Endangered and Threatened Wildlife and Plants; Reclassifying Fender's Blue Butterfly From Endangered to Threatened With a Section 4(d) Rule, 2006-2028 [2023-00037]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 88, Number 8 (Thursday, January 12, 2023)]
[Rules and Regulations]
[Pages 2006-2028]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00037]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2020-0082; FF09E22000 FXES1113090FEDR 223]
RIN 1018-BD97


Endangered and Threatened Wildlife and Plants; Reclassifying 
Fender's Blue Butterfly From Endangered to Threatened With a Section 
4(d) Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS), are 
reclassifying Fender's blue butterfly (Icaricia icarioides fenderi) 
from endangered to threatened under the Endangered Species Act of 1973, 
as amended (Act). Fender's blue butterfly is endemic to the Willamette 
Valley of Oregon. This action is based on our evaluation of the best 
available scientific and commercial information, which indicates that 
the species' status has improved such that it is not currently in 
danger of extinction throughout all or a significant portion of its 
range, but that it is still likely to become so in the foreseeable 
future. We are also finalizing a rule issued under section 4(d) of the 
Act that provides for the conservation of the species.

DATES: This rule is effective February 13, 2023.

ADDRESSES: The proposed rule and this final rule, the comments we 
received on the proposed rule, and supporting documents are available 
at https://www.fws.gov/oregonfwo and at https://www.regulations.gov 
under Docket No. FWS-R1-ES-2020-0082.

FOR FURTHER INFORMATION CONTACT: Craig Rowland, Acting State 
Supervisor, U.S. Fish and Wildlife Service, Oregon

[[Page 2007]]

Fish and Wildlife Office, telephone 503-319-9488. Individuals in the 
United States who are deaf, deafblind, hard of hearing, or have a 
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access 
telecommunications relay services. Individuals outside the United 
States should use the relay services offered within their country to 
make international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, a species may warrant 
reclassification from endangered to threatened if it no longer meets 
the definition of an endangered species (in danger of extinction 
throughout all or a significant portion of its range). Fender's blue 
butterfly is listed as endangered, and we are reclassifying Fender's 
blue butterfly as threatened (i.e., ``downlisting'' the species) 
because we have determined it is not currently in danger of extinction. 
Reclassifying a species as a threatened species can be completed only 
by issuing a rule through the Administrative Procedure Act rulemaking 
process.
    What this document does. This rule reclassifies Fender's blue 
butterfly from endangered to threatened, with a rule issued under 
section 4(d) of the Act (a ``4(d) rule''), based on the species' 
current status, which has been improved through implementation of 
conservation actions.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered species or a threatened species because of any 
of five factors: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence. We may downlist a species listed as 
an endangered species if the best available commercial and scientific 
data indicate the species no longer meets the Act's definition of an 
endangered species. We have determined that Fender's blue butterfly is 
no longer in danger of extinction and, therefore, does not meet the 
Act's definition of an endangered species, but is still affected by the 
following current and ongoing threats to the extent that the species 
meets the Act's definition of a threatened species: the loss, 
degradation, and fragmentation of prairie and oak savannah habitats, 
including conversion to non-habitat land uses (e.g., urban development, 
agriculture); elimination of natural disturbance regimes; encroachment 
into prairie habitats by shrubs and trees due to fire suppression; 
insecticides and herbicides; and invasion by nonnative plants.
    We are promulgating a 4(d) rule. We are finalizing a 4(d) rule that 
prohibits all intentional take of Fender's blue butterfly and 
specifically allows incidental take by landowners or their agents while 
conducting management for the creation, restoration, or enhancement of 
short-stature native upland prairie or oak savannah conditions as a 
means to provide protective mechanisms to our State and private 
partners so that they may continue with certain activities that will 
facilitate the conservation and recovery of the species.

Previous Federal Actions

    On June 23, 2021, we published in the Federal Register (86 FR 
32859) a proposed rule to reclassify Fender's blue butterfly from an 
endangered species to a threatened species under the Act with a 4(d) 
rule. Please refer to that proposed rule for a detailed description of 
previous Federal actions concerning this species. The proposed rule and 
supplemental documents are provided at https://www.regulations.gov 
under Docket No. FWS-R1-ES-2020-0082.

Summary of Changes From the Proposed Rule

    In preparing this final rule, we reviewed and fully considered all 
comments we received from peer reviewers and the public during the 
comment period on the proposed rule to downlist Fender's blue butterfly 
(86 FR 32859; June 23, 2021). We made minor, nonsubstantive changes and 
corrections throughout this document in response to those comments. 
Additionally, after further internal review and consultation with 
partners, in this rule, we amend the proposed 4(d) rule to allow manual 
removal of invasive and/or nonnative plant species during Fender's blue 
butterfly's flight period (April 15 to June 30). The long-term 
conservation benefits to the species of allowing this type of work 
during the flight season outweigh the potential negative effects to any 
individuals on the landscape at that moment because removing invasive 
plants improves habitat suitability for host lupine plants, which 
improves butterfly viability. Overall, the information we received 
during the proposed rule's comment period did not change our 
determination that Fender's blue butterfly is no longer in danger of 
extinction throughout all or a significant portion of its range and, 
therefore, does not meet the Act's definition of an endangered species 
but that it is still likely to become endangered in the foreseeable 
future.
    Lastly, during development of this final rule, we identified an 
error in the entry for Kincaid's lupine (Lupinus sulphureus spp. 
kincaidii; Fender blue butterfly's primary host plant) in the List of 
Endangered and Threatened Plants in title 50 of the Code of Federal 
Regulations (CFR) at Sec.  17.12(h) (50 CFR 17.12(h)). Therefore, we 
are making one nonsubstantive, editorial correction to the date of the 
listing rule provided in the ``Listing citations and applicable rules'' 
column in that entry. That column of the List of Endangered and 
Threatened Plants is nonregulatory in nature and is provided for 
informational and navigational purposes only (see 50 CFR 17.12(f)). 
This correction is simply for the purposes of accuracy and clarity and 
does not alter the species' status or protections under the Act; an 
action changing this species' status or protections under the Act would 
require a separate rulemaking following the procedures set forth at 50 
CFR part 424.

Supporting Documents

    A species status assessment (SSA) team prepared an SSA report for 
Fender's blue butterfly. The SSA team was composed of Service 
biologists, in consultation with other species experts. The SSA report 
represents a compilation of the best scientific and commercial data 
available concerning the status of the species, including the impacts 
of past, present, and future factors (both negative and beneficial) 
affecting the species.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), our August 22, 2016, 
memorandum updating and clarifying the role of peer review of listing 
actions under the Act, we sought the expert opinions of 12 appropriate 
and independent specialists with knowledge of the biology and ecology 
of Fender's blue butterfly or its habitat regarding the SSA report. We 
received feedback from 5 of the 12 peer reviewers contacted. The 
purpose of peer review is to ensure that our determination regarding 
the status of the species under the Act is based on scientifically 
sound data, assumptions, and analyses. In preparing the proposed rule, 
we incorporated the results of these reviews, as appropriate, into the 
final SSA report, which is the foundation for this final rule.

[[Page 2008]]

I. Reclassification Determination

Background

Status Assessment for Fender's Blue Butterfly

    We prepared an SSA report for Fender's blue butterfly (USFWS 2020, 
entire) that presents a thorough review of the taxonomy, life history, 
ecology, and overall viability of Fender's blue butterfly. In this 
final rule, we present only a summary of the key results and 
conclusions from the SSA report; the full report is available at 
https://www.regulations.gov under Docket No. FWS-R1-ES-2020-0082.
    Fender's blue butterfly is found only in the prairie and oak 
savannah habitats of the Willamette Valley of Oregon. Adult Fender's 
blue butterflies are quite small, having a wingspan of approximately 25 
millimeters (mm) (1 inch (in)). The upper wings of males are brilliant 
blue in color with black borders and basal areas, whereas the upper 
wings of females are brown.
    Fender's blue butterfly relies primarily upon a relatively uncommon 
lupine plant, the Kincaid's lupine (Lupinus sulphureus ssp. kincaidii), 
also endemic to the Willamette Valley and listed as a threatened 
species under the Act (65 FR 3875; January 25, 2000), as the host plant 
for the larval (caterpillar) life stage (Hammond and Wilson 1993, p. 
2). The only other host plants known for Fender's blue butterflies are 
Lupinus arbustus (longspur lupine) and Lupinus albicaulis (sickle-
keeled lupine) (Schultz et al. 2003, pp. 64-67). Females lay single 
eggs, up to approximately 350 eggs in total, on the underside of the 
leaves of one of these three lupine species. Eggs hatch from mid-May to 
mid-July, and the larvae feed on the lupine until the plants senesce 
and the larvae go into diapause for the fall and winter. The larvae 
break diapause in early spring, feed exclusively on the host lupine, 
and metamorphose into adults, emerging as butterflies between mid-April 
and the end of June. Adult Fender's blue butterflies only live 7 to 14 
days, and feed exclusively on nectar from flowering plants (Schultz 
1995, p. 36; Schultz et al. 2003, pp. 64-2012;65).
    Given its short adult lifespan, Fender's blue butterfly has limited 
dispersal ability. Butterflies are estimated to disperse approximately 
0.75 kilometers (km) (0.5 miles (mi)) if they remain in their natal 
lupine patch, and approximately 2 km (1.2 mi) if they disperse between 
lupine patches (Schultz 1998, p. 290).

Recovery Planning and Recovery Criteria

    Section 4(f) of the Act directs us to develop and implement 
recovery plans for the conservation and survival of endangered and 
threatened species unless we determine that such a plan will not 
promote the conservation of the species. Under section 4(f)(1)(B)(ii), 
recovery plans must, to the maximum extent practicable, include 
objective, measurable criteria which, when met, would result in a 
determination, in accordance with the provisions of section 4 of the 
Act, that the species be removed from the Lists of Endangered and 
Threatened Wildlife and Plants.
    Recovery plans provide a roadmap for us and our partners on methods 
of enhancing conservation and minimizing threats to listed species, as 
well as measurable criteria against which to evaluate progress towards 
recovery and assess the species' likely future condition. However, they 
are not regulatory documents and do not substitute for the 
determinations and promulgation of regulations required under section 
4(a)(1) of the Act. A decision to revise the status of a species, or to 
delist a species, is ultimately based on an analysis of the best 
scientific and commercial data available to determine whether a species 
is no longer an endangered species or a threatened species, regardless 
of whether that information differs from the recovery plan.
    There are many paths to accomplishing recovery of a species, and 
recovery may be achieved without all of the criteria in a recovery plan 
being fully met. For example, one or more criteria may be exceeded 
while other criteria may not yet be accomplished. In that instance, we 
may determine that the threats are minimized sufficiently, and that the 
species is robust enough, that it no longer meets the Act's definition 
of an endangered species or a threatened species. In other cases, we 
may discover new recovery opportunities after having finalized the 
recovery plan. Parties seeking to conserve the species may use these 
opportunities instead of methods identified in the recovery plan. 
Likewise, we may learn new information about the species after we 
finalize the recovery plan. The new information may change the extent 
to which existing criteria are appropriate for identifying recovery of 
the species. The recovery of a species is a dynamic process requiring 
adaptive management that may, or may not, follow all of the guidance 
provided in a recovery plan.
    In 2010, we finalized the Recovery Plan for the Prairie Species of 
Western Oregon and Southwestern Washington (recovery plan), which 
applied to a suite of endemic species including Fender's blue butterfly 
(USFWS 2010, entire). The objective of the recovery plan is to achieve 
viable populations of the listed species distributed across their 
historical ranges in a series of interconnected populations. The 
historical range of Fender's blue butterfly is considered to be the 
Willamette Valley, which consists of nine counties in Oregon, because 
that is where the prairie plants on which the species relies for its 
survival and reproduction are distributed. The recovery plan objective 
was to be accomplished by establishing metapopulations of Fender's blue 
butterfly within restored prairie reserves across the geographic range 
(USFWS 2010, p. v). The recovery plan set abundance and distribution 
goals for Fender's blue butterfly by delineating three recovery zones 
(Salem, Corvallis, and Eugene) encompassing the historical range of the 
species in the Willamette Valley. The two downlisting criteria 
established for Fender's blue butterfly are as follows:
    (1) Each recovery zone has one functioning network (a 
metapopulation with several interacting subpopulations, as defined in 
the recovery plan) with a minimum count of 200 butterflies, distributed 
among three subpopulations, for at least 10 years; in addition to this 
network, there must be a second functioning network or two independent 
populations with butterflies present each year in each recovery zone. 
Downlisting goals were set at a 90 percent probability of persistence 
for 25 years.
    (2) Two functioning networks or one functioning network and two 
independent populations in each zone must be protected and managed for 
high-quality prairie habitat. The plan described high-quality prairie 
as habitat consisting of a diversity of native, non-woody plant 
species, various nectar plants that bloom throughout the flight season 
of Fender's blue butterfly, low frequency of nonnative plant species 
and encroaching woody species, and essential habitat elements (e.g., 
nest sites and food plants) for native pollinators. At least one of the 
larval host plant species, Lupinus sulphureus ssp. kincaidii, L. 
arbustus, or L. albicaulis, must be present.
    All three recovery zones have at least two metapopulations (see 
Table 1, below). The Baskett, Wren, West Eugene, and Willow Creek 
metapopulations have had more than

[[Page 2009]]

200 butterflies each year for at least 10 consecutive years and are 
therefore meeting the first (recovery) downlisting criterion. In 
addition, the Gopher Valley, Oak Ridge, Butterfly Meadows, Greasy 
Creek, Lupine Meadows, Coburg Ridge, and Oak Basin metapopulations have 
had butterflies present for at least 10 years although they have not 
exceeded the count of 200 butterflies. Thus, the species is currently 
meeting the first criterion for downlisting. That said, concern remains 
for the Corvallis recovery zone in the middle of the species' range, 
with metapopulations that are generally less robust and more vulnerable 
to deteriorating in condition over time.
    The species is also currently meeting the second (habitat 
management and protection) downlisting criterion. In each recovery 
zone, there are at least three metapopulations with greater than 75 
percent of their habitat protected (see Table 1, below). Managers of 
protected land either have a habitat management plan in place or are in 
the process of creating plans to maintain prairie quality for Fender's 
blue butterfly. Although the recovery plan has identified the number of 
nectar species and sufficient amount of nectar to make up high-quality 
habitat, the metapopulations currently do not meet the strict 
definition spelled out in the recovery plan. However, we find that for 
the species to achieve recovery, it does not need to fulfill this part 
of the second downlisting criterion as laid out in the recovery plan. 
We will discuss this in greater detail below.

