97-1674. Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for Two Insects From the Santa Cruz Mountains of California

[Federal Register Volume 62, Number 16 (Friday, January 24, 1997)]
[Rules and Regulations]
[Pages 3616-3628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-1674]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC50


Endangered and Threatened Wildlife and Plants; Determination of 
Endangered Status for Two Insects From the Santa Cruz Mountains of 
California

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) determines 
endangered status pursuant to the Endangered Species Act of 1973, as 
amended (Act), for the Mount Hermon June beetle (Polyphylla barbata) 
and Zayante band-winged grasshopper (Trimerotropis infantilis). These 
two insect species are restricted to the Zayante sand hills ecosystem 
endemic to inland marine sand deposits in the Santa Cruz Mountains of 
Santa Cruz County, California. The species are in danger of extinction 
principally because of ongoing and future habitat loss to sand mining 
and urban development. This rule implements Federal protection and 
recovery provisions afforded by the Act for each of these animals. The 
proposal to list the Santa Cruz rain beetle (Pleocoma conjungens 
conjungens) as an endangered species is being withdrawn and will appear 
in a separate section of this publication.

EFFECTIVE DATE: February 24, 1997.

ADDRESSES: The complete file for this rule is available for inspection, 
by appointment, during normal business hours at the U.S. Fish and 
Wildlife Service, Ventura Field Office, 2493 Portola Road, Suite B, 
Ventura, California 93003.

FOR FURTHER INFORMATION CONTACT: Carl Benz, Assistant Field Supervisor 
(see ADDRESSES section, telephone [phone]).

SUPPLEMENTARY INFORMATION:

Background

    The Mount Hermon June beetle (Polyphylla barbata) and Zayante band-
winged grasshopper (Trimerotropis infantilis) are endemic to the unique 
Zayante sand hills ecosystem associated with isolated sandstone 
deposits in the Santa Cruz Mountains, Santa Cruz County, California.
    The Santa Cruz Mountains are a geologically young range composed of 
igneous and metamorphic rocks overlaid by thick layers of sedimentary 
material uplifted from the ocean floor and ancient shoreline zone 
(Caughman and Ginsberg 1987). These Miocene marine terraces, called the 
Santa Margarita formation (Clark 1981; Marangio 1985), persist as 
pockets of sandstones and limestones geologically distinct from the 
volcanic origins of the Santa Cruz Mountains. Soils that formed from 
these sandstone deposits occur in scattered pockets covering 
approximately 3,400 hectares (ha) (8,400 acres (ac)), and are called 
the Zayante soil series (USDA Soil Conservation Service 1980). Zayante 
soils are endemic to Santa Cruz County and occur in three primary 
clusters. The largest cluster is in the vicinity of the communities of 
Ben Lomond, Felton, Mount Hermon, Olympia, and Scotts Valley. A second 
cluster is located in the Bonny Doon area. The third, and smallest, 
cluster is found near the community of Corralitos. Zayante soils are 
deep, coarse-textured, poorly developed, and well drained (USDA Soil 
Conservation Service 1980).
    Predominant vegetation of the Santa Cruz Mountains consists of 
coast redwood forest (Zinke 1988) and mixed evergreen forest (Sawyer et 
al. 1988). However, the coarse, sandy, Zayante soils create a warmer 
and drier microclimate that supports a uniquely adapted flora 
distinctly different from the surrounding forest and chaparral 
communities (Marangio 1985; Davilla 1990). The Zayante soils in the Ben 
Lomond-Mount Hermon-Scotts Valley and Bonny Doon regions harbor a 
complex vegetation mosaic dominated by maritime coast range ponderosa 
pine forest and northern maritime chaparral (Griffin 1964; Holland 
1986). The distributions of northern maritime chaparral and maritime 
coast range ponderosa pine forest overlap to form a complex and 
intergrading mosaic of communities variously referred to as ``ponderosa 
sand parkland,'' ``ponderosa pine sandhills,'' and ``silver-leafed 
manzanita mixed chaparral.'' These habitats will be collectively 
referred to as ``Zayante sand hills habitat'' or the ``Zayante sand 
hills ecosystem.'' The Corralitos cluster of Zayante soils is distant 
and does not support similar vegetation. Therefore, that cluster is not 
included in the Zayante sand hills ecosystem.
    The occurrence of ponderosa pine (Pinus ponderosa) in this region 
represents a disjunct, remnant occurrence of the species in the Santa 
Cruz Mountains, reflective of the unique edaphic conditions on Zayante 
soils. Here, maritime coast range ponderosa pine forest occurs as open, 
park-like stands with low densities of ponderosa pines occasionally 
interspersed with knobcone pines (Pinus attenuata) and, at some sites, 
the federally endangered Santa Cruz cypress (Cupressus abramsiana). The 
presence of knobcone pines and Santa Cruz cypress, which require 
periodic fires for reproduction (Vogl et al. 1988), suggests that fire 
may play an important role in the maintenance of the Zayante sand hills 
habitat mosaic (Griffin 1964; Marangio 1985; Holland 1986).
    Northern maritime chaparral on Zayante soils is dominated by the 
silver-leafed manzanita (Arctostaphylos silvicola), a candidate for 
Federal listing endemic to the region. It may occur as monotypic stands 
or be mixed with Ceanothus sp., Adenostoma sp., Eriodictyon sp., and 
other shrub species. Knobcone pine may occasionally be present (Morgan 
1983; Marangio 1985; Lee 1994).
    The Zayante sand hills ecosystem harbors a diversity of rare and 
endemic plant species and disjunct populations (Thomas 1961; Griffin 
1964; Morgan 1983). In addition to the endemic silver-leafed manzanita 
and the disjunct population of ponderosa pine, Zayante soils support 
the federally endangered Erysimum teretifolium (Ben Lomond wallflower), 
Chorizanthe pungens var. hartwegiana (Ben Lomond spineflower), and 
Chorizanthe robusta var. hartwegii (Scotts Valley spineflower). Because 
of the unique flora found there, the Zayante sand hills are considered 
to be ``biological islands'' (Marangio 1985).
    A unique habitat within the Zayante sand hills ecosystem is sand 
parkland characterized by sparsely vegetated, sandstone-dominated 
ridges and saddles that support a wide array of annual and perennial 
herbs and grasses. Scattered ponderosa pine trees are often present. 
Although overall vegetation cover is generally less than 20 percent, 
sand parkland supports over 90 specifically adapted plant species 
(Morgan 1983; Davilla 1990).
    The ranges of the Mount Hermon June beetle and Zayante band-winged 
grasshopper are highly restricted within the Santa Cruz Mountains. The 
Mount Hermon June beetle is limited to the Zayante sand hills 
ecosystem. It is found in sand parkland and other sandy

[[Page 3617]]

