[Federal Register Volume 76, Number 154 (Wednesday, August 10, 2011)]
[Proposed Rules]
[Pages 49408-49412]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-19818]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2011-0043; MO 92210-0-0008]
RIN 1018-AX83
Endangered and Threatened Wildlife and Plants; Proposed Listing
of the Miami Blue Butterfly as Endangered, and Proposed Listing of the
Cassius Blue, Ceraunus Blue, and Nickerbean Blue Butterflies as
Threatened Due to Similarity of Appearance to the Miami Blue Butterfly
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; request for public comments.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the Miami blue butterfly (Cyclargus thomasi bethunebakeri) as
endangered under the Endangered Species Act of 1973, as amended (Act).
An emergency rule listing this subspecies as endangered for 240 days is
published concurrently in this issue of the Federal Register. We also
propose to list the cassius blue butterfly (Leptotes cassius theonus),
ceraunus blue butterfly (Hemiargus ceraunus antibubastus), and
nickerbean blue butterfly (Cyclargus ammon) as threatened due to
similarity of appearance to the Miami blue, with a special rule
pursuant to section 4(d) of the Act. We solicit additional data,
information, and comments that may assist us in making a final decision
on this proposed action.
DATES: Comments from all interested parties must be received by October
11, 2011. Public hearing requests must be received by September 26,
2011.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments on docket number FWS-
R4-ES-2011-0043.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R4-ES-2011-0043; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 North Fairfax Drive,
MS 2042-PDM; Arlington, VA 22203.
We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Public Comments section below for more information).
FOR FURTHER INFORMATION CONTACT: Paula Halupa, Fish and Wildlife
Biologist, U.S. Fish and Wildlife Service, South Florida Ecological
Services Office, 1339 20th Street, Vero Beach, Florida 32960-3559 by
telephone 772-562-3909, ext. 257 or by electronic mail:
miamiblueinfo@fws.gov.
SUPPLEMENTARY INFORMATION:
Public Comments Solicited
Our intent is to use the best available commercial and scientific
data as the foundation for all endangered and threatened species
classification decisions. Therefore, we request comments or suggestions
from other concerned governmental agencies, the scientific community,
industry, or any other interested party concerning this proposed rule
to list the Miami blue butterfly (Cyclargus thomasi bethunebakeri) as
endangered. We particularly seek comments concerning:
(1) Biological, commercial trade, or other relevant data concerning
any threat (or lack thereof) to the Miami blue butterfly;
(2) The location of any additional populations of the Miami blue
butterfly within or outside the United States;
(3) Additional information regarding the taxonomy, genetics, life
history (e.g., dispersal capabilities, host plants, nectar sources,
dependence on ants), range, distribution, population size, and
metapopulation dynamics of the Miami blue;
(4) Current or planned activities in occupied or potential habitat
and their possible impacts to the Miami blue;
(5) The reasons why any habitat should or should not be determined
to be critical habitat for the Miami blue as provided by section 4 of
the Act, including physical and biological features within areas
occupied or specific areas outside of the geographic area occupied that
are essential for the conservation of the subspecies;
(6) Threats to the Miami blue butterfly from collection of or
commercial trade involving the cassius blue butterfly (Leptotes cassius
theonus), ceraunus blue butterfly (Hemiargus ceraunus antibubastus),
and nickerbean blue butterfly (Cyclargus ammon), due to the
[[Page 49409]]
Miami blue's similarity in appearance to these species.
(7) Effects of the proposed 4(d) special rule to establish
prohibitions on collection of, or commercial trade involving, the
cassius blue butterfly, ceraunus blue butterfly, and nickerbean blue
butterfly).
Please note that submissions merely stating support for or
opposition to the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is an endangered or threatened
species must be made ``solely on the basis of the best scientific and
commercial data available.''
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We will not accept
comments sent by e-mail or fax or to an address not listed in
ADDRESSES. Comments must be submitted to http://www.regulations.gov
before 11:59 p.m. (Eastern Time) on the date specified in DATES. We
will not consider hand-delivered comments that we do not receive, or
mailed comments that are not postmarked, by the date specified in
DATES.