                             Table 1--Fender's Blue Butterfly Distribution, Abundance, and Protection Across Recovery Zones
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Number
                                          At least 200  butterflies for     consecutive     Time period    Butterflies present for past       Habitat
             Metapopulation                          10 years               years >=200     with >=200               10 years             protection (%)
                                                                            butterflies     butterflies
--------------------------------------------------------------------------------------------------------------------------------------------------------
Salem Recovery Zone:
    Baskett............................  Yes............................              18       2000-2018  Yes...........................             100
    Gopher Valley......................  No.............................               7       2012-2018  Yes...........................             100
    Hagg Lake..........................  No.............................               8       2011-2018  No............................             100
    Moores Valley......................  No.............................               0  ..............  No............................             100
    Oak Ridge..........................  No.............................               6       2013-2018  Yes...........................              35
    Turner Creek.......................  No.............................               0  ..............  No............................              45
Corvallis Recovery Zone:
    Butterfly Meadows..................  No.............................               6       2003-2009  Yes...........................              24
    Finley.............................  No.............................               3       2016-2018  No............................             100
    Greasy Creek.......................  No.............................               0  ..............  Yes...........................               4
    Lupine Meadows.....................  No.............................               6       2003-2009  Yes...........................             100
    Wren...............................  Yes............................              12       2006-2018  Yes...........................              93
Eugene Recovery Zone:
    Coburg Ridge.......................  No.............................               2       2006-2007  Yes...........................              77
    Oak Basin..........................  No.............................               0  ..............  Yes...........................             100
    West Eugene........................  Yes............................              15       2003-2018  Yes...........................             100
    Willow Creek.......................  Yes............................              25       1993-2018  Yes...........................             100
--------------------------------------------------------------------------------------------------------------------------------------------------------

    While Fender's blue butterfly meets downlisting criteria, the 
species does not meet delisting criteria. The three delisting criteria 
established for Fender's blue butterfly are as follows:
    (1) Each of the three recovery zones has a combination of 
functioning networks and independent populations such that the 
probability of persistence is 95 percent over the next 100 years; 
annual population surveys in each functioning network and independent 
population must contain at least the minimum number of adult 
butterflies as described in Table IV-2 in the recovery plan (Table 2) 
for 10 consecutive years.
    (2) Sites supporting populations of Fender's blue butterflies 
considered in delisting criterion (1) must be protected and managed for 
high-quality prairie habitat as described in the recovery plan.
    (3) Monitoring of populations following delisting will verify the 
ongoing recovery of the species, provide a basis for determining 
whether the species should be again placed under the protection of the 
Act, and provide a means of assessing the continuing effectiveness of 
management actions.

[[Page 2010]]



  Table 2--Distribution and Abundance Goals for Delisting Fender's Blue
                                Butterfly
             [Table is taken from recovery plan Table IV-2]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                             Delisting Goals
------------------------------------------------------------------------
Delisting goals are set at a 95% probability of persistence for 100
 years. Each row below represents a combination of functioning networks
 and independent populations within a recovery zone. If each of the
 three recovery zones meets the criteria in one row below, the species
 would be projected to have a 95 percent probability of persistence for
 100 years. Attainment of these population targets, together with the
 criteria for distribution, habitat quality and management described in
 the text, would indicate that the species has recovered and could be
 considered for delisting. Note that the minimum population size in the
 table represents the minimum population count in a network or
 independent population in each of 10 consecutive years. The average
 population size in a network or independent population corresponding to
 these minima would be substantially larger.
------------------------------------------------------------------------
Number of functioning networks                Minimum            Minimum
 (FN) and independent populations     population size    population size
 (IP)                                per network over    per independent
in a recovery zone                           10 years    population over
                                                                10 years
------------------------------------------------------------------------
2 FN + 0 IP.......................              4,500                n/a
2 FN + 2 IP.......................                800              3,000
2 FN + 2 IP.......................              1,000              1,000
2 FN + 2 IP.......................              1,500                500
2 FN + 3 IP.......................              1,000                700
2 FN + 3 IP.......................              1,500                300
3 FN + 0 IP.......................              1,000                n/a
3 FN + 1 IP.......................                800                200
3 FN + 2 IP.......................                500                250
4 FN + 0 IP.......................                400                n/a
------------------------------------------------------------------------

    Delisting may be achieved with a variety of combinations of 
metapopulations and independent populations in each recovery zone as 
detailed in the recovery plan. Currently, each recovery zone has at 
least four metapopulations, meaning that each metapopulation would need 
a minimum of 400 butterflies in each of 10 consecutive years to meet 
delisting criterion 1 (Table 2). At this time, none of the recovery 
zones meet this criterion. For delisting criterion 2, many of the sites 
for Fender's blue butterfly have protection in place. Currently, we 
have three habitat conservation plans (HCPs), 17 safe harbor agreements 
(SHAs), and many Partners for Fish and Wildlife (PFW) agreements in 
place. These agreements help maintain the species' habitat through 
prairie habitat restoration and enhancement. Overall, there is 
currently management and protection for Fender's blue butterfly 
habitat. However, these sites do not possess a sufficient number of 
butterflies to meet delisting criterion 1. Additionally, we also do not 
have post-delisting monitoring plans or agreements in place to assure 
habitat management will continue for this conservation-reliant species 
per delisting criterion 3. Therefore, although there are management 
plans in place for the species' habitat, because there are not a 
sufficient number of butterflies within the metapopulations and there 
are no long-term agreements for continual habitat management, this 
species does not meet the threshold for delisting.
    The extinction thresholds underlying downlisting and delisting 
criteria were derived from a census-based population viability analysis 
(PVA) conducted shortly after we listed Fender's blue butterfly (USFWS 
2010, pp. IV-29-IV-31, IV-34). However, for the reasons described 
below, we are conducting a new PVA using an individual-based population 
model and reevaluating the delisting recovery criteria in light of the 
best scientific data that are now available. As described in the SSA 
report, the PVA used to develop the initial recovery criteria relied 
upon several assumptions that, based on our improved understanding of 
the ecology of the butterfly, we now know are outdated and require 
modification. We also have an additional decade of monitoring data and 
increased confidence in the accuracy of a standardized monitoring 
protocol implemented in 2012 (USFWS 2020, pp. 47-52). Furthermore, the 
recovery plan set specific targets for the abundance and diversity of 
nectar species required to be of high-habitat quality to support 
Fender's blue butterfly, as well as a minimum density of lupine leaves 
(the host plant for the species' larval life stage). For various 
reasons detailed in the SSA report, including a limited dataset and 
conflicting results regarding the correlation between these resources 
and densities of Fender's blue butterfly, these targets are also now in 
question (USFWS 2020, pp. 65-67).
    Because we are in the process of reevaluating the current recovery 
criteria for Fender's blue butterfly as presented in the recovery plan 
for the species (USFWS 2010, pp. IV-29-IV-31 and IV-34), we did not 
assess the status of Fender's blue butterfly relative to all of the 
existing habitat targets. However, in our SSA, we did consider the 
status of the species relative to the overarching goals of protecting 
existing populations, securing the habitat, and managing for high-
quality prairie habitats; all of these were downlisting and delisting 
considerations described in the recovery plan (USFWS 2010, p. IV-9). In 
addition, our evaluation under the SSA framework (USFWS 2016) reflects 
the fundamental concepts captured in the recovery plan strategy of 
achieving multiple populations with connectivity between them 
distributed across the historical range of the species. For example, we 
find that the minimum number threshold from the recovery plan remains 
valid because population size targets based on minimum population size 
eliminate confounding variation from stochastic events that may not 
reflect demographic changes. In other words, averages may be 
artificially high or low if there is one unusual weather year.
    Additionally, we partially rely upon the habitat targets for nectar 
species for evaluating the status of the species. We acknowledge that 
the species needs a variety of different species as nectar sources. The 
recovery plan identifies the quantity of nectar needed per area and

[[Page 2011]]

the number of native nectar species. However, we do not find that the 
quantity defined in these recovery plan habitat targets is needed for 
the recovery of the species as we have seen sites maintain viability 
despite not meeting the target (i.e., there are sites that are able to 
maintain viability with lower quantities of nectar and nonnative nectar 
species). We also explicitly considered the quality of the prairie 
habitat, using the recommended guidelines for prairie quality and 
nectar availability in the recovery plan, and the management and 
protection status of butterfly occurrences (see, e.g., USFWS 2010, pp. 
IV-13, IV-29-IV-31).

Taxonomy

    Fender's blue butterfly was first described in 1931 as Plebejus 
maricopa fenderi based on specimens collected near McMinnville, Oregon, 
in Yamhill County (Macy 1931, pp. 1-2). Fender's blue butterfly was 
classified in the Lycaenidae family within the subfamily Polyommatinae 
as a subspecies of Boisduval's blue butterfly based on adult characters 
and geographic distribution. The species maricopa was considered a 
synonym of the species icarioides and was later determined to be a 
member of the genus Icaricia, rather than the genus Plebejus. The 
worldwide taxonomic arrangement of the subtribe Polyommatina (which 
contains blue butterflies) was fluctuating between Plebejus and 
Icaricia until it was revised in 2013 as Icaricia. The current 
scientific name, Icaricia icarioides fenderi, was validated by the 
Integrated Taxonomic Information System (ITIS) and experts at the 
McGuire Center for Lepidoptera and Biodiversity, a division of the 
Florida Museum of Natural History at the University of Florida (see 
USFWS 2020, p. 15, for all citations).

Population Terminology

    In some instances, populations that are spatially separated 
interact, at least on occasion, as individual members move from one 
population to another. In the case of Fender's blue butterfly, the 
clear delineation of discrete populations and subpopulations is 
challenging because of the uncertainty regarding the extent to which 
individuals at known sites interact with each other or with other 
individuals on the landscape of adjacent private lands that are 
inaccessible to researchers and remain unsurveyed. Thus, in the SSA 
report and in this document, we use the term ``metapopulation'' as a 
rough analog to the more familiar term ``population.'' We use the term 
metapopulation to describe groups of sites occupied by Fender's blue 
butterflies that are within 2 km (1.2 mi) of one another and not 
separated by barriers. We chose this distance because it is the 
estimated dispersal distance of Fender's blue butterfly (Schultz 1998, 
p. 290). We assume that butterflies within a metapopulation are capable 
of at least occasional interchange of individuals. We do not anticipate 
that metapopulations across the range of the species will interact with 
one another given the distance and structural barriers between them. 
The definition of metapopulation used here and in the SSA report is not 
the same as the ``functioning network'' defined in the recovery plan. 
The recovery plan defines a functioning network as three or more 
potentially interacting subpopulations that are no more than 2 km (1.2 
mi) from one another. This definition is problematic because it 
requires knowledge of subpopulation boundaries, and it excludes 
metapopulations comprised of only two subpopulations. It also included 
a requirement for a minimum patch size of 18 hectares (ha) (44 acres 
(ac)) for each network, which we now know is not necessary, as the 
butterfly can thrive in much smaller patch sizes. Further information 
regarding these definitions is detailed in the SSA report (USFWS 2020, 
pp. 41-42).
    Locations containing Fender's blue butterfly occur across multiple 
land ownerships, have varying degrees of habitat protection, and are 
managed in different ways. We use the term ``site'' to identify a 
management unit or land ownership designation; multiple sites may 
therefore comprise a single metapopulation. An ``independent group'' of 
Fender's blue butterfly refers to occupied sites that are more than 2 
km (1.2 mi) from another occupied site and/or are separated by barriers 
from other occupied sites such that butterflies are unable to interact.

Historical and Current Abundance and Distribution

    Due to the limited information collected on this subspecies prior 
to its description in 1931, we do not know the precise historical 
(prior to 1989) distribution of Fender's blue butterfly. Only a limited 
number of collections were made between the time of the subspecies' 
discovery and its presumed last observation on May 23, 1937, in Benton 
County, Oregon, leading the scientific community to assume the species 
was extinct (Hammond and Wilson 1993, p. 3).
    Fender's blue butterfly was rediscovered in 1989, at the McDonald 
State Forest, Benton County, Oregon, on the uncommon plant, Kincaid's 
lupine. Surveys since its rediscovery indicate that the current 
distribution, which is identical to its historical distribution, of 
Fender's blue butterfly is restricted to the Willamette Valley in 
Benton, Lane, Linn, Polk, Yamhill, and Washington Counties in Oregon.
    While we do not know the precise historical abundance or 
distribution of Fender's blue butterfly, at the time the species was 
listed as endangered in 2000, we knew of approximately 3,391 
individuals on 32 sites (USFWS 2020, p. 35). By retroactively applying 
the criteria for our refined population terminology, we calculate there 
would have been 12 metapopulations of Fender's blue butterfly 
distributed across approximately 165 ha (408 ac) of occupied prairie in 
four counties at the time of listing (see Table 3, below). Those 
numbers have now grown across all three recovery zones identified for 
Fender's blue butterfly (see Recovery Planning and Recovery Criteria, 
above) as a result of population expansion, discovery, and creation; 
currently, 15 Fender's blue butterfly metapopulations and 6 independent 
groups are distributed throughout the Willamette Valley in Benton, 
Lane, Linn, Polk, Washington, and Yamhill Counties. There are 137 total 
sites, containing more than 13,700 Fender's blue butterfly individuals, 
throughout an area totaling approximately 344 ha (825 ac) of occupied 
prairie habitat with a broad range of land ownerships and varying 
degrees of land protection and management (USFWS 2020, pp. 52-53). In 
2016, the estimated number of Fender's blue butterflies hit a presumed 
all-time high of nearly 29,000 individuals (USFWS 2020, p. 71). Maps 
showing the historical and current distribution of Fender's blue 
butterfly throughout its range are available in the SSA report (USFWS 
2020, pp. 51, 54-56).

[[Page 2012]]



      Table 3--Comparison of Fender's Blue Butterfly Abundance and
 Distribution Between Time of Listing 2000 and Survey Results From 2018
                         [USFWS 2020, Table 3.4]
------------------------------------------------------------------------
                                       Listed as       Survey results as
                                   endangered (2000)       of 2018 *
------------------------------------------------------------------------
Number of metapopulations.......  12................  15.
Number of independent groups....  0.................  6.
Total abundance (number of        3,391.............  13,700.
 individuals).
Number of sites.................  32................  137.
Area of prairie habitat known to  165 (408).........  344 (825).
 be occupied, in hectares
 (acres).
Counties known to be occupied...  4 (Benton, Lane,    6 (Benton, Lane,
                                   Polk, and           Linn, Polk,
                                   Yamhill).           Washington, and
                                                       Yamhill).
------------------------------------------------------------------------
* Note this is not a total count, as not all sites can be surveyed every
  year; thus, the number of individuals reported in 2018 is an
  underestimate of the rangewide abundance.

