[Federal Register Volume 82, Number 120 (Friday, June 23, 2017)]
[Rules and Regulations]
[Pages 28567-28582]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-13163]


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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2016-0102; FXES11130900000 178 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: Final 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), will reestablish the Oregon silverspot butterfly (Speyeria 
zerene hippolyta)--a threatened species under the U.S. Endangered 
Species Act, as amended (Act)--within its 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. This final rule classifies the reintroduced 
populations as a nonessential experimental population (NEP) under the 
authority of section 10(j) of the Act and provides for allowable legal 
incidental taking of the Oregon silverspot butterfly within the defined 
NEP areas.

DATES: This final rule is effective June 23, 2017.

ADDRESSES: This final rule is available on http://www.regulations.gov 
at Docket No. FWS-R1-ES-2016-0102 and on our Web site at https://www.fws.gov/oregonfwo/. Comments and materials we received, as well as 
supporting documentation we used in preparing this rule, are also 
available for public inspection at http://www.regulations.gov. All 
comments, materials, and documentation that we considered in this 
rulemaking are available for public inspection, by appointment, during 
normal business hours, at the Newport Field Office, U.S. Fish and 
Wildlife Service, 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, at the 
Newport Field Office, U.S. Fish and

[[Page 28568]]

Wildlife Service, 2127 SE Marine Science Drive, Newport, OR 97365; 
telephone 541-867-4558. Persons who use a TDD may call the Federal 
Relay Service (FRS) at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

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 Oregon 
silverspot butterfly at the time of listing (45 FR 44935, July 2, 
1980). On December 23, 2016, we published in the Federal Register a 
proposed rule to establish a nonessential experimental population of 
the Oregon silverspot butterfly in northwestern Oregon (81 FR 94296). 
The comment period on the proposed rule was open for 60 days, through 
February 21, 2017. Comments on the proposed rule are addressed below, 
under Summary of Comments and Recommendations.
    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 in title 50 of the Code of Federal 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 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 will 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 
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 an experimental population.
    As discussed below (see Relationship of the NEP to Recovery 
Efforts), we intend to reintroduce 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 the 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 experimental population of Oregon silverspot butterfly in 
northwestern Oregon 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 existing 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).
    (5) Loss of the experimental population will not preclude other 
recovery options, including future efforts to reestablish Oregon 
silverspot butterfly populations elsewhere. Therefore, we conclude the 
reintroduced populations of Oregon silverspot butterfly at two sites in 
northwest Oregon are appropriately established as a nonessential 
experimental population (NEP) under section 10(j) of the Act.
    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

[[Page 28569]]

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. In this case, 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 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 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 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 that 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).
    Habitat quality is largely determined by violet densities and the 
abundance and availability of nectar plants during the flight season. 
Field studies have demonstrated that female Oregon silverspot 
butterflies select areas with high violet densities for egg-laying 
(Damiani 2011, p. 7). Based on laboratory studies, from 200 to 300 
violet leaves are needed to allow an Oregon silverspot butterfly to 
develop from caterpillar to pupae (Andersen et al. 2009, p. 7). The 
caterpillars have limited foraging ability beyond a 3.3-foot (ft) (1-
meter (m)) distance (Bierzychudek et al. 2009, p. 636). In the wild, a 
caterpillar would require a clump of approximately 16 violet plants for 
development, assuming each violet

[[Page 28570]]

could provide about 12 to 20 leaves (USFWS 2012, p. 8). Based on 
studies of other butterflies, nectar abundance and quality are also 
important to adult survival and particularly fecundity (Boggs and Ross 
1993, p. 436; Schultz and Dlugosch 1999, p. 231; Mevi-Schutz and Erhard 
2005, p. 411). Therefore, we consider high-quality Oregon silverspot 
butterfly habitat to have large numbers of violets distributed in dense 
patches for caterpillar forging and an abundance of nectar plants of 
differing species, blooming throughout the butterfly flight period 
(USFWS 2012, p. 8).
    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 establishing 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 criterion 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 population of 200 to 500 butterflies for at least 10 years.
    The reintroduction of Oregon silverspot butterflies within the NEP 
area will 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 NEP areas have the 
biological attributes to support a viable 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 NEP as those Public Land Survey 
System sections intersecting with a 4.25-mi (6.8-km) 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. 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 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 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.
    As with 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 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 that although an 
occasional individual may move into this area, population establishment 
is unlikely to occur. 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 2012, 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