We will post your entire comment--including your personal
identifying information--on http://www.regulations.gov. If you provide
personal identifying information in your comment, you may request at
the top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on, or by appointment, during normal
business hours at the South Florida Ecological Services Office (see FOR
FURTHER INFORMATION CONTACT section).
Background
The Miami blue butterfly is known to occur on only a few, small
remote islands within the Florida Keys. The geographic range of this
butterfly, which once extended from the Dry Tortugas north along the
Florida coasts to about St. Petersburg and Daytona, has been severely
reduced. The subspecies is now restricted to Key West National Wildlife
Refuge (KWNWR), Monroe County, Florida, where the only confirmed
metapopulation(s) (group of smaller populations that have some
interaction) occurs. No other extant populations are known at this
time. In 2009, metapopulations existed at two main locations: Bahia
Honda State Park (BHSP) and KWNWR, roughly 50 miles (80 kilometers
[km]) apart. The metapopulation at KWNWR was believed to be several
hundred adults in 2007, possibly more, with fewer reported in 2009
through July 2011. From 1999 to 2009, the metapopulation at BHSP
appeared to be generally restricted to 200 adults or fewer. This
metapopulation may now be extirpated; no adults have been located at
BHSP since July 2010. The remaining metapopulation(s) occurs entirely
within KWNWR. Abundance is not known, but is estimated in the hundreds
or fewer. Recent available count data are limited, but show wide
fluctuations.
The Miami blue butterfly is imminently threatened by the combined
influences of habitat destruction or modification, herbivory of host
plants by exotic green iguanas (Iguana iguana), illegal collection,
accidental harm from humans, restricted range, small population size,
loss of genetic heterogeneity, and catastrophic environmental events.
Predation and disease may also be a threat due to the small population
size. The Miami blue butterfly, if it is found to persist elsewhere in
its historical range (i.e., outside of its most recent known
occurrences), is threatened by habitat loss and fragmentation,
pesticide application from mosquito control practices, displacement of
native host plants by invasive exotic species, detrimental land
management practices, inadequate regulatory protection, restricted
genetic exchange, and vulnerability to extirpation from severe or
catastrophic weather events in addition to the threats listed above.
Environmental effects from climatic change, including sea level rise,
are also significant long-term threats that are expected to
substantially reduce the butterfly's habitat in both its current and
historical range.
For an extensive discussion of biological background information,
previous Federal actions, factors affecting the subspecies, our
determination of status under the Act, conservation measures available
to listed and proposed species, similarity of appearance, and special
rules, consult the emergency rule for the Miami blue butterfly
published concurrently in this issue of the Federal Register.
Critical Habitat and Prudency Determination
Critical habitat is defined in section 3(5)(A) of the Act as (i)
The specific areas within the geographic 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 protection; and (ii) specific areas outside the
geographic area occupied by a species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. Conservation is defined in section 3(3) of the Act as the use
of all methods and procedures that are necessary to bring any
endangered or threatened species to the point at which listing under
the Act is no longer necessary.
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12), require that, to the maximum extent
prudent and determinable, we designate critical habitat at the time we
determine that a species is endangered or threatened. Our regulations
(50 CFR 424.12(a)(1)) state that the 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. We have determined that
both circumstances apply to the Miami blue butterfly. This
determination involves a weighing of the expected increase in threats
associated with a critical habitat designation against the benefits
gained by a critical habitat designation. An explanation of this
``balancing'' evaluation follows.
Increased Threat to the Subspecies by Designating Critical Habitat
Designation of critical habitat requires the publication of maps
and a narrative description of specific critical habitat areas in the
Federal Register. The degree of detail in those maps and boundary
descriptions is greater than the general location descriptions provided
in this proposal to list the species as endangered. We are concerned
that designation of critical habitat could more widely announce the
exact location of the butterflies to poachers, collectors, and vandals
and further facilitate unauthorized collection and trade. Due to its
extreme rarity (a low number of individuals, combined with small areas
inhabited by the remaining metapopulation), this butterfly is highly
vulnerable to collection. Vandalism, disturbance, and other harm from
humans are also serious threats to the butterfly and its habitat (see
Factors B and E of
[[Page 49410]]
emergency rule). At this time, removal of any individuals or damage to
habitat may have devastating consequences for the survival of the
subspecies. We believe that these threats will be exacerbated by the
publication of maps and descriptions outlining the specific locations
of this critically imperiled butterfly in the Federal Register and
local newspapers. Maps and descriptions of critical habitat, such as
those which would appear in the Federal Register if critical habitat
were designated, are not now available to the general public.