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species is an endangered species or a threatened species, 
issuing protective regulations for threatened species, and designating 
critical habitat for threatened and endangered species. In 2019, 
jointly with the National Marine Fisheries Service, the Service issued 
final rules that revised the regulations in 50 CFR parts 17 and 424 
regarding how we add, remove, and reclassify threatened and endangered 
species and the criteria for designating listed species' critical 
habitat (84 FR 45020 and 84 FR 44753; August 27, 2019). At the same 
time the Service also issued final regulations that, for species listed 
as threatened species after September 26, 2019, eliminated the 
Service's general protective regulations automatically applying to 
threatened species the prohibitions that section 9 of the Act applies 
to endangered species (collectively, the 2019 regulations).
    As with the proposed rule, we are applying the 2019 regulations for 
this final rule because the 2019 regulations are the governing law just 
as they were when we completed the proposed rule. Although there was a 
period in the interim--between July 5, 2022, and September 21, 2022--
when the 2019 regulations became vacated and the pre-2019 regulations 
therefore governed, the 2019 regulations are now in effect and govern 
listing and critical habitat decisions (see Center for Biological 
Diversity v. Haaland, No. 4:19-cv-05206-JST, Doc. 168 (N.D. Cal. July 
5, 2022) (CBD v. Haaland) (vacating the 2019 regulations and thereby 
reinstating the pre-2019 regulations)) and In re: Cattlemen's Ass'n, 
No. 22-70194 (9th Cir. Sept. 21, 2022) (staying the vacatur of the 2019 
regulations and thereby reinstating the 2019 regulations until a 
pending motion for reconsideration before the district court is 
resolved)).
    Our analysis for this decision applied the 2019 regulations. 
However, given that litigation remains regarding the court's vacatur of 
the 2019 regulations, we also undertook an analysis of whether the 
decision would be different if we were to apply the pre-2019 
regulations. We concluded that the decision would have been the same if 
we had applied the pre-2019 regulations. The analyses under both the 
pre-2019 regulations and the 2019 regulations are included in the 
decision file for this decision.
    The Act defines an ``endangered species'' as a species that is in 
danger of extinction throughout all or a significant portion of its 
range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an endangered species or a threatened 
species because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects. We consider these same five 
factors in downlisting a species from endangered to threatened (50 CFR 
424.11(c) and (d)).
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the species' expected response and 
the effects of the threats--in light of those actions and conditions 
that will ameliorate the threats--on an individual, population, and 
species level. We evaluate each threat and its expected effects on the 
species, then analyze the cumulative effect of all of the threats on 
the species as a whole. We also consider the cumulative effect of the 
threats in light of those actions and conditions that will have 
positive effects on the species, such as any existing regulatory 
mechanisms or conservation efforts. The Secretary determines whether 
the species meets the definition of an ``endangered species'' or a 
``threatened species'' only after conducting this cumulative analysis 
and describing the expected effect on the species now and in the 
foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations

[[Page 2013]]

at 50 CFR 424.11(d) set forth a framework for evaluating the 
foreseeable future on a case-by-case basis. The term ``foreseeable 
future'' extends only so far into the future as the Services can 
reasonably determine that both the future threats and the species' 
responses to those threats are likely. In other words, the foreseeable 
future is the period of time in which we can make reliable predictions. 
``Reliable'' does not mean ``certain''; it means sufficient to provide 
a reasonable degree of confidence in the prediction. Thus, a prediction 
is reliable if it is reasonable to depend on it when making decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent our decision 
on whether the species should be reclassified as a threatened species 
under the Act. However, it does provide the scientific basis that 
informs our regulatory decisions, which involve the further application 
of standards within the Act and its implementing regulations and 
policies. The following is a summary of the key results and conclusions 
from the full SSA report, which may be found at Docket No. FWS-R1-ES-
2020-0082 on https://www.regulations.gov.
    To assess Fender's blue butterfly viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency supports the ability of the species to withstand 
environmental and demographic stochasticity (for example, wet or dry, 
warm or cold years), redundancy supports the ability of the species to 
withstand catastrophic events (for example, droughts, large pollution 
events), and representation supports the ability of the species to 
adapt over time to long-term changes in the environment (for example, 
climate changes). In general, the more resilient and redundant a 
species is and the more representation it has, the more likely it is to 
sustain populations over time, even under changing environmental 
conditions. Using these principles, we identified the species' 
ecological requirements for survival and reproduction at the 
individual, population, and species levels, and described the 
beneficial and risk factors influencing the species' viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time. We use this information to inform our regulatory 
decision.

Summary of Biological Status and Factors Affecting Fender's Blue 
Butterfly

    In this discussion, we review the biological condition of the 
species and its resource needs, and the threats that influence the 
species' current and future condition, in order to assess the species' 
overall viability and the risks to that viability.

Summary of Species Needs

    Table 4 summarizes the key ecological resources required by 
individual Fender's blue butterflies at various life stages, as 
presented in the SSA report (from USFWS 2020, Table 2.4).

 Table 4--Resource Needs of Fender's Blue Butterfly at the Level of the
                        Individual by Life Stage
------------------------------------------------------------------------
          Life stage                 Timeline          Resource needs
------------------------------------------------------------------------
Egg...........................  Mid-April through   Kincaid's
                                 June.              lupine, longspur
                                                    lupine, or sickle-
                                                    keeled lupine.
Larva (including diapause)....  Mid-May through     Kincaid's
                                 early April        lupine, longspur
                                 (including         lupine, or sickle-
                                 diapause).         keeled lupine.
Pupa..........................  April through May   Kincaid's
                                                    lupine, longspur
                                                    lupine, or sickle-
                                                    keeled lupine.
Adult butterfly...............  Mid-April through   Early seral
                                 June.              upland prairie, wet
                                                    prairie, or oak
                                                    savannah habitat
                                                    with a mosaic of low-
                                                    growing grasses and
                                                    forbs, an open
                                                    canopy, and a
                                                    disturbance regime
                                                    maintaining the
                                                    habitat.
                                                    Kincaid's
                                                    lupine, longspur
                                                    lupine, or sickle-
                                                    keeled lupine.
                                                    Variety of
                                                    nectar flowers.
------------------------------------------------------------------------

    Based on our evaluation as detailed in the SSA report, we 
determined that for the species to be highly resilient, Fender's blue 
butterfly metapopulations need an abundance of lupine host plants and 
nectar plants within prairie patches of sufficient size, with habitat 
heterogeneity and minimal amounts of invasive plants and woody 
vegetation. Healthy metapopulations would also contain individuals 
distributed across multiple groups (redundancy) in lupine patches that 
are in close proximity of one another. Ideally, at the species level, 
highly resilient metapopulations would be distributed across the 
historical range of the species (redundancy and representation) and 
have multiple ``stepping stone'' habitats for connectivity across the 
landscape (redundancy and representation) (USFWS 2020, p. 33). A 
``stepping stone'' habitat is a prairie patch that provides both lupine 
and nectar plants, and occurs in an area with barrier-free movement for 
butterflies; such areas are likely too small to support a subpopulation 
or metapopulation of butterflies over the long term, but they provide 
sufficient resources to support multi-generational movement of 
individuals between larger areas of habitat. The key resources and 
circumstances required to support resiliency in Fender's blue butterfly 
metapopulations, and redundancy and representation at the species 
level, are identified below in Table 5 (from USFWS 2020, Table 2.5). 
Based on the

[[Page 2014]]

biology of the species and the information presented in the recovery 
plan, as synthesized in the SSA report, these are the characteristics 
of Fender's blue butterfly metapopulations that we conclude would 
facilitate viability in the wild over time (USFWS 2020, pp. 31-34).

  Table 5--Resources and Circumstances Needed To Support Resiliency in
       Fender's Blue Butterfly Metapopulations and Redundancy and
  Representation at the Species Level, Based on the Conditions Required
            for the Species as Described in the Recovery Plan
                         [USFWS 2020, Table 2.5]
------------------------------------------------------------------------
                          Metapopulation needs
-------------------------------------------------------------------------
    Habitat quantity/quality           Abundance         Distribution
------------------------------------------------------------------------
Abundant density of lupine host   Minimum of 200      0.5-1.0 km (0.3-
 plants.                           adult butterflies   0.6 mi) between
                                   per                 lupine patches
                                   metapopulation      within a
                                   for 10 years.       metapopulation.
A diversity of nectar plant       Consists of         Across the
 species throughout the flight     multiple sites      species' range.
 season.                           with butterflies.
Prairie relatively free of        Not applicable (n/  Stepping stone
 invasive plants and woody         a).                 prairie patches
 vegetation, especially those                          with lupine and/
 that prevent access to lupine                         or nectar to
 or nectar (e.g., tall grasses).                       facilitate
                                                       connectivity
                                                       within a
                                                       metapopulation.
Patch sizes of at least 6 ha      n/a...............  n/a.
 (14.8 ac) per metapopulation.
Heterogeneity of habitat,         n/a...............  n/a.
 including varying slopes and
 varying microtopography.
------------------------------------------------------------------------

Factors Affecting the Viability of the Species

    At the time we listed Fender's blue butterfly as endangered (65 FR 
3875; January 25, 2000), we considered the loss, degradation, and 
fragmentation of native prairie habitat in the Willamette Valley to 
pose the greatest threat to the species' survival. Forces contributing 
to the loss of the little remaining native prairie included urban 
development (named as the largest single factor threatening the species 
at the time); agricultural, forestry, and roadside maintenance 
activities, including the use of herbicides and insecticides; and heavy 
levels of grazing. In addition, habitat loss through vegetative 
succession from prairie to shrubland or forest resulting from the 
absence of natural disturbance processes, such as fire, was identified 
as a long-term threat, and the invasion of prairies by nonnative plants 
was identified as a significant contributor to habitat degradation. 
Although predation is a natural condition affecting the species, the 
listing rule considered that predation may significantly impact 
remaining populations of Fender's blue butterfly because they had been 
reduced to such low numbers. Small population size was also identified 
as posing a threat of extinction due to the increased risk of loss 
through random genetic or demographic factors, especially in fragmented 
or localized populations. Small population size is not a threat in and 
of itself; however, it may exacerbate the impacts from threats. 
Christmas tree farms were also identified as a threat due to habitat 
loss. However, we have not found Christmas tree farming has negatively 
affected the species or its habitat since 1992. Similarly, we have not 
found a population-level effect to the species from non-herbicide road 
maintenance by private landowners. We developed a state-wide Habitat 
Conservation Plan to address all routine maintenance activities along 
rights-of-ways adjacent to roads managed by the Oregon Department of 
Transportation. While insect herbivory on host lupine plants was 
considered a possible indirect threat to Fender's blue butterfly, this 
threat has not manifested in reduced butterfly reproduction or 
survival. The possibility that the rarity of Fender's blue butterfly 
could render it vulnerable to overcollection by butterfly enthusiasts 
was cited as a potential threat. However, we have no evidence that 
collection of Fender's blue butterfly has occurred either before or 
since listing. Finally, the listing rule pointed to the inadequacies of 
existing regulatory mechanisms to protect Fender's blue butterfly or 
its habitat, especially on lands under private ownership. With 
assistance from partner organizations, we have undertaken steps to 
manage and protect butterfly habitat on both private and public lands, 
which includes Habitat Conservation Plans for roadside maintenance and 
other activities, Safe Harbor Agreements, Partners for Fish and 
Wildlife agreements, and individual site management plans. Threats not 
recognized or considered at the time of listing, but now evaluated, 
include the potential impacts resulting from climate change (Factor E).

Habitat Loss, Degradation, and Fragmentation

    As discussed in the SSA report, habitat loss from land conversion 
for agriculture and urbanization, and from heavy grazing (Factor A), 
has decreased since the time of listing due to land protection efforts 
and management agreements; these activities are still occurring at some 
level, especially in Lane and Polk Counties, but not at the scope and 
magnitude seen previously (USFWS 2020, pp. 57-59; see also Conservation 
Measures, below). Habitat degradation due to invasion of prairies by 
nonnative, invasive plants and by woody species (Factors A and E) has 
decreased in many metapopulations due to active management using 
herbicides, mowing, and prescribed fire to maintain or restore prairie 
habitats, as well as augmentation of Kincaid's lupine and nectar 
species (USFWS 2020, appendix C; see also Conservation Measures, 
below). Some nonnative plants, such as the tall oatgrass, can be 
difficult to effectively manage, thereby requiring development of new 
methods to combat these invasive plants. While threats have been 
reduced across the species' range, ongoing habitat management is 
required to maintain these improvements over time and will be critical 
to the viability of Fender's blue butterfly. In addition, habitat 
degradation due to invasion of prairies by nonnative, invasive plants 
and by woody species, which may potentially be exacerbated in the 
future by the effects of climate change, remains a significant and 
ongoing threat at sites

[[Page 2015]]

that are not managed for prairie conditions.
    The overall number of sites supporting Fender's blue butterfly has 
increased across all land ownership categories since listing, as has 
the percentage of sites with habitat management. Although the 
percentage of sites that are protected has remained roughly the same 
(just over 70 percent) relative to the time of listing, we now have a 
far greater number of sites that are protected (101 out of 137 sites 
protected, compared to 23 of 32 sites at the time of listing). More 
importantly, there is a significant increase in the proportion of sites 
that are actively managed by private and partner agencies to maintain 
or restore prairie habitat. At listing, only 31 percent of known sites 
(10 of 32) and only 44 percent of protected sites (10 of 23) were 
managed for prairie habitat to any degree. At present, 74 percent of 
current sites (101 of 137) and 100 percent of protected sites (101 of 
101) are managed for prairie habitat. In addition, three HCPs, 17 SHAs, 
and a programmatic agreement for non-Federal landowners are now in 
place to undertake proactive conservation and restoration actions to 
benefit native prairie and minimize and mitigate effects to Fender's 
blue butterfly (see Conservation Measures). These projects will help 
maintain and may improve or expand the species' habitat. This 
significant increase in the number of sites protected and managed to 
benefit Fender's blue butterfly and its habitat represents substantial 
progress since listing in addressing the threat of habitat loss and 
degradation and demonstrates the effectiveness of existing conservation 
actions and regulatory mechanisms. Impacts from habitat conversion, 
woody succession, and invasive plant species are decreasing in areas 
with existing metapopulations of Fender's blue butterflies due to 
active habitat management and protection; these impacts are more likely 
to stay the same or increase in areas of remaining prairie that are not 
currently protected or managed (USFWS 2020, p. 59). With continued 
protection and proper habitat management, greater range expansion is 
possible, as explored in detail under Future Scenario 3 (see Future 
Species Condition, below), potentially increasing representation and 
redundancy of Fender's blue butterfly.

