Federal Register, Volume 59 Issue 74 (Monday, April 18, 1994)

[Federal Register Volume 59, Number 74 (Monday, April 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-9218]

[[Page Unknown]]

[Federal Register: April 18, 1994]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC44

Endangered and Threatened Wildlife and Plants; Emergency Rule To
List the Saint Francis' Satyr as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Emergency rule.

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SUMMARY: The Service exercises its emergency authority to determine the
Saint Francis' satyr (Neonympha mitchellii francisci) to be an
endangered species pursuant to the Endangered Species Act of 1973
(Act), as amended. This butterfly is known from a single locality in
North Carolina. Recent heavy collecting pressure has resulted in a
reduction of the only known population and is believed to pose an
imminent threat to the butterfly's existence. Protection from
collecting is needed during the species' 1994 flight season while the
Service proceeds with adopting permanent protection in accordance with
the Act's requirements. This emergency rule will implement Federal
protection for 240 days. A proposed rule to list the Saint Francis'
satyr as endangered is published elsewhere in today's Federal Register.
The proposed rule provides for public comment and a hearing (if
requested).

EFFECTIVE DATE: This emergency determination is effective on April 18,
1994 and expires on December 14, 1994. Due to the need for protecting
the St. Francis' satyr from the effects of collecting, the Service
finds that good cause exists for making this rule effective upon
publication, as provided by 50 CFR 424.18(b)(1) and the Administrative
Procedure Act (5 U.S.C. 553(d)(3)).

ADDRESSES: The complete file for this rule is available for inspection,
by appointment, during normal business hours at the Asheville Field
Office, U.S. Fish and Wildlife Service, 330 Ridgefield Court,
Asheville, North Carolina 28806.

FOR FURTHER INFORMATION CONTACT: Ms. Nora Murdock at the above address
(704/665-1195, Ext. 231).

SUPPLEMENTARY INFORMATION:

Background

Neonympha mitchellii francisci is a subspecies of one of two North
American species of Neonympha. One of the rarest butterflies in eastern
North America, it was described by Parshall and Kral in 1989 from
material collected in North Carolina. These authors estimated that the
single known population probably produced less than 100 adults per
year. Shortly thereafter, Saint Francis' satyr was reported to have
been collected to extinction (Refsnider 1991, Schweitzer 1989). The
subspecies was rediscovered at the type locality in 1992 during the
course of a Service-funded status survey. The Act defines ``species''
to include ``any subspecies of fish or wildlife or plants, and any
distinct population segment of any species of vertebrate fish or
wildlife * * *.'' Therefore, although N. m. francisci is recognized
taxonomically as a subspecies, it will be referred to as a ``species''
throughout the remainder of this emergency rule.
Saint Francis' satyr is a fairly small, dark brown butterfly and is
a typical member of the Satyrinae, a subfamily of the Nymphalidae
family, which includes many species commonly called satyrs and wood
nymphs. The wingspan for the species ranges from 34 to 44 mm (Opler and
Malikul 1992). Saint Francis' satyr and Mitchell's satyr, the northern
subspecies (N. m. mitchellii), which was classified as endangered on
May 20, 1992 (57 FR 21569), are nearly identical in size and show only
a slight degree of sexual size dimorphism (Hall 1993, Parshall and Kral
1989). Like most species in the wood nymph group, Saint Francis' satyr
has conspicuous ``eyespots'' on the lower surfaces of the wings. These
eyespots are dark maroon brown in the center, reflecting a silver cast
in certain lights. The border of these dark eyespots is straw yellow in
color, with an outermost border of dark brown. The eyespots are usually
round to slightly oval and are well-developed on the fore wing as well
as on the hind wing. The spots are accented by two bright orange bands
along the posterior wing edges and two darker brown bands across the
central portion of each wing. Saint Francis' satyr, like the nominate
subspecies, can be distinguished from its North American congener, N.
areolata, by the latter's well-marked eyespots on the upper wing
surfaces and brighter orange bands on the hind wing, as well by its
lighter coloration and stronger flight (Refsnider 1991, McAlpine et al.
1960, Wilsman and Schweitzer 1991, Hall 1993).
Saint Francis' satyr is extremely restricted geographically.
Mitchell's satyr, the nominate subspecies, has been eliminated from
approximately half its known range, primarily due to collecting
(Refsnider 1991). Saint Francis' satyr is now known to exist as only a
single population in North Carolina.
The annual life cycle of N. m. francisci, unlike that of its
northern relative, is bivoltine. That is, it has two adult flights or
generations per year. Larval host plants are believed to be graminoids
such as grasses, sedges, and rushes. Little else is known about the
life history of this butterfly. The habitat occupied by this satyr
consists primarily of wide, wet meadows dominated by sedges and other
wetland graminoids. In the North Carolina sandhills, such meadows are
often relicts of beaver activity. Unlike the habitat of Mitchell's
satyr, the North Carolina species' habitat cannot be properly called a
fen because the waters of this sandhills region are extremely poor in
inorganic nutrients. Hall (1993) states:

Whereas true fens--apparently the habitat of the northern form
of N. mitchellii (Wilsman and Schweitzer 1991)--are circumneutral to
basic in pH and are long-lasting features of the landscape, the
boggy areas of the sandhills are quite acidic as well as ephemeral,
succeeding either to pocosin or swamp forest if not kept open by
frequent fire or beaver activity.