areas within chaparral and ponderosa pine stands. The Zayante band-
winged grasshopper is more narrowly distributed, known only from seven 
patches of sand parkland.
    The Mount Hermon June beetle was first described by Cazier (1938) 
from Mount Hermon, Santa Cruz County, California. The adult male is a 
cryptic small scarab beetle with a black head, dark blackish-brown 
elytra (thick leathery forewings) clothed with scattered long brown 
hair, and a striped body. Elytral vittae (stripes) are broken, often 
reduced to discontinuous clumps of scales, but still form identifiable 
lines (Cazier 1938; Young 1988). Females are larger, with a black head, 
chestnut-colored clypeus (plate on lower part of face) and elytra, and 
golden hairs on the head, thorax, and legs (Young 1988). The single 
adult female described was 22 by 11 millimeters (mm) (0.87 by 0.43 
inches (in.)), while the holotype male was 20 by 9.7 mm (0.79 by 0.39 
in.) (Young 1988).
    The Mount Hermon June beetle is 1 of 28 species of Polyphylla in 
North America north of Mexico, and 1 of 15 species of the diffracta 
complex within the genus Polyphylla (Young 1988). The status of P. 
barbata as a full species was supported by Cazier (1940) and again by 
Young (1988), who recently made several nomenclatural adjustments to 
the genus Polyphylla but retained P. barbata. Three other wide-ranging 
species of Polyphylla occur in the Ben Lomond-Mount Hermon-Scotts 
Valley area--P. crinita, P. nigra, and P. decemlineata. The Mount 
Hermon June beetle is distinguished from other species of Polyphylla by 
the presence of relatively dense, long, erect hairs scattered randomly 
over the elytra and short erect hairs on the pygidium (abdominal 
segment) (Young 1988).
     Like other Polyphylla species, the Mount Hermon June beetle is 
believed to require about 2 to 3 years to mature from an egg through 
the adult form. However, the rate of growth of laboratory-reared larvae 
suggests that the Mount Hermon June beetle may complete its life cycle 
within 1 year (W. Hazeltine, in litt. 1994). Most of the life cycle is 
spent in larval stages. The larvae are subterranean and feed on plant 
roots. While Polyphylla larvae are generally considered to be grass and 
pine root feeders (F. Andrews, California Department of Food and 
Agriculture, pers. comm. 1993; A. Evans, Los Angeles Museum of Natural 
History, pers. comm. 1993), the Mount Hermon June beetle also may feed 
on the roots of monkeyflower, oak, fern, and other plants found in the 
Zayante sand hills ecosystem (W. Hazeltine, in litt. 1993).
    During summer, Mount Hermon June beetles emerge as imagos (adult 
forms) to reproduce. Males are strong fliers, emerging from their 
burrows to fly low to the ground in search of females (W. Hazeltine, in 
litt. 1994). Females are thought to be fossorial, remaining just below 
the surface in burrows. Females may not fly due to their large body 
size (A. Evans, pers. comm. 1993; A. Hardy, California Department of 
Food and Agriculture, pers. comm. 1993). Like other Polyphylla species, 
males are believed to locate females by tracking female pheromone 
signals (Fowler and Whitford 1981; Hazeltine 1993); such a mechanism 
would ensure reproductive success within the limited time period for 
mating (Lilly and Shorthouse 1971). The flight season generally extends 
from mid-June to late July. The flight time of males appears restricted 
to evening, being observed only between 8:45 and 9:30 pm; flights may 
occur later during the latter part of the flight season (Hazeltine 
1993).
    The small mouthparts and limited flight period of Mount Hermon June 
beetles suggest that adults of this species do not feed (W. Hazeltine, 
in litt. 1993). Adults of the related Polyphylla decemlineata are known 
to feed on the leaves of trees (Johnson 1954). At the end of the flight 
period each evening, males burrow back into the soil, emerging 
repeatedly on subsequent evenings to search for mates until their 
nutrient reserves expire (Hazeltine 1993). Females are believed to lay 
eggs at the bottom of their burrows and die a short time later. The 
life cycle continues as newly hatched larvae tunnel from the burrow in 
search of roots.
    Habitat of the Mount Hermon June beetle is described as ponderosa 
pine-chaparral habitat with sandy soil and open, sparsely vegetated 
areas (Hazeltine 1993; W. Hazeltine, pers. comm. 1994; J. Hoekstra, 
U.S. Fish and Wildlife Service, pers. obs. 1994). Mount Hermon June 
beetles also may occur in more vegetated areas of chaparral (D. 
Russell, Miami University, Ohio, pers. comm. 1994). Common vegetation 
found in these open areas includes bracken fern (Pteridium aquilinum), 
monkeyflower (Diplacus sp.; Mimulus sp.), grasses, and small annual 
forbs (J. Hoekstra, pers. obs. 1994). While not always present, silver-
leafed manzanita seems to be a good indicator of suitable habitat 
(Hazeltine 1993; J. Hoekstra, pers. obs. 1994) All of these 
descriptions are consistent with those of Zayante sand hills habitat.
    Most Polyphylla species have narrow distributions. Of 28 North 
American species, 20 have restricted ranges; 15 of these are endemic to 
isolated sand deposits (Young 1988). The restricted distributions of 
these species are likely due to various factors including substrate and 
food preferences, edaphic tolerances, and the low mobility of fossorial 
larvae and females. Most Polyphylla species seem to prefer sand and 
grass or sand, grass, and conifer associations similar to those found 
in the Zayante sand hills ecosystem (Borror et al. 1976; Young 1988; A. 
Hardy, pers. comm. 1993).
    The range of the Mount Hermon June beetle is restricted to the 
Zayante sand hills habitat of the Ben Lomond-Mount Hermon-Scotts Valley 
area. Historically, specimens were known only from ``sandhills'' at the 
type locality of Mount Hermon in Santa Cruz County, California (Cazier 
1938, 1940; Young 1988). A single historic specimen collected in 1968 
and labeled only ``Santa Cruz'' has been reported (S. McCabe, 
California Native Plant Society, in litt. 1991). This specimen was not 
helpful in the Service's range analysis because of its non-specific 
location label.
     Between 1989 and 1994, Mount Hermon June beetles were collected at 
28 of 43 sites surveyed. Records include results of a regional survey 
and incidental collections (S. McCabe 1991; Hazeltine 1993; W. 
Hazeltine, pers. comm. 1994; D. Russell, pers. comm. 1994). Twenty six 
of the 28 collection locations were on mapped Zayante soils in the 
primary cluster of the Ben Lomond-Mount Hermon-Scotts Valley area. The 
other two collection records were within the same area, in proximity to 
mapped Zayante soils (Hoekstra 1994). All sites were similarly 
characterized by sparsely vegetated sandy substrate with silver-leafed 
manzanita or ponderosa pine (Hazeltine 1993; J. Hoekstra, pers. obs. 
1994). Mount Hermon June beetles were not found in surveys of suitable 
Zayante sand hills habitat outside the Ben Lomond-Mount Hermon-Scotts 
Valley area; nor were they found at locations with habitat not 
characteristic of the Zayante sand hills ecosystem (Hoekstra 1994).
    Over 40 percent of Zayante sand hills habitat is estimated to have 
been lost to, or altered by, human activities including--sand mining, 
urban development, recreational activities, and agriculture. 
Historically, Zayante sand hills habitat was estimated to have covered 
2533 ha (6265 ac) (Lee 1994). Currently, 1459 ha (3608 ac) remain in a 
natural state (Lee 1994). Portions of

[[Page 3618]]

the Zayante sand hills ecosystem are protected under public ownership 
in only three locations--the Quail Hollow Ranch, owned by the County of 
Santa Cruz; Bonny Doon Ecological Preserve, managed by the California 
Department of Fish and Game; and Henry Cowell Redwoods State Park 
(Marangio 1985; Lee 1994). However, the Mount Hermon June beetle is not 
known to occur in either the Bonny Doon Ecological Preserve or Henry 
Cowell Redwoods State Park. The majority of Zayante sand hills habitat 
is on privately owned properties and is susceptible to continued sand 
mining and urban development. No Federal land is located in the region.
    The Zayante band-winged grasshopper was first described from a sand 
parkland area near Mount Hermon in the Santa Cruz Mountains, Santa Cruz 
County, California (Rentz and Weissman 1984). The body and forewings 
are pale gray to light brown with dark crossbands on the forewings. The 
basal area of the hindwings is pale yellow with a faint thin band. The 
hind tibiae (lower legs) are blue-gray and the eye is banded. It is one 
of the smallest species in the genus. Males range in length from 13.7 
to 17.2 mm (0.54 to 0.68 in.); females are larger, ranging in length 
from 19.7 to 21.6 mm (0.78 to 0.85 in.) (Otte 1984; Rentz and Weissman 
1984).
    The Zayante band-winged grasshopper is 1 of 56 species in the genus 
Trimerotropis (Rentz and Weissman 1984). This species is similar in 
appearance to Trimerotropis occulans and Trimerotropis koebelei; 
neither of these species is known from the Zayante sand hills region 
(Otte 1984; Rentz and Weissman 1984). Trimerotropis thalassica and 
Trimerotropis pallidipennis pallidipennis have been caught nearby but 
are not considered sympatric (Rentz and Weissman 1984).
    The flight season of the Zayante band-winged grasshopper extends 
from late May through August with peak activity during July and August 
(White 1993; R. Morgan, in litt. 1994). Specimens have been collected 
as late as November 1 (White 1993). When flushed, individuals generally 
fly 1 to 2 meters (m) (3 to 7 feet (ft)), stridulating (producing a 
buzzing sound) in flight (Rentz and Weissman 1984). Band-winged 
grasshoppers often alight on bare ground, and are conspicuous in flight 
because of the color of the hind wings and the crackling sound made by 
the wings (Borror et al. 1976). No additional information on the life 
cycle of this species is available.
    Habitat of the Zayante band-winged grasshopper was originally 
described as ``sandy substrate sparsely covered with Lotus and grasses 
at the base of pines'' (Rentz and Weissman 1984). Subsequent reports 
describe habitat as open sandy areas with sparse, low annual and 
perennial herbs on high ridges with sparse ponderosa pine. Such 
descriptions are consistent with those of sand parkland. Surveys also 
report that the Zayante band-winged grasshopper co-occurs with Erysimum 
teretifolium (Ben Lomond wallflower), a federally endangered plant 
(White 1993; R. Morgan, in litt. 1994). The significance of such an 
association is unknown.
    The Zayante band-winged grasshopper is narrowly restricted to sand 
parkland habitat found on ridges and hills within the Zayante sand 
hills ecosystem. The species was described from specimens collected in 
1977 on sparsely vegetated sandy soil above the Olympia sand quarry. 
Other historic specimens were labeled only ``Santa Cruz Mts., no 
date''; ``Alma, 1928''; ``Felton, 1959''; and ``Santa Cruz, 1941'' 
(Rentz and Weissman 1984). Because no specific location or habitat 
descriptions accompanied the historic specimens, they were not 
considered in the assessment of current range and status of the 
species. The ``Alma 1928'' record may suggest distributional outliers, 
but no subsequent collections have been recorded to substantiate the 
current existence of such a population. Furthermore, the town of Alma 
currently is inundated by a reservoir, and the cited specimens cannot 
be located in the listed depository for verification (W. Hazeltine, in 
litt. 1994; D. Weissman, California Academy of Sciences, pers. comm. 
1994).
    Between 1989 and 1994, Zayante band-winged grasshoppers were found 
at 10 of 39 sites sampled during two independent regional surveys 
(White 1993; R. Morgan, in litt. 1994). All 10 collection locations 
were on Zayante series soils (Hoekstra 1994). The habitat at these 
sites was consistently described as a sparsely vegetated sandy 
substrate or sand parkland (White 1993; R. Morgan, in litt. 1994). The 
association and restriction of the Zayante band-winged grasshopper to 
sand parkland was further corroborated by an overlay of collection 
locations on maps delineating sand parkland habitat (Marangio 1985; R. 
Morgan, in litt. 1994; Lee 1994). All 10 collection locations fell 
within 7 discrete areas of sand parkland habitat (Hoekstra 1994).
    Over 60 percent of sand parkland is estimated to have been lost to, 
or altered by, human activities including sand mining, urban 
development, recreation, and agriculture (Marangio and Morgan 1987; R. 
Morgan, pers. comm. 1992; Lee 1994). Approximately 200 to 240 ha (500 
to 600 ac) of sand parkland existed historically (Marangio and Morgan 
1987). By 1986, only 100 ha (250 ac) of sand parkland remained intact 
(Marangio and Morgan 1987). By 1992, sand parkland was reportedly 
reduced to only 40 ha (100 ac) (R. Morgan, pers. comm. 1992). A more 
recent assessment revised that estimate up to 78 ha (193 ac) because of 
identification and inclusion of additional lower quality sand parkland 
(Lee 1994). Evaluation of sand parkland quality was based upon 
vegetation structure and species composition. Only 20 ha (49 ac) of 
sand parkland habitat are publicly owned--1.2 ha (3 ac) of high quality 
and 2.4 ha (6 ac) low quality habitat are protected within the Quail 
Hollow Ranch, owned by the County of Santa Cruz; 8 ha (20 ac) of low 
quality sand parkland are protected in the Bonny Doon Ecological 
Preserve, managed by the California Department of Fish and Game (Lee 
1994); and approximately 8 ha (20 ac) of low quality habitat occur in 
Henry Cowell Redwoods State Park (S. Steinmetz, Henry Cowell Redwoods 
State Park, pers. comm. 1993). The Zayante band-winged grasshopper does 
not occur in the Bonny Doon Ecological Preserve or Henry Cowell 
Redwoods State Park. The remaining 58 ha (143 ac) of sand parkland are 
privately owned and at risk of loss to sand mining and urban 
development (D. Hillyard, California Department of Fish and Game, pers. 
comm. 1993; Lee 1994).