Although we do not have specific evidence of taking for this
subspecies, illegal collection of imperiled butterflies from State,
Federal, and other lands in Florida appears ongoing, prevalent, and
damaging (see Factor B analysis of emergency rule for specific cases).
In addition, we are aware that a market exists for trade in rare,
imperiled, and listed butterflies, including those in south Florida
(see Factor B analysis of emergency rule). For example, there is
currently a demand for two other butterflies from south Florida that
are candidates for listing under the Act, the Florida leafwing (Anaea
troglodyta floridalis) and Bartram's hairstreak (Strymon acis
bartrami). At least one website we are aware of offers specimens of the
Florida leafwing and Bartram's hairstreak for up to [euro]110.00 and
[euro]10.00 (euros), respectively (approximately $154.00 and $14.00)
(Lit. cited 2011a). A forum on another website documents strong
interest in trade or outright purchase of specimens among collectors
(Lit. cited 2011b). Although it is unclear from where the specimens
originated or when they were collected, these butterflies occur
predominantly on conservation lands, where collection is prohibited.
Additionally, we are aware of a market for butterflies that look
similar to the Miami blue, including all three of the subspecies
proposed for listing due to similarity of appearance (see emergency
rule), as well as other Cyclargus thomasi subspecies that occur in
foreign countries. It is clear that a demand currently exists for both
imperiled butterflies and those similar in appearance to the Miami
blue. Due to the few metapopulations, small population size, restricted
range, and remoteness of occupied habitat, we believe that collection
is a significant threat to the Miami blue butterfly and could occur at
any time. Even limited collection from the remaining population (or
other populations, if discovered) could have deleterious effects on
reproductive and genetic viability and thus could contribute to its
extinction. Identification of critical habitat would increase the
severity of this threat by spatially depicting exactly where the
subspecies may be found and more widely publicizing this information,
exposing the fragile population and its habitat to greater risks.
Identification and publication of critical habitat may also
increase the likelihood of inadvertent or purposeful habitat
destruction. Damage to host plants from humans has been documented in
the past (see Factor E of emergency rule). Recreation within occupied
areas has resulted in trampling of vegetation and negative impacts to
the subspecies and its habitat (see Factor E of emergency rule). High
visitation and illicit uses (e.g., fire pits, camping, vandalism)
within occupied and suitable habitat have resulted in local
disturbances (see Factor E of emergency rule). Identification and
advertisement of critical habitat will likely generate interest by the
public, potentially leading to additional use of and increased risk to
sensitive habitats. Inadvertent impacts from humans, including human-
induced fire, are now significant threats to habitat within portions of
the subspecies' occupied range (see Factor E of emergency rule).
Immature stages (eggs, larvae), which are sedentary, are particularly
vulnerable. Identification and publication of critical habitat would
likely increase exposure of sensitive habitats and increase the
likelihood and severity of threats to both the subspecies and its
habitat.
Identification and publication of critical habitat would also
likely increase enforcement problems. Though take prohibitions exist,
effective enforcement is difficult. As discussed in Factors B, D, and E
and elsewhere in the emergency rule, the threat of collection and
inadvertent impacts from humans exists; areas are already difficult to
patrol. Areas within the KWNWR are remote and accessible mainly by
boat, making them difficult for law enforcement personnel to patrol and
monitor. We believe that designation of critical habitat would
facilitate further use and misuse of sensitive habitats and resources,
creating additional difficulty for law enforcement personnel in an
already challenging environment. Overall, we believe that designation
of critical habitat will increase the likelihood and severity of the
threats of illegal collection of the subspecies and destruction of
sensitive habitat, as well as exacerbate enforcement issues.