Hall (1993) further states:

Under the natural regime of frequent fires ignited by summer
thunderstorms, the sandhills were once covered with a much more open
type of woodland, dominated by longleaf pine, wiregrass, and other
fire-tolerant species. The type of forest that currently exists
along [the creek inhabited by Saint Francis' satyr] can only grow up
under a long period of fire suppression. The dominance on this site
of loblolly pine, moreover, is due primarily to past forestry
management practices, not any form of natural succession.

Parshall and Kral speculated that N. m. francisci is a relict from
a more widespread southern distribution during the Pleistocene period.
Hall (1993) presents the following alternative hypothesis:

The current narrow distribution of francisci could also be a
result of the enormous environmental changes that have occurred in
the southern coastal plain just within the past 100 years. Only the
discovery of additional populations or fossil remains can clarify
this situation.

Extensive searches have been made of suitable habitat in North
Carolina and South Carolina, but no other populations of this butterfly
have been found (Hall 1993, Schweitzer 1989).
Federal government actions on this species began when it was
included as a category 2 species in the November 21, 1991, animal
notice of review (56 FR 58804). Category 2 species are those for which
the Service believes that Federal listing as endangered or threatened
is possibly appropriate but for which conclusive data on biological
vulnerability and threat are not currently available to support
proposed rules. Recent surveys have been conducted by Service and State
personnel, and the Service now believes sufficient information exists
to proceed with an emergency rule to list Neonympha mitchellii
francisci as endangered.

Summary of Factors Affecting the Species

Section 4(a)(1) of the Act (16 U.S.C. 1531 et seq.) and regulations
(50 CFR part 424) promulgated to implement the listing provisions of
the Act set forth the procedures for adding species to the Federal
lists. A species may be determined to be an endangered or threatened
species due to one or more of the five factors described in section
4(a)(1). These factors and their application to Saint Francis' satyr
(Neonympha mitchellii francisci) are as follows:
A. The present or threatened destruction, modification, or
curtailment of its habitat or range. Because of its relatively recent
discovery, it is impossible to determine what the original range of
Saint Francis' satyr might have been. However, based upon its
demonstrated dependency on periodic fires and the general trend of fire
suppression on private lands, it seems reasonable to assume that it
once occupied a more extensive area. As stated by Hall (1993):

In order for francisci to have survived over the past 10,000
years, there must surely have been more populations and greater
numbers of individuals than apparently now exist * * * As is true
for many species that were once widespread in the sandhills, massive
habitat alteration must also be a major factor in the diminution of
the range of francisci * * * reductions in francisci's range would
have accompanied the extensive loss of wetland habitats in the
coastal plain. Again, the draining of swamps, pocosins, Carolina
bays, savannas, flatwoods, and bogs for conversion to agriculture
and silviculture is well known. In the case of francisci, however,
the extirpation of beavers from the Carolinas may have been the
greatest factor.

Beavers had been virtually eliminated from North Carolina by the
turn of the century. Reintroductions began in 1939, but it was several
decades before they again became an agent for creation of the sedge
meadow habitats favored by Saint Francis' satyr (Hall 1993, Woodward
and Hazel 1991). Hall further states:

As the landscape mosaic of open woodlands and wetlands of the
coastal plain declined throughout the past two centuries, the range
of francisci must have become increasingly fragmented. Although
isolated populations may have persisted as long as suitable habitat
remained, the structure of their meta-populations would have been
destroyed. Opportunistic colonization of newly available habitats as
well as the repopulation of sites wiped clean by fire or other
catastrophe would have become eventually impossible; one by one, the
isolated remnants would have blinked out of existence. Although
again speculative, the fracturing of meta-populations has been used
to explain the decline of the arogos skipper and a number of
butterflies associated with the tall-grass prairies (Panzer, 1988,
D. Schweitzer, pers. comm.). That francisci was a relict to begin
with only exacerbated this problem; the overall effect was to bring
it as close to extinction as any butterfly in the country.