Previous Federal Action

    The Service included the Mount Hermon June beetle as a category 2 
candidate species in the January 6, 1989 (54 FR 554) and November 21, 
1991 (56 FR 58804) Animal Notices of Review. Category 2 species were 
those for which information in the Service's possession indicated that 
listing was possibly appropriate, but for which substantive data on 
biological vulnerability and threats were not available to support 
proposed rules.
    On February 11, 1991, the Service was petitioned by Mr. Stephen 
McCabe, California Native Plant Society, to emergency list the Mount 
Hermon June beetle as an endangered species. The Service made a 90-day 
finding on June 10, 1991, that although an emergency situation did not 
exist, substantial information had been presented indicating that 
listing may be warranted, and announced this decision in the August 19, 
1992, Federal Register (57 FR 37513). The Service initiated a status 
review of the Mount Hermon June beetle at that time.

[[Page 3619]]

    The Service was petitioned on July 16, 1992, by Dr. David Weissman, 
California Academy of Sciences, to list the Zayante band-winged 
grasshopper as an endangered species. No separate 90-day finding was 
published for this species; final finding for the petitioned action was 
contained in a proposed rule, which included listing the Zayante band-
winged grasshopper as endangered (59 FR 24112).
    The Service learned of the status of, and threats to, the Santa 
Cruz rain beetle (Pleocoma conjungens conjungens) during status reviews 
of the Mount Hermon June beetle and Zayante band-winged grasshopper. 
During the status reviews of the three taxa, the Service examined the 
available literature and data on life history, ecology, locality 
records, and species' ranges. Sources of status and threat information 
for the Mount Hermon June beetle, Zayante band-winged grasshopper, and 
Santa Cruz rain beetle included reports and plans supplied by 
proponents of the listing and reviewing agencies' plans for development 
projects within the range of these three species, and reviewing 
published and unpublished data from scientists with expertise on these 
taxa and their habitat needs.
    On May 10, 1994, the Service published a proposed rule in the 
Federal Register (59 FR 24112) to list the three insects as endangered. 
The proposed rule constituted the final finding for the petitioned 
actions for the Mount Hermon June beetle and Zayante band-winged 
grasshopper, in accordance with section 4(b)(3)(B)(ii) of the Act. The 
proposed rule opened a public comment period through July 11, 1994, to 
allow submission of new and additional information on the species and 
written comments from the public. A public hearing was requested by Dr. 
William Hazeltine of Oroville, California on May 30, 1994. A Notice of 
Public Hearing and Extension of Public Comment Period was published on 
June 29, 1994 (59 FR 33484). This notice extended the public comment 
period through August 1, 1994. The public hearing was held on July 18, 
1994, in Santa Cruz, California and allowed presentation of both oral 
testimony and written comments. A notice reopening the public comment 
period through October 31, 1994, was published on September 1, 1994 (59 
FR 45254). The comment period was reopened to allow submission of 
additional comments and information concerning the proposed rule.
    Based upon information received during the cited public comment 
periods, the proposed listing of the Santa Cruz rain beetle has been 
withdrawn by the Service. A notice withdrawing the proposal is 
published in the Federal Register concurrently with this final rule.

Summary of Comments and Recommendations

    In the May 10, 1994, proposed rule and associated notifications, 
all interested parties were requested to submit factual reports or 
information that might contribute to the development of a final rule. 
Appropriate Federal and State agencies, County and local governments, 
scientific organizations, and other interested parties were contacted 
and requested to comment. The initial 60-day comment period was 
extended through August 1, 1994 (59 FR 33484), and reopened from 
September 1, 1994, through October 31, 1994, to allow submission of 
additional comments (59 FR 45254). Newspaper notices were published in 
the Santa Cruz Sentinel on September 22, 1994, and in the San Jose 
Mercury News on September 30, 1994, inviting general public comment.
    The Service received a written request from Dr. William Hazeltine 
of Oroville, California for a public hearing. The public hearing was 
held on July 18, 1994, at the Santa Cruz County Government Building in 
Santa Cruz, California. Each speaker was provided 5 minutes to present 
oral testimony concerning the proposed rule; written comments also were 
accepted at the public hearing. Approximately 40 individuals attended 
the public hearing; 17 presented statements.
    Seventy three comments, including those of 1 Federal agency, 1 
State agency, 3 local government officials, and 50 private groups and 
individuals, were received during the comment periods and public 
hearing. Several people submitted more than one comment to the Service. 
Forty one comments supported, 27 expressed concerns, and 5 were neutral 
on the proposed action. Several comments contained significant data and 
information concerning the biology, ecology, range, and distribution of 
the subject species. This information was evaluated and incorporated 
into the final determination as appropriate.
    Written comments and oral statements presented at the public 
hearing and received during the comment periods are addressed in the 
following summary. Written and oral comments were given full and equal 
consideration. Comments of a similar nature or point are grouped into a 
number of general issues. These issues and the Service's response to 
each are discussed below.
    Issue 1: Numerous respondents concluded that listing the three 
insect species would have adverse economic and social effects. Several 
commenters felt that residential and commercial development would be 
stopped or hindered. Other commenters were concerned about effects to 
local mining and railroad businesses. Three commenters requested that 
the Service consider and analyze possible socioeconomic impacts. A 
representative of the Department of the Interior Bureau of Mines 
(Bureau) offered the Bureau's assistance with such analysis. Another 
commenter concluded that the Service failed to include Regulatory 
Flexibility Act analysis. Some commenters stated that the listing would 
turn public opinion against preservation of endangered species, and 
discredit conservation organizations, the Act, and other environmental 
organizations. Several commenters charged that the Act was being 
subverted by proponents of the listing and the Service for political 
purposes, including habitat protection, land use control, and 
development restriction. On the other hand, several respondents 
asserted that the economic effects of the listing were being 
exaggerated by opponents. They argued that individual property and 
homeowners would not be significantly affected since most of the known 
occurrences were on a small number of large properties. Proponents also 
cited the uniqueness of the ecosystem and its flora and fauna as a 
reason to list the species.
    Service Response: These comments address a diversity of economic, 
social, and political issues. However, section 4(b)(1)(A) of the Act 
requires that a listing determination be based solely on the best 
scientific and commercial data available. The legislative history of 
this provision clearly states the intent of Congress to ``ensure'' that 
listing decisions are ``based solely on biological criteria and to 
prevent non-biological criteria from effecting such decisions'' (H.R. 
Rep. No. 97-835, 97th Cong. 2d Sess. 19 (1982)). As further stated in 
the legislative history, ``economic considerations have no relevance to 
determinations regarding the status of species.'' Because the Service 
is specifically precluded from considering economic impacts in a final 
determination on a proposed listing, possible economic consequences of 
listing the insects were not considered.
    Issue 2: One commenter concluded that listing the Mount Hermon June 
beetle and Zayante band-winged grasshopper would usurp local land use 
planning authorities.

[[Page 3620]]

