[Federal Register Volume 78, Number 158 (Thursday, August 15, 2013)]
[Proposed Rules]
[Pages 49832-49878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-19793]



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Vol. 78

Thursday,

No. 158

August 15, 2013

Part III





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





 Endangered and Threatened Wildlife and Plants; Proposed Designation of 
Critical Habitat for Florida Leafwing and Bartram's Scrub-Hairstreak 
Butterflies; Endangered Status for the Florida Leafwing and Bartram's 
Scrub-Hairstreak Butterflies; Proposed Rules

  Federal Register / Vol. 78 , No. 158 / Thursday, August 15, 2013 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2013-0031; 4500030114]
RIN 1018-AZ59


Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for Florida Leafwing and Bartram's 
Scrub-Hairstreak Butterflies

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the Florida leafwing (Anaea troglodyta 
floridalis) and Bartram's scrub-hairstreak (Strymon acis bartrami) 
butterflies under the Endangered Species Act. In total, approximately 
3,351 hectares (8,283 acres) in Miami-Dade and Monroe Counties, 
Florida, fall within the boundaries of the proposed critical habitat 
designation for the Florida leafwing butterfly, and approximately 3,748 
hectares (9,261 acres) in Miami-Dade and Monroe Counties, Florida, fall 
within the boundaries of the proposed critical habitat designation for 
the Bartram's scrub-hairstreak butterfly.

DATES: We will accept comments received or postmarked on or before 
October 15, 2013. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES section, below) must be received by 
11:59 p.m. Eastern Time on the closing date. We must receive requests 
for public hearings, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by September 30, 2013.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R4-ES-2013-0031, 
which is the docket number for this rulemaking. You may submit a 
comment by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R4-ES-2013-0031; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for this critical 
habitat designation and are available at http://www.fws.gov/verobeach/, 
http://www.regulations.gov at Docket No. No. FWS-R4-ES-2013-0031, and 
at the South Florida Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT). Any additional tools or supporting information 
that we may develop for this critical habitat designation will also be 
available at the Fish and Wildlife Service Web site and Field Office 
set out above, and may also be included in the at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Larry Williams, Field Supervisor, U.S. 
Fish and Wildlife Service, South Florida Ecological Services Office, 
1339 20th Street, Vero Beach, FL 32960, by telephone 772-562-3909, or 
by facsimile 772-562-4288. Persons who use a telecommunications device 
for the deaf (TDD) may call the Federal Information Relay Service 
(FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Act, once we determine 
that a species is endangered or threatened, then we must also designate 
critical habitat for the species. Designations and revisions of 
critical habitat can only be completed by issuing a rule. Elsewhere in 
today's Federal Register, we propose to list the Florida leafwing and 
Bartram's scrub-hairstreak butterflies as endangered species under the 
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) 
(Act).
    This rule consists of: A proposed rule for designation of critical 
habitat for the Florida leafwing and Bartram's scrub-hairstreak 
butterflies. The Florida leafwing and Bartram's scrub-hairstreak 
butterflies have been proposed for listing under the Act. This rule 
proposes designation of critical habitat necessary for the conservation 
of the species.
    The basis for our action. Under the Act, when a species is proposed 
for listing, to the maximum extent prudent and determinable, we must 
designate critical habitat for the species. Both species have been 
proposed for listing as endangered, and therefore, we also propose to 
designate:
     Approximately 3,351 hectares (ha) (8,283 acres (ac)) are 
proposed as critical habitat for the Florida leafwing butterfly and 
approximately 3,748 ha (9,261 ac) are proposed for the Bartram's scrub-
hairstreak butterfly. The critical habitat proposed for the Florida 
leafwing occurs entirely within that proposed for the Bartram's scrub-
hairstreak. The proposed critical habitat for both butterflies is 
located in Miami-Dade and Monroe Counties, Florida.
     The proposed designation for both butterflies includes 
both occupied and unoccupied critical habitat. The Service determined 
that the proposed unoccupied units are essential for the conservation 
of the butterflies, in order to provide for the necessary expansion of 
current Florida leafwing and Bartram's scrub-hairstreaks population(s) 
and for reestablishment of populations into areas where these 
subspecies previously occurred.
    Section 4(b)(2) of the Endangered Species Act states that the 
Secretary shall designate and make revisions to critical habitat on the 
basis of the best available scientific data after taking into 
consideration the economic impact, national security impact, and any 
other relevant impact of specifying any particular area as critical 
habitat. The Secretary may exclude an area from critical habitat if he 
determines that the benefits of such exclusion outweigh the benefits of 
specifying such area as part of the critical habitat, unless he 
determines, based on the best scientific data available, that the 
failure to designate such area as critical habitat will result in the 
extinction of the species.
    We are preparing an economic analysis of the proposed designations 
of critical habitat. We are preparing an analysis of the economic 
impacts of the proposed critical habitat designation and related 
factors. We will announce the availability of the draft economic 
analysis as soon as it is completed, at which time we will seek 
additional public review and comment.
    We will seek peer review. We are seeking comments from 
knowledgeable individuals with scientific expertise to review our 
analysis of the best available science and application of that science 
and to provide any additional scientific information to improve this 
proposed rule. Because we will consider all comments and information 
received during the comment period, our final determinations may differ 
from this proposal.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as

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accurate and as effective as possible. Therefore, we request comments 
or information from the public, from other concerned governmental 
agencies, Native American tribes, the scientific community, industry, 
or any other interested parties concerning this proposed rule. We 
particularly seek comments concerning:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including whether there are threats to the butterflies from 
human activity, the degree of which can be expected to increase due to 
the designation, and whether that increase in threat outweighs the 
benefit of designation such that the designation of critical habitat is 
not be prudent.
    (2) Specific information on:
    (a) The amount and distribution of the Florida leafwing and 
Bartram's scrub-hairstreak habitat including the hostplant, pineland 
croton (Croton linearis);
    (b) What may constitute ``physical or biological features essential 
to the conservation of the species,'' within the geographical range 
currently occupied by the species;
    (c) Where these features are currently found;
    (d) Whether any of these features may require special management 
considerations or protection;
    (e) What areas, that were occupied at the time of listing (or are 
currently occupied) and that contain features essential to the 
conservation of the species, should be included in the designation and 
why;
    (f) What areas not occupied at the time of listing are essential 
for the conservation of the species and why; and
    (g) Whether we have determined the most appropriate size and 
configuration of our proposed critical habitat units.
    (3) Land use designations and current or planned activities in the 
areas occupied by the species or proposed to be designated as critical 
habitat, and possible impacts of these activities on these species and 
proposed critical habitat.
    (4) Information on the projected and reasonably likely impacts of 
climate change on both butterflies and proposed critical habitat.
    (5) Any probable economic, national security, or other relevant 
impacts that may result from designating any area that may be included 
in the final designation. We are particularly interested in any impacts 
on small entities, and the benefits of including or excluding areas 
from the proposed designation that are subject to these impacts.
    (6) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act.
    (7) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. You may request 
at the top of your document that we withhold personal information such 
as your street address, phone number, or email address 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 http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, South Florida Ecological Services Office (see FOR 
FURTHER INFORMATION CONTACT).

Previous Federal Actions

    All previous Federal actions are described in the proposal to list 
the Florida leafwing and Bartram's scrub-hairstreak butterflies as 
endangered species under the Act published elsewhere in today's Federal 
Register.

Critical Habitat

Background

    It is our intent to discuss below only those topics directly 
relevant to the designation of critical habitat for the Florida 
leafwing and Bartram's scrub-hairstreak in this section of the proposed 
rule. For more information on Florida leafwing and Bartram's scrub-
hairstreak taxonomy, life history, habitat, and population 
descriptions, please refer to the proposed listing rule published 
elsewhere in today's Federal Register.
    The Florida leafwing and Bartram's scrub-hairstreak butterflies are 
endemic to south Florida and the lower Florida Keys. Both butterflies 
occur within pine rockland habitat that retain their shared larval 
hostplant, pineland croton (Croton linearis). Historically, these 
subspecies were locally common within pine rocklands of Miami-Dade and 
Monroe Counties, while occurring only sporadically in Collier, Martin, 
Palm Beach, and Broward Counties. The estimated range-wide population 
densities for these butterflies vary considerably from year to year, 
but generally occur in the low hundreds.
    At present, the Florida leafwing is extant only within the Long 
Pine Key (LPK) region of Everglades National Park (ENP). Until 2006 
when it was extirpated, an additional population occurred on Big Pine 
Key (BPK), part of National Key Deer Refuge (NKDR). The Bartram's 
scrub-hairstreak also occurs within the LPK region on ENP, as well as 
locally within conservation lands adjacent to the ENP and in the 
Florida Keys on BPK.
    Although Florida leafwing and Bartram's scrub-hairstreak 
populations occur almost entirely within public conservation lands, 
threats remain from a wide array of natural and human-related sources. 
Habitat loss, fragmentation and degradation, specifically from natural 
fire suppression (combined with limited prescribed burns or mechanical 
clearing), are the most imminent threats to these butterflies and their 
hostplant. The Florida leafwing has been extirpated (no longer in 
existence) from nearly 96 percent of its historical range; the only 
known extant population occurs within ENP in Miami-Dade County. The 
Bartram's scrub-hairstreak has been extirpated from nearly 93 percent 
of its historical range; only five isolated metapopulations remain on 
Big Pine Key in Monroe County, Long Pine Key in ENP, and relict pine 
rocklands adjacent to the ENP in Miami-Dade County.
    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features:
    (a) Essential to the conservation of the species and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are

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essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) essential to the 
conservation of the species, and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific data available, those physical or biological features that 
are essential to the conservation of the species (such as space, food, 
cover, and protected habitat). In identifying those physical and 
biological features within an area, we focus on the principal 
biological or physical constituent elements (primary constituent 
elements such as roost sites, nesting grounds, seasonal wetlands, water 
quality, tide, soil type) that are essential to the conservation of the 
species. Primary constituent elements are the specific elements of 
physical or biological features that provide for a species' life-
history processes and are essential to the conservation of the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. For example, an area currently occupied by the species but 
that was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in the critical habitat 
designation. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range would be inadequate to ensure the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines, provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, other unpublished materials, or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, would continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) section 9 of the Act's prohibitions on taking any 
individual of the species, including taking caused by actions that 
affect habitat. Federally funded or permitted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. These protections and 
conservation tools would continue to contribute to recovery of these 
butterflies if we list the Florida leafwing and the Bartram's scrub 
hairstreak butterflies. Similarly, critical habitat designations made 
on the basis of the best available information at the time of 
designation will not control the direction and substance of future 
recovery plans, habitat conservation plans (HCPs), or other species 
conservation planning efforts if new information available at the time 
of these planning efforts calls for a different outcome.

Prudency Determination for the Florida Leafwing and the Bartram's 
Scrub-Hairstreak Butterflies

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary shall designate critical 
habitat at the time the species is determined to be an endangered or 
threatened species. 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

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    (2) such designation of critical habitat would not be beneficial to 
the species.
    A threat of take attributed to collection under Factor B currently 
exists for both these butterflies. There is evidence that the 
designation of critical habitat could result in an increased threat 
from taking, specifically collection, for both butterflies, through 
publication of maps and a narrative description of specific critical 
habitat units in the Federal Register. However, such information on 
locations of extant Florida leafwing and Bartram's scrub-hairstreak 
populations is already widely available to the public through many 
outlets. Therefore, identification and mapping of critical habitat is 
not expected to initiate any such threat or significantly increase 
existing collection pressure.
    In the absence of finding that the designation of critical habitat 
would increase threats to a species, if any benefits would result from 
a critical habitat designation, then a prudent finding is warranted. 
Here, the potential benefits of designation include: (1) Triggering 
consultation under section 7 of the Act, in new areas for actions in 
which there may be a Federal nexus where it would not otherwise occur 
because, for example, it is or has become unoccupied or the occupancy 
is in question; (2) focusing conservation activities on the most 
essential features and areas; (3) providing educational benefits to 
State or county governments or private entities; and (4) preventing 
people from causing inadvertent harm to the species.
    Therefore, because we have determined that the designation of 
critical habitat will not likely increase the degree of threat to the 
species and may provide some measure of benefit, we find that 
designation of critical habitat is prudent for the Florida leafwing and 
Bartram's scrub-hairstreak butterflies.

Critical Habitat Determinability

    Having determined that designation of critical habitat is prudent, 
under section 4(a)(3) of the Act we must find whether critical habitat 
for the Florida leafwing and Bartram's scrub-hairstreak butterflies is 
determinable. Our regulations at 50 CFR 424.12(a)(2) state that 
critical habitat is not determinable when one or both of the following 
situations exist:
    (i) Information sufficient to perform required analyses of the 
impacts of the designation is lacking; or
    (ii) The biological needs of the species are not sufficiently well 
known to permit identification of an area as critical habitat.
    We reviewed the available information pertaining to the biological 
needs of the butterflies and habitat characteristics where the 
butterflies are located. This and other information represent the best 
scientific data available and led us to conclude that the designation 
of critical habitat is determinable for the Florida leafwing and 
Bartram's scrub-hairstreak butterflies.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological 
features (PBFs) that are essential to the conservation of the species 
and which may require special management considerations or protection. 
These include, but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derived the specific PBFs for the Florida leafwing and Bartram's 
scrub-hairstreak butterflies from studies of both of the butterflies' 
habitat, ecology, and life histories as described below--(see Habitat 
and Life History section of our proposed listing rule published 
elsewhere in today's Federal Register).