The sole surviving population of this species is now fragmented
into less than half a dozen small colonies that occupy a total area no
larger than a few square miles.
B. Overutilization for commercial, recreational, scientific, or
educational purposes. Both subspecies of the Saint Francis' satyr are
highly prized by collectors, including commercial collectors who often
systematically collect every individual available. Several populations
of the nominate subspecies are known to have been obliterated by
collectors, and others are believed extremely vulnerable to this threat
(Refsnider 1991). As mentioned in the ``Background'' section, the
single known population of Saint Francis' satyr was so hard-hit by
collectors in the 3 years following its initial discovery that it was
believed to have been collected to extinction. Subsequent to the
emergency listing of the nominate subspecies and prior to the
publication of this rule, the North Carolina population was the last
where Neonympha mitchellii could legally be collected. Following the
emergency listing of Mitchell's satyr, the North Carolina Heritage
Program received several inquiries from collectors about access to the
last available population. Several expressed apprehension about any
restriction on collecting of this rare and much-sought-after satyr.
Collectors reportedly visited the known site every day throughout the
flight periods, taking every adult they saw (Hall 1993). After this
first wave of over-collection, many unsuccessful searches for the
butterfly were made before it was eventually rediscovered. Numbers of
individuals then seen were much lower than those reported by Parshall
and Kral (1989), with the highest single count consisting of only 11
butterflies (Hall 1993). Even though part of this population is
protected from collectors by virtue of being within dangerous artillery
impact areas, intensive collecting from the periphery of these areas
could reduce total population numbers below levels needed for long-term
survival. Very little is known about this species' life history and
ecological requirements, but it appears to be a more vagile species
than its northern relative. It may well be dependent upon a large meta-
population structure in order to colonize new sites or recolonize those
from which it has been extirpated.
C. Disease or predation. This butterfly, like others, is
undoubtedly consumed by predators, but there is no evidence that
predation is a threat to the species at this point. Disease is not
known to be a factor in its decline.
D. The inadequacy of existing regulatory mechanisms. Insects are
not protected from collection under North Carolina law. There are also
no Department of Defense regulations that would restrict collecting of
Saint Francis' satyr in North Carolina. Federal listing of this species
will provide legal protection against indiscriminate taking and illegal
trade.
E. Other natural or manmade factors affecting its continued
existence. Although the habitat occupied by this species is dependent
upon some form of disturbance to set back succession (e.g., periodic
fire and/or beaver impoundments), intense fires at critical times
during the life cycle of the species can eliminate small colonies.
Historically, this did not present a problem since there were
undoubtedly other adjacent populations that could recolonize extirpated
sites. However, the fact that only one population of this species now
remains makes it more vulnerable to such threats as catastrophic
climatic events, inbreeding depression, disease, and parasitism. Part
of the occupied area is adjacent to regularly traveled roads, where
there is the threat of toxic chemical spills into the species' wetland
habitat. Current military use of the impact areas is favorable to this
species; the frequent fires associated with shelling are undoubtedly a
principal reason why the species is surviving on military lands and not
on surrounding private lands. Department of Defense personnel are aware
of the species' plight and have been cooperative in protection efforts.
However, heavy siltation is a potential problem that could threaten the
small drainages occupied by the species. Although troop movements
directly through an area occupied by the satyr could have negative
impacts, this has not occurred to date; these activities have now been
directed away from areas where the satyr occurs. Other potential
threats to the species include pest control programs (for mosquitoes or
gypsy moths) and beaver control.

Reasons for Emergency Determination

In developing this rule the Service has carefully assessed the best
scientific and commercial information available regarding the past,
present, and future threats faced by this species. Based on this
evaluation, the preferred action is to list Saint Francis' satyr as
endangered on an emergency basis. With only one population remaining
(and this one having already been diminished by intensive collecting)
and with the other subspecies having been completely eliminated from
half the States where it historically occurred, the threat of over-
collection cannot be denied. The Service has concluded that conducting
the normal listing process will delay protection of the species until
after the 1994 flight period, thus subjecting the species to an
additional year of excessive collecting pressure. The resulting
potential for further reduction of this last population could severely
reduce the probability of the species' survival. Therefore, the Service
is listing the species on an emergency basis to provide maximum
protection to the known population during the 1994 flight period.

Critical Habitat

Section 4(a)(3) of the Act, as amended, requires that, to the
maximum extent prudent and determinable, the Secretary designate
critical habitat at the time a species is determined to be endangered
or threatened. At this time the Service has made a preliminary finding
that designation of critical habitat is not prudent for this species.
As discussed under Factor B in the ``Summary of Factors Affecting the
Species'' section, Saint Francis' satyr has already been impacted by
over-collecting and continues to be threatened by collecting pressure.
Publication of critical habitat descriptions and maps would make the
satyr more vulnerable to collection and would increase enforcement
problems and the likelihood of extinction. Protection of this species'
habitat will be addressed through the recovery process and through the
Section 7 jeopardy standard. The single remaining population is located
on military lands, where the Department of Defense is aware of its
occurrence. Comments regarding the designation of critical habitat will
be accepted and reviewed during the comment period established by the
proposed rule, which is published in this issue of the Federal
Register.