Benefits to the Subspecies From Critical Habitat Designation
It is true that designation of critical habitat for the Miami blue
butterfly within the KWNWR or BHSP would have some beneficial effects.
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to jeopardize the continued existence of any endangered or
threatened species or result in the destruction or adverse modification
of that species' critical habitat (see Available Conservation Measures
and Jeopardy Standard sections of the emergency rule). Critical habitat
only provides protections where there is a Federal nexus, that is,
those actions that come under the purview of section 7 of the Act.
Critical habitat designation has no application to actions that do not
have a Federal nexus. Section 7(a)(2) of the Act mandates that Federal
agencies, in consultation with the Service, evaluate the effects of its
proposed action on any designated critical habitat. Similar to the
Act's requirement that a Federal agency action not jeopardize the
continued existence of listed species, Federal agencies have the
responsibility not to implement actions that would destroy or adversely
modify designated critical habitat. Critical habitat designation alone,
however, does not require that a Federal action agency implement
specific steps toward species recovery.
All areas known to support the Miami blue butterfly during the past
13 years are or have been on Federal or State lands; these areas are
currently being managed for the subspecies. Management efforts are
consistent with, and geared toward, Miami blue conservation, and such
efforts are expected to continue in the future. Because the butterfly
exists only as one or possibly two small metapopulations, any future
activity involving a Federal action that would destroy or adversely
modify critical habitat would also likely jeopardize the subspecies'
continued existence (see Jeopardy Standard within emergency rule).
Consultation with respect to critical habitat would provide additional
protection to a species only if the agency action would result in the
destruction or adverse modification of the critical habitat but would
not jeopardize the continued existence of the species. In the absence
of a critical habitat designation, areas that support the Miami blue
butterfly will continue to be subject to conservation actions
implemented under section 7(a)(1) of the Act and to the regulatory
protections
[[Page 49411]]
afforded by the section 7(a)(2) jeopardy standard, as appropriate.
Federal actions affecting the Miami blue butterfly even in the absence
of designated critical habitat areas will still benefit from
consultation pursuant to section 7(a)(2) of the Act and may still
result in jeopardy findings. Therefore, designation of specific areas
as critical habitat that are currently occupied or recently occupied is
unlikely to provide measurable benefit to the subspecies.
Another potential benefit to the Miami blue butterfly from
designating critical habitat is that it could serve to educate
landowners, State and local government agencies, Refuge or Park
visitors, and the general public regarding the potential conservation
value of the area. Through the processes of listing the butterfly under
the State of Florida's endangered species statute in 2002 and the
recognition of the Miami blue as a Federal candidate subspecies in
2005, much of this educational component is already in effect.
Agencies, organizations, and stakeholders are actively engaged in
efforts to raise awareness for the butterfly and its conservation
needs. For example, the North American Butterfly Association has a
Miami blue chapter, which helps promote awareness for the subspecies.
The Florida Fish and Wildlife Conservation Commission and partners have
also formed a workgroup, in part to raise awareness for imperiled
butterflies in south Florida. Staff at BHSP have also recruited
volunteers to help search for the subspecies within the Park and
surrounding areas, and they have organized speakers to inform the
general public about the butterfly. In addition, designation of
critical habitat could inform State agencies and local governments
about areas that could be conserved under State laws or local
ordinances. However, since awareness and education involving the Miami
blue is already well underway, designation of critical habitat would
likely provide only minimal incremental benefits.
Increased Threat to the Subspecies Outweighs the Benefits of Critical
Habitat Designation
Upon reviewing the available information, we have determined that
the designation of critical habitat would increase the threat to the
Miami blue butterfly from unauthorized collection and trade, and may
further facilitate inadvertent or purposeful disturbance and vandalism
to the Miami blue's habitat. At the same time, we believe that
designation of critical habitat is likely to confer little measurable
benefit to the subspecies beyond that provided by listing. Overall, we
believe that the risk of increasing significant threats to the
subspecies by publishing location information in a critical habitat
designation greatly outweighs the benefits of designating critical
habitat.