Florida Leafwing Butterfly

Space for Individual and Population Growth and for Normal Behavior
    The Florida leafwing occurs within pine rockland habitat, and 
occasionally associated rockland hammock interspersed in these 
pinelands, throughout their entire lifecycle. Description of these 
communities and associated native plant species are provided in the 
Status Assessment for the Florida Leafwing and Bartram's Scrub-
hairstreak Butterflies section in the proposed listing rule elsewhere 
in today's Federal Register. The lifecycle of the Florida leafwing 
occurs entirely within the pine rockland habitat, and in some instances 
associated rockland hammocks (Salvato and Salvato 2008, p. 246; 2010a, 
p. 96; Minno, pers. comm. 2009). At present, the Florida leafwing is 
extant within ENP and, until 2006, had occurred on Big Pine Key in the 
Florida Keys and historically in pineland fragments on mainland Miami-
Dade County (Smith et al. 1994, p. 67; Salvato and Salvato 2010a, p. 
91; 2010c, p. 139), the smallest viable population being Navy Wells 
Pineland Preserve (120 hectares (ha) (296 acres (ac)). The Florida 
leafwing was only sporadic in occurrence north of Miami-Dade County 
(Smith et al. 1994, p. 67; Salvato and Hennessey 2003, p. 243). Studies 
indicate butterflies are capable of dispersing throughout the 
landscape, sometimes as far as 5 kilometers (km) (3 miles (mi)), 
utilizing high-quality habitat patches (Davis et al. 2007, p. 1351; 
Bergman et al. 2004, p. 625). The Florida leafwing, with its strong 
flight abilities, can disperse to make use of appropriate habitat in 
ENP (Salvato and Salvato 2010a, p. 95). At present, ongoing surveys 
suggest the leafwing actively disperses throughout the Long Pine Key 
region of ENP (Salvato and Salvato 2010, p. 91; 2010c, p. 139). 
However, once locally common at Navy Wells Pineland Preserve and the 
Richmond Pine Rocklands (which occur approximately 8 and 27 km (5 and 
17 mi)) to the northeast of ENP, respectively), leafwings are not known 
to have bred at either location in over 25 years (Salvato and Hennessey 
2003, p. 243; Salvato pers. comm. 2012). Therefore, based on the 
information above, we identify pine rockland habitats and associated 
rockland hammock that are at least 120 ha (296 ac) in size to be a PBF 
for this butterfly.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    The Florida leafwing is dependent on pine rocklands that retain the 
butterfly's sole hostplant, pineland croton (Hennessey and Habeck 1991, 
pp. 13-17; Smith et al. 1994, p. 67; Worth et al. 1996, pp. 64-65). The 
immature stages of this butterfly feed on the croton for development 
(Worth et al. 1996, pp. 64-65; Minno et al. 2005, p. 115). Adult 
Florida leafwings will feed on tree sap, take minerals from mud, and 
occasionally visit flowers within the pine rockland (Lenczewski 1980, 
p. 17; Salvato and Salvato 2008, p. 326; Salvato and Salvato 2010a, p. 
96). Therefore, based on the information above, we identify pine 
rockland and associated rockland hammocks, specifically those 
containing pineland croton and other herbaceous vegetation typical of 
these plant communities, which fulfill the larval development and adult 
dietary requirements of the

[[Page 49836]]

Florida leafwing, to be a PBF for the Florida leafwing.
Cover or Shelter
    Immature stages of the Florida leafwing occur entirely on the 
hostplant, pineland croton. Adult Florida leafwing disperse and roost 
within the pine rockland canopy, and also in rockland hammock 
vegetation interspersed within these pinelands. Because of their use of 
the croton and their choice of roosting sites, the former Florida 
leafwing population on Big Pine Key may have been deleteriously 
impacted by exposure to seasonal pesticide applications designed to 
control mosquitoes. The potential for mosquito control chemicals to 
drift into nontarget areas on the island and to persist for varying 
periods of time has been well documented (Hennessey and Habeck 1989, 
pp. 1-22; 1991, pp. 1-68; Hennessey et al. 1992, pp. 715-721; Pierce 
2009, pp. 1-17). If exposed, studies have indicated that both immature 
and adult butterflies could be affected (Zhong et al. 2010, pp. 1961-
1972; Bargar 2012, pp. 1-7). Truck-applied pesticides were found to 
drift considerable distances from target areas with residues that 
persisted for weeks on the hostplant (Pierce 2009, pp. 1-17), possibly 
threatening larvae. Salvato (2001, p. 13) suggested that adult Florida 
leafwing were particularly vulnerable to aerial applications based on 
their tendency to roost within the pineland canopy, an area with 
maximal exposure to such treatments. Therefore, based on the 
information above, we identify pine rocklands, and associated rockland 
hammock communities with pineland croton for larval development and 
ample roosting sites for adults and limited or restricted pesticide 
application, to be a PBF for this subspecies.
Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring
    The Florida leafwing, with its strong flight abilities, can 
disperse to make use of appropriate habitat in ENP (Salvato and Salvato 
2010a, p. 95). Reproduction and larval development occur entirely 
within the pine rocklands. The Florida leafwing is multivoltine (i.e., 
produces multiple generations per year), with an entire life cycle of 
about 2 to 3 months (Hennessey and Habeck 1991, p. 17) and maintains 
continuous broods throughout the year (Baggett 1982, pp. 78-79; Salvato 
1999, p. 121). Natural history studies by Salvato and Salvato (2012, p. 
1) indicate that the extant Florida leafwing population within Long 
Pine Key experiences up to 80 percent mortality amongst immature larval 
stages from parasites. All parasitic mortality noted for the Florida 
leafwing by Salvato and Salvato (2012, pp. 1-3) has been from native 
species; however, mortality from both native and nonnative predators 
has been observed. Therefore, based on the information above, we 
identify pine rockland and associated rockland hammocks, specifically 
those containing pineland croton and other herbaceous vegetation 
typical of these plant communities, with limited nonnative predation, 
which fulfill the larval development and adult reproductive 
requirements of the Florida leafwing, to be a PBF for this subspecies.
    Pine rockland native vegetation includes, but is not limited to, 
canopy vegetation dominated by slash pine (Pinus elliottii var. densa); 
subcanopy vegetation that may include but is not limited to saw 
palmetto (Serenoa repens), cabbage palm (Sabal palmetto), silver palm 
(Coccothrinax argentata), brittle thatch palm (Thrinax morrisii), wax 
myrtle (Myrica cerifera), myrsine (Rapanea punctata), poisonwood 
(Metopium toxiferum), locustberry (Byrsonima lucida), varnishleaf 
(Dodonaea viscosa), tetrazygia (Tetrazygia bicolor), rough velvetseed 
(Guettarda scabra), marlberry (Ardisia escallonioides), mangrove berry 
(Psidium longipes), willow bustic (Sideroxylon salicifolium), and 
winged sumac (Rhus copallinum). Short-statured shrubs that may include 
but are not limited to a subcanopy with running oak (Quercus 
elliottii), white indigoberry (Randia aculeata), Christmas berry 
(Crossopetalum ilicifolium), redgal (Morinda royoc), and snowberry 
(Chiococca alba); and understory vegetation that may include but is not 
limited to bluestem (Andropogon spp., Schizachyrium gracile, S. 
rhizomatum, and S. sanguineum), arrowleaf threeawn (Aristida 
purpurascens), lopsided indiangrass (Sorghastrum secundum), hairawn 
muhly (Muhlenbergia capillaris), Florida white-top sedge (Rhynchospora 
floridensis), pineland noseburn (Tragia saxicola), devil's potato 
(Echites umbellata), pineland croton, several species of sandmats 
(Chamaesyce spp.), partridge pea (Chamaecrista fasciculata), coontie 
(Zamia pumila), and maidenhair pineland fern (Anemia adiantifolia). 
Rockland hammock native vegetation includes, but is not limited to, a 
canopy vegetated by gumbo limbo (Bursera simaruba), false tamarind 
(Lysiloma latisiliquum), paradisetree (Simarouba glauca), black 
ironwood (Krugiodendron ferreum), lancewood (Ocotea coriacea), Jamaican 
dogwood (Piscidia piscipula), West Indies mahogany (Swietenia 
mahagoni), willow bustic (Sideroxylon salicifolium), inkwood (Exothea 
paniculata), strangler fig (Ficus aurea), pigeon plum (Coccoloba 
diversifolia), poisonwood (Metopium toxiferum), buttonwood (Conocarpus 
erectus), blolly (Guapira discolor), and devil's claw (Pisonia spp.); 
subcanopy vegetation that may include but is not limited to Spanish 
stopper (Eugenia foetida), Thrinax (Amyris elemifera), marlberry 
(Ardisia escallonioides), wild coffee (Psychotria nervosa), Sabal, 
gumbo limbo (Guaiacum sanctum), hog plum (Ximenia americana), and 
Colubrina; and understory vegetated that may include but is not limited 
to Zamia pumila, barbed-wire cactus (Acanthocereus tetragonus), and 
basket grass (Oplismenus hirtellus).
Habitats Protected From Disturbance or Representative of the 
Historical, Geographic, and Ecological Distributions of the Subspecies
    The Florida leafwing continues to occur in habitats that are 
protected from human-generated disturbances and are only partially 
representative of the butterflies' historical, geographical, and 
ecological distribution because its range within these habitats has 
been reduced. The subspecies is still found in its representative plant 
communities of pine rocklands and associated rockland hammocks. 
Representative plant communities are located on Federal, State, local, 
and private conservation lands that implement conservation measures 
benefitting the butterflies.
    Pine rockland is dependent on some degree of disturbance, most 
importantly from natural or prescribed fires (Loope and Dunevitz 1981, 
p. 5; Snyder et al. 2005, p. 1; Bradley and Saha 2009, p. 4; Saha et 
al. 2011, pp. 169-184; Florida Natural Areas Inventory (FNAI) 2010, p. 
1). These fires are a vital component in maintaining native vegetation, 
such as croton, within this ecosystem. Without fire, successional 
climax from tropical pineland to rockland hammock is too rapid, and 
displacement of native species by invasive nonnative plants often 
occurs.
    The Florida leafwing, as with other subtropical butterflies, have 
adapted over time to the influence of tropical storms and other forms 
of adverse weather conditions (Minno and Emmel 1994, p. 671; Salvato 
and Salvato 2007, p. 154). Hurricanes and other significant weather 
events create openings in the pine rockland habitat (FNAI 2010, p. 3) 
However, given the substantial reduction in the historical range of the 
butterfly in the past 50 years, the threat

[[Page 49837]]

and impact of tropical storms and hurricanes on their remaining 
populations is much greater than when their distribution was more 
widespread (Salvato and Salvato 2010a, p. 96; 2010c, p. 139). 
Therefore, based on the information above, we identify disturbance 
regimes natural or prescribed to mimic natural disturbances, such as 
fire, to be a PBF for this subspecies.

Primary Constituent Elements for the Florida Leafwing Butterfly

    According to 50 CFR 424.12(b), we are required to identify the PBFs 
essential to the conservation of the Florida leafwing in areas occupied 
at the time of listing, focusing on the features' primary constituent 
elements (PCEs). We consider PCEs to be specific elements of the PBFs 
that provide for a species' life-history processes and are essential to 
the conservation of the species.
    The Florida leafwing is dependent upon functioning pine rockland 
habitat to provide its fundamental life requirements, such as pineland 
croton for larval development, food sources and roosting areas required 
by adult butterflies. Based on our current knowledge of the PBFs and 
habitat characteristics required to sustain the butterfly's life-
history processes, we determine that the PCEs for the Florida leafwing 
are:
    (1) Areas of pine rockland habitat, and in some locations, 
associated rockland hammocks.
    (a) Pine rockland habitat contains:
    (i) Open canopy, semi-open subcanopy, and understory;
    (ii) Substrate of oolitic limestone rock; and
    (iii) A plant community of predominately native vegetation.
    (b) Rockland hammock habitat associated with the pine rocklands 
contains:
    (i) Canopy gaps and edges with an open to semi-open canopy, 
subcanopy, and understory; and
    (ii) Substrate with a thin layer of highly organic soil covering 
limestone or organic matter that accumulates on top of the underlying 
limestone rock; and
    (iii) A plant community of predominately native vegetation.
    (2) Competitive nonnative plant species in quantities low enough to 
have minimal effect on survival of the Florida leafwing.
    (3) The presence of the butterfly's hostplant, pineland croton, in 
sufficient abundance for larval recruitment, development, and, food 
resources, and for adult butterfly roosting habitat, and reproduction.
    (4) A dynamic natural disturbance regime or one that artificially 
duplicates natural ecological processes (e.g. fire, hurricanes or other 
weather events, at 3- to 5-year intervals) that maintains the pine 
rockland habitat and associated plant community.
    (5) Pine rockland habitat and associated plant community that are 
sufficient in size to sustain viable Florida leafwing populations.
    (6) Pine rockland habitat with levels of pesticide low enough to 
have minimal effect on the survival of the butterfly or its ability to 
occupy the habitat.

Special Management Considerations or Protection for the Florida 
Leafwing Butterfly

    When designating critical habitat, we assess whether the specific 
areas within the geographic areas occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protections. The features essential to the conservation of this species 
may require special management considerations or protection to reduce 
the following threats:
    Habitat Destruction and Modification by Development--The Florida 
leafwing has experienced substantial destruction, modification, and 
curtailment of its habitat and range. The pine rockland community of 
south Florida, on which both the butterfly and its hostplant depend, is 
critically imperiled globally (FNAI 2012, p. 27). Destruction of the 
pinelands for economic development has reduced this habitat community 
by 90 percent on mainland south Florida (O'Brien 1998, p. 208). All 
known mainland populations of the Florida leafwing occur on publicly 
owned land that is managed for conservation, ameliorating some of the 
threat. However, any unknown extant populations of the butterfly or 
suitable habitat that may occur on private land or non-conservation 
public land are vulnerable to habitat loss. In Miami-Dade County, 
occupied Florida leafwing habitat occurs in the Long Pine Key region of 
ENP and is actively managed by the National Park Service (NPS) for the 
Florida leafwing and the pine rockland ecosystem, in general.
    Sea Level Rise--Various model scenarios developed at the 
Massachusetts Institute of Technology (MIT) have projected possible 
trajectories of future transformation of the south Florida landscape by 
2060 based upon four main drivers: Climate change, shifts in planning 
approaches and regulations, human population change, and variations in 
financial resources for conservation (Vargas-Moreno and Flaxman 2010, 
pp. 1-6). The Service used various MIT scenarios in combination with 
extant and historical Florida leafwing occurrences, and remaining 
hostplant-bearing pine rocklands to predict climate change impacts to 
the butterfly and its habitat.
    In the best case scenario, which assumes low sea level rise, high 
financial resources, proactive planning, and only trending human 
population growth, analyses suggest that the extant Florida leafwing 
population within ENP is susceptible to future losses, with losses 
attributed to increases in sea level and human population. In the worst 
case scenario, which assumes high sea level rise, low financial 
resources, a ``business as usual'' approach to planning, and a doubling 
of human population, the habitat at Long Pine Key may be lost resulting 
in the complete extirpation of the Florida leafwing. Actual impacts may 
be greater or less than anticipated based upon high variability of 
factors involved (e.g., sea level rise, human population growth) and 
assumptions made. Being proactive to address sea level rise may be 
beyond the feasibility of land owners or managers. However, while land 
owners or land managers may not be able to be proactive in preventing 
these events, they may be able to respond with management or 
protection. Management actions or activities that could ameliorate sea 
level rise include providing protection of suitable habitats unaffected 
or less affected by sea level rise.
    Lack of Natural or Prescribed Fires--The threat of habitat 
destruction or modification is further exacerbated by lack of 
prescribed fire and suppression of natural fires (Salvato and Salvato 
2010a, p. 91; 2010c, p. 139). Historically, lightning-induced fires 
were a vital component in maintaining native vegetation within the pine 
rockland ecosystem, including pineland croton (Loope and Dunevitz 1981, 
p. 5; Slocum et al. 2003, p. 93; Snyder et al. 2005, p. 1; Salvato and 
Salvato 2010b, p. 154). Resprouting after burns is the primary 
mechanism allowing for the persistence of perennial shrubs, including 
pineland croton, in pine habitat (Olson and Platt 1995, p. 101). 
Without fire, perennial native vegetation can be displaced by invasive 
nonnative plants.
    In recent years, ENP has used partial and systematic prescribed 
burns to treat the Long Pine Key pine rocklands in

