[Federal Register Volume 76, Number 133 (Tuesday, July 12, 2011)]
[Proposed Rules]
[Pages 40868-40871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17299]


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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2011-0012; MO 92210-0-0008]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To List the Bay Skipper as Threatened or Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of petition finding and initiation of status review.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service, announce a 90-day 
finding on a petition to list the Bay skipper (Euphyes bayensis) as 
threatened or endangered under the Endangered Species Act of 1973, as 
amended (Act), and to designate critical habitat. Based on our review, 
we find that the petition presents substantial scientific or commercial 
information indicating that listing this species may be warranted. 
Therefore, with the publication of this notice, we are initiating a 
review of the status of the species to determine if listing the species 
is warranted. To ensure that this status review is comprehensive, we 
are requesting scientific and commercial data and other information 
regarding this species. Based on the status review, we will issue a 12-
month finding on the petition, which will address whether the 
petitioned action is warranted, as provided in section 4(b)(3)(B) of 
the Act.

DATES: To allow us adequate time to conduct this review, we request 
that we receive information on or before September 12, 2011. Please 
note that if you are using the Federal eRulemaking Portal (see 
ADDRESSES section, below), the deadline for submitting an electronic 
comment is 11:59 p.m. Eastern Daylight Time on this date. After 
September 12, 2011, you must submit information directly to the Field 
Office (see FOR FURTHER INFORMATION CONTACT section below). Please note 
that we might not be able to address or incorporate information that we 
receive after the above requested date.

ADDRESSES: You may submit information by one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov. In the 
box that reads ``Enter Keyword or ID,'' enter the docket number for 
this finding, which is FWS-R4-ES-2011-0012. Check the box that reads 
``Open for Comment/Submission,'' and then click the Search button. You 
should then see an icon that reads ``Submit a Comment.'' Please ensure 
that you have found the correct rulemaking before submitting your 
comment.
    (2) U.S. Mail or Hand-Delivery: Public Comments Processing, Attn: 
FWS-R4-ES-2011-0012; Division of Policy and Directives Management; U.S. 
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, 
VA 22203.
    We will not accept e-mail or faxes. We will post all information we 
receive on http://www.regulations.gov. This generally means that we 
will post any personal information you provide us (see the Request for 
Information section below for more details).

FOR FURTHER INFORMATION CONTACT: Stephen Ricks, Field Supervisor, 
Mississippi Ecological Services Field Office, 6578 Dogwood View 
Parkway, Jackson, MS, or by telephone 601-321-1122, or facsimile 601-
965-4340. If you use a telecommunications device for the deaf (TDD), 
please call the Federal Information Relay Service (FIRS) at 800-877-
8339.

SUPPLEMENTARY INFORMATION:

Request for Information

    When we make a finding that a petition presents substantial 
information indicating that listing a species may be warranted, we are 
required to promptly review the status of the species (status review). 
For the status review to be complete and based on the best available 
scientific and commercial information, we request information on the 
Bay skipper from governmental agencies, Native American Tribes, the 
scientific community, industry, and any other interested parties. We 
seek information on:
    (1) The species' biology, range, and population trends, including:
    (a) Habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) The factors that are the basis for making a listing 
determination for a species under section 4(a) of the Act, which are:
    (a) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing regulatory mechanisms; or
    (e) Other natural or manmade factors affecting its continued 
existence.
    If, after the status review, we determine that listing the Bay 
skipper is warranted, we will propose critical habitat (see definition 
in section 3(5)(A) of the Act), as per section 4 of the Act, to the 
maximum extent prudent and determinable at the time. Therefore, within 
the geographical range currently occupied by the Bay skipper, we 
request data and information on:
    (1) What may constitute ``physical or biological features essential 
to the conservation of the species,''
    (2) Where these features are currently found, and
    (3) Whether any of these features may require special management 
considerations or protection.
    In addition, we request data and information on ``specific areas 
outside the geographical area occupied by the species'' that are 
``essential to the conservation of the species.'' Please provide 
specific comments and information as to what, if any, critical habitat 
you think we should propose for designation if the species is proposed 
for listing, and why such habitat meets the requirements of section 4 
of the Act.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    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. 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 information concerning this status review by 
one of the methods listed in the ADDRESSES section. If you submit 
information via http://www.regulations.gov, your entire submission--
including any personal identifying information--will be posted on the 
Web site. If you submit a hardcopy that includes personal

[[Page 40869]]

identifying information, you may request at the top of your document 
that we withhold this personal identifying information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov.
    Information and supporting documentation that we received and used 
in preparing this finding will be available for you to review at http://www.regulations.gov, or you may make an appointment during normal 
business hours at the U.S. Fish and Wildlife Service, Jackson, MS, 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Background