Pesticides

    Insecticides and herbicides can directly kill eggs, larvae, and 
adult butterflies during application of the chemicals to vegetation or 
from drift of the chemicals from nearby applications in agricultural 
and urban areas. For instance, Bacillus thuringiensis var. kurstaki, a 
bacterium that is lethal to all butterfly and moth larvae, is 
frequently used to control unwanted insects and has been shown to drift 
at toxic concentrations over 3 km (2 mi) from the point of application 
(Barry et al. 1993, p. 1977). Sublethal effects may indirectly kill all 
life stages by reducing lupine host plant vigor, decreasing fecundity, 
reducing survival, or affecting development time. Both insecticides and 
herbicides are used in agricultural practices, while herbicides are 
also used for timber reforestation and roadside maintenance and to 
control invasive species and woody vegetation encroachment. The threat 
to Fender's blue butterflies that may occur in roadside populations has 
been reduced through the development of several HCPs that specifically 
address pesticide application practices in these areas (e.g., Oregon 
Department of Transportation HCP; see Conservation Measures, below). 
The potential for exposure of Fender's blue butterfly to herbicides or 
insecticides remains throughout the species' range, especially in 
agricultural areas. However, we do not have any record of documented 
exposure or other data to inform our evaluation of the magnitude of any 
possible exposure, or the degree to which herbicides or insecticides 
may be potentially affecting the viability of the species (USFWS 2020, 
pp. 60-61). That said, while we cannot quantify the magnitude of 
possible exposure, agricultural land is widely distributed throughout 
the Willamette Valley, more lands are being converted to agriculture, 
and pesticide use is generally occurring more now than at any other 
time in history (Forister et al. 2019, p. 4). Because pesticides are 
used on most agricultural crops to increase crop yield and prevent 
disease spread, pesticide use in the Willamette Valley is likely to 
affect multiple metapopulations.

Predation and Small Population Sizes

    Although the listing rule stated that predation may have a 
significant negative impact on Fender's blue butterfly due to the 
reduced size of populations, the best available information does not 
indicate that predation is a limiting factor for the species. Small 
population size was also identified as posing a threat of extinction 
due to the increased risk of loss through random genetic or demographic 
factors, especially in fragmented or localized populations (Factor E). 
Some very small, isolated populations of Fender's blue butterfly known 
at the time of listing do appear to have become extirpated (USFWS 2020, 
pp. 51-52), and existing small metapopulations or independent groups 
remain especially vulnerable to extirpation. Overall, however, the 
threat of small population size has decreased since listing due to the 
discovery of new metapopulations, the expansion of existing 
metapopulations, and the creation of new metapopulations from 
reintroductions of Fender's blue butterflies. Most, but not all, 
metapopulations of Fender's blue butterfly have increased in abundance 
relative to the time of listing, and the total population size has 
increased from just over 3,000 individuals in 12 metapopulations 
distributed across four counties, to well over 13,000 individuals in 15 
metapopulations distributed across six counties (USFWS 2020, pp. 52-
53).

Climate Change

    The severity of threat posed to Fender's blue butterfly from the 
impacts of climate change is difficult to predict. The Willamette 
Valley, and prairies specifically, may fare better than other regions; 
however, various changes in average annual temperatures and 
precipitation are predicted and may affect Fender's blue butterfly or 
its habitat (Bachelet et al. 2011, p. 424; USFWS 2017, p. B-10; USFWS 
2020, pp. 61-62). Such potential changes include higher water levels in 
wet prairies during winter and spring, increased spring flooding 
events, and prolonged summer droughts. Two models have been used to 
conduct climate change vulnerability assessments for butterfly species 
within the Willamette Valley using the Special Report on Emissions 
Scenarios (SRES) created by the Intergovernmental Panel on Climate 
Change (IPCC). Under the SRES B1 scenario (comparable to the 
representative concentration pathway (RCP) 4.5 scenario), both models 
ranked Fender's blue butterfly as stable. Under the SRES A1B scenario 
(RCP6.0), both models ranked Fender's blue butterfly as moderately 
vulnerable. Under the SRES A2 scenario (RCP8.5), however, Fender's blue 
butterfly was ranked as extremely vulnerable under one model and highly 
vulnerable under the other model due to its limited range and loss of 
both nectar and host plants. While the models do not agree on the 
degree of vulnerability, both models did show an increase in 
vulnerability as climate change scenarios worsened due to the species' 
limited range and the potential for loss of both nectar and host 
plants, as well as a possible increase in invasive, nonnative plants 
(Steel et al. 2011, p. 5; Kaye et al. 2013, pp. 23-24).

[[Page 2016]]

Conservation Measures

    Because of extensive loss of native prairie habitats in the 
Willamette Valley and the resulting Federal listing of multiple endemic 
plant and animal species, the region has been the focus of intensive 
conservation efforts. Numerous entities, including Federal, State, and 
county agencies, nongovernmental organizations such as land trusts, and 
private landowners, have all become engaged in efforts to restore 
native Willamette Valley prairie and oak savannah habitats and the 
associated endemic animal communities. Collectively, the agencies and 
organizations that manage lands have acquired conservation easements 
and conducted management actions to benefit prairie and oak savannah 
habitats; in many cases, conservation efforts have been designed 
specifically to benefit Fender's blue butterfly. Various types of 
agreements have been established with private landowners to perform 
voluntary conservation actions on their land, while agencies are 
working collaboratively on habitat restoration and active prairie 
management under interagency agreements.
    Our SSA report summarizes the conservation measures implemented 
across the range of Fender's blue butterfly since the species was 
listed in 2000 (USFWS 2020, pp. 62-65). These measures include native 
prairie habitat restoration and management on public lands or lands 
that are managed by a conservation organization, including Baskett 
Slough National Wildlife Refuge and surrounding areas, William L. 
Finley National Wildlife Refuge, Fern Ridge Reservoir, West Eugene 
Wetlands, Willow Creek Preserve, Yamhill Oaks Preserve, Coburg Ridge, 
Lupine Meadows, Hagg Lake, a small portion of the McDonald State 
Forest, and some Benton County public lands. The long-term viability of 
Fender's blue butterfly is dependent on an ongoing, consistent 
commitment to active management to remove woody vegetation and invasive 
plants, thereby maintaining the native plant community and open prairie 
conditions required by this species.
    The contributions of private landowners have also made a 
significant impact on the conservation of Fender's blue butterfly. 
Approximately 96 percent of the Willamette Valley ecoregion is in 
private ownership (Oregon Department of Fish and Wildlife 2006), and 
the majority (66 percent) of designated critical habitat for Fender's 
blue butterfly is on private lands (see 50 CFR 17.95(i) and 71 FR 
63862, October 31, 2006). Thus, the conservation and recovery of 
Fender's blue butterfly, Kincaid's lupine, and the suite of native 
species associated with them relies in large part on the voluntary 
actions of willing non-Federal landowners to conserve, enhance, 
restore, reconnect, and actively manage the native prairie habitats 
that support these species. Many Fender's blue butterfly sites on 
private or other non-Federal lands across the range of the species now 
have PFW agreements, SHAs, or HCPs in place with the Service.
    Through many PFW agreements in place with private landowners in the 
Willamette Valley, we provide technical assistance to landowners for 
the enhancement and restoration of native habitats on their lands; 
these conservation actions benefit multiple native species, including 
Fender's blue butterfly. We administer and implement a programmatic SHA 
for the benefit of Fender's blue butterfly. This program encourages 
non-Federal landowners to undertake proactive conservation and 
restoration actions to benefit native prairie, as well as Fender's blue 
butterfly and Kincaid's lupine, in Benton, Lane, Linn, Marion, Polk, 
Washington, and Yamhill Counties, Oregon (USFWS 2016, entire). Since 
2021, 17 properties covering approximately 595 ha (1,471 ac) are 
enrolled under the programmatic SHA as of November 2020; another 12 
agreements that will cover an additional 417 ha (1,031 ac) are in 
development. In addition, three HCPs in place are designed to minimize 
and mitigate effects to Fender's blue butterfly: the Benton County HCP 
(2011; 50-year term), Yamhill County Road Rights-of-Way HCP (2014; 30-
year term), and the Oregon Department of Transportation HCP (2017; 25-
year term). These agreements include various provisions ensuring the 
implementation of best management practices and offsetting any 
potential negative impacts of activities through augmenting or 
enhancing populations of Fender's blue butterfly or prairie habitats.
    Finally, nongovernmental organizations have actively pursued 
conservation easements and acquisition of properties throughout the 
Willamette Valley to benefit native prairies and Fender's blue 
butterfly. Specific examples include the 2005 acquisition and 
establishment of the Lupine Meadow Preserve by the Greenbelt Land 
Trust, and the 2008 acquisition and establishment of the Yamhill Oaks 
Preserve by The Nature Conservancy.
    Overall, there are 137 total sites containing Fender's blue 
butterfly that occur over a broad range of land ownerships with varying 
degrees of land protection and management. Forty-four sites are on 
tracts of public land owned by the U.S. Army Corps of Engineers, Bureau 
of Land Management, Bureau of Reclamation, Oregon State University, or 
the Service, all of which are being managed for prairie habitat to 
varying degrees given funding and personnel. Fourteen sites are in 
public rights-of-way managed by the Oregon Department of Transportation 
or County Public Works, and all are being managed for prairie habitat. 
Thirty sites are on private land without any form of protection or 
active management for Fender's blue butterfly or its habitat. Another 
43 sites are on private land with some level of protection via a 
conservation easement (20 sites) or under a cooperative agreement (23 
sites) and are being managed for prairie habitat. More information on 
conservation measures performed by nongovernmental organizations 
specific to each metapopulation of Fender's blue butterfly are listed 
in the SSA report under Metapopulation Descriptions under Current 
Conditions (USFWS 2020, appendix C).
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have not 
only analyzed individual effects on the species, but we have also 
analyzed their potential cumulative effects. We incorporate the 
cumulative effects into our SSA analysis when we characterize the 
current and future condition of the species. To assess the current and 
future condition of the species, we undertake an iterative analysis 
that encompasses and incorporates the threats individually and then 
accumulates and evaluates the effects of all the factors that may be 
influencing the species including threats and conservation efforts. 
Because the SSA framework considers not just the presence of the 
factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and replaces a standalone cumulative effects analysis. For 
Fender's blue butterfly, we analyzed the cumulative effects of habitat 
loss, conversion, and fragmentation; habitat succession to shrubs and 
woody plant species; encroachment of nonnative plants; application of 
pesticides; and climate change. We considered the source, immediacy, 
scope, and trajectory of each stressor; the life stages impacted, and 
the benefit conservation measures, such as habitat management and 
protection provided.

[[Page 2017]]

Current Species Condition

    After assessing the biology of Fender's blue butterfly and the 
information presented in its recovery plan, we determined that the 
resiliency of a metapopulation of the species relies on an abundant 
supply of lupine host plants and nectar plants within prairie patches 
at least 6 ha (14.8 ac) in size, habitat heterogeneity, and minimal 
amounts of invasive plants and woody vegetation. Healthy 
metapopulations would also contain a minimum of 200 butterflies 
(resiliency) distributed across multiple groups within a metapopulation 
(redundancy) in lupine patches that are within 0.5 to 1.0 km (0.31 to 
0.62 mi) of one another. At the species level, a highly resilient 
metapopulations would ideally be distributed across the historical 
range of the species (representation and redundancy across 
metapopulations) and have numerous habitat ``stepping stones'' for 
connectivity across the landscape (redundancy and representation).
    In our evaluation, we used the best scientific data available to 
evaluate the current condition of each Fender's blue butterfly 
metapopulation in terms of resiliency. We developed criteria to assess 
specific habitat and demographic factors contributing to the overall 
resilience of metapopulations, and to rank each metapopulation as to 
whether it is in high, moderate, or low condition; these categories 
reflected our estimate of the probability of persistence over a period 
of 25 to 35 years (explained below; see Future Species Condition), as 
detailed in the SSA report (USFWS 2020, pp. 71-73). Criteria used to 
score metapopulation condition included the number of sites 
contributing to the metapopulation, butterfly abundance, connectivity, 
habitat patch size, lupine density, presence of nectar species, and 
measures of prairie quality and habitat heterogeneity (USFWS 2020, 
Table 6.2, p. 73).
    Five of the existing 15 Fender's blue butterfly metapopulations are 
ranked as having a high current condition, while 3 are ranked as 
moderate, 6 are ranked low, and one may be extirpated (see Table 6, 
below). Overall, the majority of metapopulations, 8 out of 15, are 
ranked as either in high or moderate condition, indicating a degree of 
resiliency across the range of the species. Fender's blue butterfly 
currently demonstrates a good degree of metapopulation redundancy, with 
multiple metapopulations occurring both within and across the three 
recovery zones spanning the historical range of the species. Although 
no direct measures of genetic or ecological diversity are available, we 
consider the species to have a good degree of representation, as there 
are multiple metapopulations and groups of Fender's blue butterfly 
distributed relatively evenly across the geographic range of the 
species (six in the Salem recovery zone, five in the Corvallis recovery 
zone, and four in the Eugene recovery zone), in all known habitat types 
(both prairie and oak savannah) and elevations.

  Table 6--Current Condition of Fender's Blue Butterfly Metapopulations
------------------------------------------------------------------------
              Metapopulation                      Current condition
------------------------------------------------------------------------
                           Salem Recovery Zone
------------------------------------------------------------------------
Baskett...................................  High.
Gopher Valley.............................  Moderate.
Hagg Lake.................................  High.
Moores Valley.............................  Possible extirpation.
Oak Ridge.................................  Moderate.
Turner Creek..............................  Low.
------------------------------------------------------------------------
                         Corvallis Recovery Zone
------------------------------------------------------------------------
Butterfly Meadows.........................  Low.
Finley....................................  Moderate.
Greasy Creek..............................  Low.
Lupine Meadows............................  Low.
Wren......................................  High.
------------------------------------------------------------------------
                          Eugene Recovery Zone
------------------------------------------------------------------------
Coburg Ridge..............................  Low.
Oak Basin.................................  Low.
West Eugene...............................  High.
Willow Creek..............................  High.
------------------------------------------------------------------------

    The discovery of Fender's blue butterflies in additional counties 
since the listing of the species, as well as the expansion of existing 
metapopulations, increases both the geographic range of the species and 
connectivity throughout the landscape. An increased number of 
metapopulations, composed of a greater number of individuals and with 
expanded distribution and connectivity across the range of Fender's 
blue butterfly (see Table 3, above), means the species has a greater 
chance of withstanding stochastic events (resiliency), surviving 
potentially catastrophic events (redundancy), and adapting to changing 
environmental conditions (representation) over time.