    Service Response: The Act does not empower the Service or any other 
Federal agency with land use planning authorities. Therefore, local 
planning responsibilities would remain intact.
    Issue 3: One commenter concluded that land owners would be required 
to prove a species not to be endangered as a condition of take permits.
    Service Response: Section 10 of the Act describes procedures for 
permitting exemption from take prohibitions. Such permission may only 
be granted if the activity does not preclude the continued existence 
and eventual recovery of the listed species. Permit applicants are not 
required to demonstrate species' lack of endangerment.
    Issue 4: Three commenters concluded that prohibitions against 
``take'' of listed species, as defined in the Act, would violate 
constitutional prohibitions against take of private property without 
compensation. Two commenters requested that the Service conduct a 
takings implication analysis.
    Service Response: If an action would not harass, harm, kill, or 
otherwise ``take'' a listed species, the prohibitions described in 
section 9 of the Act are not applicable. If an action would take a 
listed species, procedures for permitting exemptions from the Act's 
take prohibitions are established in section 10. The Attorney General 
of the U.S. has issued guidelines to the Department of the Interior 
(Department) regarding Taking Implications Assessments (TIAs). The 
Attorney General's guidelines state that TIAs used to analyze the 
potential for Fifth Amendment taking claims are to be prepared after, 
rather than before, an agency makes a restricted discretionary 
decision. In enacting the Act, Congress required the Department to list 
a species based solely upon scientific and commercial data indicating 
whether or not the species is in danger of extinction. The Service may 
not withhold a listing based upon economic concerns. Therefore, even 
though a TIA may be required, a TIA for a listing action is finalized 
only after the final determination whether to list a species is made.
    Issue 5: One commenter concluded that recovery plans require 
coerced mitigation.
    Service Response: Although recovery plans identify objectives, 
strategies, and specific actions necessary for the recovery of a 
species, the plans are guidance documents. Implementation of recovery 
plans is not mandatory under law.
    Issue 6: Two commenters concluded that the Act was not intended for 
insects and that the species did not qualify under the definitions of 
the Act.
    Service Response: The definition of ``fish and wildlife'' in the 
Act includes ``any member of the animal kingdom, including without 
limitation any mammal, fish, bird * * *, amphibian, reptile, mollusk, 
crustacean, arthropod or other invertebrate.'' The Phylum Arthropoda 
(arthropods) includes insects. Because the Mount Hermon June beetle and 
Zayante band-winged grasshopper are recognized as distinct species, 
both taxa qualify for listing consideration under the Act.
    Issue 7: One commenter questioned the Service's ability to protect 
endangered species. Two commenters did not believe that funds would be 
available to monitor the species, enforce the Act, or develop a 
recovery plan for insect species.
    Service Response: Measures by which the Service can protect 
endangered species are described in the Available Conservation Measures 
section of this document.
    Issue 8: One commenter asserted that the use of consultation under 
section 7 of the Act was equivalent to ad hoc administration for listed 
species, and that it avoided National Environmental Policy Act (NEPA) 
review and taking issues.
    Service Response: Consultation processes defined in section 7 of 
the Act provide for coordination between the Service and other Federal 
agencies to ensure that Federal actions do not jeopardize the continued 
existence of listed species. Recovery plan guidance helps ensure that 
proposed actions are consistent with and support the recovery goals and 
objectives for listed species. The consultation process in no way 
exempts Federal agencies from compliance with NEPA or consideration of 
taking issues if required for a proposed action.
    Issue 9: A number of respondents urged the Service to base any 
listing decisions on sound science using expert data and opinions. 
Another concluded that the data and analyses used in the proposed rule 
did not meet scientific standards of review. Several commenters 
requested that the data undergo peer review to evaluate additional 
information and to reconcile an expert's disagreement with the 
Service's proposed rule. Two commenters requested that the Service 
delay a final determination to allow for adequate evaluation and review 
of data.
    Service Response: To ensure that listing decisions are based on 
sound scientific data, principles, and analyses, and in accordance with 
Service policies, expert opinions of independent and appropriate 
specialists were solicited regarding pertinent data and assumptions 
used to make this final determination. All available data and 
assumptions concerning the biology and distribution of the species were 
provided to the reviewers. Their comments are summarized in the ``Peer 
Review'' section of this rule and have been incorporated as 
appropriate. As required by the listing regulations promulgated in 50 
CFR part 424, the Service has evaluated the available information and 
presented the data and assumptions for independent scientific review.
    Issue 10: Several respondents were concerned with the credibility 
of available data. Individual collectors were criticized by various 
commenters for lacking expertise or verifiable records. These 
collectors defended their credibility by citing professional 
qualifications and acceptance of data within the scientific community. 
Other commenters disputed the value of published versus unpublished 
data and documents.
    Service Response: In making a listing determination, the Service is 
obligated to use the best available information. The quality and 
reliability of data used were evaluated against the following 
criteria--demonstrated experience or credentials of collectors, 
consistency with acceptable methodologies, and verifiability of data. 
If the quality or reliability of particular data was deemed to be 
inadequate, an appropriate explanation is provided. Similar standards 
were maintained for evaluation of published and unpublished material.
    Issue 11: Three commenters cited unpublished reports that contained 
substantial information on the biology and range of the Mount Hermon 
June beetle and Santa Cruz rain beetle not included in the proposed 
rule. One commenter concluded that the Service ignored the reports and 
comments because the data refuted the proposed rule.
    Service Response: Pertinent information contained in these reports 
has been incorporated into this final determination.
    Issue 12: Several commenters felt that the proposed listing was 
based on erroneous assumptions and lack of collection. Two commenters 
contended that failure to collect specimens did not indicate absence of 
the species. Three commenters recommended that more thorough studies be 
conducted prior to a final determination.
    Service Response: In preparing this final determination, the 
Service had available substantial collection data for

[[Page 3621]]

the two species, including data from the petition to list the Mount 
Hermon June beetle, incidental collection records of this species, and 
the results of a 1993 regional survey. In addition, the Service 
reviewed the results of two independent regional surveys for the 
Zayante band-winged grasshopper. These data were sufficient to 
determine the range and to evaluate the threats to the species. Peer 
reviewers concurred that assumptions were reasonable and appropriate.
    Issue 13: Numerous commenters concluded that the proposed listing 
of the Mount Hermon June beetle was not supported by data and 
conclusions contained in survey reports and comments submitted by Dr. 
William Hazeltine, who studied the beetle from 1946 to 1952 and again 
from 1992 to 1994. These commenters, including Dr. Hazeltine, cited 
collections of Mount Hermon June beetles across a larger geographic 
range and in different habitat than the Zayante soils and sand parkland 
described in the proposed rule.
    Service Response: The data contained in Dr. Hazeltine's 1993 survey 
report significantly expanded the known range of the Mount Hermon June 
beetle with 26 collection records reported from Ben Lomond to Scotts 
Valley. Hazeltine's data also showed the beetle to occur in chaparral 
habitats as well as sand parkland. However, Service analysis showed 
that the distribution of successful collection sites corresponded with 
the distribution of Zayante soils on which Zayante sand hills habitats 
are found. In addition, habitat on successful collection sites was 
described as sparsely vegetated sandy areas among chaparral and 
ponderosa pine. Service personnel visited the collection sites with Dr. 
Hazeltine and verified the habitats were consistent with descriptions 
of Zayante sand hills habitat. Thus, the Service concluded that the 
Mount Hermon June beetle is limited to Zayante sand hills habitat in 
the Ben Lomond-Mount Hermon-Scotts Valley area. Although this range is 
indeed larger than previously described and extends beyond sand 
parkland, the Mount Hermon June beetle remains endangered throughout 
all or a significant portion of its range to the extent that listing is 
appropriate.
    Issue 14: Several commenters concluded that the proposal to list 
the Mount Hermon June beetle and Zayante band-winged grasshopper as 
endangered species lacked scientific evidence and was not supported by 
entomological information.
    Service Response: All available data and information concerning the 
biology and status of these species was reviewed and evaluated by a 
Service entomologist, as well as independent peer reviewers. This 
material was considered to be sufficient for making a final 
determination on the proposed rule. The assumptions, data, analyses, 
and evidence used are presented throughout this document.
    Issue 15: Several commenters criticized the proposed rule's 
dismissal of outlying specimens as scientifically irresponsible. 
Particularly cited were two Zayante band-winged grasshopper specimens 
reported from Alma which, according to the commenters, demonstrated the 
Zayante band-winged grasshopper had a much larger range and occupied 
additional habitats not acknowledged in the proposed rule. One 
commenter further asserted the Alma grasshopper specimens were 
collected by a reputable collector such that the label should be 
considered accurate. The same commenter noted a 1968 Mount Hermon June 
beetle specimen from ``Santa Cruz'' was dismissed in the proposed rule, 
and cited the existence of appropriate habitat in a location considered 
to be Santa Cruz.
    Service Response: The Alma grasshopper specimens were collected in 
1928 from an unknown specific location or habitat. Although the 
collector was reputable, the reliability of this record is questioned 
for the following reasons--the location label is non-specific and 
unverifiable such that the specimens may have been collected anywhere 
within several miles of Alma including the Ben Lomond-Mount Hermon-
Scotts Valley area; collection attempts have not verified the existence 
of Zayante band-winged grasshoppers in areas of this region other than 
the Ben Lomond-Mount Hermon-Scotts Valley area; the specimens cannot be 
located in the listed depository for verification. The town of Alma is 
presently inundated by a reservoir; and the species has been found 
exclusively in sand parkland habitat. These specimens were used in the 
Service's analysis of the species' current range and after surveying 
all remaining sites that may have been potential habitat for this 
specimen in the ``Alma area,'' the Service concludes that no evidence 
exists that confirms the species may occur in this region other than 
currently known location records.
    The Mount Hermon June beetle specimen was not helpful in the range 
analysis because of a nonspecific location label. The Service agrees 
that suitable Zayante sand hills habitat occurs within areas considered 
to be ``Santa Cruz,'' as stated on the specimen's label rendering it of 
little use in determining other areas to be included in the extensive 
surveys.
    Issue 16: Many commenters felt population sizes and trends were an 
important consideration in evaluating the status of a species, and the 
proposed rule failed to demonstrate any historic population decline or 
loss. One commenter claimed current abundances of Mount Hermon June 
beetle were comparable to those observed 45 years ago, thus, refuting 
the proposal to list the species as endangered. Another argued the 
Service was trying to list a habitat since an assessment of population 
trends did not exist.
    Service Response: The only available information on historic 
population levels is the number of specimens preserved in collections 
and the reports of Dr. William Hazeltine. Dr. Hazeltine reported 20 to 
30 males per night could be collected near his house in Mount Hermon in 
the years 1946 through 1952. At that same site in 1993, only eight 
males were captured at light traps. While this might suggest a decline 
in numbers, historic population trends are not one of the five factors 
to be considered in determining whether a species is endangered or 
threatened. Population trends of insect species are not useful for 
determining endangered status because their abundances can fluctuate 
substantially from year to year. Furthermore, some insect species, like 
the Mount Hermon June beetle and Zayante band-winged grasshopper, may 
be very abundant in localized populations, yet susceptible to 
extirpation by a single action or event. Therefore, threats must be 
evaluated irrespective of population estimates.
    Issue 17: A number of commenters concluded that the proposed rule 
did not provide evidence that habitat loss threatened the Mount Hermon 
June beetle and Zayante band-winged grasshopper. Two commenters cited 
the collection of Mount Hermon June beetles near houses. Other 
commenters concluded that the effects of pesticides and vegetation 
changes were not sufficiently evidenced. One commenter suggested that 
vegetation changes would not affect the Mount Hermon June beetle 
because larvae have been observed to feed on a variety of roots.
    Service Response: The effects of habitat loss and alteration are 
well documented and recognized as the principal factor in declines of 
insect species as well as most other taxa (See Pyle 1981 for relevant 
bibliographic references). Insects are particularly vulnerable because 
of their high degree of evolutionary specialization and subsequent 
dependence on specific edaphic conditions, microclimate,