[[Page 49838]]

their entirety over a 3-year window (National Park Service 2005, p. 
27). These methods attempt to burn adjacent pine rockland habitats 
alternately. In addition, refugia (i.e., unburned areas of croton 
hostplant) have been included as part of burns conducted within 
occupied butterfly habitat, wherever possible (R. Anderson, pers. comm. 
2011). Providing refugia directly within (as well as adjacent to) the 
treatment area during prescribed burn activities may substantially 
increase the potential for the Florida leafwing to recolonize recently 
burned areas and to remain within or near the fire-treated pineland. 
Outside of ENP, Miami-Dade County has implemented various conservation 
measures, such as burning in a mosaic pattern and on a small scale, 
during prescribed burns to protect the butterfly (Maguire, pers. comm. 
2010).
    Fire management of pine rocklands in NKDR is hampered by the 
pattern of land ownership and development; residential and commercial 
properties are embedded within or in close proximity to pineland 
habitat (Snyder et al. 2005, p. 2; C. Anderson, pers. comm. 2012a). 
Ongoing management activities designed to ameliorate this threat 
include the use of small-scale prescribed burns or mechanical clearing 
to maintain the native vegetative structure in the pine rockland 
required by the subspecies.
    Hurricanes and Storm Surge--The Florida leafwing, as with other 
subtropical butterflies, have adapted over time to the influence of 
tropical storms and other forms of adverse weather conditions (Minno 
and Emmel 1994, p. 671; Salvato and Salvato 2007, p. 154). Hurricanes 
and other significant weather events create openings in the pine 
rockland habitat (FNAI 2010, p. 3). However, given the substantial 
reduction in the historical range of the butterfly in the past 50 
years, the threat and impact of tropical storms and hurricanes on their 
remaining populations is much greater than when their distribution was 
more widespread (Salvato and Salvato 2010a, p. 96; 2010c, p. 139). 
While land owners or land managers may not be able to be proactive in 
preventing these events, they may be able to respond with management or 
protection resulting from these threats. Management actions or 
activities that could enhance pine rockland recovery following tropical 
storms include hand removal of damaged vegetation, as well as by other 
mechanical means or prescribed fire.
    Mosquito Control Pesticide Applications--Efforts to control salt 
marsh mosquitoes, Aedes taeniorhynchus, among others, have increased as 
human activity and population have increased in south Florida. To 
control mosquito populations, second-generation organophosphate (naled) 
and pyrethroid (permethrin) adulticides are applied by mosquito control 
districts throughout south Florida. The use of such pesticides (applied 
using both aerial and ground-based methods) for mosquito control 
presents a potential risk to nontarget species, such as the Florida 
leafwing. Mosquito control pesticides use within Miami-Dade County pine 
rockland areas is limited (approximately 2 to 4 times per year, and 
only within a portion of proposed critical habitat) (Vasquez, pers. 
comm. 2013) and no spraying is conducted in Long Pine Key within ENP.
    Pesticide spraying practices by the Mosquito Control District at 
NKDR have changed to reduce pesticide use over the years. Since 2003 
expanded larvicide treatments to surrounding islands have significantly 
reduced adulticide use on BPK, No Name Key, and the Torch Keys. In 
addition, the number of aerially applied naled treatments allowed on 
NKDR has been limited since 2008 (Florida Key Mosquito Control District 
2012, pp. 10-11). No spray zones that include the core habitat used by 
pine rockland butterflies and several linear miles of pine rockland 
habitat within the Refuge-neighborhood interface were excluded from 
truck spray applications (C. Anderson, pers. comm. 2012a; Service 2012, 
p. 32). These exclusions and buffer zones encompass over 95 percent of 
extant croton distribution on Big Pine Key, and include the majority of 
known extant and historical Florida leafwing population centers on the 
island (Salvato, pers. comm. 2012). However, some areas of pine 
rocklands within NKDR are still sprayed with naled (aerially applied 
adulticide), and buffer zones remain at risk from drift; additionally, 
private residential areas and roadsides across Big Pine Key are treated 
with permethrin (ground-based applied adulticide) (Salvato 2001, p. 
10). Therefore, the hairstreak and, if extant, the leafwing and their 
habitat on Big Pine Key may be directly or indirectly (via drift) 
exposed to adulticides used for mosquito control at some unknown level.

Criteria Used To Identify Critical Habitat for the Florida Leafwing 
Butterfly

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b) we 
review available information pertaining to the habitat requirements of 
the species and identify occupied areas at the time of listing that 
contain the features essential to the conservation of the species. If, 
after identifying currently occupied areas, a determination is made 
that those areas are inadequate to ensure conservation of the species, 
in accordance with the Act and our implementing regulations at 50 CFR 
424.12(e), we then consider whether designating additional areas--
outside those currently occupied--are essential for the conservation of 
the species. As discussed above we are proposing to designate critical 
habitat in areas within the geographical area presently occupied by the 
species, i.e., occupied at the time of listing. We also are proposing 
to designate specific areas outside the geographical area occupied by 
the species at the time of listing but that were historically occupied, 
because such areas are essential for the conservation of the species.
    Small butterfly populations with limited, fragmented distributions, 
such as the Florida leafwing, are highly vulnerable to localized 
extirpations (Schulz and Hammond 2003, pp. 1377, 1379; Frankham 2005, 
pp. 135-136). Historical populations of endangered south Florida 
butterflies such as the Miami blue (Saarinen 2009, p. 79) and Schaus 
swallowtail (Daniels and Minno 2012, p. 2), once linked, now are 
subject to the loss of genetic diversity from genetic drift, the random 
loss of genes, and inbreeding. In general, isolation, whether caused by 
geographic distance, ecological factors, or reproductive strategy, will 
likely prevent the influx of new genetic material and can result in a 
highly inbred population with low viability and, or fecundity (Chesser 
1983, p. 68). Fleishman et al. (2002, pp. 706-716) indicated that 
factors such as habitat quality may influence metapopulation dynamics 
of butterflies, driving extinction and colonization processes, 
especially in systems that experience substantial natural and 
anthropogenic environmental variability. In addition, natural 
fluctuations in rainfall, hostplant vigor, or butterfly predators may 
weaken a population to such an extent that recovery to a viable level 
would be impossible. Isolation of habitat can prevent recolonization 
from other sites and result in extinction. Because of the dangers 
associated with small populations or limited distributions, the 
recovery of many rare butterfly species includes the creation of new 
sites or reintroductions within the historical range to ameliorate 
these effects.
    When designating critical habitat, we consider future recovery 
efforts and

[[Page 49839]]

conservation of the species. We have determined that all currently 
known occupied habitat should be proposed for critical habitat 
designation. However, realizing that the current occupied habitat is 
not adequate for the conservation of the Florida leafwing, we used 
habitat and historical occurrence data to identify unoccupied habitat 
essential for the conservation of the subspecies.
    Only one extant Florida leafwing population remains (Salvato and 
Salvato 2010c, p. 139). Population estimates for the Florida leafwing 
are estimated to be only several hundred or fewer at any given time. 
Although this population occurs on conservation lands, management and 
law enforcement are limited. We believe it is necessary for 
conservation that additional populations of the Florida leafwing be 
established within its historical range. Therefore, we have proposed 
three unoccupied areas for designation as critical habitat, one on Big 
Pine Key within the Florida Keys, and two others on the mainland within 
Miami-Dade County, where the Florida leafwing was historically 
recorded, but has since been extirpated.
    The Miami-Dade County proposed critical habitat areas are large 
pine rockland fragments (Navy Wells Pineland Preserve) or contiguous 
fragments (Richmond Pine Rocklands), which we believe provide the 
minimal habitat size (at least 120 ha (296 ac)) required for the 
subspecies to persist. The Florida leafwing was known to occur at Navy 
Wells Pineland Preserve within the past 25 years (Smith et al. 1994, p. 
67). Although causes for the Florida leafwing's subsequent 
disappearance from Navy Wells are unknown, we believe that, with proper 
management and restoration efforts (consistent prescribed fire and 
habitat enhancement), the butterfly, given its strong flight abilities 
will be able to recolonize both this and the Richmond Pine Rockland 
area. The one critical habitat unit on Big Pine Key in the Florida Keys 
we are proposing is a former stronghold for the subspecies (Smith et 
al. 1994, p. 67; Salvato and Salvato 2010c, p. 39), where appropriate 
hostplant-bearing habitat was historically recorded, but has since 
become degraded and unsuitable for butterfly use. Here also, we believe 
that, following habitat restoration activities (vegetation and fire 
management), the Florida leafwing may be able to be reestablished on 
this site, thereby returning a vital metapopulation of the subspecies 
to the Florida Keys.
    The current distribution of the Florida leafwing is much reduced 
(90 percent) from its historical distribution. We anticipate that 
recovery will require continued protection of the remaining extant 
population and habitat, as well as establishing populations in 
additional areas that more closely approximate its historical 
distribution in order to ensure there are adequate numbers of 
butterflies in stable populations and that these populations occur over 
a wide geographic area. This will help to ensure that catastrophic 
events, such as storms, cannot simultaneously affect all known 
populations.
    To determine the location and boundaries of critical habitat, the 
Service used the following sources of information and considerations:
    (1) Historical and current records of Florida leafwing occurrence 
and distribution found in publications, reports, and associated voucher 
specimens housed at museums and private collections;
    (2) Institute for Regional Conservation (IRC) and Fairchild 
Tropical Gardens (FTG) geographic information system (GIS) data showing 
the location and extent of documented occurrences of the pine rockland 
habitat with pineland croton;
    (3) Reports prepared by ecologists, biologists, and botanists with 
the IRC, ENP, FTG, and Service assessing the current and historic 
distribution of pine rockland habitat and pineland croton. Some of 
these were funded by the Service; others were requested or volunteered 
by biologists with the Service, NPS, or IRC; and
    (4) Historical records of pineland croton found in publications, 
reports and associated voucher specimens housed at herbaria, all of 
which are also referenced in the above mentioned reports from the IRC 
and cited publications.

Area Occupied at the Time of Listing

    The one occupied critical habitat unit was delineated around the 
only remaining extant Florida leafwing population. This unit includes 
the mapped extent of the population that contains one or more of the 
elements of the PBFs.
    The delineation included space to allow for the successional nature 
of the occupied pine rockland habitat, the habitat being one of the 
elements of the PBFs. While suitable, at any one time, only a portion 
of this habitat is optimal for the Florida leafwing and the size and 
location of optimal areas is successional over time, being largely 
driven by the frequency and scale of natural or prescribed fires or 
other disturbances such as storms. Correspondingly the abundance and 
distribution of pineland croton within the pine rockland habitat varies 
greatly from time to time depending on habitat changes because of these 
events. Although prescribed burns are administered on the conservation 
land that retains the Florida leafwing population, fire return 
intervals and scope are inconsistent. As a result, areas within the 
pine rockland habitat supporting the subspecies may not always provide 
optimal habitat for the butterfly in the future as natural or 
prescribed burns, fire suppression or other disturbances removes or 
fragments hostplant distribution. Conversely, changes in hostplant 
distribution over time following fires or other disturbances, may allow 
the butterfly to return, expand, and colonize areas with shifting 
hostplant populations.
    The delineation also included space to plan for the persistence of 
the current Florida leafwing population in the face of imminent effects 
on habitats as a result of sea level rise. Although currently occupied 
and containing the elements of PBFs, this area may be altered as a 
result of vegetation shifts or salt water intrusion, to an extent to 
which cannot be predicted at this time.

Areas Outside of the Geographic Range at the Time of Listing

    The Florida leafwing has been extirpated from several locations 
where it was previously recorded. We are proposing three critical 
habitat units for those that are well-documented as historically 
occupied and are essential to the conservation of the subspecies. As it 
is not always possible to identify the exact location where a specimen 
was collected, we used the best available descriptions to determine 
likely locales, but ultimately were guided by the location of remaining 
pine rockland habitats.
    In identifying these areas we considered additional refining 
criteria:
    (1) Areas of sufficient size to support ecosystem processes for 
populations of the Florida leafwing. The historical distribution of the 
Florida leafwing appeared limited to large pine rocklands parcels 120 
ha (296 ac) or greater. For many years the leafwing persisted at Navy 
Wells, which has an area of 120 ha (296 ac), long after being 
extirpated from everywhere else in Miami-Dade County that was smaller 
in area. The only other leafwing populations that occurred outside of 
the Everglades in the past 25 years were those in the Richmond Pine 
Rocklands and Big Pine Key, which have approximately 900 and 1,400 
acres of pine rocklands, respectively. So we believe appropriately-
sized units should be at a minimum the size of the Navy Wells

[[Page 49840]]

(i.e., 120 ha (296 ac). Large contiguous parcels of habitat are more 
likely to be resilient to ecological processes of disturbance and 
succession, and support viable populations of the Florida leafwing. The 
unoccupied areas selected were at least 120 ha (296 ac) or greater in 
size.
    (2) Areas to maintain connectivity of habitat to allow for 
population expansion. Isolation of habitat can prevent recolonization 
of the Florida leafwing and result in extinction. Because of the 
dangers associated with small populations or limited distributions, the 
recovery of many rare butterfly species includes the creation of new 
sites or reintroductions to ameliorate these effects.
    (3) Areas once restored will allow the Florida leafwing to disperse 
and recolonize and in some instances, may be able to support expansion 
and a larger number of the subspecies either through reintroduction or 
expansion from areas already occupied by the butterfly. These areas 
generally are habitats within or adjacent to pine rocklands that have 
been affected by natural or anthropogenic impacts but retain areas that 
are still suitable for the butterfly or that could be restored. These 
areas would help to offset the anticipated loss and degradation of 
habitat occurring or expected from the effects of climate change (such 
as sea level rise) or due to development.
    In summary, for areas within the geographic area occupied by the 
subspecies at the time of listing, we delineated the critical habitat 
unit boundaries by evaluating habitat suitability of pine rockland 
habitat within the geographic area occupied at the time of listing 
(current), and retained those areas that contain some or all of the 
PCEs to support life-history functions essential for conservation of 
the subspecies.
    In summary, for areas outside the geographic area occupied by the 
species at the time of listing, but that are within the historical 
range of the species, we determined that they are essential to the 
survival and recovery of the species. These areas are essential for the 
conservation of the species because they:
    (1) Provide sufficient size to support ecosystem processes for 
populations of the Florida leafwing;
    (2) Maintain connectivity of habitat to allow for population 
expansion; and
    (3) Once restored will allow the Florida leafwing to expand 
throughout its historical range.
    We conclude that the areas proposed for critical habitat provide 
for the conservation of the Florida leafwing because they include 
habitat for all of the one remaining extant population. Further, the 
current amount of habitat that is occupied is not sufficient for the 
recovery of the subspecies; therefore, we included unoccupied habitat 
in this proposed critical habitat designation which is essential for 
the long-term conservation of the species.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures. The scale of the maps we 
prepared under the parameters for publication within the Code of 
Federal Regulations may not reflect the exclusion of such developed 
lands. Any such lands inadvertently left inside critical habitat 
boundaries shown on the maps of this proposed rule have been excluded 
by text in the proposed rule and are not proposed for designation as 
critical habitat. Therefore, if the critical habitat is finalized as 
proposed, a Federal action involving these lands would not trigger 
section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the PBFs in the adjacent critical habitat.
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the rule portion. We include more detailed information 
on the boundaries of the critical habitat designation in the preamble 
of this document. We will make the coordinates or plot points or both 
on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0031, on our Internet 
sites www.fws.gov/verobeach/, and at the field office responsible for 
the designation (see FOR FURTHER INFORMATION CONTACT above).

Proposed Critical Habitat Designation for the Florida Leafwing 
Butterfly

    One of the four critical habitat units (FLB1) proposed for the 
Florida leafwing is currently designated as critical habitat under the 
Act for the Cape Sable seaside sparrow (Ammodramus maritimus mirabilis) 
(50 CFR 17.95(b)). No other critical habitat units proposed for this 
subspecies have been designated as critical habitat for other species 
under the Act.
    The critical habitat areas we describe below constitute our current 
best assessment of areas that meet the definition of critical habitat 
for the Florida leafwing. The four areas we propose as critical habitat 
are: (1) FLB1 Everglades National Park, Miami-Dade County, Florida, (2) 
(FLB2) Navy Wells Pineland Preserve, Miami-Dade County, Florida, (3) 
(FLB3) Richmond Pine Rocklands, Miami-Dade County, Florida, and (4) 
(FLB4) Big Pine Key, Monroe County, Florida. Land ownership within the 
proposed critical habitat consists of Federal (81 percent), State (4 
percent), and private and other (15 percent). Table 1 shows these units 
by land ownership, area, and occupancy.