[[Page 28571]]

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 ft 
(1,002 m) above sea-level. Based on recent plant surveys (OPRD 2012, p. 
2), the 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).
    We will reintroduce the Oregon silverspot butterfly at the Saddle 
Mountain NEP area, centered on the coastal prairie habitat on top of 
Saddle Mountain. The NEP encompasses all the Public Land Survey System 
sections that intersect with a 4.25-mi (6.8-km) radius around the 
release area. The subspecies is generally sedentary 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 Saddle Mountain butterfly population 
will be released into permanently protected suitable habitat. 
Reintroduction of the Oregon silverspot butterfly as an NEP in this 
area will 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 sites nearest 
to the 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 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 will release Oregon silverspot 
butterflies. The NEP encompasses all Public Land Survey System sections 
that intersect with a 4.25-mi (6.8-km) radius around the release area. 
We will 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. Reintroduction of the Oregon 
silverspot butterfly as an NEP in this area will 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 sedentary and non-migratory, we 
consider the likelihood of butterflies moving on to these adjacent 
lands to be low. Despite a few adjacent properties through which Oregon 
silverspot butterflies might occasionally move, 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 NEP areas will become successfully 
established. Butterflies will 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,

[[Page 28572]]

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 NEP areas, large trees surrounding the 
meadows 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 
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 NEP at this site.

Release Procedures

    We will 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 into suitable habitat within the 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 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 
will 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 NEP areas.

Donor Stock Assessment and Effects on Donor Populations

    Individual Oregon silverspot butterflies used to establish 
populations at both 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,

[[Page 28573]]

concurrent with the reintroductions to the NEP areas. This process 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 
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 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 are designating 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. 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 will further the conservation of the subspecies by 
facilitating its reintroduction into two areas of suitable habitat 
within its historical range. The rule provides 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 described in this NEP rule, take of any member of 
the Oregon silverspot butterfly NEP will continue to be prohibited 
under the Act.

Extent to Which the Reintroduced Population May Be Affected by Land 
Management Within the 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 rangewide, 
indicates that activities currently occurring, or likely to occur, at 
prospective reintroduction sites within NEP areas are compatible with 
the species' recovery. The reintroduced Oregon silverspot butterfly 
populations will be managed by OPRD and the Service, and 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 
will continue to occur within the 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 Oregon silverspot butterfly NEP area at Saddle 
Mountain SNA will 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 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 
sedentary 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 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. Under this 10(j) rule, take of the Oregon silverspot butterfly 
anywhere within the NEP areas is not 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 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

[[Page 28574]]

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 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 
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 
indicated support for, or no opposition to, the reintroduction if the 
reintroduced populations were designated an NEP and if the 10(j) rule 
allowed incidental take of Oregon silverspot butterflies in the NEP 
areas.
    (d) Public awareness and cooperation: The NEP designation is 
necessary to secure needed cooperation of the States, landowners, 
agencies, and other interests in the affected area. 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 NEP areas that would be affected 
by the reintroductions.
    (f) Monitoring and evaluation: Annual monitoring will be performed 
by qualified personnel with the cooperation of the OPRD Saddle Mountain 
SNA and Nestucca Bay NWR. Oregon silverspot butterflies will be counted 
on designated survey transects or public trails. We do not anticipate 
that surveys will disrupt or hamper public use and would likely be 
perceived by the public as normal activities in the context of a 
natural area.

Reintroduction Effectiveness Monitoring

    Oregon silverspot butterfly surveys will 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 will 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 
will be used to assess annual population trends to provide information 
on reintroduction effectiveness. We will prepare annual progress 
reports.
    Habitat quality monitoring will also be conducted to ensure the 
resources needed by an Oregon silverspot butterfly population are 
maintained in large enough quantities to sustain the reintroduced 
populations. Violet density counts and other habitat quality parameters 
will be measured periodically, in conjunction with the butterfly 
population counts. Reintroduction efforts will be fully evaluated after 
5 years to determine whether to continue or terminate the 
reintroduction efforts.