[[Page 3622]]

vegetation, and cohabitants of particular habitats. Indirect evidence 
of the effects of habitat loss on the Mount Hermon June beetle and 
Zayante band-winged grasshopper is seen in the failure to collect 
specimens within mined areas, even when both species were observed on 
adjacent undisturbed habitat at the same time. Documented links between 
habitat loss and alteration, and the decline or extinction of other 
species provide additional evidence of the significance of this threat. 
The collection of Mount Hermon June beetles near houses does not refute 
the negative effects of habitat loss because the beetles may simply 
have been attracted to lights from nearby suitable habitat, or may 
occur in remnant patches of undisturbed soil and vegetation. 
Populations that do persist among developments remain at risk of 
naturally occurring extinction because of potentially low numbers and 
isolation from other populations.
    The effects of pesticides on insects and other taxa are similarly 
recognized and documented. While most pesticide application may not 
penetrate the soil and affect fossorial Mount Hermon June beetle larvae 
and females, the Zayante band-winged grasshopper is susceptible to 
pesticide effects. The current significance of these effects is not 
known.
    The impact of vegetation changes also is unknown at this time. Some 
related species are known to feed on the roots of exotic plant species 
and orchard trees. However, no evidence establishes whether Mount 
Hermon June beetle larvae will feed on plants not naturally found in 
Zayante sand hills ecosystem. Therefore, the Service recognizes 
vegetation change as a potential threat of unknown significance. 
Habitat loss remains the primary threat to the Mount Hermon June beetle 
and Zayante band-winged grasshopper.
    Issue 18: One commenter stated that the limited distribution of a 
species was not sufficient evidence for making a determination to list 
a species.
    Service Response: The determination to list a species as endangered 
is based upon the evaluation of the current and future threats to the 
species from the five factors listed in section 4(a) of the Act. The 
range of a species is only considered when determining whether the 
species is threatened throughout all or a significant portion of its 
range. Species with limited distributions are more susceptible to 
extirpation because a given threat would affect a greater proportion of 
the species' range.
    Issue 19: Two commenters challenged estimates that sand parkland 
habitat is limited to about 40.5 ha (100 ac) and requested that the 
sand parkland habitat be mapped. Another requested that historic 
habitat loss be documented in maps.
    Service Response: A description of sand parkland habitat is 
provided in the Background section of this rule. The 40 ha (100 ac) 
estimates of sand parkland were made during studies delineating the 
habitat in the mid-1980s. A more recent study completed in 1994 revised 
the estimate upward to 78 ha (193 ac) of sand parkland (Lee 1994). The 
Service used the more recent data in this final determination. Maps 
showing the distribution and extent of existing sand parkland habitat 
are included in a report entitled ``Preservation study: sand hills 
biotic communities of Santa Cruz County, California'' (Marangio 1985) 
and in a forthcoming report from the California Department of Fish and 
Game (Lee 1994). Production of maps documenting historic habitat loss 
would be speculative since no records were kept. Furthermore, such 
documentation is unnecessary for the listing determination since the 
listing factors address only current and projected status and threats. 
Discussions and estimates of historic habitat losses are intended only 
to provide a historical context to the Zayante sand hills ecosystem.
    Issue 20: One commenter concluded that the generic name Polyphylla 
was invalid for the Mount Hermon June beetle because Polyphylla did not 
conform to the International Rules of Zoological Nomenclature.
    Service Response: Based upon consistent use in historic and recent 
taxonomic literature (Cazier 1938, 1940; Young 1967, 1988), Polyphylla 
is considered a valid genus. In addition, throughout this literature, 
the rank of Polyphylla barbata as a species has been retained such that 
a change in the generic label would represent only a nomenclatural 
shift.
    Issue 21: One commenter suggested that revegetation of sandy areas 
coupled with reintroduction of female Mount Hermon June beetles could 
remediate any population losses, thus eliminating the need to list the 
species. The commenter also concluded that listing of the Zayante band-
winged grasshopper could be precluded by revegetation of areas which 
individuals could colonize. Contrary opinions noted that no restoration 
efforts of sand parkland have been successful and at least one large 
revegetation effort at a quarry has been abandoned.
    Service Response: The Service supports the development and 
implementation of habitat restoration efforts. However, no successful 
demonstrations of restoration of Zayante sand hills habitat are known. 
The Service has received depositions from experts stating that the 
technical feasibility of such restoration is uncertain. Therefore, 
continued existence of the Mount Hermon June beetle and Zayante band-
winged grasshopper cannot be assured through these attempts.
    Issue 22: One commenter concluded that collectors did not threaten 
the species because there are few collectors and the species' activity 
periods would likely discourage all but the most dedicated. 
Furthermore, the loss of some male Mount Hermon June beetles was 
unlikely to affect the reproductive capacity of populations because 
males could mate with several females. Collection was also limited by 
permit requirements on public lands and restricted access to private 
property.
    Service Response: The Service concurs that collection of the 
species currently poses little if any threat to the Mount Hermon June 
beetle and Zayante band-winged grasshopper.
    Issue 23: One commenter concluded that the Mount Hermon June beetle 
could adapt to altered habitat. As evidence, the commenter cited the 
large number of insect species known, and the short life cycles and 
life history traits which would enable more rapid evolution and 
adaptation.
    Service Response: The great diversity of insects is reflective of 
extraordinary adaptive speciations and specializations. However, such 
evolutionary changes rarely occur at a rate comparable to that of human 
environmental alteration. Consequently, neither the Mount Hermon June 
beetle nor the Zayante band-winged grasshopper would likely evolve 
adaptations with the rapid changes of habitat.
    Issue 24: One commenter concluded that the reported 50 percent loss 
of sand parkland habitat would only fractionally reduce the population 
of the species, citing a ``rule of thumb'' that a 90 percent reduction 
in habitat would result in a 50 percent reduction in the number of 
species present.
    Service Response: The ``rule of thumb,'' publicized by E.O. Wilson 
and Peter Raven, noted proponents of conservation of biological 
diversity, refers to species loss, not population loss. If the Zayante 
sand hills habitat were to be reduced to 10 percent of its original 
extent, one half of all the species found there would be expected to go 
extinct (Wilson 1992). Which species would be lost cannot be predicted. 
Because this logarithmic relationship predicts extinction of some

[[Page 3623]]

species following even partial habitat loss, it supports, rather than 
refutes, the Service's determination that the Mount Hermon June beetle 
and Zayante band-winged grasshopper are threatened with extinction.
    Issue 25: Several respondents stated that the Service should 
designate critical habitat since the habitat of the species is known 
and because habitat loss is the primary threat. Others concluded that 
the Service did not designate critical habitat to avoid review of the 
proposed listing under NEPA.
    Service Response: Although the habitats and ranges of the species 
are known and described in this rule, designation of critical habitat 
as defined in the Act was determined to be not prudent at this time 
because no benefit to the species would result. For reasons discussed 
in the NEPA section of this document, rules issued pursuant to section 
4(a) of the Act do not require preparation of an Environmental Impact 
Statement (EIS). The courts held in Pacific Legal Foundation v. Andrus, 
657 F2d. 829 (6th Circuit 1981) that an EIS is not required for listing 
under the Act. The decision noted that EISs on listing actions do not 
further the goals of NEPA or the Act. Thus, this listing action is 
exempted from NEPA review, regardless of critical habitat designation.
    Issue 26: One commenter suggested that the species be listed as 
threatened to allow greater regulatory flexibility and the 
implementation of special rules under section 4(d) of the Act.
    Service Response: Based upon evaluation of the status and threats 
to the species, the Service has determined that the Mount Hermon June 
beetle and Zayante band-winged grasshopper are in danger of extinction 
throughout all or a significant portion of their ranges and therefore 
qualify for endangered status. Listing the species as threatened to 
provide for regulatory flexibility would ignore requirements of the Act 
to base determinations solely on the best scientific and commercial 
data.
    Issue 27: One commenter suggested that the species could be 
exempted from protection under the Endangered Species Act if they were 
shown to be pest species.
    Service Response: While some related species are known to be 
agricultural pests, no evidence exists that indicates either the Mount 
Hermon June beetle or the Zayante band-winged grasshopper are pest 
species. The Zayante sand hills habitat does not support significant 
agricultural crops on which either species feed. In addition, the two 
species are not considered as pests in backyard gardens.
    Issue 28: One commenter asserted that existing parks were 
sufficient to guarantee the continued existence of the insects. Two 
others cited a recent stipulation agreement between a private quarry, 
the County of Santa Cruz, and local conservation groups, which would 
provide for the preservation of Zayante sand hills habitat. One 
commenter noted, though, that the preservation of the habitat is 
contingent upon the $3.5 million acquisition of the South Ridge parcel, 
and that funds have not yet been committed.
    Service Response: The Mount Hermon June beetle and Zayante band-
winged grasshopper are known to occur in only one of the three publicly 
owned properties in the region. Although the Quail Hollow Ranch affords 
protection to Zayante sand hills habitat, the park does not have 
specific mandates to manage for these species, and protection from 
adverse impacts of habitat degradation from illegal activities is not 
assured. Both species also occur within the areas to be preserved under 
the cited stipulation. However, preservation of these populations is 
uncertain pending acquisition of the South Ridge property.
    Issue 29: Several commenters concluded that State and local 
legislation and regulations, such as the mitigation requirements of the 
California Environmental Quality Act (CEQA), provide sufficient 
protection for the two insect species. Commenters cited revegetation 
efforts at local quarries, the above-mentioned stipulation agreement, 
and protection of sand parkland habitat in a development project by the 
City of Scotts Valley as examples of successful protection. Contrary 
views were expressed by commenters citing past failures of city 
governments to enforce protection of rare species, and the abandonment 
of revegetation plans at a sand quarry.
    Service Response: While existing legislation and regulations may 
require mitigation or other compensation for impacts to sensitive or 
rare species, they do not ensure the continued existence of the Mount 
Hermon June beetle and Zayante band-winged grasshopper. For example, 
CEQA provides for ``Statements of Overriding Consideration'' which 
allow projects to proceed despite unmitigated adverse impacts.
    Issue 30: Three commenters requested that all data, information, 
and results of investigations be available for review by interested 
parties.
    Service Response: All documents, records, and correspondence 
relating to this listing, including data, survey results, analyses, 
supporting information, and public comments are included in the 
administrative record available for review by the public by 
appointment, during normal business hours, at the Ventura Field Office. 
Appointments can be made by contacting the Field Supervisor. See 
ADDRESSES section.
    Issue 31: One commenter asked if this listing was in response to a 
lawsuit settlement with the Sierra Club.
    Service Response: This listing is not in response to a lawsuit 
settlement with the Sierra Club. The listing of the Mount Hermon June 
beetle and Zayante band-winged grasshopper is in response to petitions 
submitted by private citizens.
    Issue 32: One commenter suggested that the Service conduct field 
work to assess the status of the species.
    Service Response: The Service's responsibility under the Act is to 
compile and review the ``best available information'' concerning the 
biology, status, and threats to species. During the listing process the 
Service makes efforts to verify information through field visits and 
surveys. Primary data collection, however, is generally conducted by 
individuals outside the Service.
    Issue 33: One commenter asserted that proponents of the listing 
should be responsible for demonstrating that a species is endangered.
    Service Response: Petitioners and listing proponents are expected 
to provide the Service with pertinent data concerning the biology and 
threats to a species to demonstrate that listing may be warranted. 
After that time, the Service solicits and reviews all available 
information to make decisions regarding proposed rules and final 
determinations.
    Issue 34: One commenter concluded that a conflict of interest 
existed for commenters who were involved in a court settlement 
regarding preservation of sand parkland habitat.
    Service Response: Any member of the public, regardless of 
affiliation or position, is invited to submit comments on a proposed 
rule during the open comment period.
    Issue 35: Three commenters stated that the Service's notification 
of the public regarding the proposed rule was inadequate. One commenter 
requested that all landowners be directly notified, and that notices be 
published in newspapers.
    Service Response: The Service provided notification of the proposed 
rule to the public through processes required in the Act, including 
publication of findings and rules in the Federal Register, publication 
of notices in local newspapers, and letters to government officials, 
planning offices, regulatory agencies, and other interested

