[Federal Register Volume 76, Number 154 (Wednesday, August 10, 2011)]
[Proposed Rules]
[Pages 49408-49412]
From the Federal Register Online via the Government Publishing 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: 
[email protected].

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]
BILLING CODE 4310-55-P