    Section 4(b)(3)(A) of the Act requires that we make a finding on 
whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted. We are to base this finding on 
information provided in the petition, supporting information submitted 
with the petition, and information otherwise available in our files. To 
the maximum extent practicable, we are to make this finding within 90 
days of our receipt of the petition and publish our notice of the 
finding promptly in the Federal Register.
    Our standard for substantial scientific or commercial information 
within the Code of Federal Regulations (CFR) with regard to a 90-day 
petition finding is ``that amount of information that would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted'' (50 CFR 424.14(b)). If we find that substantial 
scientific or commercial information was presented, we are required to 
promptly commence a review of the status of the species, which will be 
subsequently summarized in our 12-month finding.
    The ``substantial information'' standard for a 90-day finding 
differs from the Act's ``best scientific and commercial data'' standard 
that applies to a status review to determine whether a petitioned 
action is warranted. A 90-day finding does not constitute a status 
review under the Act. In a 12-month finding, we will determine whether 
a petitioned action is warranted after we have completed a thorough 
status review of the species, which is conducted following a 
substantial 90-day finding. Because the Act's standards for 90-day and 
12-month findings are different, as described above, a substantial 90-
day finding does not mean that the 12-month finding will result in a 
warranted finding.

Previous Federal Actions

    The Bay skipper was identified as a candidate for protection under 
the Act in the November 21, 1991, Federal Register (56 FR 58804). It 
was assigned a Category 2 status designation, which was given to those 
species for which there was some evidence of vulnerability, but for 
which additional biological information was needed to support a 
proposed rule to list as endangered or threatened. Assigning categories 
to candidate species was discontinued in 1996 (Notice of Candidate 
Review; February 28, 1996; 61 FR 7596), and only species for which the 
Service has sufficient information on biological vulnerability and 
threats to support issuance of a proposed rule are now regarded as 
candidate species. Due to a lack of information on the Bay skipper, it 
was no longer considered as a candidate species as of 1996.

Petition History

    On January 4, 2010, we received a petition dated December 29, 2009, 
from WildEarth Guardians and Xerces Society for Invertebrate 
Conservation requesting that the Bay skipper be listed as threatened or 
endangered and that critical habitat be designated under the Act. The 
petition clearly identified itself as such and included the requisite 
identification information for the petitioners, as required by 50 CFR 
424.14(a). In a January 25, 2010, letter to the petitioners, we 
acknowledged receipt of the petition, and stated that due to prior 
workload and limited funding, we would not be able to address the 
petition at that time, but would complete the action when workload and 
funding allowed. On May 6, 2010, we received a 60-day notice of intent 
(NOI) to sue under the provisions of the Act from the petitioners, 
alleging that we failed to make a 90-day finding on the petition to 
list the Bay skipper as threatened or endangered and to designate 
critical habitat for the species within 90 days of receipt of the 
petition. No lawsuit has been filed to date.
    This notice constitutes the 90-day finding on the January 4, 2010, 
petition to list the Bay skipper as threatened or endangered and that 
critical habitat be designated under the Act.

Species Information

    The Bay skipper, a small butterfly, was described as Euphyes 
bayensis by Shuey (1989) from Bay St. Louis, Hancock County, 
Mississippi. Shuey (1993) reported on the phylogeny (the history of the 
evolution of a species) within the Euphyes genus, finding that E. 
bayensis is a species in the Euphyes dion complex. We accept the 
characterization of the Bay skipper as a species because the most 
recent taxonomic accounts currently consider the taxon as valid (e.g., 
Pelham 2008, p. 93).
    The Bay skipper has a wingspan of 1.5 to 1.75 inches (in) (3.7 to 
4.4 centimeters (cm)). Males are black with a large orange patch on the 
top of the wings, and have a prominent black stigma (defined mark) on 
the forewing. The females are dark brown with yellow spots on their 
forewing and a yellow streak on their hindwing. The ventral (bottom) 
sides of both front and hind wings are a shade of brown that is paler 
than the dorsal side of the female and have pale yellow spots on the 
forewing, with two yellow streaks from the base to the margin (Shuey 
1989; Vaughan and Shepherd 2005; Butterflies and Moths of North America 
(BMNA) 2009). The Bay skipper is similar in appearance to the Dion 
skipper (E. dion), but is distinguished by a brighter shade of orange 
and narrower black borders on the dorsal (top) side of the wings.
    The life history and habitat requirements of the Bay skipper are 
poorly known. The adult butterfly has two flight periods: late May and 
September. The gap between the flight periods suggests that the larvae 
may aestivate (become dormant) in the summer. The larvae also hibernate 
during the winter. Aestivating and hibernating larvae are probably in 
the third or fourth instar (period between molts). The larval foodplant 
is likely sawgrass (Cladium sp.); however, this has not been verified 
(NatureServe 2009 as cited in Petition).
    The Bay skipper has been reported from only two locations: Bay St. 
Louis, Hancock County, Mississippi, and the Anahuac National Wildlife 
Refuge (NWR) (part of the Texas Chenier Plains NWR Complex), Chambers 
and Jefferson Counties, Texas. It is possible that it occurs in other 
locations within sawgrass marsh habitat in other Gulf coastal States, 
but this has never been verified. The lack of records suggests it has a 
very limited range and is very rare (Vaughan and Shepherd 2005; 
NatureServe 2009). The Bay St. Louis locality was severely damaged by 
Hurricane Katrina in 2005, and it is unknown if the species continues 
to survive in that locality. The Anahuac NWR and surrounding areas were 
inundated by Hurricane Ike in 2008, and no Bay skippers have since been 
found at that location (NatureServe 2009; Petition citing David Sarkozi 
2009, pers. comm.).

