iii) We will not change the NEP designations to ``essential 
experimental,'' ``threatened,'' or ``endangered'' within the NEP areas 
without engaging in notice-and-comment rulemaking. Additionally, we 
will not designate critical habitat for this NEP, as provided by 16 
U.S.C. 1539(j)(2)(C)(ii).
    (2) What take of the Oregon silverspot butterfly is allowed in the 
NEP areas?
    (i) Oregon silverspot butterflies may be taken within the NEP area, 
provided that such take is not willful, knowing, or due to negligence, 
and is incidental to carrying out an otherwise lawful activity, such as 
agriculture, forestry and wildlife management, land development, 
recreation, and other activities that are in accordance with Federal, 
State, Tribal, and local laws and regulations.

[[Page 94307]]

    (ii) Any person with a valid permit issued by the Service under 50 
CFR 17.32 may take the Oregon silverspot butterfly for educational 
purposes, scientific purposes, the enhancement of propagation or 
survival of the species, zoological exhibition, and other conservation 
purposes consistent with the Act. Additionally, any employee or agent 
of the Service, any other Federal land management agency, or a State 
conservation agency, who is designated by the agency for such purposes, 
may, when acting in the course of official duties, may take an Oregon 
silverspot butterfly in the wild in the NEP area if such action is 
necessary:
    (A) For scientific purposes;
    (B) To relocate Oregon silverspot butterflies to avoid conflict 
with human activities;
    (C) To relocate Oregon silverspot butterflies within the NEP area 
to improve Oregon silverspot butterfly survival and recovery prospects 
or for genetic purposes;
    (D) To relocate Oregon silverspot butterflies from one population 
in the NEP into another in the NEP, or into captivity;
    (E) To euthanize an injured Oregon silverspot butterfly;
    (F) To dispose of a dead Oregon silverspot butterfly, or salvage a 
dead Oregon silverspot butterfly for scientific purposes;
    (G) To relocate an Oregon silverspot butterfly that has moved 
outside the NEP area back into the NEP area; or
    (H) To aid in law enforcement investigations involving the Oregon 
silverspot butterfly.
    (3) What take of Oregon silverspot butterfly is not allowed in the 
NEP area?
    (i) Except as expressly allowed in paragraph (d)(2) of this 
section, all of the provisions of 50 CFR 17.31(a) and (b) apply to the 
Oregon silverspot butterfly in areas identified in paragraph (d)(1) of 
this section.
    (ii) A person may not possess, sell, deliver, carry, transport, 
ship, import, or export by any means, Oregon silverspot butterflies, or 
parts thereof, that are taken or possessed in a manner not expressly 
allowed in paragraph (d)(2) of this section or in violation of 
applicable State fish and wildlife laws or regulations or the Act.
    (iii) Any manner of take not described under paragraph (d)(2) of 
this section is prohibited in the NEP areas.
    (iv) A person may not attempt to commit, solicit another to commit, 
or cause to be committed any take of the Oregon silverspot butterfly, 
except as expressly allowed in paragraph (d)(2) of this section.
    (4) How will the effectiveness of these reintroductions be 
monitored? We will monitor populations annually for trends in abundance 
in cooperation with partners and prepare annual progress reports. We 
will fully evaluate reintroduction efforts after 5 years to determine 
whether to continue or terminate the reintroduction efforts.
    (5) Maps of the NEP areas for the Oregon silverspot butterfly in 
Northwest Oregon.
    (i) Note: Map of the Oregon silverspot butterfly NEP follows:

[[Page 94308]]

[GRAPHIC] [TIFF OMITTED] TP23DE16.000

    (ii) Note: Map of Nestucca Bay NEP area for the Oregon silverspot 
butterfly follows:

[[Page 94309]]

[GRAPHIC] [TIFF OMITTED] TP23DE16.001

    (iii) Note: Map of Saddle Mountain NEP area for the Oregon 
silverspot butterfly follows:

[[Page 94310]]

[GRAPHIC] [TIFF OMITTED] TP23DE16.002

* * * * *

    Dated: December 19, 2016.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2016-30817 Filed 12-22-16; 8:45 am]
 BILLING CODE 4333-15-P