Future Species Condition

    To understand the potential future condition of Fender's blue 
butterfly with respect to resiliency, redundancy, and representation, 
we considered a range of potential scenarios that incorporate important 
influences on the status of the species, and that are reasonably likely 
to occur. We additionally forecast the relative likelihood of each 
scenario occurring, based on our experience with the species and best 
professional judgment (see USFWS 2020, p. 78). Through these future 
scenarios, we forecast the viability of Fender's blue butterfly over 
the next 25 to 35 years. We chose this timeframe because it represents 
up to 35 generations of Fender's blue butterfly, and therefore provides 
an adequate timeframe to consider the species' response to threats. The 
recovery plan also used this general timeframe for the determination of 
downlisting criteria, and this timeframe can reveal the immediate 
effects of habitat management strategies given that our current interim 
protections (e.g., HCPs, SHAs) have a lifespan ranging from 10 to 50 
years. We bracketed our timeframe to a shorter period based on our 
knowledge of the species and our ability to project current and future 
threats and conservation efforts. We scored the projected future 
condition of each metapopulation based on a ruleset incorporating 
abundance and trend data, quality of prairie habitat, level of habitat 
protection, and type of habitat management (see USFWS 2020, pp. 77-83). 
In addition to the high, moderate, and low condition categories, we 
added a fourth category in our future scenarios accounting for possible 
extirpation. The purpose of evaluating the status of Fender's blue 
butterfly under a range of plausible future scenarios is to create a 
risk profile for the species into the future, allowing for an 
evaluation of its viability over time.
    Scenario 1 assumes ``continuing efforts''--Fender's blue butterfly 
will continue on its current trajectory and influences on viability, 
habitat management, and conservation measures will all continue at 
their present levels. Due to our analysis of current management 
actions, protections, and threats, we consider this scenario as highly 
likely to play out over the next 25 to 35 years. Scenario 2 is based on 
an increased level of impact from negative influences on viability, 
particularly alterations in environmental conditions as a result of 
climate change. We consider this scenario moderately likely to occur 
over the next 25 to 35 years due to greater uncertainty in assessing 
the degree of climate change and the impact it may have on the species. 
Scenario 3 is based on increased conservation effort, including the 
potential for improved habitat conditions at currently occupied sites; 
metapopulation expansion by restoring currently unoccupied prairie 
sites; and augmentation, translocation,

[[Page 2018]]

and/or introduction of butterflies. In this scenario, we evaluated the 
potential for expansion at currently protected sites and protected 
areas identified as possible introduction sites (USFWS 2020, pp. 81-
104). Due to questions regarding potential funding, personnel, and 
other conservation agreements needed to provide additional protections, 
we consider this scenario as also moderately likely to occur over the 
next 25 to 35 years. The results from these three scenarios describe a 
range of possible conditions in terms of viability of Fender's blue 
butterfly (USFWS 2020, pp. 104-106; see Table 7, below). We used two 
different methodologies for assessing future conditions. Under 
scenarios 1 and 2, we analyzed trends in population number and habitat 
quality and projected that out into the future. Meanwhile, in scenario 
3, we mapped out and identified potential areas for conservation and 
worked with partners on the feasibility of conservation actions there. 
We then used these responses to project habitat enhancement in these 
areas and the impact that enhancement will have on the species' 
population trends. While these two methods differ, both apply our 
knowledge of the species and current and planned or potential 
management actions in order to project what its condition will be in 
the future.

 Table 7--Condition Scores for Metapopulation Resiliency, Comparing Current Condition to Three Plausible Future
 Scenarios as Described in the Text. Relative Likelihoods of Each Scenario at 25 to 35 Years are Also Provided;
    see USFWS 2020, p. 77, for an Explanation of Confidence Terminologies Used To Estimate the Likelihood of
                                               Scenario Occurrence
----------------------------------------------------------------------------------------------------------------
                                                                    Number of metapopulations
                                               -----------------------------------------------------------------
                                                                 Scenario 1--     Scenario 2--     Scenario 3--
                Condition score                                   continuing      considerable     conservation
                                                    Current         efforts         impacts          efforts
                                                   condition        (highly       (moderately      (moderately
                                                                    likely)         likely)          likely)
----------------------------------------------------------------------------------------------------------------
High..........................................               5               7                3                7
Moderate......................................               3               1                5                5
Low...........................................               6               5                0                2
Possible Extirpation..........................               1               2                7                1
----------------------------------------------------------------------------------------------------------------

    Because the natural processes that historically maintained this 
ecosystem and Fender's blue butterfly's early seral habitat are now 
largely absent from the Willamette Valley, the species is reliant upon 
ongoing management that sets back succession and controls invasive tall 
grasses and woody plant species. Therefore, an important consideration 
in our evaluation of the viability of the species is whether or not 
management actions will continue that restoration and maintenance of 
prairie systems, including actions that maintain populations of the 
lupine host plants and nectar resources in the Willamette Valley.
    Scenario 1 results in improved condition for several 
metapopulations currently ranked as moderate as conservation efforts 
continue. On the other hand, metapopulations that are currently in low 
condition or already at risk of extirpation would likely either remain 
in that state or (in one case) degrade in condition from low to 
possible extirpation. Overall, we expect that the viability of Fender's 
blue butterfly under this scenario would improve relative to its 
current condition, characterized by increases in resiliency of existing 
metapopulations. Seven metapopulations would be in high condition, one 
in moderate condition, five in low, and two at risk of possible 
extirpation. There would be at least two metapopulations in high 
condition in each of the three recovery zones; the Salem recovery zone 
would be in the best condition, with three metapopulations in high 
condition. The resiliency of metapopulations would be lowest in the 
Corvallis recovery zone, with three of five metapopulations ranked 
either low or at risk of extirpation. Thus, there is a possibility for 
some loss of redundancy, with the Corvallis recovery zone at greatest 
risk. We anticipate that most, but not all, of the current 
metapopulations would maintain viability under this scenario.
    Scenario 2 would be expected to result in decreases in resiliency 
and redundancy, with seven metapopulations subject to possible 
extirpation. While some metapopulations would likely retain their 
resiliency, more than half of the current metapopulations would be at 
risk of extinction within the next 25 to 35 years under this scenario. 
That said, we projected that all recovery zones would still maintain at 
least one metapopulation in high condition. We anticipate that, under 
these conditions, Fender's blue butterfly would persist, but its long-
term viability in terms of resiliency, redundancy, and representation 
would be greatly diminished even with continued management for the 
conservation of the species.
    Under Scenario 3, we expect resiliency to increase as several 
metapopulations remain at or move into high condition, with others 
transitioning from low to moderate condition; seven metapopulations 
would be in high condition, five in moderate condition, two in low 
condition, and one at risk of extirpation. Redundancy and 
representation would be maintained in all recovery zones; all recovery 
zones would have a minimum of two metapopulations in high condition. We 
anticipate that all of the currently extant metapopulations would 
maintain viability under this scenario, with the exception of one that 
is small and at risk of extirpation under all scenarios considered.
    For the reasons described above under Future Species Condition, we 
forecast the future condition of Fender's blue butterfly out for a 
period of 25 to 35 years. Although information exists regarding 
potential impacts from climate change beyond this timeframe, the 
projections depend on an increasing number of assumptions as they move 
forward in time, and thus become more uncertain with increasingly long 
timeframes. For our purposes, as detailed above, we concluded that a 
foreseeable future of 25 to 35 years was the most reasonable period of 
time over which we could reasonably rely upon predictions of the future 
conservation status of Fender's blue butterfly.

Summary of Comments and Recommendations

    In the proposed rule published on June 23, 2021 (86 FR 32859), we

[[Page 2019]]

requested that all interested parties submit written comments on the 
proposal by August 23, 2021. We also contacted appropriate State 
agencies, scientific experts and organizations, and other interested 
parties and invited them to comment on the proposal. A newspaper notice 
inviting public to provide comments was published in The Oregonian on 
July 4, 2021. We did not receive any requests for a public hearing. All 
substantive information we received during the comment period has been 
incorporated directly into the final determination or is addressed 
below. We received five public comments on the proposed rule, two of 
which included substantive comments that are summarized below and 
incorporated into this final rule as appropriate.

Peer Reviewer Comments

    As discussed under Supporting Documents above, we received 
responses from five peer reviewers. We reviewed all comments we 
received from the peer reviewers for substantive issues and new 
information regarding the information contained in the SSA report. The 
peer reviewers generally concurred with our methods and conclusions, 
and provided additional information, clarifications, and suggestions to 
improve the final SSA report.

Public Comments

    (1) Comment: One commenter stated that the species should not be 
downlisted until the effects of wildfire, exacerbated by climate 
change, on Fender's blue butterfly's critical habitat is better 
understood.
    Response: We may downlist a species listed as an endangered species 
if the best available commercial and scientific data indicate the 
species no longer meets the Act's definition of an endangered species, 
which is the case for Fender's blue butterfly. Prior research suggests 
that fire can increase lupine leaf density and that Fender's blue 
butterfly adults recolonize burned areas from nearby unburned lupine 
patches by laying eggs on lupine in burned areas the seasons following 
fire, such that butterfly abundance quickly rebounds and potentially 
exceeds pre-fire levels. In Fall 2019, a prescribed fire at Baskett 
Slough National Wildlife Refuge expanded beyond its planned boundaries, 
resulting in a significant portion of occupied butterfly habitat being 
burned. A multi-year project began in 2020 to gain a better 
understanding of the rates of Fender's blue butterfly mortality and the 
patterns of recolonization after fire. Preliminary results indicate 
that there was no difference in egg density in burned versus unburned 
plots even though there were fewer lupine leaves in burned plots; that 
there was less larvae activity in burned plots; and that recolonization 
occurred within 100 meters of the unburned areas.
    Further research may provide important information on the effects 
of wildfire on the species, but we know that fire is an essential 
ecosystem component, is necessary to maintain prairie habitat so that 
it is not converted to shrub land and forest, and is a tool used to 
prevent succession to woody vegetation on the landscape. Regular fires 
reduce the abundance of shrubs and trees and favor the growth of 
grasses needed for Fender's blue butterfly habitat. Based on two 
climate change vulnerability models, it appears likely that Fender's 
blue butterfly may be negatively affected by long-term consequences of 
climate change; however, we are not able to specifically quantify the 
magnitude of effects to the species. While vulnerability was influenced 
by loss of nectar and host plants, the source of this loss was 
identified as invasive plants, not as wildfire. We have made no changes 
to the rule in response to this comment.
    (2) Comment: One commenter stated that the Service's definition of 
a resilient population, 200 butterflies per metapopulation, does not 
equate to a healthy or resilient population. The commenter reiterated 
the fact that the Service identified the presence of at least 6 ha of 
high-quality habitat across three subpopulations (for a total of 18 ha) 
as necessary for a healthy population. The commenter stated that the 
Service needs to provide more up-to-date analysis in line with the 
research that has been done since the recovery plan was published.
    Response: The minimum population of 200 mature individuals and 6 ha 
of high-quality habitat are both criteria identified in our recovery 
plan. Recovery plans provide a roadmap for us and our partners on 
methods of enhancing conservation and minimizing threats to listed 
species, as well as measurable criteria against which to evaluate 
progress towards recovery and assess the species' likely future 
condition. They rely on voluntary participation from landowners, land 
managers, and other recovery partners. However, they are not regulatory 
documents and do not substitute for the determinations and promulgation 
of regulations required under section 4(a)(1) of the Act. Recovery is a 
dynamic process requiring adaptive management that may or may not fully 
follow the guidance provided in an earlier recovery plan. A 
determination of whether a valid, extant species should be downlisted 
or delisted is made solely on the question of whether it meets the 
Act's definition of an ``endangered species'' or of a ``threatened 
species.''
    In determining whether a metapopulation is of low, moderate, or 
high resiliency, we rely on multiple lines of evidence in addition to 
the ones the commenter mentioned. In our analysis, a minimum population 
criterion of 200 adults is used to gauge how long (in consecutive 
years) a metapopulation exists above this threshold. In addition to 
this factor, we also considered the average 5-year abundance of a 
metapopulation, connectivity within the metapopulation, average prairie 
patch size, lupine density, and other demographic and habitat factors 
to assess resiliency (see table 6.2 in the SSA for the complete list). 
The 200-adult threshold alone does not determine the resiliency of the 
population. Rather, it is one of the factors we considered, in addition 
to the other factors briefly mentioned here, to determine the 
resiliency of a metapopulation.
    Continued research and management activities since the recovery 
plan was completed have revealed that highly resilient populations do 
not necessarily need 6 ha of high-quality habitat. We have observed 
multiple populations that thrived in smaller habitat size (Menke 2018, 
entire). As noted above, while our recovery plan provides the general 
criteria for assessing the status of the species, it is not a 
regulatory document, and we are not required to fulfill all of its 
provisions and criteria to make a determination under section 4(a)(1) 
of the Act that a listed species should be downlisted or delisted. That 
said, the recommendation in our SSA and proposed rule that Fender's 
blue butterfly populations with high resiliency have 6 ha of high-
quality habitat was to create a baseline for assessing the health of 
the metapopulation. The 6 ha of high-quality habitat was not used as a 
hard line for determining high versus low resiliency of 
metapopulations.
    (3) Comment: One commenter stated that the Service did not clearly 
identify what ``high-quality habitat'' means.
    Response: We acknowledge the imprecise definition of high-quality 
habitat in the recovery plan. To address this issue, we split habitat 
condition into factors. Some of these factors, such as prairie patch 
size and lupine density, are mentioned in our response to the second 
comment. In addition to those factors, we also examined the diversity 
of nectar species, the composition of