                                           Table 1--Florida Leafwing Butterfly Proposed Critical Habitat Units
--------------------------------------------------------------------------------------------------------------------------------------------------------
               Unit No.                       Unit name                Ownership           Percent      Hectares      Acres             Occupied
--------------------------------------------------------------------------------------------------------------------------------------------------------
FLB1.................................  Everglades National      Federal................          100        2,313        5,716  yes.
                                        Park.
                                                                Total..................          100        2,313        5,716
--------------------------------------------------------------------------------------------------------------------------------------------------------
FLB2.................................  Navy Wells Pineland      State..................           29           35           85  no.
                                        Preserve.
                                                                Private-Other..........           71           85          211
                                                                Total..................          100          120          296
--------------------------------------------------------------------------------------------------------------------------------------------------------
FLB3.................................  Richmond Pine Rocklands  Federal................           14           50          122  no.
                                                                Private-Other..........           86          309          767
                                                                Total..................          100          359          889
--------------------------------------------------------------------------------------------------------------------------------------------------------
FLB4.................................  Big Pine Key...........  Federal................           65          365          901  no.
                                                                State..................           16           90          223
                                                                Private-Other..........           19          104          258
                                                               ----------------------------------------------------------------

[[Page 49841]]

 
                                                                Total..................          100          559        1,382
--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Total All Units                         Federal................           81        2,728        6,739
                                                                State..................            4          125          308
                                                                Private-Other..........           15          498        1,236
                                                                All....................          100        3,351        8,283
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for the Florida leafwing, 
below.

Unit FLB1: Everglades National Park, Miami-Dade County, Florida

    Unit FLB1 consists of 2,313 ha (5,716 ac) in Miami-Dade County. 
This unit is composed entirely of lands in Federal ownership, 100 
percent of which are located within the Long Pine Key region of ENP. 
This unit is currently occupied and contains all the PBFs, including 
suitable habitat (pine rockland habitat of sufficient size), hostplant 
presence, natural or artificial disturbance regimes, low levels of 
nonnative vegetation and larval parasitism, and restriction of 
pesticides required by the subspecies, and contains the PCE of pine 
rockland. The PBFs in this unit may require special management 
considerations or protection to address threats of fire suppression, 
habitat fragmentation, poaching, and sea level rise. However, in most 
cases these threats are being addressed or coordinated with the ENP to 
implement needed actions.
    For instance, ENP is currently in the process of updating its fire 
management plan (FMP) and environmental assessment which will assess 
the impacts of fire on various environmental factors, including listed, 
proposed, and candidate species (Land, pers. comm. 2011; Sadle, pers. 
comm. 2013a). ENP is actively coordinating with the Service, as well as 
other members of the Imperiled Butterfly Working Group (IBWG) to review 
and adjust the prescribed burn practices outlined in the FMP to help 
maintain or increase Florida leafwing population sizes, protect pine 
rocklands, expand or restore remnant patches of hostplants, and ensure 
that short-term negative effects from fire (i.e., loss of hostplants, 
loss of eggs and larvae) can be avoided or minimized.

Unit FLB2: Navy Wells Pineland Preserve, Miami-Dade County, Florida

    Unit FLB2 consists of 120 ha (296 ac) in Miami-Dade County. This 
unit is comprised entirely of conservation lands located within the 
Navy Wells Pineland Preserve which is jointly owned by Miami-Dade 
County (85 ha (211 ac)) and the State (35 ha (85 ac)). State lands are 
interspersed within Miami-Dade County Parks and Recreation Department 
lands which are managed for conservation. This unit is bounded on the 
north by SW 348 Street and on the south by SW 360 Street; on the east 
by State Road 9336 and on the west by the vicinity of SW 2002 Avenue.
    This unit was occupied historically by the Florida leafwing. This 
unit is not currently occupied but is essential to the conservation of 
the subspecies because it serves to protect habitat needed to recover 
the subspecies, reestablish wild populations within the historical 
range of the subspecies, and maintain populations throughout the 
historic distribution of the subspecies in Miami-Dade County, and 
provides habitat for recovery in the case of stochastic events if the 
butterfly is extirpated from the one location where it is presently 
found.

Unit FLB3: Richmond Pine Rocklands Miami-Dade County, Florida

    Unit FLB3 consists of 359 ha (889 ac) in Miami-Dade County. This 
unit is comprises of lands in Federal (U.S. Coast Guard (Homeland 
Security) (29 ha (72 ac)), U.S. Army Corps of Engineers (Department of 
Defense (DoD) (8 ha (20 ac)), National Oceanic Atmospheric 
Administration (NOAA) (4 ha (9 ac)), Federal Bureau of Prisons 
(Department of Justice (DoJ) (9 ha (21 ac)), and private or other (309 
ha (767 ac)) ownership. This unit is bordered on the north by Coral 
Reef Road and on the south by SW 168 Street; on the east by SW 117 
Avenue and on the west by US1; then resumes bordered on the north by 
Coral Reef Road and on the south by SW 184 Street; on the east by US1 
and on the west by SW 137 Avenue.
    The unit was occupied historically by the Florida leafwing and 
includes some of the largest remaining contiguous fragments of pine 
rockland habitats outside of ENP. This unit is not currently occupied 
but is essential to the conservation of the butterfly because it serves 
to protect habitat needed to recover the subspecies, reestablish wild 
populations within the historical range of the subspecies, and maintain 
populations throughout the historic distribution of the subspecies in 
Miami-Dade County, and it provides habitat for recovery in the case of 
stochastic events if the butterfly is extirpated from the one location 
where it is presently found.

Unit FLB4: Big Pine Key, Monroe County, Florida

    Unit FLB4 consists of 559 ha (1,382 ac) in Monroe County. This unit 
includes Federal lands within National Key Deer Refuge (365 ha (901 
ac)), State lands (90 ha (223 ac)), and property in private or other 
ownership (104 ha (258 ac)). State lands are interspersed within NKDR 
lands and managed as part of the Refuge. The unit begins on northern 
Big Pine Key on the southern side of Gulf Boulevard, continues south on 
both sides of Key Deer Boulevard (County Road 940 (CR 940)) to the 
vicinity of Osprey Lane on the western side of CR 940 and Tea Lane to 
the east of CR 940, then resumes on both sides of CR 940 from Osprey 
Lane south of the vicinity of Driftwood Lane, then resumes south of 
Osceola Street, between Fern Avenue to the west and Baba Lane to the 
east, then resumes north of Watson Boulevard in the vicinity of Avenue 
C, then continues south on both sides of Avenue C to South Street, then 
resumes on both sides of CR 940 south to US 1 between Ships Way to the 
west and Sands Street to the east, then resumes south of US 1 from 
Newfound Boulevard to the west and Deer Run Trail to the east, then 
resumes south of US 1 from Palomino Horse Trail to the west and 
Industrial Road to the east.
    This unit was historically occupied by the Florida leafwing. This 
unit is not currently occupied but is essential to the conservation of 
the Florida leafwing because it serves to protect habitat needed to 
recover the subspecies,

[[Page 49842]]

reestablish wild populations within the historical range of the 
subspecies, and maintain populations throughout the historic 
distribution of the subspecies in the Lower Florida Keys, and it 
provides area for recovery in the case of stochastic events if the 
butterfly is extirpated from the one location where it is presently 
found. In the Lower Florida Keys National Wildlife Refuges 
Comprehensive Conservation Plan (CCP), management objective number 11 
provides specifically for maintaining and restoring butterfly 
populations of special conservation concern, including the Florida 
leafwing butterfly.

Bartram's Scrub-Hairstreak

Physical or Biological Features
Space for Individual and Population Growth and for Normal Behavior
    Bartram's scrub-hairstreak's entire lifecycle occurs within pine 
rockland habitat and occasionally associated rockland hammock 
interspersed in these pinelands. A description of these communities and 
associated native plant species are provided in the Status Assessment 
for the Florida Leafwing and Bartram's Scrub-hairstreak section in the 
proposed listing rule elsewhere in today's Federal Register.
    At present, the Bartram's scrub-hairstreak is extant on Big Pine 
Key, within ENP, and several pineland fragments on mainland Miami-Dade 
County (Smith et al. 1994, p. 118; Salvato and Salvato 2010b, p. 154), 
the smallest being Navy Wells Pineland Preserve outparcel number 39 (7 
ha (18 ac)), which represents the minimum known extant sustained 
population size. The Bartram's scrub-hairstreak was historically less 
common and sporadic in occurrence north of Miami-Dade County (Smith et 
al. 1994, pp. 118; Salvato and Hennessey 2004, p. 223). Studies 
indicate butterflies are capable of dispersing throughout the 
landscape, sometimes as far as 5 km (3 mi); utilizing high-quality 
habitat patches (Davis et al. 2007, p. 1351; Bergman et al. 2004, p. 
625). Stepping stones may be particularly useful to the Bartram's 
scrub-hairstreak, which exhibits low vagility (movement), rarely 
venturing from the pine rockland habitat or away from large areas of 
contiguous patches of hostplant. Therefore, based on the information 
above, we identify pine rockland habitats and associated rockland 
hammock that are at least 7 ha (18 ac) in size and are located no more 
than 5 km (3 miles) apart to allow for habitat connectivity to be a PBF 
for this butterfly.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    The Bartram's scrub-hairstreak is dependent on pine rocklands that 
retain the butterfly's sole hostplant, pineland croton. The immature 
stages of this butterfly feed on the croton for development (Minno and 
Emmel 1993, p. 129; Worth et al. 1996, p. 62). Adult Bartram's scrub-
hairstreaks actively visit flowers for nectar (Minno and Emmel 1993, p. 
129; Worth et al. 1996, p. 65; Calhoun et al. 2002, p. 14; Salvato and 
Hennessey 2004, p. 226; Salvato and Salvato 2008, p. 324) within open 
pine areas and edges and openings within associated rockland hammocks. 
Therefore, based on the information above, we identify pine rockland 
and associated rockland hammocks, specifically those containing 
pineland croton and other herbaceous vegetation typical of these plant 
communities, which fulfill the larval development and adult dietary 
requirements, to be PBFs for the Bartram's scrub-hairstreak.
Cover or Shelter
    Immature stages of the Bartram's scrub-hairstreak occur entirely on 
the hostplant, pineland croton. Adult Bartram's scrub-hairstreaks 
prefer more open pine areas, at the edges and openings of associated 
rockland hammocks. The Bartram's scrub-hairstreak population on Big 
Pine Key may be deleteriously impacted by exposure to seasonal 
pesticide applications designed to control mosquitoes because of where 
the butterflies congregate in the vegetation. Salvato (2001, p. 13) 
suggested that the Bartram's scrub-hairstreak was particularly 
vulnerable to truck-based applications based on the fact that the 
subspecies commonly aggregates on low-lying shrubs occurring along 
frequently treated roadsides. Therefore, based on the information 
above, we identify the absence of pesticide in the pine rocklands, and 
associated rockland hammock communities or in low enough quantities 
that is not detrimental to the butterfly to be a PBF for this 
subspecies.
Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring
    Bartram's scrub-hairstreak reproduction and larval development 
occur entirely within the pine rocklands. The butterfly has been 
observed during every month throughout its range; however the exact 
number of broods appears to be sporadic from year to year, with varying 
peaks in seasonal abundance (Baggett 1982, p. 81; Hennessey and Habeck 
1991, pp. 17-19; Emmel et al. 1995, pp. 14-15; Minno and Minno 2009, 
pp. 70-76; Salvato and Salvato 2010b, p. 156; C. Anderson, pers. comm. 
2012a; J. Sadle, pers. comm. 2013b). The Bartram's scrub-hairstreak 
retains breeding populations within pine rocklands on Big Pine Key, 
Long Pine Key in ENP, and within a number of pine rockland fragments 
adjacent to ENP (Salvato and Salvato 2010b, p. 154). Therefore, based 
on the information above, we identify pine rockland and associated 
rockland hammocks, specifically those containing pineland croton and 
other herbaceous vegetation typical of these plant communities, which 
fulfill the larval development and adult reproductive requirements of 
the Bartram's scrub-hairstreak, to be a PBF for this subspecies.
    Pine rockland native vegetation includes, but is not limited to, 
canopy vegetation dominated by slash pine (Pinus elliottii var. densa) 
and subcanopy vegetation that may include, but is not limited to, saw 
palmetto (Serenoa repens), cabbage palm (Sabal palmetto), silver palm 
(Coccothrinax argentata), brittle thatch palm (Thrinax morrisii), wax 
myrtle (Myrica cerifera), myrsine (Rapanea punctata), poisonwood 
(Metopium toxiferum), locustberry (Byrsonima lucida), varnishleaf 
(Dodonaea viscosa), tetrazygia (Tetrazygia bicolor), rough velvetseed 
(Guettarda scabra), marlberry (Ardisia escallonioides), mangrove berry 
(Psidium longipes), willow bustic (Sideroxylon salicifolium), and 
winged sumac (Rhus copallinum). Short-statured shrubs may include, but 
are not limited to, a subcanopy with running oak (Quercus elliottii), 
white indigoberry (Randia aculeata), Christmas berry (Crossopetalum 
ilicifolium), redgal (Morinda royoc), and snowberry (Chiococca alba); 
and understory vegetation that may include, but is not limited to, 
bluestem (Andropogon spp., Schizachyrium gracile, S. rhizomatum, and S. 
sanguineum), arrowleaf threeawn (Aristida purpurascens), lopsided 
indiangrass (Sorghastrum secundum), hairawn muhly (Muhlenbergia 
capillaris), Florida white-top sedge (Rhynchospora floridensis), 
pineland noseburn (Tragia saxicola), devil's potato (Echites 
umbellata), pineland croton, several species of sandmats (Chamaesyce 
spp.), partridge pea (Chamaecrista fasciculata), coontie (Zamia 
pumila), and maidenhair pineland fern (Anemia adiantifolia). Rockland 
hammock native vegetation includes, but is not limited to, a canopy

[[Page 49843]]

vegetated by gumbo limbo (Bursera simaruba), false tamarind (Lysiloma 
latisiliquum), paradisetree (Simarouba glauca), black ironwood 
(Krugiodendron ferreum), lancewood (Ocotea coriacea), Jamaican dogwood 
(Piscidia piscipula), West Indies mahogany (Swietenia mahagoni), willow 
bustic (Sideroxylon salicifolium), inkwood (Exothea paniculata), 
strangler fig (Ficus aurea), pigeon plum(Coccoloba diversifolia), 
poisonwood (Metopium toxiferum), buttonwood (Conocarpus erectus), 
blolly (Guapira discolor), and devil's claw (Pisonia spp.); subcanopy 
vegetation that may include, but is not limited to, Spanish stopper 
(Eugenia foetida), Thrinax, torchwood (Amyris elemifera), marlberry 
(Ardisia escallonioides), wild coffee (Psychotria nervosa), Sabal, 
gumbo limbo (Guaiacum sanctum), hog plum (Ximenia americana), and 
Colubrina; and understory vegetation that may include, but is not 
limited to, Zamia pumila, barbed-wire cactus (Acanthocereus 
tetragonus), and basket grass (Oplismenus hirtellus).
Habitats Protected From Disturbance or Representative of the 
Historical, Geographic, and Ecological Distributions of the Subspecies
    The Bartram's scrub-hairstreak continues to occur in habitats that 
are protected from human-generated disturbances and are representative 
of the butterflies' historical, geographical, and ecological 
distribution, although its range has been reduced. The subspecies is 
still found in its representative plant communities of pine rocklands. 
Representative communities are located on Federal, State, local, and 
private conservation lands that implement conservation measures 
benefitting the butterfly.
    Pine rockland is dependent on some degree of disturbance, most 
importantly from natural or prescribed fires (Loope and Dunevitz 1981, 
p. 5; Carlson et al. 1993, p. 914; Slocum et al. 2003, p. 93; Snyder et 
al. 2005, p. 1; Bradley and Saha 2009, p. 4; Saha et al. 2011, pp. 169-
184; FNAI 2010, p. 1). These fires are a vital component in maintaining 
native vegetation, such as croton, within this ecosystem. Without fire, 
successional climax from tropical pineland to rockland hammock is too 
rapid, and displacement of native species by invasive nonnative plants 
often occurs. Therefore, based on the information above, we identify 
disturbance regimes, natural or prescribed to mimic natural 
disturbances such as fire, to be a PBF for this subspecies.
    The Bartram's scrub-hairstreak, as with other subtropical 
butterflies, have adapted over time to the influence of tropical storms 
and other forms of adverse weather conditions (Minno and Emmel 1994, p. 
671; Salvato and Salvato 2007, p. 154). Hurricanes and other 
significant weather events create openings in the pine rockland habitat 
(FNAI 2010, p. 3). However, given the substantial reduction in the 
historical range of the butterfly in the past 50 years, the threat and 
impact of tropical storms and hurricanes on their remaining populations 
is much greater than when their distribution was more widespread 
(Salvato and Salvato 2010a, p. 96; 2010c, p. 139). Therefore, based on 
the information above, we identify disturbance regimes natural or 
prescribed to mimic natural disturbances such as fire, to be a PBF for 
this subspecies.