Donor Population Monitoring

    We will 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 
will be used to adaptively manage the captive-rearing program to ensure 
that the removal of donor stock will 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 
reintroduction of the Oregon silverspot butterfly.

Summary of Comments and Recommendations

    In the proposed rule published on December 23, 2016 (81 FR 94296), 
we requested that all interested parties submit written comments on the 
proposal by February 21, 2017. We also contacted appropriate Federal 
and State agencies, scientific experts and organizations, and other 
interested parties and invited them to comment on the proposal. 
Newspaper notices inviting general public comment were published in the 
Daily Astorian, Lincoln County News Guard, and the Tillamook Headlight 
Herald. During the public comment period, we received public comments 
from six individuals or organizations, including three submissions by 
individuals asked to serve as peer reviewers. We did not receive any 
comments from Federal or State agencies or Tribes. We did not receive 
any requests for a public meeting.
    We reviewed all comments received from the public and peer 
reviewers for substantive issues and new information regarding the 
establishment of an experimental population of Oregon silverspot 
butterfly in northwestern Oregon. Substantive comments are addressed in 
the following summary, and have been incorporated into the final rule 
as appropriate. Any substantive changes incorporated into the final 
rule are summarized in the Summary of Changes from the Proposed Rule 
section, below.

Peer Review Comments

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinion from five knowledgeable 
individuals with scientific expertise in the species' biology, habitat, 
and butterfly reintroductions in general. We received responses from 
three of the peer reviewers.
    All three peer reviewers expressed strong support for the 
reintroduction with an associated 10(j) rule and agreed the action is 
likely to contribute to the conservation of the subspecies. Two peer 
reviewers specifically stated that, in their judgment, we used the best 
available science. We incorporated specific updated information, 
comments, and suggestions from peer reviewers into the final rule as 
described in our responses, below.
    (1) Comment: One peer reviewer suggested we change our description 
of the Oregon silverspot butterfly as being ``territorial'' to 
``sedentary'' to convey the species as being unlikely to move away from 
areas of suitable habitat.
    Our Response: We agree this terminology more accurately depicts the 
life history of the butterfly and have changed all references in the 
document from territorial to sedentary.
    (2) Comment: Two peer reviewers suggested we monitor not only the 
butterfly populations following the reintroductions, but that we 
monitor habitat quality in conjunction with our population counts.

[[Page 28575]]

    Our Response: We agree and we will monitor vegetation components 
needed by the butterfly in conjunction with our population counts 
following the reintroduction, with violet densities and blooming nectar 
plant abundance as our primary measures of habitat quality.
    (3) Comment: One peer reviewer suggested we describe in greater 
detail how we define high-quality habitat for the Oregon silverspot 
butterfly.
    Our Response: We agree and have updated the Biological Information 
section, above, to more clearly define what we mean by ``high-quality 
habitat.'' High-quality Oregon silverspot butterfly habitat has large 
numbers of violets distributed in dense patches for caterpillar forging 
and an abundance of nectar plants of differing species, blooming 
throughout the butterfly flight period (USFWS 2012, p. 8).
    (4) Comment: One peer reviewer commented that we should not remove 
nonnative species such as tansy ragwort, which is also a nectar source 
for the Oregon silverspot butterfly, unless alternative native nectar 
sources are available.
    Our Response: We agree and will assess the availability of 
alternative nectar sources prior to initiating the removal of nonnative 
nectar plants used by the Oregon silverspot butterfly.
    (5) Comment: One peer reviewer commented that we should add 
stochastic weather and climatic events as a threat to the species and 
suggested the additional 10(j) populations may provide a ``survival 
cushion'' for the taxon.
    Our Response: We agree that climatic events impact butterfly 
populations and additional populations may help to reduce the risk of 
extinction; increasing the redundancy of populations to ensure the 
persistence of the Oregon silverspot butterfly in the face of such 
events is one of the primary reasons for undertaking the establishment 
of this NEP of the subspecies.