[[Page 40870]]

Evaluation of Information for This Finding

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations at 50 CFR 424 set forth the procedures for adding a species 
to, or removing a species from, the Federal Lists of Endangered and 
Threatened Wildlife and Plants. 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) of the Act:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    In considering what factors might constitute threats, we must look 
beyond the mere exposure of the species to the factor to determine 
whether the species responds to the factor in a way that causes actual 
impacts to the species. If there is exposure to a factor, but no 
response, or only a positive response, that factor is not a threat. If 
there is exposure and the species responds negatively, the factor may 
be a threat and we then attempt to determine how significant a threat 
it is. If the threat is significant, it may drive or contribute to the 
risk of extinction of the species such that the species may warrant 
listing as threatened or endangered as those terms are defined by the 
Act. This does not necessarily require empirical proof of a threat. The 
combination of exposure and some corroborating evidence of how the 
species is likely impacted could suffice. The mere identification of 
factors that could impact a species negatively may not be sufficient to 
compel a finding that listing may be warranted. The information must 
contain evidence sufficient to suggest that these factors may be 
operative threats that act on the species to the point that the species 
may meet the definition of threatened or endangered under the Act.
    In making this 90-day finding, we evaluated whether information 
regarding threats to the Bay skipper, as presented in the petition and 
available in our files, is substantial, thereby indicating that the 
petitioned action may be warranted. Our evaluation of this information 
is presented below.
A. The Present or Threatened Destruction, Modification, or Curtailment 
of the Species' Habitat or Range
Information Provided in the Petition
    The petition asserts that the habitats of both known populations of 
the Bay skipper are threatened by sea level rise and extreme weather 
events, and that the Bay St. Louis population is threatened by 
development (WildEarth Guardians and Xerces Society 2009 (hereafter 
cited as Petition), p. 9). The petition asserts that the Comprehensive 
Conservation Plan (CCP) for the Texas Chenier Plains NWR Complex, which 
includes the Anahuac NWR (Service 2008), fails to mention or prescribe 
protections for the Bay skipper on the Anahuac NWR, and that many of 
the refuge's management actions (e.g., herbicide use, livestock 
grazing, prescribed fires, rice farming, water control, land management 
involving conventional farm machinery) may affect the Bay skipper if 
conducted in its current or potential habitat (Petition 2009, pp. 10-
11).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Information in the Service files is consistent with many of the 
assertions made in the petition. Habitat for the Bay St. Louis 
population was severely damaged by Hurricane Katrina in 2005, and the 
population may have been impacted. The Anahuac NWR was inundated by 
Hurricane Ike in 2008. In other words, both of the areas where the Bay 
skipper is found have experienced hurricane impacts in recent years.
    Tropical storms and hurricanes frequently occur in the northern 
Gulf of Mexico (NOAA 1999), and some researchers believe an increase in 
hurricane intensity, duration, and frequency can be attributed to 
warming sea temperatures (Karl et al. 2009, pp. 5-6). Impacts from 
these storm events could be compounded by projected sea level rise 
(Karl et al. 2009, pp. 5-6). The Bay skipper is likely to continue to 
be subject to hurricane impacts and resulting habitat modification and 
destruction in these areas.
    We have no information in our files on potential impacts to the 
species from management actions on the Anahuac NWR or any information 
on development threats to the Bay St. Louis population. While the CCP 
does not specifically address protections for the Bay skipper, 
pesticide use has been prohibited on the NWR, and wetlands are 
protected. Herbicides are used on the refuge to combat exotic plant 
species (USFWS 2008; Chapter 3, p. 58; Chapter 4, p. 16).
    In summary, in our evaluation of the petition and information in 
our files, we find that the petition provides substantial information 
indicating that listing the Bay skipper may be warranted due to present 
or threatened destruction, modification, or curtailment of the species' 
habitat or range by hurricanes or sea level rise.
B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
Information Provided in the Petition
    The petition asserts that collecting is a potential threat to the 
species (Petition 2009, p. 9). It also notes that small population size 
and limited distribution render the Bay skipper vulnerable to 
overutilization (Vaughn and Shepherd 2005).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Although the petition notes that small population size and limited 
distribution render the Bay skipper vulnerable to overutilization, it 
does not provide information or evidence that collecting may be a 
threat now or in the foreseeable future. Furthermore, there is no 
information in our files on overutilization of the Bay skipper from 
collection. In our evaluation of the petition and information in our 
files, we have no substantial information indicating that listing the 
Bay skipper may be warranted due to overutilization.
C. Disease or Predation
Information Provided in the Petition
    The petition notes that adult and larval butterflies are subject to 
predation by a wide variety of vertebrate and invertebrate wildlife 
(e.g., birds, reptiles, amphibians, other insects), and that the likely 
small size of Bay skipper populations increases their vulnerability to 
extirpation due to disease or predation (Petition 2009, p. 9).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    Although the petition notes that adult and larval butterflies are 
subject to predation, it does not provide any evidence to support the 
assertion that disease or predation may be a threat to the Bay skipper 
now or in the foreseeable future, and we have no information in our 
files about potential impacts to the Bay skipper due to disease or 
predation. In our evaluation