Primary Constituent Elements for the Bartram's Scrub-Hairstreak 
Butterfly

    The Bartram's scrub-hairstreak is dependent upon functioning pine 
rockland habitat to provide its fundamental life requirements, such as 
pineland croton for larval development, and food sources required by 
adult butterflies. Based on our current knowledge of the PBFs and 
habitat characteristics required to sustain the butterfly's life-
history processes, we determine that the PCEs for the Bartram's scrub-
hairstreak are:
    (1) Pine rockland habitat, and in some instances, associated 
rockland hammocks.
    (a) Pine rockland habitat contains:
    (i) Open canopy, semi-open subcanopy, and understory;
    (ii) Substrate of oolitic limestone rock; and
    (iii) A plant community of predominately native vegetation.
    (b) Rockland hammock habitat associated with the pine rocklands 
contains:
    (i) Canopy gaps and edges with an open to semi-open canopy, 
subcanopy, and understory;
    (ii) Substrate with a thin layer of highly organic soil covering 
limestone or organic matter that accumulates on top of the underlying 
limestone rock; and;
    (iii) A plant community of predominately native vegetation.
    (2) Competitive nonnative plant species in quantities low enough to 
have minimal effect on survival of Bartram's scrub-hairstreak 
butterfly.
    (3) The presence of the butterfly's hostplant, pineland croton, in 
sufficient abundance for larval recruitment, development, and food 
resources, and for adult butterfly nectar source and reproduction;
    (4) A dynamic natural disturbance regime or one that artificially 
duplicates natural ecological processes (e.g., fire, hurricanes, or 
other weather events) that maintains the pine rockland habitat and 
associated plant community.
    (5) Pine rockland habitat and associated plant community that allow 
for connectivity and are sufficient in size to sustain viable 
populations of Bartram's scrub hairstreak butterfly.
    (6) Pine rockland habitat with levels of pesticide low enough to 
have minimal effect on the survival of the butterfly or its ability to 
occupy the habitat.

Special Management Considerations or Protection for Bartram's Scrub-
Hairstreak Butterfly

    The special management considerations or protections for the 
Bartram's scrub-hairstreak, and the primary threats to the PBFs on 
which the Bartram's scrub-hairstreak depends, are the same as those 
described for the Florida leafwing above, except where noted below.
    Habitat Destruction and Modification by Development--The majority 
of known mainland populations of the Bartram's scrub-hairstreak occur 
on publicly owned lands that are managed for conservation. In Miami-
Dade County, occupied Bartram's scrub-hairstreak habitat occurs in the 
Long Pine Key region of ENP and is actively managed by the NPS for the 
Bartram's scrub-hairstreak and the pine rockland ecosystem, in general. 
Outside of the ENP, extant occupied habitat for the Bartram's scrub-
hairstreak occurs on lands owned by Miami-Dade County, University of 
Miami, and the U.S. Coast Guard, which are managed for the conservation 
of the pine rockland ecosystem ameliorating some of the threat.
    Sea Level Rise--Based on modeling using best case scenario, which 
assumes low sea level rise, high financial resources, proactive 
planning, and only trending population growth, analyses suggest that 
the Big Pine Key population of the Bartram's scrub-hairstreak may be 
lost or greatly reduced. Based upon the above assumptions, extant 
Bartram's scrub-hairstreak populations on Big Pine Key and Long Pine 
Key appear to be most susceptible to future losses attributed to 
increases in sea level and human population. In the worst case 
scenario, which assumes high sea level rise, low financial resources, 
the habitat at Big Pine Key and Long Pine Key may be lost. Under the 
worst case scenario, pine rockland habitat would remain

[[Page 49844]]

within Navy Wells Pineland Preserve and the Richmond Pine Rocklands, 
both of which currently retain Bartram's scrub-hairstreak populations. 
Proactively addressing sea level rise may be beyond the feasibility of 
land owners or managers. However, while land owners or land managers 
may not be able to be proactive in preventing these events, they may be 
able to respond with management or protection. Management actions or 
activities that could ameliorate sea level rise include providing 
protection of suitable habitats unaffected or less affected by sea 
level rise.
    Lack of Natural or Prescribed Fires--The threat of habitat 
destruction or modification is further exacerbated by lack of 
prescribed fire and suppression of natural fires (Salvato and Salvato 
2010a, p. 91; 2010c, p. 139). Historically, lightning-induced fires 
were a vital component in maintaining native vegetation within the pine 
rockland ecosystem, including pineland croton (Loope and Dunevitz 1981, 
p. 5; Slocum et al. 2003, p. 93; Snyder et al. 2005, p. 1; Salvato and 
Salvato 2010b, p. 154). Resprouting after burns is the primary 
mechanism allowing for the persistence of perennial shrubs, including 
pineland croton, in pine habitat (Olson and Platt 1995, p. 101). 
Without fire, perennial native vegetation can be displaced by invasive 
nonnative plants.
    In recent years, ENP has used partial and systematic prescribed 
burns to treat the Long Pine Key pine rocklands in their entirety over 
a 3-year window (NPS 2005, p. 27). These methods attempt to burn 
adjacent pine rockland habitats alternately. In addition, refugia 
(i.e., unburned areas of croton hostplant) have been included as part 
of burns conducted within occupied butterfly habitat, wherever possible 
(R. Anderson, pers. comm. 2011). Providing butterfly refugia habitat 
directly within (as well as adjacent to) the treatment area during 
prescribed burn activities may substantially increase the potential for 
Bartram's scrub-hairstreak to recolonize recently burned areas and to 
remain within or near the fire-treated pineland. Outside of ENP, Miami-
Dade County has implemented various conservation measures, such as 
burning in a mosaic pattern and on a small scale, during prescribed 
burns to protect the butterfly (Maguire, pers. comm. 2010).
    Fire management of pine rocklands in NKDR is hampered by the 
pattern of land ownership and development; residential and commercial 
properties are embedded within or in close proximity to pineland 
habitat (Snyder et al. 2005, p. 2; C. Anderson, pers. comm. 2012). 
Ongoing management activities designed to ameliorate this threat 
include the use of small-scale prescribed burns or mechanical clearing 
to maintain the native vegetative structure in the pine rockland 
required by the subspecies.
    Mosquito Control Pesticide Applications--Efforts to control salt 
marsh mosquitoes, Aedes taeniorhynchus, among others, have increased as 
human activity and population have increased in south Florida. To 
control mosquito populations, second-generation organophosphate (naled) 
and pyrethroid (permethrin) adulticides are applied by mosquito control 
districts throughout south Florida. The use of such pesticides (applied 
using both aerial and ground-based methods) for mosquito control 
presents a potential risk to nontarget species, such as the Bartram's 
scrub-hairstreak. Mosquito control pesticides use within Miami-Dade 
County pine rockland areas is limited (approximately 2 to 4 times per 
year, and only within a portion of proposed critical habitat) (Vasquez, 
pers. comm. 2013) and no spraying is conducted in Long Pine Key within 
ENP.
    Pesticide spraying practices by the Mosquito Control District at 
NKDR have changed to reduce pesticide use over the years. Since 2003 
expanded larvicide treatments to surrounding islands have significantly 
reduced adulticide use on BPK, No Name Key, and the Torch Keys. In 
addition, the number of aerially applied naled treatments allowed on 
NKDR has been limited since 2008 (FKMCD 2012, pp. 10-11). No spray 
zones that include the core habitat used by pine rockland butterflies 
and several linear miles of pine rockland habitat within the Refuge-
neighborhood interface were excluded from truck spray applications (C. 
Anderson, pers. comm. 2012a; Service 2012, p. 32). These exclusions and 
buffer zones encompass over 95 percent of extant croton distribution on 
Big Pine Key, and include the majority of known extant and historical 
Bartram's scrub-hairstreak population centers on the island (Salvato, 
pers. comm. 2012). However, some areas of pine rocklands within NKDR 
are still sprayed with naled (aerially applied adulticide), and buffer 
zones remain at risk from drift; additionally, private residential 
areas and roadsides across Big Pine Key are treated with permethrin 
(ground-based applied adulticide) (Salvato 2001, p. 10). Therefore, the 
Bartram's scrub-hairstreak habitat on Big Pine Key is directly or 
indirectly (via drift) exposed to adulticides used for mosquito control 
at some level. Expansion of no-spray zones may aid in butterfly 
dispersal within the pine rocklands of Big Pine Key.

Criteria Used To Identify Critical Habitat for the Bartram's Scrub-
Hairstreak Butterfly

    The criteria used to identify critical habitat for the Bartram's 
scrub-hairstreak are the same as those discussed above for the Florida 
leafwing, except where noted below.
    We are proposing to designate critical habitat in areas within the 
geographical area currently occupied i.e., occupied by the species at 
the time of listing. We also are proposing to designate specific areas 
outside the geographical area occupied by the species at the time of 
listing that were historically occupied, but are presently unoccupied, 
because such areas are essential for the conservation of the species.
    Isolation of habitat can prevent recolonization of Bartram's scrub-
hairstreak from other sites and result in extinction. Because of the 
dangers associated with small populations or limited distributions, the 
recovery of many rare butterfly species includes the creation of new 
sites or reintroductions to ameliorate these effects. In addition, 
establishing corridors or employing small patches (stepping stones) of 
similar habitats have been shown to facilitate dispersal, reduce 
extinction rates and increase gene flow of imperiled butterflies 
(Schultz 1998, p. 291; Haddad 2000, pp. 739; 744; Haddad et al. 2003, 
p. 614; Wells et al. 2009, p. 709). Leidner and Haddad (2010, pp. 2318-
2319) suggest that small natural areas within the urban landscape may 
serve an important role in promoting butterfly dispersal and gene flow 
in fragmented landscapes. Davis et al. (2007, p. 1351) and Bergman et 
al. (2004, p. 625) indicate butterflies are capable of dispersing 
throughout the landscape, sometimes as far as 5 km (3 miles), utilizing 
high-quality habitat patches. Stepping stones may be particularly 
useful to the Bartram's scrub-hairstreak, which like most lycaenids, 
exhibits low vagility, rarely venturing from the pine rockland habitat 
or away from large areas of contiguous patches of hostplant.
    Accordingly, realizing that the current occupied habitat is not 
adequate for the conservation of Bartram's scrub-hairstreak, we used 
habitat and historical occurrence data to identify unoccupied habitat 
essential for the conservation of the subspecies.
    Only five extant Bartram's scrub-hairstreak populations remain 
within the subspecies' historical range. Total population estimates for 
the Bartram's

[[Page 49845]]

scrub-hairstreak are estimated to be only several hundred or fewer at 
any given time. Although these populations occur on conservation lands; 
management and law enforcement are limited. We believe it is necessary 
for conservation and recovery that additional populations of the 
Bartram's scrub-hairstreak be established within its historical range. 
Therefore, we are proposing two critical habitat units in the Florida 
Keys where appropriate hostplant-bearing habitat was historically 
recorded, which has since been degraded and became unsuitable for 
butterfly use. We believe that, given proper management and restoration 
efforts, the Bartram's scrub-hairstreak may be able to be established 
on these units, thereby providing an essential fortification of the 
subspecies' metapopulation in the Florida Keys.
    To determine the location and boundaries of critical habitat for 
the Bartram's scrub-hairstreak, the Service used the following 
information sources and considerations.
    (1) Historical and current records of Bartram's scrub-hairstreak 
occurrence and distribution found in publications, reports and 
associated voucher specimens housed at museums and private collections;
    (2) IRC and FTG GIS data showing the location and extent of 
documented occurrences of the pine rockland habitat with pineland 
croton;
    (3) Reports prepared by ecologists, biologists, and botanists with 
the IRC, ENP, FTG, and Service assessing the current and historic 
distribution of pine rockland habitat and pineland croton; and
    (4) Historical records of pineland croton found in publications, 
reports and associated voucher specimens housed at herbaria, all of 
which are also referenced in the above-mentioned reports from the IRC 
and cited publications.

Areas Occupied at the Time of Listing

    We have identified areas to include in this proposed designation by 
applying the following considerations to the existing Bartram's scrub-
hairstreak habitats that contain PBFs.
    The occupied critical habitat units were delineated around extant 
populations. These units include the mapped extent of the population 
and supporting habitat that contained the elements of the PBFs that 
allow for population growth and expansion. In ENP, the distribution of 
the Bartram's scrub-hairstreak is across a larger area than at any 
other single location. Outside of ENP, units are limited to three units 
composed of pine rockland fragments within the current distribution of 
the subspecies that contain the elements of the PBFs. These units 
retain extant, localized Bartram's scrub-hairstreak populations. The 
units include only pine rocklands fragments that are at least 7 ha (18 
ac) in size (which represents the minimum known extant population size) 
and are currently occupied. On Big Pine Key, the distribution of the 
Bartram's scrub-hairstreak is across all extant pine rocklands on the 
island that contain the elements of the PBFs.
    The delineation included space to plan for the persistence of the 
current Bartram's scrub-hairstreak populations in the face of imminent 
effects on habitats as a result of sea level rise. Under the worst case 
scenario for sea level rise (as discussed above in Special Management 
Considerations or Protection), pine rockland habitat would remain at 
both Navy Wells, Camp Owaissa Bauer, and the Richmond Pine Rocklands, 
each of which retain Bartram's scrub-hairstreak populations. However, 
even in these areas, pine rocklands may be altered as a result of 
vegetation shifts or salt water intrusion, at an extent to which cannot 
be predicted at this time.
    In summary, for areas within the geographic area occupied by the 
subspecies at the time of listing, we delineated critical habitat unit 
boundaries by evaluating habitat suitability of pine rockland habitat 
within the geographic area occupied at the time of listing (current), 
and retain those areas that contain some or all of the PCEs to support 
life-history functions essential for conservation of the subspecies.