Public Comments

    (6) Comment: One nongovernmental organization commented that they 
support the reintroductions to achieve redundancy in populations and to 
broaden the butterfly's geographic range. The organization also urged 
the Service to establish protective rules that treat these populations 
as if they were listed.
    Our Response: Please see the Legal Status of Reintroduced 
Populations section above, where section 10(j) of the Act is discussed 
in detail. Also see the section Extent to Which the Reintroduced 
Population May Be Affected by Land Management within the NEP, where the 
Saddle Mountain SNA is discussed as a protected site. An NEP 
designation allows us to tailor ESA protections in specific areas to 
increase public acceptance of a reintroduction effort that might not 
otherwise be achievable without such a designation. While the NEP rules 
are generally not as stringent as the protections afforded to 
threatened or endangered species, they are designed to ensure the 
effort will contribute to conservation of the species. Ultimately, the 
establishment of an NEP allows us to take important steps toward the 
recovery of a listed species while encouraging the support and 
engagement of the public and our conservation partners, and, as 
described above, this NEP will continue to receive legal protections in 
both of the NEP areas slated for reintroductions.
    (7) Comment: One commenter expressed concern that the proposed 
reintroduction program may place the subspecies at risk.
    Our Response: We carefully considered whether the removal of 
individuals from the potential source population (most likely Mount 
Hebo) might have a negative effect on that population, and by 
extension, the subspecies as a whole. We adhere to a strict limit on 
the number of individuals that may be removed, based on population 
monitoring (restricted to a maximum of 5 percent of the population), 
and our data from past years of removals for captive-propagation 
purposes indicate the small proportion of individuals removed is 
sustainable (see Donor Stock Assessment and Effects on Donor 
Populations, above). Our peer reviewers specifically considered this 
question as well and agreed with our conclusion that the limited 
removal of individuals, under the restrictions and protocol described 
here, are unlikely to result in a negative impact to the donor 
population.
    (8) Comment: One commenter questioned whether it was wise to expend 
resources on the recovery of a nonessential species.
    Our Response: We did not determine that the Oregon silverspot 
butterfly is a nonessential species. Our determination is that the 
populations proposed for reintroduction are a nonessential experimental 
population. An NEP is defined in our regulations as an experimental 
population whose loss is not likely to appreciably reduce the 
likelihood of the species' survival in the wild. Although we do not 
consider the experimental population essential to the species' survival 
in the wild, it is expected to meaningfully contribute to the 
conservation and recovery of the subspecies.

Summary of Changes From Proposed Rule

    In response to peer review comments, in this final rule we have:
     Clarified the definition of ``high-quality habitat'' in 
our Biological Information section;
     Changed all references of the Oregon silverspot butterfly 
from being ``territorial'' to ``sedentary;'' and
     Clarified our intent to monitor habitat quality as well as 
Oregon silverspot butterfly population counts, following the 
reintroductions (see Reintroduction Effectiveness Monitoring, above, 
and Regulation Promulgation, below).

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 rulemaking will 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.

Need for Immediate Effective Date

    As set forth above in DATES, this rule is effective upon the date 
of publication in the Federal Register. We are making this rule 
effective in less than the 30 days usually required by the 
Administrative Procedure Act at 5 U.S.C. 553(d) as we have good cause 
in accordance with 5 U.S.C. 553(d)(3). There is a narrow window of 
opportunity to implement the provisions of this rule and begin the 
reintroduction process this year, imposed by the timing of the 
development of the larvae (caterpillars) that have been raised in 
captivity and are now nearing the appropriate stage for release. After 
the caterpillars hatch and begin feeding, development proceeds rapidly 
and there is a short 2-week window during which maximum survivorship is 
anticipated for released individuals. A date later in the summer would 
require release during the pupation stage, which significantly reduces 
the chances of survival.

[[Page 28576]]

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 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 rule in a manner consistent 
with these requirements.