[[Page 3624]]

parties as described at the beginning of this section. Direct 
notification of all landowners was attempted by the Service to the 
extent practical.
    Issue 36: One commenter stated that the Service failed to publish a 
90-day finding that the petition to list the Zayante band-winged 
grasshopper may be warranted, and failed to make a 12-month 
determination following the August 19, 1992, notice for the Mount 
Hermon June beetle. Disputing the Service's inclusion of such notices 
in the proposed rule, the commenter stated such failures prevented the 
submission of information and comment, and recommended the proposed 
listing be invalidated.
    Service Response: The Service's 90-day finding regarding the 
Zayante band-winged grasshopper was made on September 25, 1992 but was 
not published in the Federal Register prior to publication of the 
proposed rule. The proposed rule constituted the required 12-month 
determinations regarding both the Zayante band-winged grasshopper and 
the Mount Hermon June beetle. At that time, extensive comment periods 
and a public hearing allowed all interested parties to provide comments 
and information concerning the proposed action. All input was 
considered in preparation of the final determination.

Peer Review

    In accordance with policy promulgated July 1, 1994 (59 FR 34270), 
the Service solicited the expert opinions of independent specialists 
regarding pertinent scientific or commercial data and assumptions 
relating to the taxonomy, population models, and supportive biological 
and ecological information for species under consideration for listing. 
The purpose of such review is to ensure listing decisions are based on 
scientifically sound data, assumptions, and analyses, including input 
of appropriate experts and specialists.
    The data and assumptions regarding the Mount Hermon June beetle and 
Zayante band-winged grasshopper were each reviewed by three 
specialists. Peer reviewers were identified through inquiries to 
research institutions, universities, and museums for individuals with 
recognized expertise with the subject taxa. The reviewers were asked to 
comment upon specific assumptions and conclusions regarding the 
species. Their comments have been incorporated into the final rule as 
appropriate and are summarized below.
    Reviewers of the Mount Hermon June beetle information agreed that, 
although estimates were speculative, the flight range of male beetles 
may be limited. Male beetles were attracted to lights, but the maximum 
distance traveled was unknown, dependent upon the visibility and 
relative strength of the light compared to other attractive stimuli 
such as female pheromone or moonlight. All reviewers emphasized the 
dependence of fossorial larvae and females on the specific conditions 
of the soil. The reviewers also concurred with the Service's conclusion 
that the Mount Hermon June beetle was limited to the Zayante sand hills 
habitat. One reviewer commented that males may occasionally be trapped 
in adjacent habitats, but they probably represent artifacts of random 
dispersal and not colonization of different habitat communities. The 
same reviewer also suggested the beetle may occur in more densely 
vegetated areas of chaparral as well as open sandy areas.
    Excavation, soil compaction, and vegetation removal within Mount 
Hermon June beetle habitat are recognized as activities expected to 
adversely affect the species. Landscaping may have some impact. The 
reviewers anticipate the application of some pesticides, such as soil 
permeants, could have a negative effect. Adjacent light sources should 
not be detrimental to the species, although male Mount Hermon June 
beetles may be attracted away from their habitat. Collection was not 
considered to significantly threaten the species. One reviewer 
suggested additional investigations to assess specific life history, 
distributional, and other ecological information before proceeding with 
the listing. Another reviewer commented that the survey reports and 
other information submitted to the Service concerning the biology of 
the beetle were based upon erroneous and unfounded assumptions, poor 
methodology, and hearsay. Nonetheless, the Service's comparison of 
collection records and independent soil and habitat data was considered 
a sufficiently rigorous analysis for concluding the species to be of 
limited range and associated with the Zayante sand hills ecosystem.
    The reviewers of the Zayante band-winged grasshopper information 
agreed that substrate was an important, but not a sole, determining 
factor for grasshopper distributions. An assumption that exchange of 
individuals between isolated populations would be infrequent because of 
short observed flight distances was questioned by one reviewer but 
supported by another's experience with other Trimerotropis species. Two 
reviewers agreed with the dismissal of non-specifically labeled 
historic specimens, but cautioned that additional investigation of the 
outlying areas may be warranted if suitable habitat exists. The third 
reviewer felt that information should be considered reliable unless 
shown otherwise. In the absence of sand parkland habitat elsewhere, all 
reviewers concurred with the Service's conclusion that the Zayante 
band-winged grasshopper was restricted to sand parkland habitat. The 
grasshopper would unlikely occur in adjacent habitats such as redwood 
forest, chaparral, grasslands, or coastal habitats. Excavation, soil 
compaction, vegetation removal, landscaping, and pesticides were all 
recognized as adverse activities affecting the grasshopper. One 
reviewer noted that collection of specimens from areas adjacent to 
mining operations suggests the species is not particularly impacted by 
nearby activities. One reviewer also questioned the distinctiveness of 
the grasshopper as a separate species, but deferred final judgment to 
others more familiar with the specimens. A reviewer familiar with the 
specimens and the genus Trimerotropis confidently defended the Zayante 
band-winged grasshopper as a full species.

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 
available, the Service has determined that the Mount Hermon June beetle 
(Polyphylla barbata) and the Zayante band-winged grasshopper 
(Trimerotropis infantilis) should be classified as endangered species. 
Procedures found at section 4 of the Act and regulations implementing 
the listing provisions of the Act (50 CFR part 424) were followed. A 
species may be determined to be endangered or threatened due to one or 
more of the five factors described in section 4(a)(1). These factors 
and their application to the Mount Hermon June beetle and the Zayante 
band-winged grasshopper are as follows:
    A. The present or threatened destruction, modification, or 
curtailment of their habitat or range. Habitat destruction and 
modification are recognized as the primary threats to insect species 
(Pyle 1981) because of their narrow distributions and dependence on 
specific food plants or edaphic conditions. Both the Mount Hermon June 
beetle and Zayante band-winged grasshopper are restricted to portions 
of the Zayante sand hills ecosystem in the Ben Lomond-Mount Hermon-
Scotts Valley area of Santa Cruz County, California. The Mount Hermon 
June beetle occurs in sand parkland and other sparsely vegetated sandy 
areas