Areas Outside of the Geographic Range at the Time of Listing

    The Bartram's scrub-hairstreak has become extirpated from several 
locations where it was previously recorded. We are proposing critical 
habitat for those areas that are well-documented historic butterfly 
locations (i.e., Big Pine Key, Long Pine Key, areas in Miami-Dade 
County) (Smith et al. 1994, p. 118; Salvato and Hennessey 2004, p. 223) 
and that maintain one or more of the PCEs or can be restored. Two units 
are within the historical range of the butterfly, where the butterfly 
is currently considered extirpated because there is a lack of specific 
butterfly location documentation. These units contain pine rockland 
habitat and are essential for the conservation of the subspecies, 
because:
    (1) Large contiguous parcels of habitat are more likely to be 
resilient to ecological processes of disturbance and succession, and 
support viable populations of the Bartram's scrub-hairstreak. However, 
in Miami-Dade County, the Bartram's scrub-hairstreak is extant on 
parcels as small as 7 ha (18 ac), which lay adjacent to larger pine 
rocklands. Bartram's scrub-hairstreak populations may be able to 
utilize these smaller fragments while dispersing between units. 
Therefore, all pine rocklands fragments, at least 7 ha (18 ac) in size, 
that are currently unoccupied and within 5 km (3 miles) of an extant 
Bartram's scrub-hairstreak population within Miami-Dade County, were 
identified as critical habitat for the Bartram's scrub-hairstreak.
    (2) Areas are needed to maintain connectivity of habitat and aid 
butterfly dispersal within and between occupied units (i.e. stepping 
stones for dispersal). These areas maintain connectivity within and 
between populations and allow for population expansion within the 
butterfly's historical range.
    (3) Areas are needed to allow the dynamic ecological nature of the 
pine rockland habitat to continue. The abundance and distribution of 
pineland croton within the pine rockland habitat varies greatly 
throughout the range of the Bartram's scrub-hairstreak. At any one 
time, only a portion of this habitat is optimally suitable for the 
Bartram's scrub-hairstreak and the size and location of suitable areas 
is dynamic over time, being largely driven by the frequency and scale 
of natural or prescribed fires. Historically lighting-induced fires 
maintained native vegetation within the pine rockland ecosystem, 
including pineland croton. Although prescribed burns are administered 
on the majority of conservation lands which retain Bartram's scrub-
hairstreak populations, fire return intervals and scope are 
inconsistent. In addition, little or no fire management occurs on 
private lands. Thus, areas of pine rockland that now support the 
subspecies, may not provide as optimal habitat in the future as fire 
suppression and resultant succession removes or fragments hostplant 
distribution. Conversely, hostplants may return or increase in areas 
following prescribed fires, allowing the butterflies to expand or 
colonize within them in the future.
    In summary, we determined that the areas proposed outside the 
geographic area occupied by the species at the time of listing, but 
that are within the historical range of the species, are essential to 
the survival and recovery of the species. Essential areas are those 
that maintain pine rockland habitat and are within the historical range 
of the butterfly, where the butterfly has been

[[Page 49846]]

extirpated but where there are well-known specific or general 
historical locations of the butterfly.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures. The scale of the maps we 
prepared under the parameters for publication within the Code of 
Federal Regulations may not reflect the exclusion of such developed 
lands. Any such lands inadvertently left inside critical habitat 
boundaries shown on the maps of this proposed rule have been excluded 
by text in the proposed rule and are not proposed for designation as 
critical habitat. Therefore, if the critical habitat is finalized as 
proposed, a Federal action involving these lands would not trigger 
section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the PBFs in the adjacent critical habitat.
    In summary, we are proposing areas for designation of critical 
habitat that we have determined are occupied at the time of listing and 
contain sufficient elements of physical or biological features to 
support life-history processes essential for the conservation of the 
species, and lands outside of the geographical area occupied at the 
time of listing that we have determined are essential for the 
conservation of the Bartram's scrub-hairstreak butterfly.
    The critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the rule portion. We include more detailed information 
on the boundaries of the critical habitat designation in the preamble 
of this document. We will make the coordinates or plot points or both 
on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0031, on our Internet 
sites www.fws.gov/verobeach/, and at the field office responsible for 
the designation (see FOR FURTHER INFORMATION CONTACT above).

Proposed Critical Habitat Designation for the Bartram's Scrub-
Hairstreak Butterfly

    Two of the seven units proposed for Bartram's scrub-hairstreak are 
currently designated as critical habitat under the Act for other 
species. Unit BSHB1--Everglades National Park, is currently designated 
as critical habitat for the Cape Sable seaside sparrow (Ammodramus 
maritimus mirabilis; 50 CFR 17.95(b)), and Unit BSHB2--Little Pine Key 
is designated critical habitat for the silver rice rat (Oryzomys 
palustris natator; 50 CFR 17.95(a)). No other critical habitat units 
proposed for this butterfly have been designated as critical habitat 
for other species under the Act.
    The critical habitat areas we describe below constitute our current 
best assessment of areas that meet the definition of critical habitat 
for the Bartram's scrub-hairstreak. The seven areas we propose as 
critical habitat are: (1) BSHB1 Everglades National Park, Miami-Dade 
County, Florida, (2) BSHB2 Navy Wells Pineland Preserve, Miami-Dade 
County, Florida, (3) BSHB3 Camp Owaissa Bauer, Miami-Dade County, 
Florida, (4) BSHB4 Richmond Pine Rocklands, Miami-Dade County, Florida, 
(5) BSHB5 Big Pine Key, Monroe County, Florida, (6) BSHB6 No Name Key, 
Monroe County, Florida, and (7) BSHB7 Little Pine Key, Monroe County, 
Florida. Land ownership within the proposed critical habitat consists 
of Federal (75 percent), State (5 percent), and private and other (20 
percent). Table 2 summarizes these units. Proposed critical habitat for 
the Florida leafwing occurs entirely within Bartram's scrub-hairstreak 
units BSHB1, BSHB2, BSHB4, and BSHB5.

                       Table 2--Bartram's Scrub-Hairstreak Proposed Critical Habitat Units
----------------------------------------------------------------------------------------------------------------
           Unit No.                Unit name         Ownership      Percent    Hectares    Acres      Occupied
----------------------------------------------------------------------------------------------------------------
BSHB1........................  Everglades        Federal.........        100      2,313      5,716  yes.
                                National Park.
                                                 Total...........        100      2,313      5,716
BSHB2........................  Navy Wells        State...........         30         62        153  yes.
                                Pineland
                                Preserve.
                                                 Private-Other...         70        141        349
                                                 Total...........        100        203        502
BSHB3........................  Camp Owaissa      State...........         20         29         71  yes.
                                Bauer.
                                                 Private-Other...         80        117        288
                                                 Total...........        100        146        359
BSHB4........................  Richmond Pine     Federal.........         11         50        122  yes.
                                Rocklands.
                                                 State...........          7         32         79
                                                 Private-Other...         82        356        881
                                                 Total                   100        438       1082
BSHB5........................  Big Pine Key....  Federal.........         65        365        901  yes.
                                                 State...........         16         90        223
                                                 Private-Other...         19        104        258
                                                 Total...........        100        559      1,382
BSHB6........................  No Name Key.....  Federal.........         75         30         75  no.
                                                 State...........         18          9         22
                                                 Private-Other...          7         11         26
                                                 Total...........        100         50        123
BSHB7........................  Little Pine Key.  Federal.........        100         39         97  no.
                                                 Total...........        100         39         97
---------------------------------------------------------------------------------------------------
                     Total                       Federal.........         75      2,797      6,911
                              ----------------------------------------------------------
                   All Units                     State...........          5        222        548
                              ----------------------------------------------------------
                                                 Private-Other...         20        729      1,802
                              ----------------------------------------------------------
                                                 All.............        100      3,748      9,261
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.


[[Page 49847]]

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for the Bartram's scrub-
hairstreak, below.

Unit BSHB1: Everglades National Park Miami-Dade County, Florida

    Unit BSHB1 consists of 2,313 ha (5,716 ac) in Miami-Dade County. 
This unit is composed entirely of lands in Federal ownership, 100 
percent of which are located within the Lone Pine Key region of ENP. 
This unit is currently occupied by the Bartram's scrub-hairstreak and 
contains all the PBFs, including suitable habitat (pine rockland 
habitat of sufficient size), hostplant presence, natural or artificial 
disturbance regimes, low levels of nonnative vegetation and larval 
parasitism, hostplant, and restriction of pesticides and contains the 
PCE of pine rockland. The PBFs in this unit may require special 
management considerations or protection to address threats of fire 
suppression, habitat fragmentation, poaching, and sea level rise. 
However, in most cases these threats are being addressed or coordinated 
with the NPS to implement needed actions.
    ENP is currently in the process of updating its FMP and 
Environmental Assessment, which will assess the impacts of fire on 
various environmental factors, including listed, proposed, and 
candidate species (Land, pers. comm. 2011; Sadle, pers. comm. 2013a). 
ENP is actively coordinating with the Service, as well as other members 
of the IBWG to review and adjust the prescribed burn practices outlined 
in the FMP to help maintain or increase Bartram's scrub-hairstreak 
population sizes, protect pine rocklands, expand or restore remnant 
patches of hostplants and ensure that short-term negative effects from 
fire (i.e., loss of hostplants, loss of eggs and larvae) can be avoided 
or minimized.

Unit BSHB2: Navy Wells Pineland Preserve, Miami-Dade County, Florida

    Unit BSHB2 consists of 203 ha (502 ac) in Miami-Dade County. This 
unit comprises lands in State (62 ha (153 ac)) and private or other 
(141 ha (349 ac)) ownership. The 120-ha (296-ac) Navy Wells Pineland 
Preserve is jointly owned by Miami-Dade County (85 ha (211 ac)) and the 
State (35 ha (85 ac)). State lands are interspersed within Miami-Dade 
County Parks and Recreation Department lands, which are managed for 
conservation.
    This unit begins in Homestead, Florida, on SW 304 Street, between 
SW 198 Avenue to SW 204 Avenue, then resumes between SW 340 Street and 
SW 344 Street, between SW 213 Avenue and SW 214 Avenue, then resumes 
between SW 344 Street and SW 360 Street on SW 209 Avenue, then resumes 
along SW 268 Street, between SW 202 Avenue and SW 205 Avenue, then 
resumes along SW 360 Street, between SW 202 Avenue and SW 188 Avenue, 
then resumes between SW 7 Street and SW 158 Street, in the vicinity of 
SW 180 Avenue, then resumes along Palm Drive and SW 3 Terrace, between 
SW 6 Avenue and SW 8 Avenue.
    This unit is occupied by the Bartram's scrub-hairstreak and 
contains all the PBFs, including suitable habitat, hostplant, adult 
food sources, breeding sites, disturbance regimes, and restriction of 
pesticides and contains pine rockland and rockland hammock PCEs. The 
PBFs in this unit may require special management considerations or 
protection to address threats of fire suppression, habitat 
fragmentation, poaching, and sea level rise. However, in most cases 
these threats are being addressed or coordinated with our partners and 
landowners to implement needed actions.

Unit BSHB3: Camp Owaissa Bauer, Miami-Dade County, Florida

    Unit BSHB3 consists of 146 ha (359 ac) in Miami-Dade County. This 
unit is comprised of lands in State (29 ha (71 ac)), private or other 
(117 ha (288 ac)) ownership of which one large fragment (40 ha (99 ac) 
is owned by Miami-Dade County-Camp Owaissa Bauer). State lands are 
interspersed within Miami-Dade County Parks and Recreation Department 
lands, which are managed for conservation.
    This unit begins in Homestead, Florida, on SW 147 Ave, between SW 
216 Street and SW 200 Street, then resumes on both sides of SW 157 
Avenue, between SW 216 Street and SW 228 Street, then resumes along SW 
232 Street, between SW 142 Avenue and SW 144 Avenue, then continues 
south of SW 232 Street along both sides of SW 142 Ave to SW 248 Street, 
then resumes along SW 248 Street, south to SW 256 Street, between SW 
244 Avenue and the vicinity of SW 157 Avenue, then resumes along SW 240 
Street, north to the vicinity of SW 238 Street, between SW 152 Avenue 
and SW 147 Avenue, then resumes between of SW 264 Street and SW 272 
Street, along both sides of SW 155 Avenue, then resumes along both 
sides of SW 264 Street in the vicinity of SW 262 Avenue.
    This unit is occupied by the Bartram's scrub-hairstreak and 
contains all the PBFs, including suitable habitat, hostplant, adult 
food sources, breeding sites, disturbance regimes, and restriction of 
pesticides required by the subspecies and contains pine rockland and 
rockland hammock PCEs. The PBFs in this unit may require special 
management considerations or protection to address threats of fire 
suppression, habitat fragmentation, poaching, and sea level rise. 
However, in most cases these threats are being addressed or coordinated 
with our partners and landowners to implement needed actions.

Unit BSHB4: Richmond Pine Rocklands, Miami-Dade County, Florida

    Unit BSHB4 consists of 438 ha (1,082 ac) in Miami-Dade County. This 
unit comprises lands in both Federal (U. S. Coast Guard (Homeland 
Security) (29 ha (72 ac)), U.S. Army Corps of Engineers (DoD) (8 ha (20 
ac)), National Oceanic Atmospheric Administration (NOAA) (4 ha (9 ac)), 
Federal Bureau of Prisons (Department of Justice (DoJ) (9 ha (21 ac)), 
State (32 ha (79 ac)), and private or other (356 ha (881 ac)) 
ownership. The unit includes some of the largest remaining contiguous 
fragments of pine rockland habitats outside of ENP known to be occupied 
by the Bartram's scrub-hairstreak.
    This unit begins in Miami, Florida, at SW 120 Street, north to SW 
112 Street, between SW 142 Avenue and the vicinity of SW 137 Avenue, 
then resumes along SW 124 Street south to SW 128 Street between SW127 
Avenue and the vicinity of SW 137 Avenue, then resumes in the vicinity 
of SW 136 Street and SW 122 Avenue, then resumes on Coral Reef Road 
(State Road 992) south to SW 168 Street, between US 1 and SW 117 
Avenue, then resumes from Coral Reef Road south to SW 184 Street, 
between US 1 and SW 137 Avenue.
    This unit is currently occupied by the Bartram's scrub-hairstreak 
and contains all the PBFs, including suitable habitat, hostplant, adult 
food sources, breeding sites, disturbance regimes, and restriction of 
pesticides and contains pine rockland and rockland hammock PCEs. The 
PBFs in this unit may require special management considerations or 
protection to address threats of fire suppression, habitat 
fragmentation, poaching, and sea level rise. However, in most cases 
these threats are being addressed or coordinated with our partners and 
landowners to implement needed actions. The U.S. Army Corps of 
Engineers lands do not have an integrated natural resources management 
plan (INRMP) or other natural resource management plan.