Executive Order 13771

    Executive Order 13771 (``Reducing Regulation and Controlling 
Regulatory Costs''), signed on January 30, 2017 (82 FR 9339, February 
3, 2017), directs agencies to reduce regulation and control regulatory 
costs and provides that ``for every one new regulation issued, at least 
two prior regulations be identified for elimination, and that the cost 
of planned regulations be prudently managed and controlled through a 
budgeting process.'' Office of Management and Budget (OMB) guidance 
clarifies that Executive Order 13771 only applies to rules designated 
by OMB as significant pursuant to Executive Order 12866. OMB has not 
designated this final rule a significant regulatory action under 
section 3(f) of Executive Order 12866. As this rule is not a 
significant regulatory action, the requirements of Executive Order 
13771 are not applicable to it. See OMB's Memorandum titled ``Interim 
Guidance Implementing Section 2 of the Executive Order of January 30, 
2017, titled Reducing Regulation and Controlling Regulatory Costs''' 
(February 2, 2017).

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 under this rule 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 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 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 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.
    This rule broadly authorizes 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 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 NEP areas are 
timber production, agriculture, and activities associated with private 
residences. We believe the presence of the Oregon silverspot butterfly 
will not affect the use of lands for these purposes because there will 
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 
have to comply with sections 7(a)(1) and 7(a)(4) of the Act only in 
these areas, except on Nestucca Bay NWR lands where section 7(a)(2) of 
the Act applies. Therefore, this rulemaking is not expected to have any 
significant adverse impacts to activities on private lands within the 
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) This rule will 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 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

[[Page 28577]]

because the NEP designation would not place additional requirements on 
any city, county, or other local municipalities.
    (2) This rule will 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 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 rule does not have 
significant takings implications. This rule allows 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 NEP will 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 will 
substantially advance a legitimate government interest (conservation 
and recovery of a listed species) and will 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 rule has significant Federalism effects and have 
determined that a federalism summary impact statement is not required. 
This rule will 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 rule 
with the affected resource agencies in Oregon. Achieving the recovery 
goals for this subspecies will 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 will not change; and fiscal capacity will not be 
substantially directly affected. The rule maintains the existing 
relationship between the State and the Federal Government, and is 
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 will not unduly burden the 
judicial system and meets the requirements of sections (3)(a) and 
(3)(b)(2) of the Order.

Paperwork Reduction Act

    This rule does not contain any new collection of information that 
requires approval by OMB under the PRA of 1995. OMB has previously 
approved the information collection requirements associated with 
Service permit application forms and activities associated with native 
endangered and threatened species and assigned OMB Control Number 1018-
0094. That approval expired May 31, 2017; however, the Service is 
currently seeking new approval. In accordance with 5 CFR 1320.10, the 
agency may continue to conduct or sponsor this collection of 
information while the submission is pending at OMB. We estimate the 
annual burden associated with this information collection to be 17,166 
hours per year. 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.

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 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.

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 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 
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--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) * * *

[[Page 28578]]



 
----------------------------------------------------------------------------------------------------------------
                                                                                               Listing citations
          Common name              Scientific name         Where listed           Status        and  applicable
                                                                                                     rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
INSECTS
 
                                                  * * * * * * *
Butterfly, Oregon silverspot...  Speyeria zerene     Wherever found, except                T  45 FR 44935, 7/2/
                                  hippolyta.          where listed as an                       1980; 50 CFR
                                                      experimental                             17.95(i)\CH\.
                                                      population.
Butterfly, Oregon silverspot...  Speyeria zerene     U.S.A. (OR--specified                XN  82 FR [Insert
                                  hippolyta.          portions of Clatsop                      Federal Register
                                                      and Tillamook                            page where the
                                                      Counties; see Sec.                       document begins];
                                                      17.85(d)).                               06/23/2017.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


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.
    (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, 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.

[[Page 28579]]

    (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, monitor habitat quality, 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:
    [GRAPHIC] [TIFF OMITTED] TR23JN17.001
    

[[Page 28580]]


    (ii) Note: Map of Nestucca Bay NEP area for the Oregon silverspot 
butterfly follows:
[GRAPHIC] [TIFF OMITTED] TR23JN17.002


[[Page 28581]]


    (iii) Note: Map of Saddle Mountain NEP area for the Oregon 
silverspot butterfly follows:
[GRAPHIC] [TIFF OMITTED] TR23JN17.003


[[Page 28582]]


* * * * *

    Dated: June 13, 2017.
Virginia H. Johnson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2017-13163 Filed 6-22-17; 8:45 am]
 BILLING CODE 4333-15-P