[[Page 40871]]

of the petition and information in our files, we find that there is no 
substantial information indicating that listing the Bay skipper may be 
warranted due to disease or predation.
D. The Inadequacy of Existing Regulatory Mechanisms
Information Provided in the Petition
    The petition asserts that the Bay skipper is not adequately 
protected by Federal or State laws or policies to prevent its 
endangerment or extinction.
Evaluation of Information Provided in the Petition and Available in 
Service Files
    The Bay skipper is classified as an S1 species in both Texas and 
Mississippi. The S1 designation means that the species is considered 
``critically imperiled--State level'' under the NatureServe construct. 
However, no formal or regulatory consideration is provided to the 
species or its habitat as a result of this classification (NatureServe 
2009). The Anahuac NWR is covered under a CCP, but this is a guidance 
document and not a statute or regulation, and therefore not a 
regulatory mechanism. Possible effects to the Bay skipper from Refuge 
management activities are addressed under Factor A. The Present or 
Threatened Destruction, Modification, or Curtailment of the Species' 
Habitat or Range. No other potential regulatory mechanisms are 
discussed in the petition and our review of readily available 
information indicated there are no existing regulations or laws 
providing for the protection of this species or its habitat. Because we 
have no information about existing regulatory mechanisms, we cannot 
conclude that regulatory mechanisms are inadequate. Therefore, we 
cannot find that the petition presents substantial information 
indicating that listing the Bay skipper may be warranted due to the 
inadequacy of existing regulatory mechanisms. However, we will 
investigate this issue further during the status review.
E. Other Natural or Manmade Factors Affecting the Species' Continued 
Existence
Information Provided in the Petition
    The petition provides information that effects of climate change 
threaten the Bay skipper, including the increased frequency of extreme 
weather events, such as hurricanes, as well as rising sea levels. The 
effects of hurricanes and sea level rise were addressed above in A. The 
Present or Threatened Destruction, Modification, or Curtailment of the 
Species' Habitat or Range. The petition further asserts that the Bay 
skipper could be harmed by local pesticide and herbicide use, 
specifically on the Anahuac NWR (Petition 2009, pp. 11-14).
Evaluation of Information Provided in the Petition and Available in 
Service Files
    We acknowledge that butterflies and their larvae are vulnerable to 
pesticides; however, the petition does not provide any evidence to 
indicate that the Bay skipper is being impacted or is likely to be 
impacted by chemical use, and we have no information in our files about 
potential impacts to the Bay skipper due to chemical use. In summary, 
in our evaluation of the petition and information in our files, we find 
that the petition does not provide substantial information indicating 
that listing the Bay skipper may be warranted due to other natural or 
manmade factors affecting the species' continued existence. We will 
investigate the potential impacts of pesticide and herbicide use 
further during our status review.

Finding

    On the basis of our determination under section 4(b)(3)(A) of the 
Act, we determine that the petition presents substantial scientific or 
commercial information indicating that listing the Bay skipper 
throughout its entire range may be warranted. This finding is based on 
information provided under factor A. The information provided under 
factors B, C, D, and E was not substantial.
    Because we have found that the petition presents substantial 
information indicating that listing the Bay skipper may be warranted, 
we are initiating a status review to determine whether listing the Bay 
skipper under the Act is warranted.

References Cited

    A complete list of references cited is available on the Internet at 
http://www.regulations.gov and upon request from the Mississippi 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Author

    The primary author of this notice is Paul Hartfield of the 
Mississippi Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: June 27, 2011.
Gregory E. Siekaniec,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2011-17299 Filed 7-11-11; 8:45 am]
BILLING CODE 4310-55-P