[[Page 49848]]

Unit BSHB5: Big Pine Key, Monroe County, Florida

    Unit BSHB5 consists of 559 ha (1,382 ac) in Monroe County. This 
unit includes Federal lands within National Key Deer Refuge (NKDR) (365 
ha (901 ac)), State (90 ha (223 ac)), and property in private or other 
(104 ha (258 ac)) ownership. State lands are interspersed within NKDR 
lands and managed as part of the Refuge.
    The unit begins on northern Big Pine Key on the southern side of 
Gulf Boulevard, continues south on both sides of Key Deer Boulevard 
(County Road 940 (CR 940)) to the vicinity of Osprey Lane on the 
western side of CR 940 and Tea Lane to the east of CR 940, then resumes 
on both sides of CR 940 from Osprey Lane to rest south of the vicinity 
of Driftwood Lane, then resumes south of Osceola Street, between Fern 
Avenue to the west and Baba Lane to the east, then resumes north of 
Watson Boulevard in the vicinity of Avenue C, then continues south on 
both sides of Avenue C to South Street, then resumes on both sides of 
CR 940 south to US 1 between Ships Way to the west and Sands Street to 
the east, then resumes south of US 1 from Newfound Boulevard to the 
west and Deer Run Trail to the east, then resumes south of US 1 from 
Palomino Horse Trail to the west and Industrial Road to the east.
    This unit is currently occupied by the Bartram's scrub-hairstreak. 
This unit contains three of the PBFs, including suitable habitat, 
hostplant, adult food sources, and breeding sites required by the 
subspecies, and contains pine rockland and rockland hammock PCEs. The 
PBFs in this unit may require special management considerations or 
protection to address threats of disturbance regimes (fire), and 
pesticide applications, as well as habitat fragmentation, poaching, and 
sea level rise. However, in most cases these threats are being 
addressed or coordinated with our partners and landowners to implement 
needed actions.

Unit BSHB6: No Name Key, Monroe County, Florida

    Unit BSHB6 consists of 50 ha (123 ac) in Monroe County. This unit 
includes Federal lands within National Key Deer Refuge (30 ha (75 ac)), 
State (9 ha (22 ac)), and property in private or other ownership (11 ha 
(26 ac)). State lands are interspersed within NKDR lands and managed as 
part of the Refuge. The unit extends from Watson Road entirely on 
National Key Deer Refuge lands just south of the vicinity of Spanish 
Channel Drive eastward to the vicinity of Paradise Drive, then resumes 
north of Watson Road from No Name Drive east to Paradise Lane.
    This unit is not currently occupied by the Bartram's scrub-
hairstreak but is essential to the conservation of the subspecies 
because it serves to protect habitat needed to recover the subspecies, 
reestablish wild populations within the historical range of the 
subspecies, and maintain populations throughout the historical 
distribution of the subspecies in the Florida Keys, and provides area 
for recovery in the case of stochastic events that otherwise hold the 
potential to eliminate the subspecies from the one or more locations 
where it is presently found. The Lower Key Refuges, CCP management 
objective number 11 provides specifically for maintaining and restoring 
butterfly populations of special conservation concern, including the 
Bartram's scrub-hairstreak.

Unit BSHB7: Little Pine Key, Monroe County, Florida

    Unit BSHB7 consists of 39 ha (97 ac) in Monroe County. This unit 
comprises entirely lands in Federal ownership, 100 percent of which are 
located within National Key Deer Refuge. This unit is not currently 
occupied by the Bartram's scrub-hairstreak but is essential to the 
conservation of the subspecies because it serves to protect habitat 
needed to recover the subspecies, reestablish wild populations within 
the historical range of the subspecies, and maintain populations 
throughout the historical distribution of the subspecies in the Florida 
Keys, and it provides area for recovery in the case of stochastic 
events that otherwise hold the potential to eliminate the subspecies 
from one or more locations where it is presently found. The Lower Key 
Refuges, CCP management objective number 11 provides specifically for 
maintaining and restoring butterfly populations of special conservation 
concern, including the Bartram's scrub-hairstreak.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action that is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 2001)), 
and we do not rely on this regulatory definition when analyzing whether 
an action is likely to destroy or adversely modify critical habitat. 
Under the provisions of the Act, we determine destruction or adverse 
modification on the basis of whether, with implementation of the 
proposed Federal action, the affected critical habitat would continue 
to serve its intended conservation role for the species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, tribal, local, or private lands that are not federally funded 
or authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the

[[Page 49849]]

likelihood of jeopardy and/or destruction or adverse modification of 
critical habitat. We define ``reasonable and prudent alternatives'' (at 
50 CFR 402.02) as alternative actions identified during consultation 
that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical or 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for the Florida leafwing and 
Bartram's scrub-hairstreak. As discussed above, the role of critical 
habitat is to support life-history needs of these butterflies and 
provide for the conservation of these subspecies.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the Florida leafwing and Bartram's scrub-hairstreak. 
These activities include, but are not limited to:
    (1) Actions that would significantly alter the pine rockland and 
associated rockland hammock ecosystem. Such activities may include, but 
are not limited to, residential, commercial, or recreational 
development including associated infrastructure.
    (2) Actions that would significantly alter vegetation structure or 
composition, such as natural fire suppression or excessive prescribed 
burning, clearing vegetation for construction of residential, 
commercial, or recreational development, and associated infrastructure.
    (3) Actions that would introduce nonnative plant species that would 
significantly alter vegetation structure or composition. Such 
activities may include, but are not limited to, residential and 
commercial development, and associated infrastructure.
    (4) Actions that would introduce nonnative arthropod species that 
would significantly influence the natural histories of the Florida 
leafwing and Bartram's scrub-hairstreak. Such activities may include 
release of parasitic or predator species (flies or wasps) for use in 
agriculture-based biological control programs.
    (5) Actions that would introduce chemical pesticides into the pine 
rockland and associated rockland hammock ecosystem in a manner that 
impacts the butterflies. Such activities may include use of adulticides 
for control of mosquitos or agricultural-related pests.

Exemptions

Application of Section 4(a)(3) of the Act

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that: ``The Secretary shall not designate as critical habitat 
any lands or other geographic areas owned or controlled by the 
Department of Defense, or designated for its use, that are subject to 
an INRMP prepared under section 101 of the Sikes Act (16 U.S.C. 670a), 
if the Secretary determines in writing that such plan provides a 
benefit to the species for which critical habitat is proposed for 
designation.'' There are Department of Defense lands within the 
critical habitat designation area; however, none of the lands are 
covered by an INRMP. Accordingly, no lands that otherwise meet the 
definition of critical habitat are exempt under section 4(a)(3)(B)(i).

Exclusions

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making that determination, the statute on its face, as well 
as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor.
    Under section 4(b)(2) of the Act, we may exclude an area from 
designated critical habitat based on economic impacts, impacts on 
national security, or any other relevant impacts. In considering 
whether to exclude a particular area from the designation, we identify 
the benefits of including the area in the designation, identify the 
benefits of excluding the area from the designation, and evaluate 
whether the benefits of exclusion outweigh the benefits of inclusion. 
If the analysis indicates that the benefits of exclusion outweigh the 
benefits of inclusion, the Secretary may exercise his discretion to 
exclude the area only if such exclusion would not result in the 
extinction of the species.

Exclusions Based on Economic Impacts

    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we are preparing an analysis of economic 
impacts of the proposed critical habitat designation and related 
factors. The draft economic analysis will be made available for public 
comment.
    During the development of a final designation, we will consider 
economic impacts based on information in our economic analysis, public 
comments, and other new information, and areas

[[Page 49850]]

may be excluded from the final critical habitat designation under 
section 4(b)(2) of the Act and our implementing regulations at 50 CFR 
424.19.

Exclusions Based on National Security Impacts

    Under section 4(b)(2) of the Act, we consider whether there are 
lands where a national security impact might exist. In preparing this 
proposal, we have determined that some lands within the proposed 
designation of critical habitat for the Florida leafwing and Bartram's 
scrub-hairstreak are owned or managed by the Department of Defense and 
the Department of Homeland Security. However, we anticipate no impact 
on national security. Consequently, the Secretary is not intending to 
exercise her discretion to exclude any areas from the final designation 
based on impacts on national security.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors, including whether the 
landowners have developed any HCPs or other management plans for the 
area, or whether there are conservation partnerships that would be 
encouraged by designation of, or exclusion from, critical habitat. In 
addition, we look at any tribal issues, and consider the government-to-
government relationship of the United States with tribal entities. We 
also consider any social impacts that might occur because of the 
designation.
    In preparing this proposed rule, we have determined that there are 
currently no HCPs or other management plans for the Florida leafwing 
and Bartram's scrub-hairstreak. An HCP for Big Pine and No Name Keys in 
Monroe County, Florida, which was implemented in 2006, did not address 
the Florida leafwing and Bartram's scrub-hairstreak. However, in order 
to fulfill the HCP's mitigation requirements Monroe County has been 
actively acquiring parcels of high-quality pine rockland and placing 
them into conservation. These conservation actions have benefited the 
Florida leafwing and Bartram's scrub-hairstreak by protecting habitat. 
However, we anticipate no impact on the HCP from this proposed critical 
habitat designation. Furthermore, the proposed designation does not 
include any tribal lands or additional trust resources so we anticipate 
no impact on tribal lands or partnerships from this proposed critical 
habitat designation. Accordingly, the Secretary does not intend to 
exercise his discretion to exclude any areas from the final designation 
based on other relevant impacts.

Peer Review

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of peer review is to ensure 
that our proposed listing and critical habitat designation are based on 
scientifically sound data, assumptions, and analyses. We have invited 
these peer reviewers to comment during this public comment period.
    We will consider all comments and information received during this 
comment period on this proposed rule during our preparation of a final 
determination. Accordingly, the final decision may differ from this 
proposal.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs in the Office of Management and Budget will review 
all significant rules. The Office of Information and Regulatory Affairs 
has determined that this rule is not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. Executive Order 13563 emphasizes 
further that regulations must be based on the best available science 
and that the rulemaking process must allow for public participation and 
an open exchange of ideas. We have developed this rule in a manner 
consistent with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include such businesses as manufacturing and mining concerns with fewer 
than 500 employees, wholesale trade entities with fewer than 100 
employees, retail and service businesses with less than $5 million in 
annual sales, general and heavy construction businesses with less than 
$27.5 million in annual business, special trade contractors doing less 
than $11.5 million in annual business, and forestry and logging 
operations with fewer than 500 employees and annual business less than 
$7 million. To determine whether small entities may be affected, we 
will consider the types of activities that might trigger regulatory 
impacts under this designation as well as types of project 
modifications that may result. In general, the term ``significant 
economic impact'' is meant to apply to a typical small business firm's 
business operations.
    Importantly, the incremental impacts of a rule must be both 
significant and substantial to prevent certification of the rule under 
the RFA and to require the preparation of an initial regulatory 
flexibility analysis. If a substantial number of small entities are 
affected by the proposed critical habitat designation, but the per-
entity economic impact is not significant, the Service may certify. 
Likewise, if the per-entity economic impact is likely to be 
significant, but the number of affected entities is not substantial, 
the Service may also certify.
    Under the RFA, as amended, and following recent court decisions, 
Federal agencies are required to evaluate the potential incremental 
impacts of rulemaking only on those

[[Page 49851]]

entities directly regulated by the rulemaking itself, and not the 
potential impacts to indirectly affected entities. The regulatory 
mechanism through which critical habitat protections are realized is 
section 7 of the Act, which requires Federal agencies, in consultation 
with the Service, to ensure that any action authorized, funded, or 
carried by the Agency is not likely to adversely modify critical 
habitat. Therefore, only Federal action agencies are directly subject 
to the specific regulatory requirement (avoiding destruction and 
adverse modification) imposed by critical habitat designation. Under 
these circumstances, it is our position that only Federal action 
agencies will be directly regulated by this designation. Therefore, 
because Federal agencies are not small entities, the Service may 
certify that the proposed critical habitat rule will not have a 
significant economic impact on a substantial number of small entities.
    We acknowledge, however, that in some cases, third-party proponents 
of the action subject to permitting or funding may participate in a 
section 7 consultation, and thus may be indirectly affected. We believe 
it is good policy to assess these impacts if we have sufficient data 
before us to complete the necessary analysis, whether or not this 
analysis is strictly required by the RFA. While this regulation does 
not directly regulate these entities, in our draft economic analysis we 
will conduct a brief evaluation of the potential number of third 
parties participating in consultations on an annual basis in order to 
ensure a more complete examination of the incremental effects of this 
proposed rule in the context of the RFA.
    In conclusion, we believe that, based on our interpretation of 
directly regulated entities under the RFA and relevant case law, this 
designation of critical habitat will only directly regulate Federal 
agencies which are not by definition small business entities. And as 
such, we certify that, if promulgated, this designation of critical 
habitat would not have a significant economic impact on a substantial 
number of small business entities. Therefore, an initial regulatory 
flexibility analysis is not required. However, though not necessarily 
required by the RFA, in our draft economic analysis for this proposal 
we will consider and evaluate the potential effects to third parties 
that may be involved with consultations with Federal action agencies 
related to this action.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. We do not expect the designation of this proposed 
critical habitat to significantly affect energy supplies, distribution, 
or use. Therefore, this action is not a significant energy action, and 
no Statement of Energy Effects is required. However, we will further 
evaluate this issue as we conduct our economic analysis, and review and 
revise this assessment as warranted.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This proposed rule would not produce a Federal mandate. In 
general, a Federal mandate is a provision in legislation, statute, or 
regulation that would impose an enforceable duty upon State, local, or 
tribal governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We lack the available economic information to determine if a 
Small Government Agency Plan is required. Therefore, we defer this 
finding until completion of the draft economic analysis is prepared 
under section 4(b)(2) of the Act.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), this rule is not anticipated to have significant takings 
implications. As discussed above, the designation of critical habitat 
affects only Federal actions. Critical habitat designation does not 
affect landowner actions that do not require Federal funding or 
permits, nor does it preclude development of habitat conservation 
programs or issuance of incidental take permits to permit actions that 
do require Federal funding or permits to go forward. Due to current 
public knowledge of the species protections and the prohibition against 
take of the species both within and outside of the proposed areas we do 
not anticipate that property values will be affected by the critical 
habitat designation. However, we have not yet completed the economic 
analysis for this proposed rule. Once the economic analysis is 
available, we will review and revise this preliminary assessment as 
warranted, and prepare a Takings Implication Assessment.

[[Page 49852]]

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this 
proposed rule does not have significant Federalism effects. A 
Federalism assessment is not required. In keeping with Department of 
the Interior and Department of Commerce policy, we requested 
information from, and coordinated development of, this proposed 
critical habitat designation with appropriate State resource agencies 
in Florida. From a federalism perspective, the designation of critical 
habitat directly affects only the responsibilities of Federal agencies. 
The Act imposes no other duties with respect to critical habitat, 
either for States and local governments, or for anyone else. As a 
result, the rule does not have substantial direct effects either on the 
States, or on the relationship between the national government and the 
States, or on the distribution of powers and responsibilities among the 
various levels of government. The designation may have some benefit to 
these governments because the areas that contain the features essential 
to the conservation of the species are more clearly defined, and the 
physical and biological features of the habitat necessary to the 
conservation of the species are specifically identified. This 
information does not alter where and what federally sponsored 
activities may occur. However, it may assist these local governments in 
long-range planning (because these governments no longer have to wait 
for case-by-case section 7 consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have proposed designating 
critical habitat in accordance with the provisions of the Act. To 
assist the public in understanding the habitat needs of the species, 
the rule identifies the elements of physical or biological features 
essential to the conservation of the species. The designated areas of 
critical habitat are presented on maps, and the rule provides several 
options for the interested public to obtain more detailed location 
information, if desired.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA: 42 U.S.C. 4321 et seq.) in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes.
    We determined that there are no tribal lands that are currently 
occupied by the Florida leafwing and Bartram's scrub-hairstreak that 
contain the features essential for conservation of these subspecies, 
and no tribal lands unoccupied by the Florida leafwing and Bartram's 
scrub-hairstreak that are essential for the conservation of these 
subspecies. Therefore, we are not proposing to designate critical 
habitat for the Florida leafwing and Bartram's scrub-hairstreak on 
tribal lands.