[[Page 2020]]

prairie habitat (woody versus shrub vegetation, and percentages of 
invasive species), and the heterogeneity in habitat types. These 
metrics allow us to better analyze and determine quality of Fender's 
blue butterfly's habitat. Second, we have learned more about the 
habitat requirements for Fender's blue butterfly since the completion 
of the recovery plan, and we incorporated this new information into our 
analysis of current and future conditions in the SSA report.
    (4) Comment: One commenter stated that the three future scenarios 
in the SSA report intermix potential effects due to climate change and 
habitat management effort. The commenter suggested that the Service 
introduce three additional scenarios to better capture potential 
impacts due to climate change. The commenter provided an example of 
changes to Fender's blue butterfly's phenology over the past three 
decades as a factor the Service should consider in the future condition 
analysis of the SSA. Additionally, the commenter expresses concerns 
about the continuing effects of climate change, in light of the 
recently released IPCC report in August 2021.
    Response: Given the uncertainty inherent in projecting future 
biological status, we use scenarios to consider a range of plausible 
assumptions about both future stressors, such as climate change, and 
conservation efforts, such as habitat management, that may affect 
Fender's blue butterfly. Because we have limited confidence in any 
single projection of the species' future condition, our future 
scenarios seek to capture the range of plausible outcomes. Therefore, 
we are not attempting to quantify every effect from climate change or 
habitat management in our scenarios. We recognize the effects of 
climate change on this species based on climate vulnerability studies 
and seek to understand how different types and levels of management 
efforts will respond to different climate change scenarios. We thus 
create scenarios that examine what the species' future condition will 
be in different climate projection models and different levels of 
management activities.
    The intermixing of climate change and habitat management actions, 
therefore, was intentional. In assessing the status of the species, we 
considered the risk of extinction across the range of plausible 
scenarios. Because the probability of any one scenario occurring is 
incalculable, we concluded that adding additional scenarios would not 
necessarily better capture potential impacts of climate change. While 
the new IPCC report provides a global perspective on projected changes 
in climate, a downscaled model specific to the Pacific Northwest has 
not yet been released. As a result, we continue to rely on the best 
available scientific and commercial information to assess the impact of 
climate change on this species.
    With regards to considering plant phenology in our future 
conditions, we reviewed the information presented in the paper cited in 
the comment. While the paper reports that peak flight activity for this 
species has changed, the trends in abundance based on phenological 
response has not. However, uncertainty remains regarding potential 
phenological mismatch with both host and nectar plants, and what, if 
any, the impacts will be to Fender's blue butterfly. Our future 
scenarios were designed to reflect the major stressors that could 
affect the species now and within the foreseeable. Therefore, we 
determined that plant phenology does not at present rise to the level 
where we would need to incorporate it into our future analysis.
    (5) Comment: The commenter provided recommendations on changes to 
the proposed 4(d) rule. Broadly, these suggested changes revolved 
around tightening the timeframe for habitat management activities for 
invasive woody species and the equipment or methods used.
    Response: We consulted internal and external experts on this issue. 
Overall, their response was that the suggestion was too restrictive and 
would interfere with habitat management beneficial to Fender's blue 
butterfly. While we acknowledge that larva are on the landscape, 
restricting the suggested time period for when landowners can perform 
various types of habitat improvements for the butterfly is not 
beneficial. The majority of land management activities that reduce 
invasive and/or nonnative plant species occur during the spring growing 
season, prior to the flight season. Therefore, by restricting 
activities outside the flight period (February to April timeline), we 
would restrict activities such as mowing tall grasses that can 
outcompete lupine and cause further habitat issues in the future. 
Overall, the benefit to the species by these management actions 
outweighs the potential impacts to individual larvae.

Determination of Fender's Blue Butterfly's Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of an endangered species or 
threatened species. The Act defines an ``endangered species'' as a 
species that is in danger of extinction throughout all or a significant 
portion of its range, and a ``threatened species'' as a species that is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range. The Act requires 
that we determine whether a species meets the definition of endangered 
species or threatened species because of any of the following factors: 
(A) The present or threatened destruction, modification, or curtailment 
of its habitat or range; (B) overutilization for commercial, 
recreational, scientific, or educational purposes; (C) disease or 
predation; (D) the inadequacy of existing regulatory mechanisms; or (E) 
other natural or manmade factors affecting its continued existence.

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we find that Fender's blue butterfly has experienced a marked 
increase in resiliency, redundancy, and representation across its 
historical range, contributing to an overall increase in viability. We 
listed Fender's blue butterfly as endangered in 2000, upon a 
determination at that time that the species was presently in danger of 
extinction throughout all or a significant portion of its range (65 FR 
3875, January 25, 2000, p. 3886). Since then, our evaluation of the 
best scientific and commercial data available indicates that the 
abundance and distribution of Fender's blue butterfly has improved as a 
result of metapopulation expansion, metapopulation discovery, and 
metapopulation creation, as well as a marked increase in habitat 
protection and management across the range of the species. The presence 
of Fender's blue butterflies in new counties, the expansion of existing 
metapopulations, and the creation of new metapopulations increase both 
the geographic range of the species and potential connectivity 
throughout the landscape. In addition, active recovery efforts 
occurring since Fender's blue butterfly was listed have led to the 
amelioration of threats to the species, as detailed above under 
Conservation Measures. As described in the Summary of Biological Status 
and Factors Affecting Fender's Blue Butterfly, there has been a marked 
reduction in threats to the species posed by land conversion for 
agriculture and urbanization, heavy grazing, and invasion of prairies 
by nonnative, invasive plants and by

[[Page 2021]]

woody species (Factors A and E), helped in large part by effective 
habitat restoration and management efforts in the Willamette Valley 
(Factor D). Furthermore, threats identified at the time of listing 
under such as, overcollection (Factor B) and predation (Factor C) have 
not materialized as originally anticipated. Our assessment of the 
present condition of the species demonstrates that Fender's blue 
butterfly is currently found in 137 sites totaling 15 metapopulations 
and 6 independent groups. The metapopulations primarily ranked in high 
to moderate condition throughout all three recovery zones established 
for the species within its historical range, exhibiting an appreciable 
degree of resiliency, redundancy, and representation such that the 
species is no longer currently in danger of extinction. Thus, after 
assessing the best available information, we conclude that Fender's 
blue butterfly no longer meets the Act's definition of an endangered 
species.
    We next consider whether Fender's blue butterfly meets the Act's 
definition of a threatened species. Although threats to the species 
have been reduced relative to the time of listing, the species remains 
vulnerable. The potential for exposure to pesticides (herbicides, 
insecticides) is an ongoing threat to the species throughout its range, 
due to the close proximity of Fender's blue butterfly occurrence sites 
to agricultural lands as well as areas subject to spraying to control 
gypsy moths or mosquitoes. In addition, we have yet to develop an 
effective method for eradicating tall oatgrass, a nonnative, invasive 
plant that is rapidly expanding into prime prairie habitats and posing 
a growing management concern. The low availability of lupine host 
plants, and inadequate supply of appropriate lupine seed for 
restoration efforts, is also a limiting factor for Fender's blue 
butterfly. The threat of overcollection to the long-term viability of 
the species is currently unknown but could have negative impacts. 
However, these acts are currently prohibited, likely reducing the 
threat. Next, we consider Fender's blue butterfly to be a 
``conservation-reliant'' species (sensu Scott et al. 2010, p. 92), and 
it remains highly vulnerable to loss of its prairie habitat should 
active management cease. Because it relies on consistent disturbance to 
maintain its early seral prairie habitat, the future viability of 
Fender's blue butterfly is dependent upon ongoing management to set 
back succession and control the invasion of tall grasses and woody 
plant species since the natural processes that once historically 
maintained this ecosystem are now largely absent from the Willamette 
Valley. The viability of Fender's blue butterfly over the long term 
will therefore require addressing influences on viability including 
ongoing habitat conversion, loss of habitat disturbance resulting in 
habitat succession, invasion by nonnative plants, and exposure to 
insecticides and herbicides, as well as continued conservation and 
management efforts.
    As noted in our endangered determination, there has been marked 
improvement in addressing many of the threats affecting the species 
including habitat loss due to conversion and invasion by non-native 
species. However, these efforts were achieved through management 
actions undertaken by the Service and our partners. The continuation of 
these efforts is vital due to the fact that succession of Fender's blue 
butterfly habitat by invasive species is an ongoing process. 
Controlling these invasives through management activities is essential 
to preventing succession. If these activities were downscaled or 
reduced, it could have drastically harmful effects on the species. This 
is demonstrated through our future scenarios in which we project out to 
35 years.
    Under the Continuing Effects scenario which assumes management 
activities continue at the current level, we project the number of 
metapopulations with high resiliency will increase from five to seven. 
This increase came from metapopulations whose current conditions were 
rated as low and moderate. This trend is also reflected in the 
Conservation Effort scenario where the number of metapopulations with 
high resiliency is projected to increase. However, under the 
Considerable Impacts scenario where management efforts are reduced, we 
project the species will occur in eight metapopulations with high or 
moderate resiliency and zero metapopulations with low resiliency; seven 
metapopulations may be extirpated. Under current condition, one 
metapopulation may be extirpated. The Considerable Impacts scenario 
represents a significant decline because we project a possible 
extirpation of almost half of all existing metapopulations. These 
declines are due to the stressors discussed above including succession 
of native habitats due to invasive species. The potential loss of so 
many metapopulations would have severe impacts on the species' 
redundancy and representation as these potential losses occur across 
all three recovery zones. Overall, our future scenarios demonstrate 
that Fender's blue butterfly is a conservation reliant species and 
ensuring the continuation of management activities is vital to sustain 
and improve the species' condition.
    In addition to our future scenarios, we also reviewed the delisting 
criteria as identified in the recovery plan. Using those criteria, 
eleven of the 15 metapopulations do not meet the minimum criteria of 
200 butterflies each year, and connectivity both within and between 
metapopulations remains limited due to the reduction and fragmentation 
of native prairie habitats, as well as the relative rarity and patchy 
distribution of the primary host plant, Kincaid's lupine. In 
particular, concern remains for the Corvallis recovery zone in the 
middle of the species' range, with metapopulations that are generally 
less robust and more vulnerable to deteriorating in condition over time 
(under current conditions, only one metapopulation in this zone is 
considered highly resilient, compared to two or more in the other 
zones).
    Thus, after assessing the best available information, including, 
but not limited to, the current status of the species, ongoing threats 
to the species, and predicted status of Fender's blue butterfly under 
various future scenarios, including the consequences of climate change, 
we conclude that Fender's blue butterfly is not currently in danger of 
extinction but is likely to become in danger of extinction within the 
foreseeable future throughout all of its range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. The court in Center for Biological Diversity v. Everson, 
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Everson), vacated the aspect of 
the Final Policy on Interpretation of the Phrase ``Significant Portion 
of Its Range'' in the Endangered Species Act's Definitions of 
``Endangered Species'' and ``Threatened Species'' (Final Policy; 79 FR 
37578; July 1, 2014) that provided that the Service does not undertake 
an analysis of significant portions of a species' range if the species 
warrants listing as threatened throughout all of its range. Therefore, 
we proceed to evaluating whether the species is endangered in a 
significant portion of its range--that is, whether there is any portion 
of the species' range for which both (1) the portion is significant; 
and

[[Page 2022]]

(2) the species is in danger of extinction in that portion. Depending 
on the case, it might be more efficient for us to address the 
``significance'' question or the ``status'' question first. We can 
choose to address either question first. Regardless of which question 
we address first, if we reach a negative answer with respect to the 
first question that we address, we do not need to evaluate the other 
question for that portion of the species' range.
    Following the court's holding in Everson, we now consider whether 
there are any significant portions of the species' range where the 
species is in danger of extinction now (i.e., endangered). In 
undertaking this analysis for Fender's blue butterfly, we choose to 
address the status question first--we considered information pertaining 
to the geographic distribution of both the species and the threats that 
the species faces to identify any portions of the range where the 
species is endangered.
    For Fender's blue butterfly, we considered whether the threats are 
geographically concentrated in any portion of the species' range at a 
biologically meaningful scale. We examined the following threats: 
habitat loss from land conversion for agriculture and urbanization; 
habitat degradation resulting from invasion of prairies by nonnative 
plants or by succession to woody species; insecticides and herbicides; 
effects of climate change; small population size; and the cumulative 
effects of these threats.
    Given the small size of the Willamette Valley, its relatively 
homogenous geological features, and the consistent vegetation structure 
and composition in Fender's blue butterfly habitat, threats to the 
species are equally present throughout its range. For instance, the 
human population, and the resulting urbanization and agricultural 
needs, are increasing throughout the Willamette Valley such that 
habitat loss is not concentrated in any portion of the range (Oregon 
Department of Administrative Services 2013). Similarly, habitat 
degradation due to invasion by nonnative plants and woody succession 
have been detected in all occupied Fender's blue butterfly habitat 
(USFWS 2020, p. 59). Insecticides and herbicides are used for both 
roadside maintenance and for management to maintain or restore prairie 
habitats. Although treatments occur in different habitat areas, we did 
not find these activities to be concentrated in any Fender's blue 
butterfly metapopulation (USFWS 2020, p. 61).
    Due to the limited geographic scope of the Willamette Valley, 
climatic variables such as temperature and precipitation do not vary 
significantly in different portions of the range currently. Temperature 
is projected to increase or somewhat increase throughout the Willamette 
Valley while hydrological variables are projected to remain neutral 
(Kaye et al. 2013, P. 13). While climate vulnerability models project 
that there could be changes in plant composition rangewide (Kaye et al. 
2013, pp. 24-25), the impacts from phenological changes to Fender's 
blue butterfly metapopulations would likely differ based on their 
current conditions rather on their geographic location.
    Additionally, the Fender's blue butterfly diet, physical habitat, 
and reproductive needs are all consistent throughout its range. Because 
of the small geographic scale of the Willamette Valley, the lack of 
habitat differences, the same biological requirements, and the uniform 
distribution of threats, we have determined that neither individual nor 
cumulative threats are concentrated to a degree in the current Fender's 
blue butterfly range such that the species would have a different 
biological status in any one recovery zone or metapopulation.
    We found no concentration of threats in any portion of the range of 
Fender's blue butterfly at a biologically meaningful scale, and there 
is no evidence to suggest that these threats affect any of the 
metapopulations to a greater degree. Additionally, metapopulations that 
are in low condition are distributed throughout the species range and 
are not concentrated in any single portion of the range. Thus, there 
are no portions of the species' range where threats facing the species 
are concentrated to a degree where the species in that portion would 
have a different status from its rangewide status.
    Therefore, no portion of the species' range provides a basis for 
determining that the species is in danger of extinction in a 
significant portion of its range, and we determine that the species is 
likely to become in danger of extinction within the foreseeable future 
throughout all of its range. This does not conflict with the courts' 
holdings in Desert Survivors v. Department of the Interior, 321 F. 
Supp. 3d 1011, 1070-74 (N.D. Cal. 2018), and Center for Biological 
Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 2017) because, 
in reaching this conclusion, we did not need to consider whether any 
portions are significant and, therefore, did not apply the aspects of 
the Final Policy's definition of ``significant'' that those court 
decisions held were invalid.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that Fender's blue butterfly meets the Act's 
definition of a threatened species. Therefore, we are reclassifying 
Fender's blue butterfly as a threatened species in accordance with 
sections 3(20) and 4(a)(1) of the Act.