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened under the Endangered Species Act include recognition,
recovery actions, requirements for Federal protection, and prohibitions
against certain practices. Recognition through listing encourages and
results in conservation actions by Federal, State, and private
agencies, groups, and individuals. The Endangered Species 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 certain activities involving listed animals are discussed, in
part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened and with respect to its critical
habitat, if any is being designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) requires Federal agencies to confer
informally with the Service on any action that is likely to jeopardize
the continued existence of a proposed species or result in the
destruction or adverse modification of proposed critical habitat. If
the species is listed subsequently, 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 such a species
or to 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. Federal activities that could impact Saint Francis' satyr and
its habitat in the future include, but are not limited to, the
following: road and firebreak construction, pesticide application,
beaver control, troop movements, prescribed burning and fire
suppression, and facilities construction. The only known population is
located on military lands, where the Department of Defense is already
working with the Service to secure the protection and proper management
of Saint Francis' satyr while accommodating military activities to the
extent possible. Conservation of this butterfly is consistent with most
ongoing military operations at the occupied site, and the listing of
the species is not expected to result in significant restrictions on
military use of the land.
The Act and implementing regulations found at 50 CFR 17.21 set
forth a series of general prohibitions and exceptions that apply to all
endangered wildlife. These prohibitions, in part, make it illegal for
any person subject to the jurisdiction of the United States to take
(includes harass, harm, pursue, hunt, shoot, wound, kill, trap, or
collect; or to attempt any of these), import or export, ship in
interstate commerce in the course of a commercial activity, or sell or
offer for sale in interstate or foreign commerce and listed species. It
also is 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.
Permits may be issued to carry out otherwise prohibited activities
involving endangered wildlife species under certain circumstances.
Regulations governing permits are at 50 CFR 17.22 and 17.23. Such
permits are available for scientific purposes, to enhance the
propagation or survival of the species, and/or for incidental take in
connection with otherwise lawful activities.

References Cited

Hall, S. 1993. A rangewide status survey of Saint Francis' satyr
Neonympha mitchellii francisci (Lepidoptera: Nymphalidae). Report to
U.S. Fish and Wildlife Service, Endangered Species Field Office,
Asheville, NC. 44 pp.
McAlpine, W., S. Hubble, and T. Pliske. 1960. The distribution,
habits, and life history of Euptychia mitchellii (Satyrinae). J.
Lep. Soc. 14:209-225.
Opler, P., and V. Malikul. 1992. A field guide to eastern
butterflies. Houghton Miflin Co., New York.
Parshall, D. K., and T. W. Kral. 1989. A new subspecies of Neonympha
mitchellii (French) (Satyrinae) from North Carolina. J. Lep. Soc.
43:114-119.
Refsnider, R. 1991. Emergency rule to list the Mitchell's satyr as
endangered. Federal Register 56(122):28825.
Schweitzer, D. 1989. A review of category 2 insects in the U.S. Fish
and Wildlife Service's Regions 3, 4, and 5. Report to the U.S. Fish
and Wildlife Service, Newton Corner, MA. Pp. 132-133.
Wilsman, L., and D. Schweitzer. 1991. A rangewide status survey of
Mitchell's satyr, Neonympha mitchellii mitchellii (Lepidoptera:
Nymphalidae). Report to the U.S. Fish and Wildlife Service, Region
3, Endangered Species Office, Twin Cities, MN.
Woodward, D., and R. Hazel. 1991. Beavers in North Carolina;
ecology, utilization, and management. Cooperative Extension Service
Publication No. AG-434, North Carolina State University, Raleigh,
NC.

Author

The primary author of this proposed rule is Ms. Nora Murdock (see
Addresses section) (704/665-1195, Ext. 231).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

Accordingly, effective April 18, 1994 until December 14, 1994, 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) * * *

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Species Vertebrate population
---------------------------------------------------- Historic range where endangered or Status When listed Critical Special
Common name Scientific name threatened habitat rules
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* * * * * * *
Insects:

* * * * * * *
Butterfly, Saint Neonympha mitchellii U.S.A. (NC)............. NA...................... E 539 NA NA
Francis' satyr. francisci.

* * * * * * *
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Dated: April 8, 1994.
Mollie H. Beattie,
Director, Fish and Wildlife Service.
[FR Doc. 94-9218 Filed 4-17-94; 8:45 am]
BILLING CODE 4310-55-M