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

References Cited

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

Authors

    The primary authors of this package are the staff members of the 
South Florida Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

[[Page 49853]]

PART 17-- ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245; unless 
otherwise noted.

0
2. In Sec.  17.95, amend paragraph (i) by adding an entry for 
``Bartram's Scrub-hairstreak Butterfly (Strymon acis bartrami)'' after 
the entry for ``Valley Elderberry Longhorn Beetle (Desmocerus 
californicus dimorphus)'' and an entry for ``Florida Leafwing Butterfly 
(Anaea troglodyta floridalis)'' after the entry for ``Fender's Blue 
Butterfly (Icaricia icarioides fenderi)'' to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (i) Insects.
* * * * *
Bartram's Scrub-hairstreak Butterfly (Strymon acis bartrami)
    (1) Critical habitat units are depicted for Miami-Dade and Monroe 
Counties, Florida, on the maps below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of the 
Bartram's scrub-hairstreak are:
    (i) Areas of pine rockland habitat, and in some instances, 
associated rockland hammocks.
    (A) Pine rockland habitat contains:
    (1) Open canopy, semi-open subcanopy, and understory
    (2) Substrate of oolitic limestone rock.
    (3) A plant community of predominately native vegetation.
    (B) Rockland hammock habitat associated with the pine rocklands 
contains:
    (1) Canopy gaps and edges with an open to semi-open canopy, 
subcanopy, and understory.
    (2) Substrate with a thin layer of highly organic soil covering 
limestone or organic matter that accumulates on top of the underlying 
limestone rock.
    (3) A plant community of predominately native vegetation.
    (ii) Competitive nonnative plant species in quantities low enough 
to have minimal effect on survival of Bartram's scrub-hairstreak 
butterfly.
    (iii) The presence of the butterfly's hostplant, pineland croton, 
in sufficient abundance for larval recruitment, development, and food 
resources, and for adult butterfly nectar source and reproduction;
    (iv) A dynamic natural disturbance regime or one that artificially 
duplicates natural ecological processes (e.g. fire, hurricanes or other 
weather events) that maintains the pine rockland habitat and associated 
plant community.
    (v) Pine rockland habitat and associated plant community that allow 
for connectivity and are sufficient in size to sustain viable 
populations of Bartram's scrub hairstreak butterfly.
    (vi) Pine rockland habitat with levels of pesticide low enough to 
have minimal effect on the survival of the butterfly or its ability to 
occupy the habitat.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of this rule.
    (4) Critical habitat map units. Unit maps were developed using ESRI 
ArcGIS mapping software along with various spatial data layers. ArcGIS 
was also used to calculate the size of habitat areas. The projection 
used in mapping and calculating distances and locations within the 
units was North American Albers Equal Area Conic, NAD 83. The maps in 
this entry, as modified by any accompanying regulatory text, establish 
the boundaries of the critical habitat designation. The coordinates or 
plot points or both on which each map is based are available to the 
public at the Service's internet site (http://www.fws.gov/verobeach/), 
the Federal eRulemaking Portal (http://www.regulations.gov at Docket 
No. FWS-R4-ES-2013-0031 and at the field office responsible for this 
designation. You may obtain field office location information by 
contacting one of the Service regional offices, the addresses of which 
are listed at 50 CFR 2.2.
    (5) Note: Index map of all critical habitat units for Bartram's 
scrub-hairstreak follows:
BILLING CODE 4310-55-P

[[Page 49854]]

[GRAPHIC] [TIFF OMITTED] TP15AU13.006

    (6) Note: Unit BSHB1: Everglades National Park, Miami-Dade County, 
Florida.
    (i) General description: Unit BSHB1 consists of 2,313 ha (5,716 ac) 
in Miami-Dade County and is composed entirely of lands in Federal 
ownership, 100 percent of which are located within the Long Pine Key 
region of Everglades National Park.
    (ii) Index map of Unit BSHB1 follows:

[[Page 49855]]

[GRAPHIC] [TIFF OMITTED] TP15AU13.007

    (A) Map A of Unit BSHB1: Everglades National Park, Miami-Dade 
County, Florida follows:

[[Page 49856]]

[GRAPHIC] [TIFF OMITTED] TP15AU13.008

    (B) Map B of Unit BSHB1: Everglades National Park, Miami-Dade 
County, Florida follows:

[[Page 49857]]

[GRAPHIC] [TIFF OMITTED] TP15AU13.009

    (C) Map C of Unit BSHB1: Everglades National Park, Miami-Dade 
County, Florida follows:

[[Page 49858]]

[GRAPHIC] [TIFF OMITTED] TP15AU13.010

    (7) Unit BSHB2: Navy Wells Pineland Preserve, Miami-Dade County, 
Florida.
    (i) General description: Unit BSHB2 consists of 203 ha (502 ac) in 
Miami-Dade County and is composed of lands in State (62 ha (153 ac)), 
and private or other ownership (141 ha (349 ac)) including the County 
and State-owned Navy Wells Pineland Preserve.
    (ii) Map of Unit BSHB2 follows:

[[Page 49859]]

[GRAPHIC] [TIFF OMITTED] TP15AU13.011

    (8) Unit BSHB3: Camp Owaissa Bauer, Miami-Dade County, Florida.
    (i) General Description: Unit BSHB3 consists of 146 ha (9359 ac)) 
in Miami-Dade County and is comprised of lands in State (29 ha (71 
ac)), private or other ownership (117 ha (288 ac)) including 40 ha (99 
ac) Miami-Dade County-owned Camp Owaissa Bauer.
    (ii) Map of Unit BSHB3 follows:

[[Page 49860]]

[GRAPHIC] [TIFF OMITTED] TP15AU13.012

BILLING CODE 4310-55-C
    (9) Unit BSHB4: Richmond Pine Rocklands, Miami-Dade County, 
Florida.
    (i) General Description: Unit BSHB4 consists of 438 ha (1,082 ac) 
in Miami-Dade County and is composed of lands in Federal (U.S. Coast 
Guard, U.S. Army Corps of Engineers, Federal Bureau of Prisons, and 
National Oceanic and Atmospheric Administration (50 ha (122 ac)), State 
(32 ha (79 ac)) and private or other (356 ha (881 ac)) ownership.
    (ii) Index map of Unit BSHB4 follows:

[[Page 49861]]

[GRAPHIC] [TIFF OMITTED] TP15AU13.013

    (A) Map A of Unit BSHB4: Richmond Pine Rocklands, Miami-Dade 
County, Florida follows:

[[Page 49862]]

[GRAPHIC] [TIFF OMITTED] TP15AU13.014

    (B) Map B of Unit BSHB4: Richmond Pine Rocklands, Miami-Dade 
County, Florida follows:

[[Page 49863]]

[GRAPHIC] [TIFF OMITTED] TP15AU13.015


[[Page 49864]]


    (10) Unit BSHB5: Big Pine Key, Monroe County, Florida.
    (i) General description: Unit BSHB5 consists of 559 ha (1,382 ac) 
in Monroe County and is composed of lands in National Key Deer Refuge 
(365 ha (901 ac)), State ownership (90 ha (223 ac)), and private or 
other ownership (104 ha (258 ac)). State lands are interspersed within 
NKDR lands and managed as part of the Refuge.
    (ii) Index Map of Unit BSHB5: follows:
    [GRAPHIC] [TIFF OMITTED] TP15AU13.016
    

[[Page 49865]]


    (A) Map A of Unit BSHB5: Big Pine Key, Monroe County, Florida 
follows:
[GRAPHIC] [TIFF OMITTED] TP15AU13.017


[[Page 49866]]


    (B) Map B of Unit BSHB5: Big Pine Key, Monroe County, Florida 
follows:
[GRAPHIC] [TIFF OMITTED] TP15AU13.018


[[Page 49867]]


    (11) Unit BSHB6: No Name Key, Monroe County, Florida.
    (i) General Description: Unit BSHB6 consists of 50 ha (123 ac) in 
Monroe County and is composed of lands in National Key Deer Refuge (30 
ha (75 ac)), State ownership (9 ha (22 ac)), and private or other 
ownership (11 ha (26 ac)). State lands are interspersed within NKDR 
lands and managed as part of the Refuge.
    (ii) Map of Unit BSHB6: No Name Key, Monroe County, Florida 
follows:
[GRAPHIC] [TIFF OMITTED] TP15AU13.019


[[Page 49868]]


    (12) Unit BSHB 7: Little Pine Key, Monroe County, Florida.
    (i) General Description: Unit BSHB7 consists of 39 ha (97 ac) in 
Monroe County. This unit is composed entirely of lands in Federal 
ownership, 100 percent of which are located within National Key Deer 
Refuge.
    (ii) Map of Unit BSHB7: Little Pine Key, Monroe County, Florida 
follows:
[GRAPHIC] [TIFF OMITTED] TP15AU13.020

* * * * *
Florida Leafwing Butterfly (Anaea troglodyta floridalis)
    (1) Critical habitat units are depicted for Miami-Dade and Monroe 
Counties, Florida, on the maps below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of the 
Florida leafwing butterfly consist of six components:
    (i) Areas of pine rockland habitat, and in some locations, 
associated rockland hammocks.
    (A) Pine rockland habitat contains:
    (1) Open canopy, semi-open subcanopy, and understory.
    (2) Substrate of oolitic limestone rock.
    (3) A plant community of predominately native vegetation.
    (B) Rockland hammock habitat associated with the pine rocklands 
contains:
    (1) Canopy gaps and edges with an open to semi-open canopy, 
subcanopy, and understory.
    (2) Substrate with a thin layer of highly organic soil covering 
limestone or organic matter that accumulates on top of the underlying 
limestone rock.
    (3) A plant community of predominately native vegetation.
    (ii) Competitive nonnative plant species in quantities low enough 
to have minimal effect on survival of the Florida leafwing.
    (iii) The presence of the butterfly's hostplant, pineland croton, 
in sufficient abundance for larval recruitment, development, and food 
resources and for adult butterfly roosting habitat and reproduction.
    (iv) A dynamic natural disturbance regime or one that artificially 
duplicates natural ecological processes (e.g. fire, hurricanes or other 
weather events, at 3- to 5-year intervals) that maintains the pine 
rockland habitat and associated plant community.
    (v) Pine rockland habitat and associated plant community sufficient

[[Page 49869]]

in size to sustain viable Florida leafwing populations.
    (vi) Pine rockland habitat with levels of pesticide low enough to 
have minimal effect on the survival of the butterfly or its ability to 
occupy the habitat.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of this rule.
    (4) Critical habitat map units. Unit maps were developed using ESRI 
ArcGIS mapping software along with various spatial data layers. ArcGIS 
was also used to calculate the size of habitat areas. The projection 
used in mapping and calculating distances and locations within the 
units was North American Albers Equal Area Conic, NAD 83. The maps in 
this entry, as modified by any accompanying regulatory text, establish 
the boundaries of the critical habitat designation. The coordinates or 
plot points or both on which each map is based are available to the 
public at the Service's internet site (http://www.fws.gov/verobeach), 
the Federal eRulemaking Portal (http://www.regulations.gov at Docket 
No. FWS-R4-ES-2013-0031), and at the field office responsible for this 
designation. You may obtain field office location information by 
contacting one of the Service regional offices, the addresses of which 
are listed at 50 CFR 2.2.
    (5) Note: Index map of all critical habitat units for Florida 
leafwing follows:
[GRAPHIC] [TIFF OMITTED] TP15AU13.021


[[Page 49870]]


    (6) Unit FLB1: Everglades National Park, Miami-Dade County, 
Florida.
    (i) General Description: Unit FLB1 consists of 2,313 ha (5,716 ac) 
composed entirely of lands in Federal ownership, 100 percent of which 
are located within the Long Pine Key region of Everglades National 
Park.
    (ii) Index map of Unit FLB1 follows:
    [GRAPHIC] [TIFF OMITTED] TP15AU13.022
    

[[Page 49871]]


    (A) Map A of Unit FLB1: Everglades National Park, Miami-Dade 
County, Florida, follows:
[GRAPHIC] [TIFF OMITTED] TP15AU13.023


[[Page 49872]]


    (B) Map B of Unit FLB1: Everglades National Park, Miami-Dade 
County, Florida, follows:
[GRAPHIC] [TIFF OMITTED] TP15AU13.024


[[Page 49873]]


    (C) Map C of Unit FLB1: Everglades National Park, Miami-Dade 
County, Florida, follows:
[GRAPHIC] [TIFF OMITTED] TP15AU13.025

    (7) Unit FLB2: Navy Wells Pineland Preserve, Miami-Dade County, 
Florida.
    (i) General description: Unit FLB2 consists of 120 ha (296 ac) in 
Miami-Dade County composed entirely of lands in Miami-Dade County 
ownership, 100 percent of which are located within the Navy Wells 
Pineland Preserve.
    (ii) Index map of Unit FLB2 follows:

[[Page 49874]]

[GRAPHIC] [TIFF OMITTED] TP15AU13.026

    (8) Unit FLB3: Richmond Pine Rocklands, Miami-Dade County, Florida.
    (i) General Description: Unit FLB3 consists of 359 ha (889 ac) in 
Miami-Dade County composed of lands in Federal (U.S. Coast Guard, U.S. 
Army Corps of Engineers, Federal Bureau of Prisons, and National 
Oceanic and Atmospheric Administration) (50 ha (122 ac)) and private or 
other (309 ha (767 ac)) ownership.
    (ii) Index map of Unit FLB3 follows:

[[Page 49875]]

[GRAPHIC] [TIFF OMITTED] TP15AU13.027

    (9) Unit FLB4: Big Pine Key, Monroe County, Florida.
    (i) General Description: Unit FLB4 consists of 559 ha (1,382 ac) in 
Monroe County composed of National Key Deer Refuge (365 ha (901 ac)), 
State lands (90 ha (223 ac)), and property in private or other 
ownership (104 ha (258 ac)). State lands are interspersed within NKDR 
lands and managed as part of the Refuge.
    (ii) Index map of Unit FLB4 follows:

[[Page 49876]]

[GRAPHIC] [TIFF OMITTED] TP15AU13.028

    (A) Note: Map A of Unit FLB4: Big Pine Key, Monroe County, Florida, 
follows:

[[Page 49877]]

[GRAPHIC] [TIFF OMITTED] TP15AU13.029

    (B) Note: Map B of Unit FLB4: Big Pine Key, Monroe County, Florida, 
follows:

[[Page 49878]]

[GRAPHIC] [TIFF OMITTED] TP15AU13.030

* * * * *

    Dated: August 6, 2013.
Michael Bean,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and 
Parks.
[FR Doc. 2013-19793 Filed 8-14-13; 8:45 am]
BILLING CODE 4310-55-C