II. Final Rule Issued Under Section 4(d) of the Act

    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a listing on 
proposed and ongoing activities within the range of the listed species. 
The Act allows the Secretary to promulgate protective regulations for 
threatened species pursuant to section 4(d) of the Act. Because we are 
reclassifying this species as a threatened species, the prohibitions in 
section 9 of the Act will not apply directly. We are, therefore, 
adopting a set of regulations to provide for the conservation of the 
species in accordance with the Act's section 4(d), which also 
authorizes us to apply any of the prohibitions in section 9 to a 
threatened species. The 4(d) rule, which includes a description of the 
kinds of activities that will or will not constitute a violation, 
complies with this policy.

Background

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as she deems 
necessary and advisable to provide for the conservation of species 
listed as threatened species. The U.S. Supreme Court has noted that 
statutory language similar to the language in section 4(d) of the Act 
authorizing the Secretary to take action that she ``deems necessary and 
advisable'' affords a large degree of deference to the agency (see 
Webster v. Doe, 486 U.S. 592, 600 (1988)). Conservation is defined in 
the Act to mean the use of all methods and procedures which are 
necessary to bring any endangered species or threatened species to the 
point at which the measures provided pursuant to the Act are no longer 
necessary. Additionally, the second sentence of section 4(d) of the Act 
states that the Secretary may by regulation prohibit with respect to 
any threatened species any act prohibited

[[Page 2023]]

under section 9(a)(1), in the case of fish or wildlife, or section 
9(a)(2), in the case of plants. Thus, the combination of the two 
sentences of section 4(d) provides the Secretary with wide latitude of 
discretion to select and promulgate appropriate regulations tailored to 
the specific conservation needs of the threatened species. The second 
sentence grants particularly broad discretion to the Service when 
adopting one or more of the prohibitions under section 9.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have upheld, as a valid 
exercise of agency authority, rules developed under section 4(d) that 
included limited prohibitions against takings (see Alsea Valley 
Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington 
Environmental Council v. National Marine Fisheries Service, 2002 WL 
511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do 
not address all of the threats a species faces (see State of Louisiana 
v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative 
history when the Act was initially enacted, ``once an animal is on the 
threatened list, the Secretary has an almost infinite number of options 
available to [her] with regard to the permitted activities for those 
species. [She] may, for example, permit taking, but not importation of 
such species, or [she] may choose to forbid both taking and importation 
but allow the transportation of such species'' (H.R. Rep. No. 412, 93rd 
Cong., 1st Sess. 1973).
    The provisions of this 4(d) rule would promote conservation of 
Fender's blue butterfly by encouraging management of the habitat for in 
ways that facilitate conservation for the species. The provisions of 
this 4(d) rule are one of many tools that we would use to promote the 
conservation of Fender's blue butterfly.
    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of Federal actions that are subject to 
the section 7 consultation process are actions on State, Tribal, local, 
or private lands that require a Federal permit (such as a permit from 
the U.S. Army Corps of Engineers under section 404 of the Clean Water 
Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section 
10 of the Act) or that involve some other Federal action (such as 
funding from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat--and actions 
on State, Tribal, local, or private lands that are not federally 
funded, authorized, or carried out by a Federal agency--do not require 
section 7 consultation.
    This obligation does not change in any way for a threatened species 
with a species-specific 4(d) rule. Actions that result in a 
determination by a Federal agency of ``not likely to adversely affect'' 
continue to require the Service's written concurrence and actions that 
are ``likely to adversely affect'' a species require formal 
consultation and the formulation of a biological opinion.

Provisions of the Final 4(d) Rule

    Exercising the Secretary's authority under section 4(d) of the Act, 
we have developed a rule that is designed to address the specific 
threats and conservation needs of Fender's blue butterfly. As discussed 
above in the Summary of Biological Status and Factors Affecting 
Fender's Blue Butterfly, we have concluded that Fender's blue butterfly 
is likely to become in danger of extinction within the foreseeable 
future primarily due to loss and degradation of habitat, including 
impacts from habitat conversion, woody succession, and invasive plant 
species (Factors A and E); and the potential exposure of Fender's blue 
butterfly to herbicides or insecticides and changes in vegetation 
composition due to climate change (Factor E). Although the condition of 
Fender's blue butterfly has improved, the species remains vulnerable to 
these threats due to the small size of many of its metapopulations, 
limited connectivity between metapopulations as a consequence of 
fragmentation and the reduced extent of native prairie habitats, and 
the relative rarity of its lupine host plants on the landscape. Section 
4(d) requires the Secretary to issue such regulations as she deems 
necessary and advisable to provide for the conservation of each 
threatened species and authorizes the Secretary to include among those 
protective regulations any of the prohibitions that section 9(a)(2) of 
the Act prescribes for endangered species. We find that the 
protections, prohibitions, and exceptions in this rule as a whole 
satisfy the requirement in section 4(d) of the Act to issue regulations 
deemed necessary and advisable to provide for the conservation of 
Fender's blue butterfly.
    The protective regulations we are finalizing for Fender's blue 
butterfly incorporate prohibitions from section 9(a)(1) to address the 
threats to the species. Section 9(a)(1) prohibits the following 
activities for endangered wildlife: importing or exporting; take; 
possession and other acts with unlawfully taken specimens; delivering, 
receiving, transporting, or shipping in interstate or foreign commerce 
in the course of commercial activity; or selling or offering for sale 
in interstate or foreign commerce. This protective regulation includes 
all of these prohibitions for Fender's blue butterfly because the 
species is at risk of extinction in the foreseeable future and putting 
these prohibitions in place will help to regulate a range of human 
activities that have the potential to affect Fender's blue butterfly, 
including agricultural or urban development; certain agricultural 
practices (e.g., pesticide use); heavy levels of grazing; mowing; some 
practices associated with forestry (e.g., road construction); roadside 
maintenance activities; control of nonnative, invasive plant species; 
and direct capture, injury, or killing of Fender's blue butterfly.
    We include the prohibition of import, export, interstate and 
foreign commerce, and sale or offering for sale in such commerce 
because, while the number of metapopulations and abundance within most 
metapopulations has increased since the time of listing, Fender's blue 
butterfly is not thriving to the degree that the species is considered 
to be capable of sustaining trade. Rare butterflies such as Fender's 
blue are easily subject to overcollection, and the potential for 
population declines as a result of increased collection was one of the 
factors considered in the original listing of Fender's blue butterfly 
as an endangered species. Fortunately, the potential threat of 
overcollection has not thus far been realized, but any increased 
incentive for capture of Fender's blue butterfly from the wild would be 
highly likely to result in negative impacts to the long-term viability 
of the species.
    Fender's blue butterfly remains likely to become an endangered 
species within the foreseeable future throughout all of its range. 
Although the status of the species has improved relative to when it was 
first listed as an endangered species, the species has not recovered to 
the point that it is capable of sustaining

[[Page 2024]]

unrestricted capture or collection from the wild without the likelihood 
of negative impacts to the long-term viability of the species. Because 
capture and collection of Fender's blue butterfly remains prohibited as 
discussed below, maintaining the complementary prohibition on 
possession and other acts with illegally taken Fender's blue butterfly 
will further discourage such illegal take. Thus, the possession, sale, 
delivery, carrying, transporting, or shipping of illegally taken 
Fender's blue butterflies will continue to be prohibited in order to 
continue progress toward the conservation and recovery of the species.
    Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct. Some of these provisions have been further defined in 
regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by 
direct and indirect impacts, intentionally or incidentally. Regulating 
incidental and intentional take will help preserve the remaining 
metapopulations of Fender's blue butterfly.
    Although the number of metapopulations, and abundance within most 
metapopulations, has increased since the time of listing, Fender's blue 
butterfly remains a vulnerable species and has not yet attained full 
recovery. We do not consider Fender's blue butterfly capable of 
withstanding unregulated take, either intentional or incidental to 
otherwise lawful activities, without likely negative impacts to the 
long-term viability of the species. There are a few circumstances in 
which allowing incidental take may ultimately benefit Fender's blue 
butterfly as a species and further its recovery. We have outlined such 
circumstances below as exceptions to the prohibitions of take. By 
allowing take under specified circumstances, the rule will provide 
needed protection to the species while allowing management flexibility 
to benefit the species' long-term conservation. Anyone taking, 
attempting to take, or otherwise possessing a Fender's blue butterfly, 
or parts thereof, in violation of section 9 of the Act will still be 
subject to a penalty under section 11 of the Act, except for the 
actions that are specifically excepted under the 4(d) rule.
    Incidental take by landowners or their agents is allowed while 
conducting management for the creation, restoration, or enhancement of 
short-stature native upland prairie or oak savannah conditions within 
areas occupied by Fender's blue butterfly, subject to the restrictions 
described herein and as long as reasonable care is practiced. An 
important aspect of prairie management is the timing and location of 
treatment. Lupine is patchy and distributed in small clumps low to the 
ground whereas invasive tall grasses are more uniform. This means the 
person doing the herbicide spray or other removal work needs to be able 
to recognize the plants to be sure they are treating the correct areas, 
the correct species, and know when to treat the area before the seed 
has set. To help avoid potential issues, we require a qualified 
biologist to be involved in the planning even if the landowners do the 
treatment themselves. The biologist does not need to be present on-site 
on the day of the treatment but does need to be consulted and involved 
beforehand. Reasonable care may include but is not limited to: (1) 
Procuring and/or implementing technical assistance from a qualified 
biologist on timing and location of habitat management activities prior 
to implementation; and (2) using best efforts to avoid trampling or 
damaging Fender's blue butterflies (eggs, larvae, pupae, adults) and 
their host and nectar plants during all activities.
    Fender's blue butterfly is a conservation-reliant species. Active 
management for prairie conditions within the historical range of 
Fender's blue butterfly is essential for long-term viability and is one 
of the key recovery actions identified for the species. Allowing 
certain forms of active management for the purpose of creating, 
restoring, or enhancing native upland prairie or oak savannah 
conditions is necessary to facilitate and encourage the implementation 
of conservation measures that will address one of the primary threats 
to Fender's blue butterfly, the loss or degradation of native short-
stature prairie or oak savannah habitat within the Willamette Valley. 
Restoration actions may include manual, mechanical, and herbicidal 
treatments for invasive and nonnative plant control that does not 
result in ground disturbance, including mowing and planting by hand of 
native vegetation, especially native food resources for Fender's blue 
butterfly larvae (Kincaid's, longspur, or sickle-keeled lupine) or 
adults (native nectar species). Prescribed burning is a complex 
endeavor, and there is potential for impacts to Fender's blue butterfly 
beyond that which local metapopulations or subpopulations may be 
capable of withstanding should the burn exceed its intended geographic 
limits; therefore, we do not provide an exception for take as a result 
of prescribed burning in the 4(d) rule. Take coverage for prescribed 
burning can be obtained through section 7 consultation, a section 
10(a)(1)(A) permit, or through the Programmatic Restoration Opinion for 
Joint Ecosystem Conservation by the Services (PROJECTS) program.
    Providing landowners management flexibility facilitates the 
creation, restoration, and enhancement of native upland prairie and oak 
savannah habitats. Habitat is considered occupied by Fender's blue 
butterfly if it is within the historical range of the species and 
supports or may support lupine, unless a qualified biologist using 
direct observation has conducted surveys for adult Fender's blue 
butterfly during the April 15 to June 30 flight period and documented 
no adult butterflies. Occupied habitat also includes all nectar habitat 
within 0.5 km (0.3 miles) of habitat containing at least one of the 
three host lupine species and that is occupied by Fender's blue 
butterfly. Unsurveyed areas within 2 km (1.25 mi) of a known Fender's 
blue butterfly population shall be assumed occupied if no surveys are 
conducted. This 4(d) rule authorizes landowners to plant native 
vegetation by hand; conduct mechanical and manual treatments to control 
woody and invasive nonnative plants; perform tractor and hand mowing; 
and apply herbicides within occupied Fender's blue butterfly habitat. 
To prevent possible negative effects on Fender's blue butterfly or its 
host lupine, the following time restrictions apply to the exceptions to 
take by landowners in areas occupied by Fender's blue butterfly:
    (1) Mechanical treatments for control of woody and invasive and 
nonnative plant species that do not result in ground disturbance are 
authorized within occupied habitat outside of the butterfly flight 
period (April 15 to June 30) to avoid impacts to adult butterflies.
    (2) To prevent invasive plant species establishment, tractor mowing 
is authorized throughout sites with Fender's blue butterflies before 
February 15 (when lupine emerges) and after August 15 (when lupine 
undergoes senescence). Mowing with handheld mowers is authorized 
throughout the year; however, a buffer of at least 8 m (25 ft) must be 
maintained between the mower and any individual lupine plant during 
Fender's blue butterfly's flight season (April 15 to June 30).
    (3) Weed wiping and broadcast application of herbicides are 
authorized outside of the flight period of April 15 to June 30; 
however, additional timing and use restrictions are required based on 
the chemicals used. Contact the Oregon Fish and Wildlife Office prior 
to herbicide implementation for a list of

[[Page 2025]]

currently acceptable herbicides, their application methods, their 
appropriate timing of use, and best management practices associated 
with herbicide use.
    To better refine conservation activities affecting the species, we 
are amending the proposed rule on manual treatment. In this final rule, 
manual treatments for control of woody and invasive and nonnative plant 
species that do not result in ground disturbance are authorized within 
occupied habitat year-round. Additionally, planting by hand of native 
vegetation is authorized year-round.
    We expect that the actions and activities that are allowed under 
this 4(d) rule, while they may cause some minimal level of harm or 
disturbance to individual Fender's blue butterflies, will on balance 
facilitate efforts to conserve and recover the species because they 
will make it easier for our State and private partners to implement 
recovery actions and restore the habitats required by Fender's blue 
butterfly. The loss or degradation of early seral prairie habitats is 
one of the primary threats to Fender's blue butterfly, and disturbance 
(such as that described under the take exemptions provided here) is 
required to restore or maintain the habitat characteristics that are 
essential to the survival of this conservation-reliant species.
    In addition to other standard exceptions applied to this species in 
this 4(d) rule, we may issue permits to carry out otherwise prohibited 
activities, including those described above, involving threatened 
wildlife under certain circumstances. Regulations governing permits are 
codified at 50 CFR 17.32. With regard to threatened wildlife, a permit 
may be issued for the following purposes: for scientific purposes, to 
enhance propagation or survival, for economic hardship, for zoological 
exhibition, for educational purposes, for incidental taking, or for 
special purposes consistent with the purposes of the Act. The statute 
also contains certain exemptions from the prohibitions, which are found 
in sections 9 and 10 of the Act.
    We recognize the special and unique relationship with our State 
natural resource agency partners in contributing to conservation of 
listed species. State agencies often possess scientific data and 
valuable expertise on the status and distribution of endangered, 
threatened, and candidate species of wildlife and plants. State 
agencies, because of their authorities and their close working 
relationships with local governments and landowners, are in a unique 
position to assist us in implementing all aspects of the Act. In this 
regard, section 6 of the Act provides that we shall cooperate to the 
maximum extent practicable with the States in carrying out programs 
authorized by the Act. Therefore, any qualified employee or agent of a 
State conservation agency that is a party to a cooperative agreement 
with us in accordance with section 6(c) of the Act, who is designated 
by his or her agency for such purposes, will be able to conduct 
activities designed to conserve Fender's blue butterfly that may result 
in otherwise prohibited take without additional authorization.
    Nothing in this 4(d) rule will change in any way the recovery 
planning provisions of section 4(f) of the Act, the consultation 
requirements under section 7 of the Act, or our ability to enter into 
partnerships for the management and protection of Fender's blue 
butterfly. However, interagency cooperation may be further streamlined 
through planned programmatic consultations for the species between us 
and other Federal agencies, such as the existing programmatic 
consultation on habitat restoration actions in the existing PROJECTS 
biological opinion (USFWS 2015, entire), which includes provisions for 
management actions that benefit Fender's blue butterfly.