In conclusion, we find that the designation of critical habitat is
not prudent, in accordance with 50 CFR 424.12(a)(1), because the Miami
blue butterfly is threatened by collection and habitat destruction, and
designation can reasonably be expected to increase the degree of these
threats to the subspecies and its habitat. Critical habitat designation
could provide some benefit to the subspecies, but these benefits are
significantly outweighed by the increased risk of collection pressure,
habitat destruction, and enforcement problems that could result from
depicting, through publicly available maps and descriptions, exactly
where this extremely rare butterfly and its habitat can be found.
However, we seek public comment on our determination that designation
of critical habitat is not prudent (see Public Comments Solicited
section earlier in this rule for instructions on how to submit
comments).
Peer Review
In accordance with our policy, ``Notice of Interagency Cooperative
Policy for Peer Review in Endangered Species Act Activities,'' that was
published on July 1, 1994 (59 FR 34270), we will seek the expert
opinion of at least three appropriate independent specialists regarding
this proposed rule. The purpose of such a review is to ensure listing
decisions are based on scientifically sound data, assumptions, and
analysis. We will send copies of this proposed rule to the peer
reviewers immediately following publication in the Federal Register. We
will invite these peer reviewers to comment, during the public comment
period, on the specific assumptions and the data that are the basis for
our conclusions regarding the proposal to list the Miami blue butterfly
as endangered and our prudency determination regarding critical habitat
for this subspecies.
We will consider all comments and information we receive during the
comment period on this proposed rule during preparation of a final
rulemaking. Accordingly, our final decision may differ from this
proposal.
Public Hearings
The Act provides for one or more public hearings on this proposal,
if requested. Requests must be received within 45 days after the date
of publication of this proposal in the Federal Register (see DATES).
Such requests must be sent to the address shown in FOR FURTHER
INFORMATION CONTACT. We will schedule public hearings on this proposal,
if any are requested, and announce the dates, times, and places of
those hearings, as well as how to obtain reasonable accommodation, in
the Federal Register and local newspapers at least 15 days before the
hearing.
Persons needing reasonable accommodation to attend and participate
in a public hearing should contact the South Florida Ecological
Services Field Office at 772-562-3909, as soon as possible. To allow
sufficient time to process requests, please call no later than one week
before the hearing date. Information regarding this proposed rule is
available in alternative formats upon request.
National Environmental Policy Act
We have determined that an Environmental Assessment or
Environmental Impact Statement, as defined under 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
Act. We published a notice outlining our reasons for this determination
in the Federal Register on October 25, 1983 (48 FR 49244).
Paperwork Reduction Act (44 U.S.C. 3501, et seq.)
This proposed rule does not contain any new collections of
information that require approval by the Office of Management and
Budget (OMB) under the Paperwork Reduction Act. This rule will not
impose new recordkeeping or reporting requirements on State or local
governments, individuals, businesses, or organizations. We may not
conduct or sponsor, and you are not required to respond to, a
collection of information unless it displays a currently valid OMB
control number.
References Cited
A complete list of all references cited in the emergency rule
published concurrently in this issue of the Federal Register is
available on the Internet at http://www.regulations.gov or upon request
from the Field Supervisor, South Florida Ecological Services Office
(see FOR FURTHER INFORMATION CONTACT).
Author
The primary author of this proposed rule is the staff of the South
Florida Ecological Services Office (see ADDRESSES).
[[Page 49412]]
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
For the reasons given in the preamble of the emergency rule listing
the Miami blue butterfly (Cyclargus thomasi bethunebakeri) as
endangered and the cassius blue butterfly (Leptotes cassius theonus),
ceraunus blue butterfly (Hemiargus ceraunus antibubastus), and
nickerbean blue butterfly (Cyclargus ammon) as threatened due to
similarity of appearance, published concurrently in the Rules and
Regulations section of this issue of the Federal Register, we propose
to amend part 17, subchapter B of chapter I, title 50 of the Code of
Federal Regulations, as set forth below:
PART 17--[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; Public Law 99-625, 100 Stat. 3500; unless otherwise
noted.
2. This document proposes to establish the provisions of the
emergency rule published elsewhere (in this issue of the Federal
Register) as a final rule.
Dated: July 27, 2011.
Gregory E. Siekaniec,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2011-19818 Filed 8-9-11; 8:45 am]
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