[[Page 3625]]

within the Zayante sand hills ecosystem. The Zayante band-winged 
grasshopper is narrowly restricted to sand parkland on ridgetops and 
saddles. Both species are imminently endangered by ongoing and 
threatened destruction and adverse modification of their habitats by 
one or more of the following activities--sand mining, urban 
development, recreational use of habitat, and agriculture.
     The ranges of both species are limited by the substrate found in 
the Zayante soils, and the availability of suitable food plants within 
the Zayante sand hills and sand parkland habitats. The Mount Hermon 
June beetle is threatened by excavation and construction activities 
that crush or expose fossorial larvae and females, resulting in 
mortalities and elimination of reproductive populations (W. Hazeltine, 
in litt. 1994). Clearance of native Zayante sand hills vegetation and 
cultivation of non-native plant species in landscaping also may 
adversely affect the Mount Hermon June beetle by eliminating food 
plants and disrupting the soil. The Zayante band-winged grasshopper is 
similarly threatened by removal and alteration of the sand parkland 
habitat.
    Historically, approximately 2533 ha (6265 ac) of Zayante sand hills 
habitat occurred in Santa Cruz County. Over 40 percent of this habitat 
has disappeared, primarily due to urban development and mining; 1459 ha 
(3608 ac) currently remain in a natural state (Lee 1994). Sand parkland 
habitat has been more dramatically reduced; over 60 percent of this 
habitat has been lost, mostly to sand mining. An estimated 200 to 240 
ha (500 to 600 ac) existed historically (Marangio and Morgan 1987; Lee 
1994). By 1986, only 100 ha (250 ac) remained intact (Marangio and 
Morgan 1987). Currently, sand parkland is limited to approximately 78 
ha (193 ac) (Lee 1994).
    Sand mining and urban development are the most significant causes 
of habitat loss in the Ben Lomond-Mount Hermon-Scotts Valley region. 
Sand deposits within the Zayante sand hills habitat have been actively 
mined for construction purposes for at least five decades (Storie et 
al. 1944 in Griffin 1964). Three sand mines in the area are in 
operation and have permits to mine areas of sand parkland and Zayante 
sand hills habitat that are currently undisturbed (S. Smith, County of 
Santa Cruz Planning Department, pers. comm. 1994). Two of the three 
mines support little undisturbed habitat (S. Smith, pers. comm. 1996). 
The Service has been participating in the development of a multi-
species habitat conservation plan (HCP) for the third mine, Quail 
Hollow Quarry, within the San Lorenzo Valley in Santa Cruz County, 
California. The County of Santa Cruz, the owner and operator of the 
Quarry (respectively Granite Rock Company and Santa Cruz Aggregates), 
and intervenors (South Ridge Watershed Association, Sierra Club, and 
California Native Plant Society) entered into a Settlement Agreement in 
June of 1994 that resolved longstanding litigation regarding Granite 
Rock's right to continue mining at the site. As part of that Agreement, 
Granite Rock is permitted to continue mining in designated areas of the 
quarry site, subject to obtaining the necessary mining approvals, and 
portions of the site containing extremely significant biological 
resources, including the two insects, will be preserved in perpetuity 
through purchase of the South Ridge and through dedication of a 
conservation easement for the areas on the North and West Ridges 
containing sand parkland habitat. A fourth mine is closed at this time, 
but may reopen if funds become available (S. Smith, pers. comm. 1994). 
Seventeen of the 28 Mount Hermon June beetle collection locations, and 
9 of the 10 Zayante band-winged grasshopper collection sites are 
adjacent to areas used for sand mining.
    Mining of sand from undisturbed areas would result in the 
destruction of habitat for the Mount Hermon June beetle and Zayante 
band-winged grasshopper. Permits held by the mining companies require 
revegetation efforts in mined areas as part of reclamation plans. 
However, such revegetation plans are considered inadequate to 
successfully restore the biological integrity of sand parkland and 
Zayante sand hills habitats; the technical feasibility of such 
restoration is questioned because of the diversity of the ecosystem's 
flora and fauna and the complexity of the soil facies and edaphic 
conditions (Davilla 1990; Gilchrist 1990; Murphy 1990).
    Urban development also has resulted in significant alteration and 
loss of habitat. Construction of private homes, roads, and businesses 
has removed vegetation and modified soils through excavation, 
compaction, and disruption of soil horizons. More than 480 ha (1200 ac) 
of Zayante sand hills habitat have been developed for these purposes. 
Recent expansion of juvenile hall facilities near Mount Hermon 
eliminated portions of an area known to support Mount Hermon June 
beetles (W. Hazeltine, pers. comm. 1994). One site where Zayante band-
winged grasshoppers were previously collected is now a parking lot (D. 
Weissman, pers. comm. 1993). Fourteen collection sites for Mount Hermon 
June beetles and two known locations of Zayante band-winged 
grasshoppers are adjacent to residential, commercial and public 
developments. The County of Santa Cruz and the City of Scotts Valley 
have existing plans, zoning designations, and approved permits for 
continued development in these areas (Marangio 1985; Lee 1994), thereby 
further reducing and fragmenting Zayante sand hills habitat.
    Recreational uses of Zayante sand hills habitats may adversely 
affect the Mount Hermon June beetle and Zayante band-winged grasshopper 
through habitat disturbance and degradation. Recreational uses include 
off-road vehicles (ORVs), equestrian activities, hiking, bicycling, and 
camping. These activities crush and remove vegetation, cause compaction 
of soils, promote soil erosion, and occasionally result in oil and 
gasoline spills. Off-road motorcycle events (200+ people) occur on sand 
parkland (A. Haynes, San Lorenzo Water District, pers. comm. 1993). 
Off-road vehicle damage also is noted at the Geyer Quarry and on the 
South Ridge of the Quail Hollow Quarry, a site considered to be the 
highest quality patch of intact sand parkland habitat (Lee 1994). 
Disturbance from equestrian use is reported from five sand parkland 
areas (Lee 1994). A campground encompasses approximately half of the 
sand parkland habitat within Henry Cowell Redwoods State Park (D. 
Hillyard, pers. comm. 1993; S. Steinmetz, pers. comm. 1993), and foot 
and ORV traffic are recognized as causes of erosion damage at the Quail 
Hollow Ranch County Park (County of Santa Cruz 1990).
    Limited agricultural activities have also contributed to habitat 
fragmentation and degradation in the Zayante sand hills ecosystem. 
While the Zayante soils are generally of little agricultural value, 
Zayante sand hills habitat has been, and may continue to be, used for 
agricultural purposes. Currently, portions of two sand parkland areas 
are zoned for timber harvest (Lee 1994). Other areas of Zayante sand 
hills habitat have been proposed for conversion to vineyards (Davilla 
1980).
    The Service has reviewed a notice of preparation for the 
development of an educational park within the City of Scotts Valley on 
a site where Mount Hermon June beetles and Zayante band-winged 
grasshoppers have been sighted. The Scotts Valley Unified School 
District evaluated numerous alternative sites before choosing the 
current location for the proposed facility. Recently, the Service was 
informed that

[[Page 3626]]

an alternative site for the proposed park may be selected.
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. Amateur collecting for the Mount Hermon June 
beetle occurs on a limited basis during the narrow flight periods of 
the species. As this species becomes more difficult to find, the 
interest of collectors may increase; however, overutilization by 
collection is not known to occur at this time.
    Collection of the Zayante band-winged grasshopper has occurred 
during surveys for this and other invertebrate species; however, 
overutilization of this species by collection is not known to occur at 
this time.
    C. Disease or predation. Mount Hermon June beetles may be preyed 
upon by some bird species. However, the early evening flight time of 
the Mount Hermon June beetle is thought to reflect an evolutionary 
adaptation for predator avoidance, coinciding with the cessation of 
bird activity (W. Hazeltine, in litt. 1994). Based upon laboratory 
observations, larvae may be susceptible to fungal infestations if soil 
conditions are too moist (W. Hazeltine, in litt. 1993). However, the 
significance of such mortality sources is unknown.
    One Zayante band-winged grasshopper specimen was observed to be 
parasitized by a tachinid fly (White 1993). However, the significance 
of parasitization on populations of this species is unknown.
    D. The inadequacy of existing regulatory mechanisms. Regulatory 
mechanisms currently in effect do not provide adequate protection for 
the Mount Hermon June beetle and Zayante band-winged grasshopper and 
their habitats. Federal agencies are not legally required to consider 
and manage for these species during project design and implementation, 
although some Federal agencies have policies that encourage 
consideration of candidate species in the design and implementation of 
Federal projects.
    At the State and local levels, regulatory mechanisms also are 
limited. The Mount Hermon June beetle and Zayante band-winged 
grasshopper are not listed by the State of California under the 
California Endangered Species Act. State and local agencies may 
consider these taxa when evaluating certain activities for compliance 
with the CEQA and local zoning regulations. If an activity is 
identified as having a potential impact on these species, mitigation 
measures may be required by State and local regulating agencies to 
offset these impacts. However, these regulations do not provide 
specific protection measures to ensure the continued existence of these 
species. In addition, CEQA provisions for ``Statements of Overriding 
Considerations'' can allow projects to proceed despite unmitigated 
adverse impacts. The County of Santa Cruz requires that proposed 
projects comply with both general zoning requirements and environmental 
designations. However, properties within Zayante sand hills habitats 
are zoned for special use, timber production, mining, and residential 
development. Special use zoning allows for residential-agricultural, 
residential, commercial, and industrial development (Lee 1994).
    Public ownership of lands with Zayante sand hills and sand parkland 
habitats suitable for the Mount Hermon June beetle and Zayante band-
winged grasshopper is limited to the Quail Hollow Ranch, Bonny Doon 
Ecological Preserve, and Henry Cowell Redwoods State Park. The Mount 
Hermon June beetle and Zayante band-winged grasshopper are only known 
to occur in Quail Hollow Ranch. None of these properties currently has 
a management plan that specifically provides protection for the two 
species or their habitats. In addition, Zayante sand hills habitat on 
Quail Hollow Ranch is reported to be degraded by off-trail equestrian 
activities and other illegal access (Lee 1994; S. McCabe, pers. comm. 
1994).
    A settlement agreement between local conservation groups and one of 
the sand mining companies resulted in action to preserve three parcels 
of sand parkland and Zayante sand hills habitat. All three of these 
parcels support the Mount Hermon June beetle and Zayante band-winged 
grasshopper. However, preservation of the parcels is contingent upon 
acquisition of the ``South Ridge,'' a parcel recognized as the highest 
quality sand parkland habitat. Funds necessary for the $3.5 million 
settlement purchase have not yet been committed (C. Scott, pers. comm. 
1994; Ken Hart, pers. comm. 1996).
    E. Other natural or manmade factors affecting its continued 
existence. Pesticides could pose a threat to the Zayante band-winged 
grasshopper. Pesticide application is expected at existing and planned 
golf courses and may occur on a limited basis at vineyards in the area. 
Local landowners may use pesticides to control targeted invertebrate 
species around homes and businesses. These pesticides may drift and 
kill non-targeted species such as the Zayante band-winged grasshopper.
    Because the Mount Hermon June beetle is fossorial, air-borne 
pesticides would not likely reach and affect the species. However, 
application of soil permeant pesticides could pose a threat (W. 
Hazeltine, in litt., 1994). During the flight season males of this 
species also may be subject to mortality from attraction to electric 
``bug zappers'' (W. Hazeltine, in litt. 1994). The significance of such 
mortality is unknown, however.
    The quality of remaining habitat for the Mount Hermon June beetle 
and Zayante band-winged grasshopper may decline because of fire 
suppression in the Zayante sand hills habitat. Periodic wildfire is 
thought to be critical to maintenance of the Zayante sand hills habitat 
mosaic. The presence of fire-dependent species such as knobcone pine 
and Santa Cruz cypress suggests that fire is important for resetting 
vegetational succession within the chaparral communities, and for 
maintaining the open characteristics of ponderosa pine stands and sand 
parkland. Fire also may prevent the invasion of species from the 
surrounding mixed evergreen forest; encroachments by madrone (Arbutus 
menziesii) and other species from surrounding mixed evergreen forest 
into Zayante sand hills habitat have been attributed to reduced fire 
frequency (Marangio 1985).
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by the Mount Hermon June beetle and Zayante band-
winged grasshopper in determining to make this rule final. Based on 
this evaluation, the preferred action is to list the Mount Hermon June 
beetle (Polyphylla barbata) and Zayante band-winged grasshopper 
(Trimerotropis infantilis) as endangered. This status was determined 
because these species are ``in danger of extinction throughout all or a 
significant portion of [their] range'' (section 3(6) of the Act) 
because of threats from one or more of the following factors--sand 
mining, urban development, recreational use of habitat, increased 
vulnerability to naturally occurring extirpation, and habitat 
restriction and decline. Critical habitat is not being designated for 
these species for the reasons discussed below.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or