Required Determinations

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be 
prepared in connection with determining a species' listing status under 
the Endangered Species Act. We published a notice outlining our reasons 
for this determination in the Federal Register on October 25, 1983 (48 
FR 49244). This includes listing, delisting, and reclassification 
rules, as well as critical habitat designations and species-specific 
protective regulations promulgated concurrently with a decision to list 
or reclassify a species as threatened. The courts have upheld this 
position (e.g., Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) 
(critical habitat); Center for Biological Diversity v. U.S. Fish and 
Wildlife Service., 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) 
(concurrent 4(d) rule)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
Government-to-Government Relations with Native American Tribal 
Governments (59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes. We have determined that no Tribes will 
be affected by this rule because there are no Tribal lands or interests 
within or adjacent to Fender's blue butterfly habitat.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov under Docket No. FWS-R1-
ES-2020-0082 or upon request from the Oregon Fish and Wildlife Office 
(see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this rule are the staff members of the U.S. 
Fish and Wildlife Service, Oregon Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

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 AND PLANTS

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. In Sec.  17.11, paragraph (h), amend the List of Endangered and 
Threatened Wildlife by revising the entry for ``Butterfly, Fender's 
blue'' under INSECTS to read as follows:

[[Page 2026]]

Sec.  17.11   Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                               Listing citations
           Common name              Scientific name        Where listed          Status         and applicable
                                                                                                     rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                                     Insects
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Butterfly, Fender's blue........  Icaricia icarioides  Wherever found.....  T...............  65 FR 3875, 1/25/
                                   fenderi.                                                    2000; 88 FR
                                                                                               [INSERT Federal
                                                                                               Register PAGE
                                                                                               WHERE THE
                                                                                               DOCUMENT BEGINS],
                                                                                               1/12/2023; 50 CFR
                                                                                               17.47(f); \4d\ 50
                                                                                               CFR 17.95(i).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. In Sec.  17.12, paragraph (h), amend the List of Endangered and 
Threatened Plants by revising the entry for ``Lupinus sulphureus ssp. 
kincaidii'' under FLOWERING PLANTS to read as follows:


Sec.  17.12   Endangered and threatened plants.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                               Listing citations
         Scientific name              Common name          Where listed          Status         and applicable
                                                                                                     rules
----------------------------------------------------------------------------------------------------------------
                                                Flowering Plants
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Lupinus sulphureus ssp.           Kincaid's lupine...  Wherever found.....  T...............  65 FR 3875, 1/25/
 kincaidii.                                                                                    2000; 50 CFR
                                                                                               17.96.\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
4. In Sec.  17.47, add paragraph (f) to read as follows:


Sec.  17.47   Special rules--insects.

* * * * *
    (f) Fender's blue butterfly (Icaricia icarioides fenderi)--(1) 
Definitions. As used in this paragraph (f), the following terms have 
these meanings:
    (i) Occupied habitat. Habitat within the historical range of 
Fender's blue butterfly in the Willamette Valley of Oregon that 
supports or may support lupine, unless a qualified biologist using 
direct observation has conducted surveys for adult Fender's blue 
butterfly during the April 15 to June 30 flight period and documented 
no adult butterflies. Occupied habitat also includes all nectar habitat 
within 0.5 kilometers (km) (0.3 miles (mi)) of habitat containing at 
least one of the three host lupine species and that is occupied by 
Fender's blue butterfly. Unsurveyed areas within 2 km (1.25 mi) of a 
known Fender's blue butterfly population shall be assumed occupied if 
no surveys are conducted.
    (ii) Qualified biologist. An individual with a combination of 
academic training in the area of wildlife biology or related discipline 
and demonstrated field experience in the identification and life 
history of Fender's blue butterfly, or in habitat restoration methods 
to benefit Fender's blue butterfly. If capture of individuals is 
required for accurate identification, the individual must hold a valid 
permit under section 10(a)(1)(A) of the Act.
    (iii) Lupine. Any one of the three species of lupines known to be 
required as host plants for the larvae of Fender's blue butterfly: 
Kincaid's lupine (Lupinus sulphureus ssp. kincaidii), longspur lupine 
(L. arbustus), and sickle-keeled lupine (L. albicaulis).
    (2) Prohibitions. The following prohibitions that apply to 
endangered wildlife also apply to Fender's blue butterfly. Except as 
provided under paragraph (f)(3) of this section and Sec. Sec.  17.4 and 
17.5, it is unlawful for any person subject to the jurisdiction of the 
United States to commit, to attempt to commit, to solicit another to 
commit, or cause to be committed, any of the following acts in regard 
to this species:
    (i) Import or export, as set forth at Sec.  17.21(b) for endangered 
wildlife.
    (ii) Take, as set forth at Sec.  17.21(c)(1) for endangered 
wildlife.
    (iii) Possession and other acts with unlawfully taken specimens, as 
set forth at Sec.  17.21(d)(1) for endangered wildlife.
    (iv) Interstate or foreign commerce in the course of commercial 
activity, as set forth at Sec.  17.21(e) for endangered wildlife.
    (v) Sale or offer for sale, as set forth at Sec.  17.21(f) for 
endangered wildlife.
    (3) Exceptions from prohibitions. In regard to this species, you 
may:
    (i) Conduct activities as authorized by a permit under Sec.  17.32.
    (ii) Possess and engage in other acts with unlawfully taken 
wildlife, as set forth at Sec.  17.21(d)(2) for endangered wildlife.
    (iii) Take, as set forth at Sec.  17.21(c)(2) through (4) for 
endangered wildlife.
    (iv) Take, as set forth at Sec.  17.31(b).
    (v) Take incidental to an otherwise lawful activity caused by:
    (A) Mechanical removal of invasive and/or nonnative plant species. 
Mechanical treatments for invasive and nonnative plant control 
(including encroaching native woody species) that do not result in 
ground disturbance are

[[Page 2027]]

authorized within occupied habitat outside the butterfly's flight 
period of April 15 to June 30, provided:
    (1) Landowners or their agents conducting invasive or nonnative 
plant removal use reasonable care, which includes, but is not limited 
to, procuring and/or implementing technical assistance from a qualified 
biologist on timing and location of habitat management activities and 
avoidance of ground disturbance to avoid impacts to larvae or pupae. 
Best management practices for felling of trees, removal of vegetation 
off-site, and temporary piling of cut vegetation on-site are available 
from the Oregon Fish and Wildlife Office.
    (2) Reasonable care during all activities includes best efforts to 
avoid trampling or damaging Fender's blue butterflies (eggs, pupae, 
larvae, and adults) and their host and nectar plants. Foot traffic 
shall be minimized in occupied habitat, and especially in the area of 
any lupine plants.
    (B) Manual removal of invasive and/or nonnative plant species. 
Manual treatments for invasive and nonnative plant control (including 
encroaching native woody species) that do not result in ground 
disturbance are authorized within occupied habitat year-round, 
provided:
    (1) Landowners or their agents conducting invasive or nonnative 
plant removal use reasonable care, which includes, but is not limited 
to, procuring and/or implementing technical assistance from a qualified 
biologist on location of habitat management activities and avoidance of 
ground disturbance to avoid impacts to larvae or pupae. Best management 
practices for felling of trees, removal of vegetation off-site, and 
temporary piling of cut vegetation on-site are available from the 
Oregon Fish and Wildlife Office.
    (2) Reasonable care during all activities includes best efforts to 
avoid trampling or damaging Fender's blue butterflies (eggs, pupae, 
larvae, and adults) and their host and nectar plants. Foot traffic 
shall be minimized in occupied habitat, and especially in the area of 
any lupine plants.
    (C) Mowing. Tractor mowing for invasive and nonnative plant control 
(including encroaching native woody species) and the maintenance of 
early seral conditions is authorized throughout occupied Fender's blue 
butterfly habitat before February 15 when lupine emerges and after 
August 15 when lupine undergoes senescence.
    (1) Mowing with handheld mowers is authorized throughout the year; 
however, a buffer of at least 8 meters (25 feet) must be maintained 
between the mower and any individual lupine plant during Fender's blue 
butterfly flight season (April 15 to June 30).
    (2) Prior to and during mowing, landowners or their agents must use 
reasonable care, which includes, but is not limited to, procuring and 
implementing technical assistance from a qualified biologist on timing 
and location of habitat management activities prior to conducting work; 
avoidance of ground disturbance to avoid impacts to larvae or pupae; 
and using best efforts during all activities to avoid trampling or 
damaging Fender's blue butterflies (eggs, pupae, larvae, and adults) 
and their host and nectar plants. Foot traffic shall be minimized in 
occupied habitat, and especially in the area of any lupine plants.
    (D) Herbicide application for removal of invasive and/or nonnative 
plant species by hand wiping, wicking, and spot-spray applications. 
Hand wiping, wicking, and spot-spray applications of herbicides for 
either the removal of nonnative, invasive plant species or to prevent 
resprouting of woody species subsequent to cutting are authorized year-
round.
    (E) Herbicide application for removal of invasive and/or nonnative 
plant species by weed wiping and broadcast application. Weed wiping and 
broadcast application of herbicides are authorized outside of the 
flight period of April 15 to June 30; however, additional timing and 
use restrictions are required based on the chemicals used. Contact the 
Oregon Fish and Wildlife Office prior to herbicide application for a 
list of currently acceptable herbicides, their application methods, 
their appropriate timing of use, and best management practices 
associated with herbicide use.
    (1) Prior to and during herbicide application, landowners or their 
agents must use reasonable care, which includes, but is not limited to, 
procuring and implementing technical assistance from a qualified 
biologist on habitat management activities prior to conducting the 
work; complying with all State and Federal regulations and guidelines 
for application of herbicides; and avoiding broadcast spraying in areas 
adjacent to occupied habitat if wind conditions are such that drift 
into the occupied area is possible.
    (2) Landowners or their agents conducting herbicide application 
must use best efforts to avoid trampling or damaging Fender's blue 
butterflies (eggs, pupae, larvae, and adults) and their host and nectar 
plants. Foot traffic shall be minimized in occupied habitat, and 
especially in the area of any lupine plants.
    (F) Ground disturbance for the purpose of planting native 
vegetation. Limited ground disturbance (digging and placement by hand) 
is authorized for the purpose of planting native vegetation as part of 
habitat restoration efforts, especially native food resources used by 
larvae and adults, in areas occupied by Fender's blue butterfly.
    (1) Larvae of Fender's blue butterfly require lupine. For adults, 
preferred native nectar sources include, but are not limited to, the 
following flower species: tapertip onion (Allium acuminatum), 
narrowleaf onion (Allium amplectens), Tolmie's mariposa lily 
(Calochortus tolmiei), small camas (Camassia quamash), Clearwater 
cryptantha (Cryptantha intermedia), Oregon sunshine (Eriophyllum 
lanatum), Oregon geranium (Geranium oreganum), Oregon iris (Iris 
tenax), meadow checkermallow (Sidalcea campestris), rose checkermallow 
(Sidalcea virgata), and purple vetch (Vicia americana).
    (2) Prior to and during planting of native vegetation, landowners 
or their agents must use reasonable care, which includes, but is not 
limited to, procuring and implementing technical assistance from a 
qualified biologist on timing and location of habitat management 
activities and using best efforts during all activities to avoid 
trampling or damaging Fender's blue butterflies (eggs, pupae, larvae, 
and adults) and their host and nectar plants. Foot traffic shall be 
minimized in occupied habitat, and especially in the area of any lupine 
plants.
    (G) Summary of authorized methods and timing of habitat restoration 
activities for Fender's blue butterfly.

                    Table 1 to Paragraph (f)(3)(v)(G)
------------------------------------------------------------------------
                                    Dates authorized for use in occupied
        Management activity                        habitat
------------------------------------------------------------------------
Mechanical treatments.............  Outside of the flight period of
                                     April 15 to June 30.
Manual treatments.................  Year-round.
Mowing--tractors..................  Before February 15 and after August
                                     15.

[[Page 2028]]

 
Mowing--handheld..................  Year-round, with a buffer of 8
                                     meters (25 feet) between the mower
                                     and any individual lupine plant
                                     during the flight period of April
                                     15 to June 30.
Herbicides--hand wiping...........  Year-round.
Herbicides--wicking...............  Year-round.
Herbicides--spot-spray............  Year-round.
Herbicides--broadcast spray.......  Outside of the flight period of
                                     April 15 to June 30.*
Herbicides--weed wiping...........  Outside of the flight period of
                                     April 15 to June 30.*
Planting native vegetation........  Year-round.
------------------------------------------------------------------------
* Additional timing restrictions will apply based on the chemicals used.
  Contact the Oregon Fish and Wildlife Office for additional
  information.

    (H) Reporting and disposal requirements. Any injury or mortality of 
Fender's blue butterfly associated with the actions excepted under 
paragraphs (f)(3)(v)(A) through (E) of this section must be reported to 
the Service and authorized State wildlife officials within 5 calendar 
days, and specimens may be disposed of only in accordance with 
directions from the Service. Reports should be made to the Service's 
Office of Law Enforcement (contact information is at Sec.  10.22 of 
this subchapter) or the Service's Oregon Fish and Wildlife Office and 
to the State of Oregon Department of Parks and Recreation, Stewardship 
Section, which has jurisdiction over invertebrate species. The Service 
may allow additional reasonable time for reporting if access to these 
offices is limited due to closure.
* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-00037 Filed 1-11-23; 8:45 am]
BILLING CODE 4333-15-P