[[Page 3627]]

protection and; (ii) specific areas outside the geographical area 
occupied by the species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species. 
``Conservation'' means the use of all methods and procedures needed to 
bring the species to the point at which listing under the Act is no 
longer necessary.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary designate critical habitat at the time 
the species is determined to be endangered or threatened. The Service 
finds that designation of critical habitat is not prudent for the Mount 
Hermon June beetle and Zayante band-winged grasshopper at this time. 
Service regulations (50 CFR 424.12(a)(1)) state that designation of 
critical habitat is not prudent when one or both of the following 
situations exist--(1) The species is threatened by taking or other 
human activity, and identification of critical habitat can be expected 
to increase the degree of threat to the species, or (2) such 
designation of critical habitat would not be beneficial to the species.
    Designation of critical habitat would not benefit the Mount Hermon 
June beetle and Zayante band-winged grasshopper because all populations 
of the two species occur on non-Federal lands where Federal involvement 
in land-use activities does not generally occur. Prohibitions of 
adverse modification to critical habitat apply only to Federal actions. 
Therefore, additional protection afforded to designated critical 
habitat would only be realized if a Federal nexus existed. Possible 
nexuses on non-Federal lands include 404 permits from the U.S. Army 
Corps of Engineers and funds from Federal housing or highway programs. 
However, no such nexuses are known or anticipated within the habitat 
and range of these species.
    Furthermore, in the case of the Mount Hermon June beetle, the 
determination of critical habitat would be detrimental to the 
conservation of the species. Determination of the location and extent 
of reproductive populations and evaluation of edaphic requirements 
would require excavation and consequent destruction of habitat occupied 
by larvae and females.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
activities. Recognition through listing results in public awareness and 
conservation actions by Federal, State, and local agencies, private 
organizations, and individuals. The Act provides for possible land 
acquisition and cooperation with the States and requires that recovery 
actions be carried out for all listed species. The protection required 
of Federal agencies and the prohibitions against taking and harm are 
discussed, in part, below.
    Under section 4 of the Act, listing the Mount Hermon June beetle 
and Zayante band-winged grasshopper provides for the development of a 
recovery plan, which will bring together Federal, State, local 
government, and private agencies and individuals to develop 
conservation strategies for these species. The recovery plan would 
develop a framework of recovery activities, priorities, and funding 
requirements to accomplish conservation objectives and ensure the 
survival and recovery of the Mount Hermon June beetle and Zayante band-
winged grasshopper.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is listed as 
endangered or threatened and with respect to its critical habitat, if 
any is designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(2) requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of the species or destroy or adversely modify its 
critical habitat. If a Federal action may affect a listed species or 
its critical habitat, the responsible Federal agency must enter into 
formal consultation with the Service. Because no Federal lands exist 
within the range of these two species, consultations would only occur 
if a Federal agency had discretion over permit issuance or funding of 
projects. Such Federal involvement is neither known, nor anticipated, 
within the habitat and range of the Mount Hermon June beetle and 
Zayante band-winged grasshopper.
    Section 9 of the Act and implementing regulations set forth a 
series of general prohibitions and exceptions that apply to all 
endangered wildlife. The prohibitions, codified at 50 CFR 17.21, in 
part, make it illegal for any person subject to the jurisdiction of the 
United States to take, import or export, ship in interstate commerce in 
the course of commercial activity, or sell or offer for sale in 
interstate or foreign commerce any listed species. The definition of 
``take'' includes to harass, harm, pursue, hunt, shoot, wound, kill, 
trap, capture, or collect; or to attempt any of these. It is also 
illegal to possess, sell, deliver, carry, transport, or ship any such 
wildlife that has been taken illegally. Certain exceptions apply to 
agents of the Service and State conservation agencies.
    It is the policy of the Service (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 the listing on proposed and ongoing activities within 
a species' range. During the public comment period the Service received 
inquiries about the effect listing would have on the sand mining 
industry, commercial and residential development and maintenance 
activities, and recreational activities. Based on the best available 
information, the following actions would not result in a violation of 
section 9, provided these activities are carried out in accordance with 
existing regulations and permit requirements--removal of the two insect 
species from swimming pools, birdbaths, window screens, and the like 
with immediate and safe replacement in more suitable habitat; normal 
lighting around residences and commercial buildings; normal maintenance 
of backyard gardens; reasonable recreational use of existing maintained 
trails within Zayante sand hills habitat; use of existing roadways and 
railroads; and continued sand mining within existing excavated areas.
    Activities that could result in the take of the Mount Hermon June 
beetle or Zayante band-winged grasshopper include, but are not limited 
to, unauthorized collection or capture of the species, except as noted 
above to relocate individuals out of danger; destruction or alteration 
of the species' habitat (e.g. excavating, compacting, grading, or 
discing of soil, vegetation removal); violations of grading, mining, or 
construction permits that affect occupied habitat; off-road vehicle use 
on occupied habitat; and application of pesticides beyond the 
boundaries of maintained lawns and gardens or in violation of label 
restrictions.
    Other unauthorized activities not identified above will be reviewed 
on a case-by-case basis to determine if a violation of section 9 of the 
Act may have occurred. The Service does not consider these lists to be 
exhaustive and provides them for the information of the public. 
Questions regarding whether specific activities will constitute a

[[Page 3628]]

violation of section 9 should be directed to the Field Supervisor of 
the Service's Ventura Field Office (see ADDRESSES section).
    Permits may be issued to carry out otherwise prohibited activities 
involving endangered wildlife species under certain circumstances. 
Regulations governing permits are codified at 50 CFR 17.22 and 17.23. 
Such permits are available for scientific purposes, to enhance the 
propagation or survival of the species, or for incidental take in the 
course of otherwise lawful activities. Requests for copies of the 
regulations regarding listed wildlife and inquiries about prohibitions 
and permits may be addressed to the U.S. Fish and Wildlife Service, 
Endangered Species Permits, 911 N.E. 11th Avenue, Portland, Oregon 
97232-4181 (telephone [phone], facsimile 503/231-6243).

National Environmental Policy Act

    The Fish and Wildlife Service has determined that Environmental 
Assessments and Environmental Impact Statements, as defined under the 
authority of the National Environmental Policy Act of 1969, need not be 
prepared in connection with regulations adopted pursuant to section 
4(a) of the Endangered Species Act of 1973, as amended. A notice 
outlining the Service's reasons for this determination was published in 
the Federal Register on October 25, 1983 (49 FR 49244).

Required Determinations

    The Service has examined this regulation under the Paperwork 
Reduction Act of 1995 and found it to contain no information collection 
requirements. This rulemaking was not subject to review by the Office 
of Management and Budget under Executive Order 12866.

References Cited

    A complete list of all references cited herein, as well as others, 
is available upon request from the Field Supervisor, Ventura Field 
Office (see ADDRESSES section).

Author

    The primary authors of this document are Carl Benz and Jonathan 
Hoekstra, Ventura Field Office (see ADDRESSES section, telephone 805/
644-1766).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

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

    2. Section 17.11(h) is amended by adding the following, in 
alphabetical order under Insects, to the List of Endangered and 
Threatened Wildlife to read as follows:


Sec. 17.11   Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate                                                           
--------------------------------------------------------                        population where                                  Critical     Special  
                                                            Historic range       endangered or         Status      When listed    habitat       rules   
           Common name                Scientific name                              threatened                                                           
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
     Insects (Class Insecta)                                                                                                                            
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
Grasshoppers and Allies (Insects,                                                                                                                       
        Order Orthoptera)                                                                                                                               
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
Grasshopper, Zayante band-winged.  Trimerotropis         U.S.A. (CA)........  NA.................  E                       605           NA           NA
                                    infantilis.                                                                                                         
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
     Beetles (Insects, Order                                                                                                                            
           Coleoptera)                                                                                                                                  
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
Beetle, Mount Hermon June........  Polyphylla barbata..  U.S.A. (CA)........  NA.................  E                       605           NA           NA
                                                                                                                                                        
                   *                  *                  *                  *                  *                  *                  *                  
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: January 6, 1997.
John G. Rogers,
Director, Fish and Wildlife Service.
[FR Doc. 97-1674 Filed 1-23-97; 8:45 am]
BILLING CODE 4310-55-P